EMIGRATION ORDINANCE,
1979
ORDINANCE XVIII OF 1979
BY: MIAN ASHRAF ASMI
ADVOCATE HIGH COURT
CHAIRMAN HUMAN RIGHTS FRONT INTERNATION
{Gazette of Pakistan ,Extraordinary ,24th March ,1979}
Whereas it
is expedient to repeal and, with certain modifications re-enact the Emigration
Act , 1922 (vii of 1922).
And whereas
the president is satisfied that circumstances exist which render it necessary
to take immediate action .
Now
,therefore in pursuance of the proclamation of the fifth day july 1977 read
with the laws (continuance in force ) order , 1977(CMLA Order no 1of 1977)and
in exercise of all powers enabling them in that behalf ,the president is
pleased to make and promulgate the following ordinance .
Overseas employment promoters recruiting licence .licence not transferable .Licence issued in name of firm
.cannot be renewed or issued in name of
firm differently constituted as would
amount to transfer of licence Amount of security deposited not by or on behalf of firm as constituted at time of
issuance of licence .renewal of licence in circumstances ,held ,rightly
,refused.1984 CLC 1345.
CHAPTER I
PRELIMINARY
1.Short tile
,extent application and commencement ,.(1) This ordinance may be called the
emigration ordinance .1979.
(2)it
extends to the whole of Pakistan
and applies to all citizens of Pakistan
wherever they may be ,.
(3) it shall
come into force at once .
Definitions. In this ordinance ,unless there is
anything repugnant in the subject or context .
(a)
Bureau
means the bureau of emigration and overseas employment .
(b)
Conveyance
means any vehicle ,aircraft or ship used for the transportation of emigrant .
(c)
Corporation
means the overseas employment
corporation limited .
(d)
Depart
and departure means the departure out of Pakistan of any person for employment
or self –employment by any means.
(e)
Dependent
,in relation to an emigrant ,means the spouse sons not above the age of twenty –one
years , and unmarried sisters and daughters of the emigrant , and
includes aged or incapacitated parents , incapacitated sons above the age of
twenty –one years and widowed and
divorced sisters and daughters of the emigrant wholly dependent upon and
residing with the emigrant and the sons not above the age of twenty –one years
and dependent unmarried daughter ,of such widowed or divorced sisters or
daughters .
(f) Director –general means the director
–general bureau of emigration and overseas employment appointed under Section 3, and includes any person for the time being
discharging the function of Director –general .
(g)
Emigrant
means any person who emigrates or has emigrated or who has been registered as
an emigrant under this ordinance and includes any dependent of an emigrant .
(h)
Emigrate
and emigration means the departure by sea ,air or land out of Pakistan of any person for the purpose or with
the intention of working for hire or engaging in any trade profession or
calling in any country beyond the limits of Pakistan .
(i)
Foreign
service agreement means an agreement between an emigrant and his prospective
employer abroad or his authorized overseas employment promoter in Pakistan
containing term and condition of his
employment and duly registered with the prescribed authority .
(j)
Overseas
employment promoter means a person licensed as such under section 12,
(k)
Prescribed
means prescribed by rules
(l)
Protector
of emigrants means a protector of emigrants appointed under section 5.
(m)
Rules
means rules made under this ordinance
(2) in case of any doubt or dispute arising otherwise than in the course
of any proceedings to whether any person in an emigrant with in the meaning of
this ordinance the question shall be determined by the federal government and
such determination shall be final .
COMMENTARY
Allegation made against the accused in the F.I.R was not hit by S17 of
the emigration ordinance 1979 tampering with a passport was not included in the
definition of Depart of emigrate .Accused was already settled in u k and
visiting Pakistan temporarily ,as such the emigration ordinance 1979 as a whole
by virtue of its s 27 was not applicable to his case . inspector of F.I.R.
registered against the accused under s.17 of the emigration ordinance ,1979 was
consequently quashed being without lawful authority and of no legal effect .PLD
2005 Lahore
293.
The line of demarcation between a lease
and a licence is sometimes very
thin .A lease is a transfer of an interest in immovable property .ownership of
physical property consists of a number of rights and the owner of such property when he
creates a lease, transfers of the lessee
a part of the rights of ownership , I e the
right of enjoyment of the property for a period , for consideration ,during the
continuance of the lease the right of enjoyment of the property belongs to the
tenant and not to the landlord .the right of ownership as well as the right of
which it is composed are right in rem
and not in personem and by the lease a right in rem is transferred to the
lessee .On the other hand a licence is merely a competence to do something
which except for this permission would be unlawful PLD 1964 SC 106 .
CHAPTER II
DIRECTOR
–GENERAL AND PROTECTOR OF EMIGRANTS
3.Director –General ,Bureau of
Emigration and overseas Employment---(1) the federal government may appoint a person to be the
Director –General Bureau of emigration and overseas employment for the whole of
Pakistan and such other employees as may be necessary or expedient to assist the
Director –general .
