Mrs. Justice Erum Sajad Gull in her judgment has decided the issue regarding emigration complaint and cognizance of Special Court with sanction of Federal Government in Writ Petition No. 17818 of 2009.
1. Through this writ petition, petitioner has impugned the order dated 26.08.2009 passed by the learned Special Judge Central, Faisalabad whereby the cancelation report moved by the FIA in case FIR No.65 dated 07.05.2007 registered under sections 17/22 of the Emigration Ordinance, 1979 at Police Station FIA, Faisalabad was not agreed upon. It has been further prayed in this writ petition that the aforementioned FIR may also be quashed.
2. Learned counsel for the petitioner has argued that the said order is illegal and be set-aside; that the FIR is a counterblast to the application filed by the petitioner against the brother of respondent No.5 who is an Ahlmad in the civil courts; that respondent No.5 himself travelled to Malaysia on 08.06.2003 and returned back to Pakistan on 22.11.2005; that the petitioner since 21.11.2002 resided in Malaysia and returned to Pakistan on 26.03.2005 when his father fell unwell; that the petitioner was declared innocent in this case by the police; that as it is case of no evidence therefore a cancellation report was prepared in this case; that continuing with trial would be a futile exercise hence this writ petition be accepted.
3. The learned counsel for respondent No.5 has argued that after formal inquiry by the FIA, the FIR was registered and subsequently the report under section 173 Cr.P.C. was submitted before the learned trial court on 20.05.2009; that there is no illegality in the order impugned and the same be upheld.
4. The learned Standing Counsel has argued that the order impugned is a legal order hence, this writ petition be dismissed.
5. Arguments have been heard and the available record has been perused.
6. The petitioner is the nominated accused in the FIR No. 65 dated 07-05-2007 whereas respondent No.5 Ghulam Hussain Bukhari is the complainant of the said FIR. The Inspector, Federal Investigation Agency Police Station SIU Islamabad on 20-05-09 submitted a report under section 173 Cr.P.C before the respondent No.1, learned Special Judge Central, Faisalabad for the cancellation of the aforementioned FIR but the learned Special Judge, Faisalabad did not agree with the said cancellation report and ordered on 26.08.2009 that the trial should be proceeded with.
7. The offences under which the FIR has been registered are section 17 and section 22 of The Emigration Ordinance 1979. The offences under this Ordinance are included in the Schedule of the FIA Act 1974, therefore only the FIA is authorized to conduct an inquiry in these cases. On perusal of section 22 of The Emigration Ordinance, 1979 it is evident that only an allegation of fraudulently receiving money from someone with a promise to provide him employment abroad will not attract the offence under section 22 of The Emigration Ordinance 1979, in the absence of substantive evidence that the proposed accused is in the business of overseas employment. This could at the most attract the offences under section 420 PPC or section 406 PPC, triable by a Magistrate but not triable by the Special Judge. And if the ingredients of the criminal breach of trust or fraud are not proved then a civil liability would be created. Reliance is placed upon “Mrs. Surayya Farman versus The State” [1998 PCr.LJ 958 (Lahore)].
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