' By this Constitutional petition the order of respondent No, 1 Superintendent of Police, Kasur dated 31st August, 1979 whereby he directed that the name of the petitioner Muhammad Aslam son of Ali Muhammad be entered in the Surveillance Register maintained under rule 23.10 (a) of the Police Rules, 1934 is impugned.
2. The facts relevant for the purpose of this petition are that the petitioner was convicted on 25th March, 1978 by Ch. Muhammad Akram, Magistrate, Section 30, Kasur under section 307/34, P. P. C.
To undergo a sentence of three years. He was undergoing the sentence when it appear s that on 25th December, 1978 he was served with a notice to show cause why an order under rule 23.9 of the Police Rules, 1934, should not be made for the opening of his history sheet. According to the show cause notice, it was proposed to open the history sheet on account of the fact that the petitioner-
(a) had been convicted and sentenced to a fine of Rs, 10 or to undergo an imprisonment for seven days, on his being convicted for an offence under section 61 of the Excise Act, 1914, by Ch. Nazir Ahmad, Magistrate 1st Class, Kasur, on 26th April 1968 ;
(b) had been convicted and sentenced to one year rigorous imprisonment by an order of Ch. Muhammad Akram, Magistarte section 30, Kasur dated 25th March, 1978 under section 14 of the Arms Ordinance 1965 ;
(c) had been convicted and sentenced to undergo three years' rigorous imprisonment by order of Ch. Muhammad Akram, Magistrate Section 30, Kasur under section 307/34, P. P. C. By his order dated 25th March, 1978.
' The show-cause notice was served on the petitioner in Jail and was replied to through a learned Advocate on 3rd January 1979.
3. The petitioner's appeal against his conviction under the Arms Ordinance was accepted by the learned Sessions Judge, Kasur by his order dated 10th June, 1978. It further appears that the petitioner filed an appeal against his conviction under section '307/34, P. P. C. Afore-referred, before the learned Sessions Judge, Kasur which was rejected, against which he filed Criminal Revision No, 527/78 which is pending before this Court, and in which bail was allowed to him on 15th April, 1979.
4. After his release on bail, the petitioner came to know that his history sheet has been opened by the order of respondent No, 1 dated 31st August 1979 aforereferred. Accordingly, on 16th September, 1979 he impugned the opening of the history sheet by means of this petition.
5. I had called for the para-wise comments from respondent No, 1 which have been received.
Ghulam Rasool A.S.I. Police Station, Kasur is present in Court today alongwith the record which has been examined with the assistance of learned counsel.
6. Learned counsel for the petitioner contends, in relation to the grounds contained in the show cause notice and onthe basis of which the petitioner's history-sheet apparently has been directed to be opened that :
(a) The petitioner was neither involved, challaned or convicted in the case under section 61 of the Excise Act, 1914. He has appended an attested copy of the F. I. R. No, 61 recorded in that case, from which it is apparent that the person accused of the offence in that F. I. R. Was Muhammad Aslam son of Ali Muhammad, Caste Sheikh, resident of Gali Wakilan, Kasur City. Learned counsel has drawn attention to the show-cause notice in which the petitioner is described as "Muhammad Aslam son of Ali Muhammad, Caste Ansari, resident of Kot Aazam Khan, Kasur", and contends that this bears out his contention. From the record produced by Ghulam Rasool, A. S. I. It appears that the petitioner is presently 25 years of age and if this be so he would hardly have been 13 years of age in 1968 when the conviction against him was allegedly recorded. Apparently, the petitioner is not the person who was convicted under the Excise Act by Ch. Nazir Ahmad Magistrate 1st Class, Kasur on 26th April, 1968.
(b) The petitioner had been acquitted by the learned Sessions Judge, Kasur by his order dated 10th June, 1978 of the offence under Section 14 of the Arms Ordinance, 1965. Reference to the show cause notice shows that the Superintendent of Police, Kasur apparently was not aware of the acquittal of the petitioner and this fact is not mentioned in the notice. Even an examination of the record produced by Ghulam Rasool A. S. I. Also shows that there is no reference to the petitioner's acquittal.