(2) the Director -*General and every other officer appointed under sub-
section (1)shall be a public servant within the meaning of section 21 of the
Pakistan penal Code (Act xlv of 1860)
4.Functions of Director –General . Subject to the provisions of this
ordinance and the overall supervision and control of the federal government the
Director –General shall such measures as
may be necessary .
(a)……………1
(b)to control and regulate such emigration .
(c) to took after the interest and welfare of emigrants, and to
discharge and perform such other duties and functions as may be assigned
to him by the Federal Government .
(4-A Function of Corporation ---- Subject to the provisions of this
Ordinance and the overall supervision and control of the Federal Government
,the Corporation shall take such
measures as may be necessary to promote emigration of citizens of Pakistan .
5.Appointment of protectors of
emigrants .---the federal government may appoint a person to be a protector
of emigrants and
1.ci. (a) omitted by ordinance liv of 1980
2.ins by ordinance liv of 1980
Define the area to whivh the authority of a protector of emigrants so appointed shall
extend.
(2 every protector of emigrants shall be public
servant within the meaning of Pakistan penal
code (ACT XLV of 1860)
6.General duties of protector of emigrants .---every protector of emigrants shall discharge such
duties as may be assigned to hi by the federal Government .
7.Appointment
of labour attaches.—he federal
government may for the purpose of safeguarding the interests of emigrants and
promoting overseas employment ,appoint a person to be a labour attaché ina
place outside Pakistan and may define his duties .
CHAPTER III
EMIGRATION
8.Regulation of emigration.----(1) emigration from Pakistan to all countries of the world for the
time being recognized by Pakistan
shall be lawful if it is in conformity with the provisions of this ordinance
and the rules .
(2)Subject to the provision of this ordinance and the rules and any othe
law for the time being in force ,the emigration of a citizen of Pakistan shall
be lawful if he is in possession of a letter of appointment of a work permit
from a foreign employer or an employment visa or an emigration visa from a
foreign Government or he has been selected for emigration by the foreign
employer through the Director –General or by an overseas Employment promoter or
under an agreement or treaty between the Government of Pakistan and a foreign
Government .
(3)if the federal government ,having regard to the occupation ,profession
,vocation or qualifications of any person or class of person ,is satisfied that
emigration of such person or class o person is not in the public interest, it may by rules reulate emigration
of such person or class of persons , and the departure of such person or class
of persons otherwise than in accordance with such rules shall not be lawful.
(4)The federal government may by notification in the official ,gazette
prohibit from a date and for reasons to be specified in the notification all
person all persons or any specified class of persons from emigrating to all or
any specified country .
CHAPTER IV
GENERAL
9.Prohibiion of advertisement etc. No person other than the corporation
shall recruit a citizen of Pakistan or
issue an advertisement or publish any material or hold any interview or
examination for such recruitment for the purpose of emigration ,except with the
prior permission of the Dircetor
–General or the pro tector of emigrants of the area ,in accordance with such
conditions if any as may be prescribed.
10.Advisory committee.---The
federal government may ,for the purpose of advising the government
,constitute and advisory committee insuch manner as it may think fit ,and may
be prescribe the procedure to be followed and the function to be performed by
such committee.
COMMENTARY
Earlier FIR was lodged by F.I.R. immigration airport at ,I,under Sections
10 and 22 o Emigration Ordinance 1979 with the same facts and on the same
prosecution story .Accused had appeared before the court of special judge central I, where judje called investigating officer
and on statement of prosecutor accused has been found innocent and not involved
in the case . FIR in the present case was registered against accused under
verbal order o deputy directors F.I.R immigration of airport a K case of
prosecution against accused before Special
Court at K
on the same issues would amount to double jeopardy and would be hit by
Art . 13 of constitution .s 26 of general clauses Act , 1897 and s403 Cr P,C proceedings pending against accused before
special judge at K were quashed . 2006 MLD 2725.
11. Power to search and detain
vessels etc.---The
Director –General a protector of emigrants or any officer authorized by the
federal Government may , for the purpose of
preventing the commission of any offence under this ordinance exercise
all the powers conferred on the officers of customs by the custom Act, 19689 (I
of 1969) with regard to the searching and detention of vessels or otherwise for
the prevention o smuggling on board thereof and for this purpose he shall have
the authority to enter any port or point of entry or departure or inspect any
conveyance carrying or bringing or believed to be carrying or bringing any emigrant .
CHAPTER V
APPOINTMENT OF
OVERSEAS EMPLOYMENT PROMOTERS
12. Grant of overseas Employment
promoters licence .---(1) whoever desires to engage or to assist or to recruit any person to
emigrate shall apply for licence to the federal government and shall with his
application furnish such information and document pay such security and fee
end to such time and in such manner as
may be prescribed.
