1988 P Cr (PLP)

The applicant Najmuddin Ahmed Jamali was convicted under sections 3(6) and 4 of the Pakistan Control of Entry (Act LV of 1952) and sentenced to undergo imprisonment till rising of the Court and to pay a fine of Rs.400, in default, to undergo imprisonment for two months, by the learned Magistrate first class, Court No. IX (South), Karachi, by judgment, dated 25‑5‑1978. The appeal against his conviction and sentence before the learned Court of Sessions (West) Karachi was dismissed vide judgment, dated 31‑8‑1987 passed by the learned IIIrd Additional Sessions Judge (West), Karachi and the conviction and sentence passed by the learned trial Court were upheld, and hence this revision application. According to the case of the prosecution applicant Najmuddin Ahmed Jamali had entered into Pakistan on an Indian Passport on 8‑5‑1958. His visa for stay in Pakistan was valid for two months only from the date of his entry into Pakistan. However, his stay in Pakistan was extended twice by the Secretary to the Chief Commissioner, Karachi and finally he was ordered to leave the country before 23‑8‑1960. However, without seeking further extension of visa, the applicant stayed in Pakistan illegally and without any valid documents and went underground. It is then alleged that the applicant had a tenancy dispute with one S.I.P. Safdar Alam of F.I.A. and in this connection an enquiry was held by Inspector Mohammad Ashraf Moghal who was posted at Police Station Liaquatabad. During the course of the enquiry it transpired that the applicant had actually entered into Pakistan on an Indian Passport. As the applicant could not produce any certificate of Pakistan citizenship, the matter was reported to the Liaquatabad Police Station, Karachi and a case under sections 3(6) and 4 of the Pakistan Control of Entry Act, 1952 was registered against the applicant. After investigation of the case the applicant was challaned in the Court and convicted and sentenced as pointed out above. I have heard Mr. Amir Ahmed Khan, learned counsel for the applicant only as none has appeared on behalf of the State in spite of notice. The only contention raised before this Court by the learned counsel for the applicant is that, the offence allegedly committed by the applicant was non‑cognizable in view of section 6 of the Pakistan Control of Entry Act as only certain officers specified therein if duly empowered, can arrest a person accused of an offence under the aforesaid Act without a warrant and since the applicant was arrested by a person who admittedly had not been so empowered by any general or special order of the Federal Government or of any Provincial Government, the entire proceedings against the applicant were illegal and without jurisdiction. A perusal of the provisions of the aforesaid Act indicates that the Act provides for controlling the entry of Indian citizens into Pakistan. Section 3(1) of the Act provides that no Indian citizen shall, unless exempted by a provision made under this Act, enter any part of Pakistan unless he is in possession of a passport with a visa authorising the entry. Subsection (6) of section 3 further provides that no Indian citizen having entered any part of Pakistan and being in possession of a valid passport duly visased for Pakistan shall remain therein after the expiry of the period or stay authorised in the visa unless it is extended or renewed by any authority to be specified in the rule made under this Act. Section 4 of the Act then further makes the contravention of any of the provisions of section 3 of the Act punishable with imprisonment which may extend to one year or with a fine which may extend to Rs.1,000 or with both. Section 6 which is most important for the purpose of the present controversy then provides as follows:‑

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6. Power to arrest.‑‑(1) Any police officer, customs officer, or other officer empowered in this behalf by a general or special order of the Federal Government or of a Provincial Government or of the Government of an acceding State or under a rule made under this Act, may arrest without a warrant any person who such officer reasonably suspects of having contravened any of the provision of section 3. (2) An officer making an arrest under this section shall, without unnecessary delay, take the person arrested or cause him to be taken before a competent Magistrate having jurisdiction in the place where the arrest is made, or to the officer‑in‑charge of a police station within whose jurisdiction the arrest in made, and the provisions of the Code of Criminal Procedure (V of 1898), or, when the arrest is made in a State, of the corresponding law for the time being in force in that State shall, so far as may be, apply in respect of such arrested person." A plain reading of section 6 indicates that the offences specified under the Act are non‑cognizable and no person can be arrested without a warrant for committing an offence under the Act by any person unless he is a person specified in the section who has been by a general or special order of the Federal Government or of a Provincial Government specially empowered in this behalf. Admittedly, the applicant in the present case was not arrested by any such officer referred to above. In Muhammad Yaqoob v. The State 1978 PCr.LJ 812, the accused had been arrested and proceeded against under the provisions of the Federal Investigation Agency (Act VIII of 1974) when all offences under the Act were non‑cognizable and any investigation into the case filed under the Act required permission from a Magistrate. It was held by this Court that the entire investigation held by the F.I.A. without obtaining the Magistrate's permission was a nullity in the eyes of law and a charge‑sheet submitted under section 173, Cr.P.C. could not even be treated as a complaint as defined under section 4(1)(h) of Criminal Procedure Code. Mr. Amir Ahmed Khan has invited my attention to two other cases, both decided by this Court, wherein similar view has been taken. The first is a Division Bench judgment reported as State v. Muhammad Sarwar and 5 others 1981 P Cr. L J 1008. In this case the Division Bench refused to interfere with a judgment of acquittal in the case for the reason that the person who arrested the accused in the case had not been authorised in accordance with section 6 of the aforesaid Act LV of 1952. In the second case, which is reported as Nooruddin v. The State 1983 P Cr. L J 889, once again a similar view was taken. Although I have not had the advantage of hearing the State counsel in this case but I am certain that if the State was represented the counsel appearing on its behalf would have found it difficult to meet the case of the applicant. The upshot of this discussion is that, the revision is allowed and the conviction and the sentence passed against the applicant are set aside. The fine, if paid by the applicant may be refunded to him. M . Y . H . /N‑75/ K Petition allowed.