Z. A. CHANNA, J.---These two constitutional petitions assail the entry of the names of the two petitioners one of whom claims to be a Tailor Master and the other a businessman and a shopkeeper, in the Police Surveillance Register under the provisions of the Punjab Police Rules.
2. In Constitutional Petition No. D-289/1978, the pertinent facts are that the name of petitioner Malik Siraj was entered in the Police surveillance register and his history sheet was opened at the Market Police Station under Rule 23.9 of the Punjab Police Rules. This action was taken on the basis of the adverse police record of this petitioner and the'' further fact that he had been involved in 13 criminal cases. It is claimed by petitioner Malik Siraj that it was only recently that he has come to know of the opening of his history-sheet when he found some police men posted at his tailoring shop. The opening of the history sheet has been assailed by this petitioner on the grounds, firstly, that no show-cause notice was given to him prior to the opening of the history-sheet, inn secondly, that history sheet of a person can only be opened in accordance with the provisions of rule 23.9 of the Punjab Police Rules in respect of persons who are habitually addicted to crime. It is the case of the Petitioner that since he has not been convicted in any case, he cannot be considered to be habitually addicted to crime for the purposes of the above rule.
3. In Constitutional Petition No. D-375/77, the facts are that on 20th May 1975, petitioner Muhammad Yousuf received a show-cause notice requiring him to explain why his history sheet should not be opened and his name entered in the Police surveillance register. He replied to the show-cause notice explaining that he had not been convic--ted in any case but his explanation was not accepted and his history---sheet has been opened from about May, 1975.
4. The entry of the name of petitioner Malik Siraj in the surveil--lance register and the opening of his history sheet under rule 23.9 of the Punjab Police Rules has been assailed by Mr. Muhammad Ali Shaikh, his learned counsel, on two grounds. His first ground of attack was that no show-cause was given to the Petitioner before the history sheet was opened. It has been held by the Supreme Court in the case of Government of West Pakistan v. Mohammad Akhtar Mir (PLD 1971 SC55) that before opening the history sheet of a person under rule 23.9 of the Punjab Police Rules an opportunity of showing cause must be given to the person concerned. In the reported case, no such show-cause notice was given to the person whose history sheet was opened and consequently the action of the police in opening his history sheet and entering his name in the Police surveil--lance register was held to be without lawful authority and was accor--dingly held to be invalid. We have enquired from the learned Assistant Advocate-General whether any show-cause notice was given to Petitioner Malik Siraj, but he submitted that there was nothing available with him to indicate that a show-cause notice was given to him.
5. Mr. Muhammad Ali Shaikh's second ground of attack on the impugned actions of the police was that petitioner Malik Siraj has not committed any offence nor has been convicted of any offence.
He admitted that some cases bad been filed against him but explained that none of these cases have ended in conviction and in fact the petitioner was acquitted or discharged in all these cases.
In the case of Muhammad Afzal v. I.-G. Police (PLD 1974 SC 31) the Supreme Court while reiterating its view expressed in the case of Muhammad Akhtar Mir that failure to give show-cause notice to the person concerned before opening his history sheet is in violation of the rules of natural justice and therefore, invalid, further held that only the history of a person who is habitually addicted to crime can be opened under rule 23.9 of the Punjab Police Rules and this phrase was interpreted to mean a person who has committed a crime on more than one occasion and it applies to cases where the person concerned has been convicted in more than one case. Since it has not been established that the Petitioner, Malik Siraj, has committed more that one offence or been convicted of any crime, he can not be considered to be habitually addicted to crime' and consequently his case does not fall within the purview of rule 23.9 of the Punjab Police Rules.
6. Similarly, the petitioner, Muhammad Yousaf, though it is alleged against him that he has been involved in a number of cases, it has not been established that he has committed any offences or been convicted of any crimes. The petition discloses that this petitioner was challaned in only 3 cases, out of which 2 have ended in acquittal while the third is still pending. This contention of the petitioner, which is supported by an affidavit, was not controverted by the learned Assistant Advocate. General. There is no material to show that this petitioner is `habitually addicted to crime on which basis alone it is legally permissible for his name to be entered in the Police surveillance register and his history-sheet to be opened.
7. Since neither of the two petitioners are showns to be habitually addicted to crime, their cases do not fall within the purview of rule 23.9. Additionally, the action taken against petitioner Malik Siraj is in contra--vention of the rule of natural justice enshrined in the maxim audi alteram parten. No doubt, the history sheet of petitioner Malik Siraj was opened as far back as in 1967, but his case is that it is only recently that he came to know of this action, when he found the Police guard posted at his shop. Furthermore, as held by a Division Bench of this Court in the case or Arsala Khan v.
Province of Sind (PLD 1976 Kar. 849) to the decision wherein one of us was a party, where the action of the Police in entering the name of a person in the surveillance register and starting his history sheet has been taken without affording such person an opportunity to show cause, not only is the action of the Police in violation of the principles of natural justice and therefore, illegal, but further mere efflux of time cannot validate such action, as it is a continuing wrong. We accordingly hold that the impugned actions against the two petitioners are without lawful authority and consequently of no legal effect. In the circumstances, both the petitions are allowed with costs.