(2) On receiving an application under sub-section (1)the
federal government may after such inquiry as it may deem necessary ,grant the
licence applied for on such terms and condition of any on payment of such fee
and on furnishing such security as may be prescribed or with hold such licence
and the decision of the federal government shall be final.
(3) if at any time during the period for which a licence is valid the
federal government is satisfied after making such inquiry as it may deem necessary that the licensee has been guilty
of misconduct or that his conduct and performance as a licensee has been
otherwise unsatisfactory , or that he
has committed a breach of any of the provisions of this ordinance or the rules
or the prescribed code of conduct ,the federal government may by order in
writing cancel the licence or spend it for a specified period and may also pass
orders in regard to the forfeiture of the security furnished under sub –section
(2)in whole or in part and the decision of the federal government shall be
final.
{(3A) Before an order is passed under sub-section (3)the licensee shall
be afforded an opportunity of being heard }
(4) on the expiry of the period for which the licence is granted , or on being informed by the licensee that he
does not propose to continue to act as an overseas employment promoter and on
being satisfied that no ground exists forfeiting the security in whole or in part the federal government may order
the return of the security ir any part therefore to the person by whom it was
furnished or to his authoried representative .
COMMENTAR Y
Government refusing to renew licence of petitioners/overseas
employment promoters on ground of misconduct. no material however existing on
official record to come to conclusion that petitioners were either guilty of
misconduct or their performance had been unsatisfactory or they had committed
breach of provisions of emigration ordinance or rules made thereunder .final order
refusing to renew licence was passed under rule 9 of emigration rules by
the authority which was not competent to pass final order .such order neither
contained any reasons nor it was a speaking prder ,order refusing to renew
licence of petitioners thus was passed without lawful authority and was
without legal effect –court issued
direction to the effect that application o petitioners for renewal of licence
be treated as pending and decided in accordance with law . 1989 CLC 1247.
Leave to appeal granted to consider the contention that the high court
could not substitute its own discretion in place of discretion of relevant
statutory autyority and order issuance of licence itsel rather than to have
remanded case to concerned authority for a fresh decision in accordance with
law . 1988 SCMR 623.
Respondent on wrong assumption of fact that hight court order contained
directive for grant of licence for passage broker /recruiting agent ,issuing
licence in favour of petitioner ,respondent on finding that there was no such
directive withdrawing same contention that decision for grant of licence once
taken cannon be withdraw subsequently held not correct in circumstances .1984
CLC 1984 .
World or used in s. 12(3) held cannot be
read federal government or its delegate under s. 12 (3) after holding an
enquiry and granting a proper hearing to concerned party passes a final order
and that order can be either for cancellation of licence or its suspension for
a specified period ,federal government or its delegate
1.Added by Act v of 1985….
Held further ,not authorized first to pass an order of suspension for a
speciied period and then later on for same charge /charges pass an order of
cancellation of licence . (interpretation of statutes ) . 1984 CLC 2815.
Overseas employment
promoter s licence grant of refusal of vires of rules. Federal government possesses jurisdiction to
grant or refuse to grant overseas
employment promoter s licence and matter within its sole discretion government
if deciding to grant such licence could impose conditions as prescribed by law
. non –transferability of licence provide under R. 8(5) ,held can be termed as a
condition referred to in s. 12 . hence no inconsistency exist between s . 12
and rules armed under ordinance . 1982
CLC 1134.
Competency of power
to renew licence not falling under s. 12 but provided under R . 9 Held order
refusing to renew licence not appealable . 1982 CLC 1396.
Petitioners granted
valid licence under emigration rules 1959 having furnished requisite security .emigration
Act (V i I of 1922) repealed by Emigration ordinace (xviii of 1979) .government thereafter
,issuing notice to petitioners to deposit fresh securities .
No new fee of security ,held required for validation of previous licences
1980 CLC 1511.
13. Power to with draw licences .—Notwithstanding anything contained in
this ordinance if at any tie it appears
to the federal government that in the public interest it is necessary to
discontinue the practice of granting licences to overseas employment promoters
it may by notification in the official gazettes ,withdraw all such licences and
entrust the Functions concerning emigration for employment abroad to the
corporation or any other institution establish or controlled by government in
such manner as it may deem fit ,
COMMENTARY
Government refusing to renew licence of petitioner /overseas employment promoters on
ground of misconduct .no material however existing on official record to come
to conclusion that petitioners were either guilty of misconduct or their performance had been unsatisfactory or
they had committed breach o provision of emigration ordinance or rules made
there under .final order refusing to renew licence was passed under rules 9 of emigration rules
by the authority which was not competent to pass final order . such order
neither contained any reasons nor it was a speaking order . order refusing to
renew licence of petitioners thus was passed without lawful authority and was without legal effect .court issued direction
to the effect that application of petitioners for renewal of licence be treated
as pending and decided in accordance with law . 1989 CLC
1247.