(c) The petitioner's revision against his conviction under section 307/34 has been admitted for regular hearing by this Court and is pending disposal and the petitioner has been allowed bail by this Court. It is contended that in the circumstances no final order has been made in this case.
7. Before examining the contentions of learned counsel for the petitioner, it would be appropriate to reproduce relevant provisions of the Police Rules, 1934 which are as follows : - "23.9. History Sheets when opened.-(1) A history sheet, if one does not already exist, shall be opened in Form 23.9 for every person whose name is entered in the surveillance register, except conditionally released convicts.
(2) A history sheet may be opened by, or under the written orders of, a police officer not below the rank of Inspector for any person not entered in the surveillance register who is reasonably believed to be habitually addicted to crime or to be an aider or abettor of such persons.
(3) .
23.10. Custody of history-sheets :- (1) The history sheets at police station shall be kept in three separate bundles as follows
(a) Bundle containing the history sheets of person whose names are entered In the surveillance regiser ; (b)
8. It is firstly contended by learned counsel for the petitioner that no opportunity of hearing was given to the petitioner before the making of impugned order against him. It is pointed out that the petitioner was in jail at the time when the show-cause notiee was issued to him, that he received the show-cause notice in jail and replied to it through a learned Advocate denying the first two allegations and pointing out that his Revision against his conviction under section 307/34 was pending hearing before the High Court. It is further contended that the petitioner continued to remain in judicial custody till 15th April, 1979 when he was allowed bail by this Court, and that at no time was the petitioner allowed an opportunity to rebut the allegations against him. Learned counsel relied on a judgment of the Supreme Court in Rana Muhammad Afzal v. I.-G. Police (1) to contend that no action could be , taken effecting the reputation of the petitioner unless he was given an opportunity of showing cause against the action proposed going to be taken. In that case a show-cause notice had not been
(1) PLD 1974 SC 31 ' issued, whereas it was admittedly issued in this case. However, this does not mean that after the issuance of show-cause notice in the event of allegations being controverted by the person sought to be proceeded against, no duty is cart on the Police Authorities to given opportunity of hearing to the respondent to enable him to substantiate his reply, In the present case, the petitioner had denied the veracity of the first two grounds and had he been allowed an opportunity, it would have been possible for him to show to the satisfaction of the Superintendent of the Police that the allegations contained in these two grounds ,were factually incorrect. There is considerable force in the argument of learned counsel for the petitioner that in such an eventuality it is quite possible that the Superintendent Police may not have made the impugned order.
9. Learned counsel for the petitioner has secondly argued that according to rule 23.9 (2) of the Police Rules, 1934, a history sheet can only be opened of a person who is reasonably believed to he habitually addicted to crime or to be an aider or abettor of such persons. Learned counsel for the petitioner contends that in relation to the grounds furnished to the petitioner, the first is factually incorrect, the petitioner had been acquitted in the second and in the third no final order has yet been made. Learned counsel for the petitioner relied on the judgment of Supreme Court in Rana Mohammad Afzal's case aforereferred in which after noting three judgments of this Court in the case of Muhammad Ramzan v. Government of West Pakistan (1); Mian Miraj-ud-Din v. S. S. P. Lahore (2), Mst. Ghulam Faiima v. Government of West Pakistan (3), it was observed that : "It appears to us that the phrase "habitually addicted to crime", means that the person concerned has committed the crime on more than one occasion and it applies to cases where the person concerned has been convicted in more than one case. It does not apply to cases where the person concerned has been acquitted honourably."
' In this context reference can also be made to the judgments in Government of West Pakistan v. M.
Akhtar Mir (4), Aftab Alarn v. Province of Sind (5), Shah Nazar Khan v. S. D. M.. Karachi (6), Mazan v.
State (7), Malik Ghulam Rasool v. S. P. Mianwali (8).
