P L D 1978 Karachi 723 (PLP)

This is a petition under section 561‑A, Cr. P. C. for quashment of the proceedings of a criminal case sent up by the F. I. A. against the petitioner for offence under section 4 (1)(b), Passports Act, 1974. It is the case of the prosecution that petitioner Muhammad Yaqoob travelled to Dubai from Pakistan by a launch without a valid passport. He was detected at Dubai and deported back to Pakistan. He was then arrested by the F. I. A. Crime Police of the Government of Pakistan and a case under section 4(1) (a), Passport Act was registered against the petitioner on 19‑3‑1975 by Assistant Director, F. I. A., Crime, Karachi on behalf of the State. A charge‑sheet was then submitted against the petitioner for the same offence on 2‑4‑1975 in the Court of S. D. M., Civil Lines, Karachi.

3. Mr. Muhammad Ali Shaikh on behalf of the petitioner has raised a legal plea that under section 7(1) of the Passports Act, 1974 only a qualified power 'of arrest is given to the Police for offences under the Passports Act; that the investigation conducted by the F. I. A. in this non‑cognizable case without permission of a Magistrate under section 155(2) of the Criminal Procedure Code is accordingly a nullity in the eye of law and the charge‑sheet submitted under section 173, Cr. P. C. cannot be treated as complaint under section 4(1) (h), Cr. P. C. and the proceedings being illegal are, therefore, liable to be quashed.

4. Section 7 of the Passports Act provides; "That any police officer not below the rank of a Sub‑Inspector, may arrest without warrant, any person who has contravened or against whom a reasonable suspicion exists that he has contravened any provision of this Act." Under subsection (4), "the officer making arrest under this section shall, within a period of 24 hours of such arrest send the person arrested, before a Magistrate or before the Officer‑in‑Charge of nearest police station and the provisions of the Cr. P. C. applicable in respect of a person who having been arrested without warrant shall then apply to him". Under section 4(1) (f), Cr. P. C. "a cognizable offence means a case in which a police officer may, in accordance with the Second Schedule or under any law for the time being in force arrest without warrant." A non‑cognizable offence under sub clause (m) is defined to be a case in which a police officer may not arrest without warrant.

5. It has been contended by Mr. Muhammad Ali Shaikh that since only an officer of the rank of Sub‑Inspector of Police has been authorised to arrest an offender under the Passports Act without warrant, the power of arrest is thus qualified and the case is, therefore, non‑cognizable. That under section 54, Cr. P. C. any police officer may, without an order from a Magistrate and without a warrant, arrest any person who has been concerned in any cognizable offence. If a person cannot be arrested under section 54, then the qualified power of arrest under any other law will not make a case cognizable. The learned Advocate has cited decisions on this point in respect of cases under the Prostitution Act and the Gambling Act. In Mst. Mumtaz Begum and 4 others v. The State (1968 P Cr. L J 97) it was observed by Sardar Muhammad Iqbal, J. that a qualified power of arrest given to certain police officers for certain offences does not render these offences cognisable within the meaning of section 4(1) (f), Cr. P. C. This observation was based on a case Htwan Htian v. King‑Emperor (I L R 13 Rang: 130). It was accordingly held that since a qualified power of arrest given to certain police officers under section 13 of the Ordinance excluded the general power of arrest by the Police Officer, the Legislature obviously did not intend that these offences should be cognizable offences‑offences under the West Pakistan Suppression of Prostitution Ordi nance, 1961 were, therefore, not cognizable offences. That since no permission of a Magistrate had been obtained for investigation the entire investigation was a nullity and could not be the basis of a report. That the cognizance of a Magistrate of such report, was, therefore, illegal. The other case referred in the point is Haji Mahmood Khan v. Emperor (A I R 1942 Sind 196). It was observed in that case by Davis, C. J. that special provisions of the Act (Gambling Act) are designed to exclude the general powers of arrest generally to be exercised by police Officers. It is a special power of arrest to be exercised in special circumstances subject to certain conditions precedent under special authority by certain police officers and Magistrates. Therefore, the offences under the Act are not cognisable offences within the meaning of section 4(1) (f ), Cr. P. C. The said provisions at the end of Schedule II of the Cr. P. C. support this view. Therefore, an offence under section 5, Bombay Prevention of Gambling Act, is not a cognisable offence; that the arrest and confinement of the person in question by the Sub‑Inspector was, therefore, unlawful. The Sub‑Inspector was accordingly sentenced to imprisonment for one day for wrongful confine ment of the person illegally arrested.