Order against overseas employment promoter passed by director –general on basis of report of protector of emigrants without
himself issuing show –cause notice and giving personal hearing to overseas
employment promoter order held illegal .
1984 CLC 2815.
14.DELEGATION OF POWER
TO DIRECTOR –GENERAL TO RECEIVE AND
DISPOSE OF APPLICATIONS .----
The federal government may by
notification in the official gazette ,delegate its powers under section 12 to
the director –general or any other officer .
Provided that an appeal shall lie
to the federal government from an order passed by the director –general or any
other officer in exercise of the power delegated to him and the decision of the federal government
taken after the appellant has been afforded an opportunity of being heard shall
,subject to sub- section (2) be final .
(2) the federal government may
review its decision under sub – section (1) and the decision of the federal
government in review shall be final.
{ provided that before a decision is taken in review the
licence to whom the decision relates shall be afforded an opportunity of being
heard .}.
(3) The director-general shall
maintain in such form as may be
prescribed a register of the names of all persons to whom licences have been granted
under sub –section (2) of s, 12.
COMMENTARY
Addition
secretary incharge , ministry of labour manpower and overseas Pakistanis not secretary was authorized to hear such review
petition ,no power is conferred either on
joint secretary or additional secretary to hear review petition filed by
dieector general against decision of federal government in terms of s. 14
(2).remedy of review is available only to overseas employment pormotors when they are aggrieved with order of federal government
reusing to renew licence ,cancellation
of licence or orfeiture of security amount . 1989 MLD 3335.
Petitioners name already mentioned I
prescribed application from submitted for renewal of lincences . licence issued
to company and subsequently petitioner was requires by respondent to submit full particulars ,character certificate
and a bank certificate which he did .
respondent yet refusing to grant request
of petitioner to include his name as director of company without assigning any
reasons .respondent ,held acted arbitrarily and capriciously and consequently
without lawful authority .respondent directed to allow petitioner to operate
licence issued to such company .1948 CLC
2761.
Order passed
by director –general under S 12(3)of ordinance appealable to federal government
. such order held must be a speaking order and it must give reasons o enable
aggrieved person to file an appeal .
order passed against petitioner merely stating that order of suspension
or cancellation is being passed .such
order held non – speaking order .1984 CLC 2815.
15 . Appearance of engaged person before ,and registration of
names by protector of emigrants .----
Before any
person emigrates he shall appear in person ,alongwith the overseas employment
promoter by whom he has been engaged or assisted or recruited for employment
abroad or his duly authorized representative before the protector of emigrants and furnish to him
such information as may be prescribed .
1.
Inserted
by act vi of 1985.
2.
Added
by act vi of 1985.
CHAPTER
VI
RAULES
16. power to make rules.—(1) the federal government may by
notification in the official gazette make rules for carrying out the purpose of
this ordinance .
(2) in
particular and without prejudice to the
generality of the foregoing power ,such rules may provide for all or any of the
following matters ,namely .
(a) The
powers and duties of the several officers appointed by the federal government
under this ordinance .
(b) the
licensing ,supervision and control of oversea
employment promoters and the prohibition of unlicensed persons from being engaged in causing or
assisting or recruiting persons to emigrate and in the conveyance and
accommodation of emigrants ,.
(c) the
establishment ,supervision and regulation of any place of accommodation
provided for emigrants and for their medical care while resident there .
(d) the
forms to be maintained and returns to be submitted by he overseas employment
promoters and the corporation .
(e)the
information to be furnished by overseas employment promoters to emigrants and the language in which such information is
to be furnished .
(f)the
production and examination of emigrants before
the protector of emigrants of such
other authorities a may be appointed in this behalf .
(g)the age
below which person of either sex may not
amigrate except as dependents .
(h)the
reception and the dispatch to their homes of returning emigrants .
(i) the fee
I any payable by overseas employment promoters to the protectors of emigeants
departing from Pakistan
.
(j)execution
of a bond by an emigrant or a person proceeding
abroad for education studies or training or any other purposes in which
he undertakes to return to Pakistan after a specified period .
(k)setting
up of training centres and orientations and briefing centres to guide and
advise intending emigrants and
their dependents proceedings abroad .
(l) the
recall and repatriation in the public interest of such emigrants as may be
prescribed .
(m) the time
within which an appeal under the proviso to sub –section (1) of section 14 my
be presented .
(n) Creation
of welfare fund and measures for the welfare of emigrants and their dependents and establishment of machinery at hoe and abroad for the implement
action of such rules.
(O) the
disposal o complaints against overseas employment promoters.
(p) The
formation of an overseas employment promoters Association and code of conduct
to be observed by overseas employment promoters .