10. On the basis of the allegations contained in the show-cause notice the petitioner cannot be said to be a person who has committed crime on many occasions, or to have been convicted on a number of occasions or to be a previous convict. The petitioner's conviction in the second cases was set aside by the learned Sessions Judge. Kasur whereas the conviction in the third case is the subject matter of Criminal Revision (No, 527/78) pending before this Court. In any case it cannot be said that the petitioner has been convicted in more than one case.
11. I, therefore, hold that no reasonable person could have held in the present case, on the basis of the allegations contained in the show cause notice, that the petitioner is habitually addicted to crime. Accordingly, the impugned order is set aside and the petition is accepted. There will be no order as to costs..
(1) PLD 1962 Lah. 957 (3) PLD 1971 Lah. 498 (5) PLD 1979 Kar. 645 (7) PLD 1975 Kar. 1035 Petition ccepted.
(2) PLD 1970 Lah. 569 (4) PLD 1971 SC 55 (6) PLD 1977 Kar. 582 (8) PLD 1969 Lah. 781 1980 P Cr. U J 799 [Peshawar] Before Shah Abdul Rashid and Muhammad Sardar Khan, JJ .
YAHYA JAN AND 54 OTHERS-Petitioners versus DISTRICT MAGISTRATE, PESHAWAR. AND ANOTHER-Respondents Writ Petition No, 786 of 1979, decided on 19th December, 1979.
(a) Criminal Procedure Code (V of 1898)- -- S. 144/439 read with Constitution of Pakistan (1973), Art. 199- Order under S. 144, Cr. P. C. By District Magistrate directing petitioners to close down unauthorised crushing machines in public interest- Substance of order and not form to be taken into consideration-Order could be passed with intention to prevent any one of mischiefs mentioned in S. 144-Contingencies referred to in order justifying order being far-fetched and remote, order, held, not within four corners of provisions of S. 144, Cr. P. C. And set aside. [p. 803].1
(b) Criminal Procedure Code (V of 1898)- - - S. 144/439-Order under S. 144, Cr. P. C. By District Magistrate stating use of unauthorised sugarcane crushing machine by Zamindars being likely to create disturbance of public peace and tranquillity-No connection between making of gur by power on crushing machine and public tranquillity, held, existed and connection too far-fetched to appeal to judicial mind-Such ground, held, not covered within ambit of S. 144, Cr. P. C.-Order set aside. [p. 803]B
(c) Criminal Procedure Code (V of 1898)- --- S. 144 read with S. 435/439--Order under S. 144, Cr. P. C.-Mere subjective satisfaction of District Magistrate not sufficient-Order itself open to judicial scrutiny-High Court, held, competent while sitting as Court of revision, to go into merits of order. The contention that it is the subjective satisfaction of District Magistrate in making order and that the order itself is not open to judicial scrutiny and the High Court cannot sit in judgment and come to a different conclusion that the order passed is not within the four corners of S. 144, Cr. P. C. Has no substance. The satisfaction of the Magiitrate as to the necessity of making an order like the one which is under attack cannot be made entirely subjective. Under subsection (5) of section 144, Cr. P. C. Where such an order is challenged the Magistrate is bound to give an opportunity to the person concerned of appearing before him and showing cause against the order. The decision of the Magistrate in proceedings would thus undoubtedly be a judicial order and he shall have to set it aside unless he comes to conclusion that grounds on which it rests are in law sufficient to warrant the order. As such it cannot be said that the section requires only the subjective satisfaction of the Magistrate and is not open to judicial scrutiny. No doubt the order is not appealable, but the High Court has power under S. 435 read with S. 439, Cr. P. C. To entertain an application for revision of such an order. Again a penalty for infringement of an order under S. 144, Cr. P. C. Is provided in S. 185, Cr. P. C. Therefore, when a prosecution is launched thereunder the validity of an order under S. 144, Cr. P. C. Could be challenged. The remedy of judicial review not being illusory it cannot be said that mere subjective satisfaction of the District Magistrate is sufficient and that the High Court while sitting as a Court of revision cannot go into the merits of the order and hold that the order has no connection whatsoever with the mischief which it seeks to prevent. [P.804]C Itbar Khan v. State PLD 1970 Pesh.
