Hamid Farooq Durrani, J.--The petitioner has questioned, by way of instant constitution petition, the opening of history sheet against him on 18.01.2001 by the local police of Police Station Battal, District Mansehra.
2. It was claimed by the petitioner that he was a law abiding citizen of the country and was previously engaged in active politics by contesting general elections for the constituencies of National.as well as Provincial Assembly. That he was elected as a member of the District Council in 1987. His political rivals do not tolerate his popularity in the locality as the petitioner belongs to a tenant class. He was involved in frivolous criminal cases with the collusion of local police though all of those ended in acquittal of the petitioner. It was ultimately on 18.01.2001 that the local police, on the behest of political rivals of the petitioner, opened his history sheet and entries were started to be made in the Surveillance Register maintained by the former.
3. Learned counsel for the petitioner contended that the petitioner was not given any notice of the proceedings undertaken against him under Rules 23.8 and 23.9 of the Police Rules, 1934, as a consequence whereof the history sheet was opened. He, while referring to the application by Respondent No, 3 and orders made thereon by Respondent No, '2, stated that the proceedings against the petitioner were taken in haste and the latter, without application of his independent mind, approved the proposed action of Respondent No,3 the day the same was brought before him. In view of the learned counsel the said action of the respondent smacked of mala fide against the petitioner. The learned counsel also referred to various FIRs implicating the petitioner and judgments of the cases ensuing therefrom, as placed on record, and pointed out that in none of the previously recorded cases the verdict of conviction was pronounced against the petitioner. On the other hand, he was acquitted of the charges honourably. He further contended that in the circumstances there was no occasion for the respondents to have opened the impugned history sheet against the petitioner.
4. The learned DAG, appearing on behalf of the respondents, stated that the petitioner was a dangerous and hardened criminal and was reasonably believed to be addicted to crimes or had aided and abetted crimes in the past. In the said regard he referred to various FIRS available on the record wherein the petitioner had a role in either capacity. While questioning the maintainability of the writ petition in hand, the learned DAG stated that an action of respondents taken in the year 2001 was brought under challenge through the petition in hand in the year 2006. In his view, the constitution petition badly suffered from laches and was not maintainable on that score. Replying to a query of this Court regarding issuance of notice to the petitioner by the respondents before initiating the impugned proceedings, the learned DAG unequivocally claimed that the same was served 'upon the petitioner before taking action to his detriment. While asked to produce any evidence regarding the service of claimed notice, the learned DAG requested for time and the matter was adjourned to 12.04.2007. On the said date, the learned DAG and Respondent No,2, present in Court, 'came up with a diametrically opposite stance and frankly conceded that no notice was given to the petitioner before the initiation of impugned proceedings.
5. We have considered the matter in the light of arguments by learned counsel for the parties and perusal of the available record. The argument regarding maintainability of the petition, as advanced by the learned DAG would have little force because of the reason that the history sheet against the petitioner was though opened on 18.01.2001 but every fresh entry in the Surveillance Register, ensuing the opening of history sheet, gave the petitioner a fresh cause of action. It is, therefore, justifiable to hold that the petition in hand was not exposed to the .rigors of delay affecting the filing of petition. It is further noted that the respondents could not bring on record any evidence of judgment of conviction, having been pronounced by a competent Court of law, against the petitioner in the cases he was involved in. As such, it would not be reasonably believed in the light of record placed before this Court that the petitioner was a person habitually addicted to crimes. To reach a conclusion resulting in proceedings u/Rules 23.8 and 23.9 of the Police Rules, 1934 disfavoring a person, the requirement would be in terms of involvement of the said person in commission of crimes and his conviction in more than one cases. In the present case no such fact has been brought to the limelight.
6. The opening of history sheet against a person and entry of his name in the Surveillance Register is an act which 'cannot be kept as a guarded secret of the police. The consequences of such act are that the same becomes known to the headmen of the village or other prominent person of the locality. The said persons in turn tend to form an adverse opinion against the person to be kept under surveillance. It is for the said reason that the person put under surveillance is be-littled in the eyes of populous of the locality to which he belongs. The initiation of an action in the said regard would obviously be to the detriment of reputation of the person so subjected to the exercise. It would, therefore, be necessary for all intents and purposes to give an opportunity of showing cause to the person likely to be affected by proceedings u/Rules to 23.8 and 23.9 of the Police Rules, 1934. The principles of natural justice also discourage the condemnation of a person without hearing. Reliance in this regard is placed on a judgment reported as "Government of Pakistan Vs. Muhammad Akhtar Mir" (PLD 1971 SC 55).
7. As in the case in hand, admittedly no notice was given to the petitioner before initiating action to his detriment. No record of his previous conviction could be brought forth by the respondent at the same Lime. We, therefore, consider it appropriate to allow the petition in hand and to hold that the opening of history sheet against the petitioner and entering his name in the Surveillance Register maintained by the respondents is without lawful authority and of no legal effect. It is, however, observed that the police force is always at liberty to proceed against the criminals or the persons habitually addicted to crimes but in accordance with law and procedure.