(q) the
service charge to be paid to overseas employment promoters and corporation by
the emigrants ,and
(r) the depositing
of fees and securities by overseas employment promoters .
COMMENTARY
Rule empowers federal government to charge amount of
security money .rules held ,would only apply to licences issued under ordinance
. 1980 CLC 1511.
CHAPTER
VII
OFFENCES ,PENALTIES AND PROCEDURE
17. Unlawful emigration , etc.--- (whoever ,except in conformity with
the provisions of this ordinance and the rules ,emigrates or departs or
attempts to emigrate or depart shall be punishable with imprisonment for a term
which may be extended to five year ,or with fie ,or with both .
(2) whoever
,except in conformity with the provisions of this ordinance or of the rules,
(a) makes or
attempts to make any agreement with any person purporting to bind that person
,or any other person ,to emigrate or depart ,or
(b)causes or
assist or attempts to cause or assist ,any person to emigrate or depart or to
attempt to emigrate or depart or to leave any place or the purpose of emigrating or departing or
(c) causes
any person engaged assisted or recruited by him after grant of the licence
referred to in section 12, to depart without appearing before the protector o
emigrants as required by section 15 shall be punished .—
(i) for a
first offence with imprisonment for a term which may extend to five years or with fine or with both and
(ii) for a
second or subsequent offence ,with imprisonment for a term which may extend to
seven years ,or with fine or with both .
(3)when in
the course of any proceeding in in connection with emigration in which an
overseas employment promoter is concerned a breach o the provisions of this
ordinance or of the rules is committed such person shall be liable to the punishment
provided by sub –section (2) unless he proves that he was not responsible for and could not have
prevented the commission of the breach . .
(4) whoever
in contravention of the provision of section 9,recruits a citizen of Pakistan or
hold an interview or examination or issues an advertisement such recruitment
,and the editor printer and punished of
a newspaper in which such advertisement is published shall be liable to the
punishment provided by sub-section (2)
COMMENTARY
Offences
with which accused were charged ,did not attract prohibitory clause of S.497 (1), CrP.C Section 6 of
passports act , 1974 prescribed maximum sentence of three years , whereas S. 17
of emigration ordinance 1979 entailed maximum punishment of seven years
.Accused were in judicial lock-up and no recovery was to be effected from them
. Accused were not previous convicted and after transfer to trial judge his
successor had not been named and it could be said with any amount of certainty
as to how long the trial would take to begin .Accused could not be retained in custody as a measure of
punishment . PLJ 2007 Cr.c (Lahore)570.
Victims
/prosecution witnesses deposed the mode and manner under which payment was made
by them to accused who had promised to take them abroad and make arrangements
for their job . both victims while deposing before the trial court had painted
a vivid and bright picture o occurrence
.witnesses remained stead fast in their lengthy and searching cross –examination
.delay in registration of case in such
like matter was very natural , because
people are always interested in their
money and for that purpose they keep on
making attempts and finally when they fail to achieve the goal then F.I.A officials are
approached foe the redressal of their grievance . Accused was facing agony of case against him
for the last about nine years and had suffered a lot .accused had also undergone
considerable period as under trial prisoner as well as a convict while upholding
conviction of accused sentence of imprisonment of accused was reduced to the
period already undergone by him 2006 YLR 1492 (LAHORE ).
Accused was
in jail for the last seven months ,he cannot be kept in jail for an indefinite
period .PLJ 2008 cr.c (Lahore)868.
Section
22(b) of the emigration ordinance 1979 prima facie was not attracted in the case as the same
entailed some kind of fraud played or
deceipt practiced upon the person by misleading him and to extort money .none
of the victims admittedly had made any complaint of such fraud . Apparently
accused . appeared to have assisted certain persons to emigrate or depart from
Pakistan in violation of alw ,which might amount to an offence under S.17
(2)(b) of the said ordinance punishable by five years R.I. or fine or with both
,circumstantial evidence available on record also appeared to be as regards
commission of the same offence and for securing conviction such evidence ought
to be inconsistent with the innocence of the accused .matter against accused
was one of further inquiry .offence did not fall within the prohibitory clause of S.497(
1) ,C.P.C . Accused was admitted to bail in circumstances .PLJ 2006 Karachi 165.
Serious
allegation had been leveled against the accused .Accused had not denied having
issued cheques in favour of complain which had been dishonored filling o a
civil suit by the accused seeking cancellation of certain document ,alleged
to have been forcibly obtained from him
,prima facie ,appeared to be a device to make his case ,one of further inquiry –mere old –age of
60 years of accused was not sufficient to release him on bail when he was
involved in an offence falling within
the prohibitory clause of s .497(1) c. r. p .c several other enquires of similar nature were
also being conducted against the accused . challan had already been submitted
in the tril court. Bail was declined to accused in circumstances . 2006 MLD
330.