19 ; Muhammad Ismail v. Muzaffar Qadir, District Magistrate, Sahiwal PLD 1968 Lah. 1353 Nida Hussain v. District Magistrate, Sahiwal PLD 1972 Lah. 836 Maqbool Ahmad v. A. D. C., Bahawalpur 1980 P Cr. L J 851 United Sugar Mills v. District Magistrate, Sukkur PLD .1979 Kar. 410 ; Thankin Aung Bala v. District Magistrate, Rangoon AIR 1939 Rang. 181 and Muhammad Afzal Bangash v. State PLD 1963 Pesh. 38 ref. Zahurul Hag, Bar-at-Law for Petitioners. Lnayat Elahi Khan, A.-G. For Respondents.
Date of hearing : 3rd December, 1979.
' SHAH ABDUL RASHID, J.-Since common questions of law are involved in all of them. This order, besides disposing of the present petition (W.P. No, 786 of 1979) by Yahya Jan etc., shall also dispose of W.P. No, 800 of 1979 by Major (Retd.) Nisar Muhammad Khan etc., P.W. No, 802 of 1979 by Noor Badshah etc., and W.P. 799 of 1979, by Said Badshah etc.
2. The present petitions, namely, W. P. No, 786 of 1979, W. P. No, 800 of 1979 and W. P. No, 802 of 1979 arise out of the same order dated 6th November 1979, of the District Magistrate, Peshawar purporting to have been made under section 144, Cr. P. C. Whereas W.P. No, '799 of 1979 arises out of a similar order made by the District Magistrate, Mardan on 22nd day of October, 1979. Though both the orders are differently worded, the intention thereof appears to be common, namely, to prevent the use of unauthorised sugarcane power crushing machines installed by the Zamindars in the districts of Peshawar and Mardan. The order of the District Magistrate, Peshawar, is as follows :- ' Whereas it has been made to appear to me that unauthorized sugar cane power crushing machine installed by the Zamindars in the Peshawar District are causing acute shortage of sugarcane supply to the Mills and there is every likelihood of disturbances of public peace and tranquility.
' And whereas I am satisfied that there are sufficient grounds to proceed under section 144, Cr. P. C.
And directions hereinafter appearing are necessary in order to prevent danger to public peace and tranquillity.
' This order shall come into force with immediate effect and shalt remain in force for a period of 60 days.
16. The above brief picture of some of the provisions of the law shows the extent of the interest of the Government in the affairs and management of the Board, both pecuniary and functional. For all intents and purposes Government has created an organisation, for looking after its functions on behalf of the Government in the sector of livestock development. This is very much a delegated function of the Government, as laid down in the case of Karim Bakhsh.
17. Government money by way of Government investments, .Grants and loans are to be placed at the disposal of the Board. Then it is common knowledge that loans from international financiary institutions are given only on the guarantee furnished by the Government. Government farms and projects could be handed over to the Board, apart from implementing and executing schemes approved by Government, all these functions are reminiscent of functions of a Government department. The performance of these functions certainly entails taking, receiving, keeping or expending any property on behalf of Government.
18. Regarding the provisions of winding-up clause, Mr. Mumtaz Hussain, has referred to the case of Chief Secretary, Government of the Punjab v. Commissioner of Income-tax, Lahore (1), in order to suggest that vesting of the property of an entity dissolved by Government (Thal Development Authority in the case referred to), does not change the complexion of the entity at all. I am afraid that this case is distingnishable from the facts of the present case for more than one reason. In the Chief Secretary's case the issue before the Court was whether the Thal Development Authority was a local authority. In the course of the hearing the Commissioner of Income-tax had raised a legal plea challenging the jurisdiction of the High Court on the ground that the T. D. A. Having been dissolved, and the Chief Secretary having been appointed the administrator the dispute had become a dispute between the Province and the Federation and was, therefore, within the exclusive jurisdiction of the Supreme Court under Article 184 of the Constitution. It was held by the High Court that the Administrator is a distinct entity separate from the Provincial Government under the law. It cannot be said that the liability of the Authority if any, under the Income-tax Act had thereby devolved on the Provincial Government............................