6. It has, on the other hand, been pointed out by Mr. Abdul Sattar Shaikh, Assistant Advocate‑General that although offence under section 4 of the Passports Act is punishable with one year imprisonment and the offence does not, therefore fall within the Schedule of the Criminal Procedure Code, under the column of cognisable offences the punishment prescribed for such offences being three years, but under the Federal Investigation Agency Act, 1974 a provision has been made for investigation of certain offences by the Federal Investigation Agency, namely, offences specified under the Schedule, under section 5, these powers include the powers relating to search, arrest of persons as the police officers of a provincial police have in relation to the investigation of offences under the Cr. P. C. or under any law for the time being inforce. Under the Schedule offences punishable under the Passports Act, 1974 are mentioned at Serial No. 11.

7. It has accordingly been argued by Mr. Abdul Sattar Shaikh that since the F. I. A. have been empowered to investigate offences under the Passports Act, the F. I. A. could register the offences and arrest the persons found liable for such offences and could submit a charge‑sheet in respect of them.

8. The Federal Investigation Agency Act, was, however, promulgated only to empower the federal police to investigate certain offences, as formerly only the provincial police had powers of investigation under the Code of Criminal Procedure. Under this Act it has been provided that in respect of the offences enumerated under the Schedule, the Federal Investigation Agency will exercise the same powers as the provincial police under the Code of Criminal Procedure. It is nowhere mentioned in the Federal Investigation Agency Act, 1974, that the offences specified in the Schedule to that Ac‑ A would be regarded as cognisable offences and F. I. A. could send up a charge sheet in respect of them. Even at present not all the offences mentioned) in the Schedule are being regarded as cognisable offences. Under Serial No. 1 of the Schedule offences punishable under certain sections of the P. P. C. such as 465 to 468, 471‑477‑A continue to be non cognisable and they are mentioned as non‑cognisable offences in the Schedule attached to the Cr. P. C. It is, therefore, clear that offences otherwise non‑cognisable do not become) cognisable, merely because the Federal Investigation Agency can enquire into or investigate such offences. All that has been provided is that a police officer not below the rank of Sub‑Inspector or an Officer of the Customs B empowered by the Federal Government may arrest without warrant any person who has contravened any provision of the Passports Act. An Officer) making arrest is required within 24 hours to produce such person before a Magistrate having jurisdiction in the case or before Officer Incharge of the nearest police station.

9. The very scheme of the Passports Act, 1974 suggests that it was not intended that all offences under the Passport Act should be treated as cognis able offences. Had it been so, nothing would prevent the Legislature from expressly stating in the Act itself that all offences shall be cognisable. Under the Passport Act, however, even a citizen of Pakistan who is of the age of 12 years has been made punishable with imprisonment extending to one year without or with fine or with both under section 4 if he departs from Pakistan a passport or visits a foreign country without a valid passport. Even an `attempt' has been made punishable. Then again in subsection (2) of section 4 a person in whose custody a child under 12 years of age travels without a valid passport has been made liable for the offence and it is further provided that in his case the offence shall be non‑bailable. The offences under section 6 have, however, been made punishable with imprisonment upto three years or with fine or both. Such offences would be cognisable under the Schedule of the Criminal Procedure Code.

10. As already stated, the report of a police officer can never be regarded as a complaint under section 4(1) (h) of the Code as under the definition the report of a police officer is excluded. As observed in the case of Mst. Mumtaz Begum and others v. The State referred to above, under the authority of a decision by the Privy Council, it is a well‑known and settled proposition of law that where a power is given to do a certain thing in a certain manner, the thing must be done in that manner or not all. Other methods of performance of that act are necessarily forbidden. Therefore, the entire investigation in this case without obtaining the permission of a Magistrate became a nullity and could not be the basis of a prosecution. As held in Madden v. Nelson & Fort Sheppard Ry. (1899 A C 626) and Attorney- General of saskato howan v. Attorney General of Canada (AIR 1949 P C 190) "What is, prohibited being done directly cannot be dine indirectly." It was definitely the object of this enactment that persons travelling abroad should not be subjected to unneces sary harassment by the Police. The safeguards were, therefore, provided and if the police contravened these safeguards, the contravention could not be condoned by circumventing the law.

11. Since the proceedings were not validly initiated because there was no complaint made under section 4(L) (h) and because no cognisance could be taken under section 191 (b) the proceedings cannot be allowed to continue. .

12. In the result the petition is allowed and the proceedings are hereby quashed. S. A. H. Petition allowed.