Petitioner
had no locus standi to initiate person
application as both affectees had
appeared before high court and had submitted that their grievance stood
redressed and respondent did not owe anything to them .cheque in –question had
never been issued by respondent .prosecution version that affectees had been
coaxed into making favourable statement and affidavits on pretence that they would
be paid their amount for which a cheque had later on been issued by son of
respondent has weight .bank account was in name of respondent,s son .respondent
had not been able to explain in what connection he had received money from
affectees. Respondent had manoeuvred affidavits and statement of affectees on
basis of which bail had been allowed to him. He was thereby able to
successfully steal a march on court itself. such a conduct on part of a person who
seek discretionary relief from a court of law was most reprehensible .he could not be allowed to benefit from an order ,which
he had been able procure by deceitful means. Order whereby respondent had been
allowed post –arrest bail was recalled .PLJ 2007 Cr.C(Lahore ) 574.
Accused made
ofer that he was willing to deposit amount in question with the trial court and
said amount would be payable to complainant only subject to the decision of the
case .police officer concerned had confirmed that amount in question had been deposited
by accused in the trial court state counsel also confirmed the said situation
Accused was admitted to bail ,accordingly . 2006 MLD 1189
Involvement
of accused with specific role seemed to
be a later innovation during investigation . Accused ,according to school
leaving certificate was minor at the
relevant time ,which had given strength to arguments of accused that in fact
his elder brother had received amount but in order to pressurize accused
party the entire family of co-accused
had been roped in the case in that view of the matter ,prima facie case
of accused fell within the ambit of further inquiry entitling him to concession
of bail .Accused was admitted to bail in circumstance .2006 MLD 1281..
Complainant
of F.I.R bore no animosity or ill –will towards the petitioner .Ample
incriminatory material was available against the accused .offences charged with
attracted prohibitory clause of section 497
(1) Cr.p,c bail was refused . 2006 MLD 1386.
Case of
prosecution rested upon statement of three deportees but all of them had been
involved in the case as accused as they were fugitives from law. And their
where –abouts were not known. During trial te deportees never appeared before
the trail court and though trail court had convicted and sentenced co-accused
but their sentences were suspended by hight court keeping in view
non-appearance of deportees and supreme court had also upheld order of the high
court .Accused who leftpakistan had entered the courty after more than one year
. Agency had failed to collect any evidence to show that accused was present
in Pakistan on the day occurrence tool
place .investigation was complete and accused was no more required for
investigation sending accsed behind the bars would not serve any useful purpose
case of accused falling within ambit of further investigation ,interim
pre-arrest bail already granted to him , stood confirmed I circumstance against
same surety bond . 2006 MLD 1526.
Accused was
nominated in the F.I.R with the clear allegation of fraudulently depriving the
complainant of an amount o RS . 600,000 alongwith his passport and I.D Card on
the false promise of sending him to U.S.A and for providing him employment
there .After the dismissal of his application or pre-arrest bail by the special
judge central accused had disappeared and had not surrendered himself .Accused during the
course of enquiry had been found guilty by the prosecution agency and
thereafter the F.I.A. therefore had no mala fide reason to falsely implicate
the accused in the case in connivance with the complainant .Extraordinary
concession of bail before arrest was refused to accused in circumstances . 2006
MLD 1689.
Accused had
already been opined by investigation agency to be innocent and a recommendation
had already been made for seeking his
discharge .said fresh development in case would surely benefit the accused in
the matter of bail .Accused was admitted to bail .in circumstance . 2006 PCR
1715.
Accused
according to F.I.R had only arranged for a ticket in the capacity of being the
owner of the travelling agency of the airline .offences with whichthe accused
was charge were not supported by the evidence on record .case of accused thus required further
probe as contemplated by sub-section (2)
of s. 497 cr.p.c Accused was admitted to bail accordingly .2006 pcr lj 513 .
Trial court
had declined bail to accused on the
ground that he would attempt to proceed
abroad by personating for some on – elso .passport of accused was already lying
with the authorities ,no circumstances were shown from which such intention of
accused could be gathered .trail court in circumstances was in error in
declining bail to accused . 2006 PCR LJ 1635.
Victims
/prosecution witnesses deposed the mode and manner under which payment was made
by them to accused who had promised to
take them abroad and ,make arrangement or
their job .said payment was made in the house of lamberdar of the village.no
doubt during investigation passports of both victims were never taken into possession
but it was apparent from the record that those documents were in the custody of
accused who was traveling with the witnesses /victims . non –production of said documents was of no value ,in circumstances
.both victims while deposing beore the trail court had painted a vivid and
bright picture of occurrence . witnesses remained steadfastin their lengthy and
searching cross-examination .nothing was in the statement of said witnesses
.victims either to doubt their credibility or to say that they had any malice
or grouse against accused to falsely involve him in case evidence of said witnesses inspired
confidence rang ture and same was sufficient to uphold conviction of accused .
delay in registration of case in such
–like matter was very nature because people are always interested in their fail
to achieve the goal then F.I.R
officials are approached for the
redressal of their grievance .