19. As stated above the case referred to does not provide the answer that Mr. Mumtaz Hussain is looking for. What we are concerned with in the present case is the issue, whether the employees of the P. L. D. B. In the given provisions of the law governing the P. L. D. B. Are public servants or not.
20. It is also necessary to refer to the provision of section 4 (2). It provides that Board in discharging its functions will act on national and commercial considerations. The reference to national considerations cannot be dismissed as inconsequential. It certainly entails public responsibilities, which ordinarily is a function of the Government. In the light of the above discussion, I have no hesitation in holding that the employees of the Punjab Livestock, Dairy and Poultry Development Board are public servants in the light of section 21 of the P. P. C.
21. As stated above some of the petitioners have taken separate pleas on facts of the individual cases against them.
22. Amir Muhammad was an accountant. There are allegations that he abetted his co-accused Saeed Yusuf in commission of a number of offences. The learned counsel has referred to the inspection note recorded by Manager Finance saying that ledgers were not maintained and that accounts had to be reconstituted. It has been urged on behalf of Amir Muhammad that he had not prepared any accounts and therefore was not liable. It has also been stated that not a single witness has deposed against the petitioner, therefore, there was no possibility of the case ending in conviction.
23. I have gone through the copies of the statements of the witnesses recorded during investigation Except for the statement of Yusuf Kamran, there is no mention of the petitioner in the statement of any of the witnesses. Even Yusuf Kamran talks of a voucher having been prepared in the hand of the petitioner.
24. The petitioner joined service on 18th May, 1975 and left on 24th August, 1976, on completion of his contract, with a good conduct discharge from his superiors. Even the complaint from the Managing Director against Saeed Yusuf on the basis of which whole investigation started makes no mention of the petitioner Amir Muhammad.
25. Considering the above circumstances, there is no possibility of this case ending in conviction.
The petitioner may not be made to face B the agony of a trial unnecessarily. Relying on the judgment of the Supreme Court in the case of Mania Bux and 8 others (1), the petitions of Amir Mohammad are accepted and the proceedings quashed.
26. There are three cases against Dr. Wajid Baseer Sheikh. One involves over payment in respect of purchase of Millat Poultry Farms and over payments for renovations of the farms. The other two cases relate to buying a refrigerator at a higher price and taking it away and misappropriation of two fans that belonged to the P. L. D. B. Dr. Wajid Baseer was the Project Manager. He has stated that payments for the purchase of the farm was made by the Headquarters Office and that engineering works were the responsibility of the engineering staff and not of the Project Manager.
Regarding the refrigerator, he has stated that it was purchased at a time when the import of refrigerators was banned and was purchased on the basis of the lowest quotation. Moreover, it had not been taken away by him but was still functioning at the farms. The case regarding the electric fans has been instituted at the instance of a store-keeper who had been proceeded against by him earlier departmentally.
27. Mohammad Hasan Sheerazi was a co-accused in the case relating to the alleged overpayment of price of the farms. His petition for quashment was accepted by the High Court in Crl. Misc. No, 465-Q/77, holding that he was a bona fide vendor. It has been argued that the case of the petitioner being no different from that of Mohammad Hasan Sheerazi, the petitioner deserves the same consideration.
28. As far as the charge against the petitioner regarding excess payment for the farm is concerned, it is not necessarily the same as that of Mohammad Hassan Sheerazi. Yet the fact that Dr. Wajid Baseer Sheikh was nowhere involved in the payment, the payment being made directly
(1) 1977 SC MR 292 ' by the Headquarters office, with whom alleged! y the deal was struck directly, the case of the petitioner would deserve the same consideration. The learned counsel has referred to the basis of calculation of the price that has been also referred to in Sheerazi's case, but I think that is of no importance, considering that the petitioner had no hand in its assessment or the payment.
