PREVENTION OF SMUGGLING OF MIGRANTS ACT, 2018

An Act to prevent the smuggling of migrants

[Gazette of Pakistan, Extraordinary, Part-I, 24th May, 2018]

ACT NO. XXVIII OF 2018

No. F.9(21)/2018 Legis., dated 22.5.2018.–The following Act of Majlis-e-Shoora (Parliament) received the assent of the President on 18th May, 2018 and is hereby published for general information:–

WHEREAS it is necessary to provide for effective measures to prevent the smuggling of migrants by land, sea and air, to promote and facilitate national and international co-operation in this regard and to protect the smuggled migrants and for matters connected therewith or ancillary thereto:

It is hereby enacted as follows,–

1.  Short title, extent and commencement.–(1) This Act may be called the Prevention of Smuggling of Migrants Act, 2018.

(2)  It extends to the whole of Pakistan.

(3)  It shall come into force at once.

(4)  This Act shall apply to any person who commits an offence under Sections 3, 4, 5, 6 or 7 Where–

(a)      the offence is committed within the territory of Pakistan;

(b)      the offence is committed on board a vessel or aircraft that is registered under the laws of Pakistan at the time of commission of the offence; or

(c)      the offence is committed outside the territory of Pakistan by a citizen of Pakistan.

2.  Definitions.–In this Act, unless there is anything repugnant in the subject or context,–

(a)      ‘benefit’ includes monetary profit, proceeds or payment in cash or in kind;

(b)      ‘Code’ means the Code of Criminal Procedure, 1898;

(c)      ‘Government’ means the Federal Government;

(d)      ‘illegal entry’ means crossing borders through any port or place other than the designated port or place or without complying with the legal requirements for entering into Pakistan or another country;

(e)      ‘harbour’ shall have the same meaning as in Section 52-A of the Penal Code;

(f)       ‘migrant’ means a person who travels or intends to travel from one country to another;

(g)      ‘organized criminal group’ means a structured group of two or more persons acting in concert for benefit, with the aim of committing any offence under this Act;

(h)      ‘Penal Code’ means the Pakistan Penal Code (Act XLV of 1860);

(i)       ‘smuggling of migrants’ means the facilitation, for benefit, of illegal entry of another person who,–

(i)       is a foreigner, as defined in clause (a) of the Foreigner’s Act, 1946 (XXXI of 1946), into Pakistan or from Pakistan into a country of which the person is not a national or a permanent resident; or

(ii)      is a citizen of Pakistan, as specified in the Pakistan Citizenship Act, 1951 (II of 1951), into another country of which the person is not a national or a permanent resident; and

(j)       ‘smuggled migrant’ means any person in relation to whom an offence under Section 3, 4, 5, 6 or 7 is committed irrespective of the fact whether or not the perpetrator is identified, apprehended, prosecuted or convicted.

3.  Punishment of smuggling of migrants.–Whoever intentionally engages in or attempts to engage in the smuggling of migrants shall be punished with imprisonment which may extend to five years but which shall not be less than three years and with fine up to one million rupees.

4.  Offences in relation to documents.–(1) Whoever intentionally, for the purpose of getting benefit,–

(a)      produces or attempts to produce a document for the purpose of enabling the smuggling of migrants; or

(b)      procures, provides, or possesses, or attempts to procure, ‘provide, or possess a document for the purpose of enabling the smuggling of migrants,–

commits an offence.

(2)  Whoever commits or attempts to commit an offence under sub-section (1) shall be punished with imprisonment which may extend to three years but which shall not be less than one year and with fine up to one million rupees.

5.  Offence of harbouring illegal residents for benefit.–Whoever intentionally, for the purpose of getting benefit, harbours or attempts to harbour a person who is not a citizen or permanent resident of Pakistan and who has not complied with the necessary requirements for legally remaining in Pakistan commits an offence and shall be punished with imprisonment which may extend to three years but which shall not be less than one year and with fine up to one million rupees.

6.  Aggravated offences.–The offences under Sections 3, 4, and 5 shall be punished with imprisonment for a term which may extend to fourteen years but which shall not be less than five years and with fine up to two million rupee in any of the following circumstances,–

(a)      where the offence involves serious injury, life-threatening illness, or death, or other circumstances that endanger or are likely to endanger, the life or safety of the smuggled migrant or another person;

(b)      where the offence involves cruel, inhuman or degrading treatment of another person; or

(c)      where the offence was committed as part of the activity of an organized criminal group.

7.  Offence of abetment and criminal conspiracy.–(1) Whoever abets any of the offences under Section 3, 4, 5 or 6, shall be published in accordance with Chapter V of the Penal Code.

(2)  Any person who is party to a criminal conspiracy to commit an offence under Section 3, 4, 5 or 6 shall be punished in accordance with Chapter V-A of the Penal Code.

8.  Non-criminalization of smuggled migrants.–Without prejudice to the applicability of other laws establishing criminal offences, smuggled migrants shall not become liable to criminal prosecution under this Act for the fact of having been the object of conduct set forth in Section 3, 4, 5, 6 or 7 and may be a witness in the case.

9.  Offences to be cognizable offences etc.–All offences under this Act shall be cognizable, non-bailable, and non-compoundable as construed by the Code.

10.  Cognizance of offences.–Notwithstanding anything contained in the Code, a Magistrate of the First Class shall try an offence punishable under this Act and may impose any punishment provided under the Act.

11.  Investigating agency.–The Federal Investigation Agency, or such other agency as may be specially empowered by the Government through notification in the official Gazette, shall be responsible for investigation of offences under this Act.

12.  National and international cooperation.–The Federal Investigation Agency, or such other agency notified under Section 11 may,–

(a)      co-operate with relevant authorities in Pakistan and in other countries of origin, transit and destination of smuggled migrants and make reciprocal arrangements after due administrative process to share, request and receive information relating to smuggling of migrants; and

(b)      maintain liaison with all relevant national or international authorities, organizations, bodies, associations and societies and represent Pakistan.

13.  Applicability of Code.–The provisions of this Act shall have effect notwithstanding anything contained in the Code or any other law but, save as expressly provided in this Act, the provision of the Code shall in so far as they are not inconsistent with the provisions of this Act, apply to the proceedings under this Act.

 

14.  Power to make rules.–The Government may, by a notification in the official Gazette, make rules to carry out the purposes of this Act.

15.  Indemnity.–No suit prosecution or any other legal proceedings shall lie against the Government or any other person exercising any power or performing any function under this Act or the rules made thereunder for anything done in good faith.

16.  Act not in derogation.–The provisions of this Act shall be in addition to and not in derogation of any other law for the time being in force.

17.  Repeal.–The Prevention of Smuggling of Migrants Ordinance, 2018 (VII of 2018) is hereby repealed.