Four
passport of intending emigrants had been recovered from the huse of accused during investigation
,fifteen witnesses had specifically made statement before the police that the accuse had
received huge amount or sending them abroad for employment but later on faild
to fulfit his commitment nor record to link the accused wih the commission of
the offence under S22 of the emigration ordinance 1979 which fell with in the
prohibitory clause of S,497 (1) crpc bail was declined to accused in
circumstances 2005 MLD 980.
A large
number o person had got their statement recorded under s161 cr.p.c who had allegedly
been deprived of their passport and cash and had levelled serious allegation against the accused for having
deceived them for sending abroad mere fact that the accused had procured
affidavits of a couple of affected person out of about 35 person didi not
advance his case for bail . practice of defrauding innocent person under the
guise of sending him abroad .had assumed alarming proportions and this menace
had not so far been dealt with thw amount of seriousness which it deserved bail
was refused to accused in circumstances . 2005 MLD 1779.
Reasonable
ground existed to believe that accused that accused was involved in commission
of ofence alleged in F.I.R police paper showing that person who had been
allegedly duped had clearly and
specifically involved accused .F.I.R SHOWING NUMBER OF INCRIMINATION ARTICLES
RECOVERED FROM ACCUSED .MERE CIRCUMSTAMCE THAT there was no personal recovery
of any documents or material rom department that there was a delay of 16 hours
in oding of F.I.R and tha seven person wh in their statement under 161 crpc stated
that each pf them had paid a certain amount to accused for purpose of being
sent abroad had not specified time when such payments had been mad held would
not be ground for granting bail to accused in circumstances 1988 pcrlj 2479.
18.Fraudulentiy inducing to emigrate
…… whoever
(a) Forges
any document required for or relating to the emigration of any person or has in
his possession or under his control any instrument or article which may be used
or the purpose of such forgery or /
(b) By means
of intoxication coercion fraud or willful misrepresentation causes or induces
or attempts to cause or induces any person to emigrate or enters into any
agreement to emigrate or leaves any place with a view to emigration shal be
punishable with imprisonment for a term which may extend to fourteen years or
with fine or with both .
COMMENTARY
Rccovery of
visa stickers of different countries
.stickers were not genuine rather were fake .no oence was made out .Accused did
not forge any document required for emigration of any person and did not persuade any person for emigration .p
2008 crc (Lahore
)373.
19.false representation of government
authority.---falsely
represents that any emigrant is required by the government or is to be engaged
on behalf of the government shall be
punishable with imprisonment for a term which may extend ive or with both .
20 . violation of terms of agreement
with foreign employment by emigration .—whoever violates the terms of the agreement with his foreign
employment by abandoning his employment or there wise shall after his
repatriation to pakistan
be punishable with fine which may extend
to ten thousand rupees .
21 certain amount recoverable as
arrears of land revenue .---- the amount of any expenditure incurred by the federal
government for the repatriation of Pakistan of a person who is
convicted of an offence punishable under sub-section (1) of section 17 or
section 20, and the amount payable by any person in pursuance of an agreement
or bond or uder revenue .
22 Receiving money etc for providing
foreign employment .--- whoever for providing or securing or on the pretext of providing or
securing to our for any person employment in any court beyond the limits o Pakistan ….
(a)being an
overseas employment promoter charge any fee in addition to the prescribed
amount or
(b) not
being such a promoter demands or receives or attempts to receive for himself or
for any other valuable thing shall punished with imprisonment for a term which
may extend to fourteen years or with fine or with both .
23 penalty for other offences ,.. who ever contravention to comply
with any of the provisions of this ordinance
or the rules shall if an other
penalty is provided by this ordinance for such contravention or failure be punished wit imprisonment for term
which may extend to one years and with fine .
COMMENTARY
Accused
arrested and his challan under ss 18 (a) 23 of the ordinance was submitted in
the court of special judge ,finding it to be
difficult to prove the case F.I.A submitted another challan under s473
P,P,C on the same facts and investigation in the court of sessions judge
.accuse acquitted under S265 –k cr.p.c
by special judge but convicted by sessions judge .benefit of period of
detention in jail during trail before special judge was not given to accused by
sessions judge while awarding sentence . High court considering his period of
custody ,found the sentence excessive and reduced the sentence to period
already undergone . 1989 pcr lj 310.Indian visa rubber stamp of Indian vice consul and
consular,s agent allegedly recovered from applicant,s possession .case not falling within prohibition contained in S. 497 cr p.c applicant allowed bail in circumstance . 1986 pcr lj 2571.