29. In respect of the charges relating to the referigerator and the two fans, the learned counsel applied for and argued for additional grounds on the basis of the evidence that had already been recorded in these cases. The storekeeper and Dr. Riaz have been examined as witnesses. They have stated that the referigerator is still working in the farms in proper condition. Regarding the case of fans, apart from the fact that the case may have been motivated by being even with the petitioner on account of the departmental action initiated against the Store Supervisor, Mohammad Ashraf. Evidence has come on record from the mouth of Mohammad Ashraf that the fans had been entered in the register and were then taken away by the petitioner. This is contrary to the allegations that the fans were misappropriated at the stage of their purchase and were never entered in the stock register. A most interesting circumstance has emerged from the testimony of Mohaminad Ashraf, He has stated that the fans had been issued to Dr. Wajid Baseer Sheikh on his request, as he was to hold a private function at his house. The period during which these fans were allegedly required by Dr. Wajid Baseer Sheikh, comes by calculation to be the month of January, when fans are the last requirement for amusing the guests in these parts.
30. In view of the above circumstances, it is obvious that there is no material against the petitioner Dr. Wajid Baseer Sheikh, on the basis of which a conviction could be possible. Again relying on the case of C Maula Bux and 8 others the proceedings against Dr. Wajid Baseer Sheikh must be quashed. His petitions are, therefore, accepted and proceedings quashed.
31. Ahmad Ghazali was Project Manager, Cholistan. There is a case of overpayment of a comparatively small amount of Rs, 570 which was allegedly made over and above the proper cost of construction of a room at a tube-well site for the installation of the same tube-well. Mian Abdur Rehman of a firm called Boremaster is being proceeded against alongwith his co-accused who are employees of the P. L. D. B. For overpayment of over one lakh rupees.
32. The learned counsel for Mian Abdur Rehman has stated that his client had undertaken the work as a special case and for national considerations as no one was willing to go to the far-flung area of Cholistan, where huge amounts had to be incurred for mobilisation of equipment alone. I am afraid, this controversy could not be settled except by examining the evidence that may be produced in the case. That could appropriately be done best before the trial Court.
33. The cases of Majid A. Sheikh and S. A. Qureshi and of Masood Ahmed are similar in so far as they had only been dealing with the officers of the P. L. D. B. As contractors. Masood Ahmad had built a freezer track for the Meat Complex at Sihala and Majid A. Sheikh and S. A. Qureshi had arranged publicity for the enterprise. They are accusedj, of being recipient of payments more than were due and had to that extent are alleged to have conspired with and abetted the public servants concerned. Their cases also deal with accounts and could be settled only at the trial.
34. Cases of Mohammad Tariq and M. A. Sohail are similar to those of the above contractors, except for the fact that these petitioners have filed civil suits in respect of the alleged overpayments. The learned counsel has stated that in fact further amounts are due to the petitioners. The learned counsel has pleaded that the proceedings may be quashed ,as the dispute is only of a civil nature. In the alternative, it has been requested that the criminal cases may be stayed until the civil suits are finalized. I am afraid neither of the prayers can be accepted.
These cases are not such where claims are being forced through criminal proceedings. On the other hand, certain public servants are being proceeded against under Anti-Corruption Laws.
These contractors may or may not be guilty of the offences, they have been charged with, but this could be determined only at the trial.
35. The result of the above discussion is that all the petitions except for those of Amir Mohammad and Dr. Wajid Baseer Sheikh fail and are hereby dismissed. The proceedings in Crl. Misc. No, 155- Q/77, 202-Q/77, 203-Q/77, 204-Q/77, 205-Q/77 and 206-Q/77 and in Crl. Misc. No, 581-Q/77, 608- Q/77 and 609-Q/77 are quashed.