24. special courts .---- the federal government may by
notification in the official gazette set up as many special courts as t
considers necessary and where it sets up more than one special court shall
speciy in the notification the head –quarters of each special court and the
territorial limits within which it shall exercise jurisdiction under this
ordinance .
(2) A special court shall consist of a person who
is or ha been sessions judge or an
additional sessions judge .
(3)Notwithstanding
anything contained In the code of criminal procedure 1898(Act V of 1898 ) an
offence punishable under this ordinance shall be tried exclusively by a special
court .
(4)the
provisions of the code of criminal procedure , 1898 (Act V of 1898) so ar as
tey are not inconsistent with the provisions o this ordinance shall apply to
the proceedings of a special couer and such court shall be deemed to be court o
session for the purpose of the said code and the provisions of chapter xxii-A
of the code so far as applicable and with the necessary modifications shall
apply to the trail of cases by a special court under this ordinance and a person conducting prosecution before a
special court shall be deemed to be a public prosecutor .
(5)f or the
purpose of sub-section (4) the code o
criminal procedure 1898 (Act vof 1898 shall have effect as I an offence
punishable under this ordinance were one of the offence referred to I n
sub-section (1) of section 337 of the code .
(6) A special
court shall take cognizance of and have jurisdiction to try an oence punishable
under this ordinance only upon a complaint in writing which is accompanied by
the previous sanction of the federal government .
Provided that in case in which the complaint is not
accompanied by such sanction the special court shall immediately on its receipt
refer the matter to the federal government ,and
if the required sanction is neither received nor refused within sixty
days of the receipt of the reference by the federal government ,such sanction
shall be deemed to have been duly accorded .
24-A. Appeal –A person sentenced by a special court
may within forty-five days of the order prefer an appeal in the high court .
(2) where a
special court has passed an order of acquittal ,---
(a) the federal
government may direct any of its law
officer to present an appeal ,and
(b) in the
case of a prosecution for any offence punished under this ordinance ,the person
in respect to whom the ofence is alleged to have been committed may within a
period of forty five days ,appeal to the high court against the order .
25. indemnity --- no suit ,prosection
or other legal proceeding shall lie against any person for anything which is in
good faith done in pursuance o ths ordinance of any rule .
CHAPTER VIII
VALIDATION
,SANVINGS ETC.
26. Validation.—Any power of function of the federal
government the director –general or a protector of emigrants under the
emigration act,1922 (vii of 1922) or the rules made there under exerxised or
performed before the commencement o this ordinance by any officer subordinate
to the federal government ,shall be deemed to have been validly exercised or
performed .
COMMENTARY
Petitioners granted valid licences under emigration rules
1956 having furnished requisite security .emigration act (vii of 1922 )
repealed by emigration ordinance (xviii
1.
Subs
,by act vi o 1985.
2.
Inserted
by act xi of 1987 .
3.
Of
1979) government thereafter ,issuing notice to petitioners to deposit fresh
securities no new fee or security held required for validation of previous
licences . 1980 CLC 1511.
27.saving .---Nothing in this ordinance shall be
deemed to apply to the departure of a person .
(1)who is not a citizen of Pakistan .
(ii) who is in the service of Pakistan or in the service of a local
authority or a corporation owned or controlled by the federal government of a provincial
government and is proceeding on duty or for employment with any international
organization or for training or on leave ,with the permission of the federal
government .
(iii) who is proceeding under a foreign scholarship or training scheme
approved by the federal government .
(iv) who is engaged as crew on board a foreign –going vessel in
accordance with the provisions of the merchant shipping act 1932 (xxi o 1923)
(v) who is engaged as crew on board a foreign –going aircraft in
accordance with the provision of civil aviation ordinance 1960 (xxxxii of 1960)
and the rules made there under .
(vi) who is proceeding abroad for haj or ziarat and is certified by the
federal government or an officer
authorized by it in this behal to be so proceeding .
(vii) who is a dependent of a citizen of Pakistan who is already settle or
employment in a oreign country ,or
(viii) who is already settled or employment in a foreign country and is
on a temporary visit to Pakistan
.
COMMENTARY
Allegation made against the
accused in the F.I R. was not hit by s.17 of the emigration ordinance 1979
tampering with a passport was not included in the definition of depart or
emigration .Accused was already settle in uk and was visiting Pakistan temporarily
as such the emigration ordinance 1979 as a whole by virte o its S27 was not
application to his case .inspector of f.i.r
did not act in good faith and instead they had acted mala fide . impugned
f.i.r registered against the accused
under s.17 of the .emigration ordinance 1979 was consequently quashed being without
lawful authority and of no legal effect
.P.L.D. 20005 LAHORE
293.
28.Repeal .—The emigration act 1922 (vii of
1922 )is hereby repealed .
..............................................................................................
WRITER IS A PRACTICING LAWYER .