Sd/-.
Salim Khan, J.--While agreeing with the conclusions and order of my learned brother as contained in Para No,7 above, my further elaboration of various points for such agreement is as under:--
1. The Police Rules, 1934, though framed under the Police Act, 1861 (V of 1861), having been saved by Section 185 of the Police Order, 2002, are as applicable as framed under the said Order. Rule 23.4
(3) clearly provides that the names of persons may be entered in Part II of the Surveillance Register at the discretion of the Superintendent (District Superintendent of Police). Rule 23.5 further supports this' provision by mentioning that no entry shall be made in Part II except by the order of the Superintendent, who is strictly prohibited from delegating this authority. Rule 23.9 provides that a history sheet may be opened by, or under the written orders of, 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 crimes or to be an aider or abettor of such person. But Rule 23.5 (1) provides that no entry shall be made in Part I except by the order of a gazetted officer. Entries shall be made either under the personal direction of, or on receipt of a written order from, an officer authorized by that rule to make them. In the latter case original orders shall be attached to the register until the entry has been attested and dated by a gazetted officer. Rule 23.5(1) further provides that Surveillance Register shall be written up by the officer-in-charge of the Police Station personally or by an Assistant Sub-Inspector in a clear and neat script.
2. The questions of writing up the register, the opening of the history sheet and making entries in the register have, therefore, been clearly explained in the above rules. The entry in Part I of the register regarding a person shall not be made by any police officer/official except by a gazetted officer or under his order, and no entry shall be 'made in Part II of the Surveillance Register except at the discretion of, and by the order of, the District Superintendent of Police, who is prohibited from delegating that authority. Once an order of making entry in Part I of the register by a gazetted officer, or as the case may be, in Part II of the Register by the District Superintendent of Police is issued, an officer not below the rank of Inspector shall open the history sheet of such a person as mentioned in Rule 23.4 above. Such an Inspector may, however, open a history sheet of a person for perusal and order of the Superintendent for entry of the name of such person in the Register.
Then the officer in charge of the Police Station shall personally or an Assistant Sub-Inspector shall write up the .Surveillance Register in respect of the persons whose names have been entered in the said register.
3. In this case, the respondents could not be able to produce any order of a gazetted officer regarding the entry of the name of the present petitioner in Part I of the Surveillance Register. They could not produce any order of the District Superintendent of Police for entry of the name of the present petitioner in Part II of the said register. A Police Officer not below the rank" of Inspector could open the history sheet either for further writing up by the Officer-in-charge of the Police Station or by an Assistant Sub-Inspector in future or for perusal and order of the Superintendent.
But such Inspector, in both cases, was subject to the order of a gazetted officer, or as the case may be, of the District Superintendent of Police, for the entry of the name of the person in the Register.
4. The main contention of the official respondents regarding the petitioner is that the petitioner is a criminal and he remained involved in several criminal cases, the petitioner is presently confined in District Jail, Mansehra, facing trial in murder case vide case FIR No, 151 dated 08.08.2004 u/S 302/148/149 PPC of P.S. Battal, and that the petitioner was acquitted u/S 345 Cr.P.C. by the then learned Court of Extra Assistant Commissioner-I, Mansehra on the basis of compromise vide order dated 18.07.1988, and that the petitioner was acquitted in case FIR No, 154 dated 22.9.2000 u/Ss.
324/148/149 PPC of PS Battal on the ground that the complainant had died and there was no body else to charge the accused or depose against him. It was further contended by the respondents that the petitioner was not enjoying good political status in the general public, and due to his criminal activities and mal-practices, he could not win the elections, even, at Union Council level. It was further contended that the history sheet of the petitioner was opened on 18.01.2001 but he did not challenge the same for a long time.
5. An application was, however, submitted by SHO of Police Station Battal to SSP Mansehra with the contents that Malik Jan s/o Sher Zaman, caste Gujjar, resident of Sharkool Chattar Plain was a resident of the area of P.S. Battal who belonged to an agriculturist family and he was habitual maker of applications, used to create disputes between the parties, and was involved in abduction and road blocking cases as well as in case of attempt to murder, and was a dangerous person, who used to submit applications against the Government employees in order to harass them and received money in the names of the officials. This application was allowed by SSP Mansehra. Such allowance amounted to grant of permission to open history sheet for perusal and order of the Superintendent under Rule 23.5(2). But such permission was always subject to Rule 23.9(4) above.
Such permission was, however, for a one time exercise during a reasonably limited period, was not for a continuous long time process, and could not be utilized to harrass and stagmatise the petitioner in the long run.
6. None of the above mentioned allegations have ever been proved against the petitioner. The petitioner did not fall in the category of persons in Part I of the surveillance register as he was neither a proclaimed offender nor a released convict in regard to whom order under Section 565 Cr.P.C. has been made, nor a convict the execution of whose sentence was suspended under Section 401 Cr.P.C., nor a person restricted u/S. 16 of the Restriction of Habitual Offenders (Punjab)
Act 1918, nor a person not resident of P.S. Battal, who has been proclaimed under Section 87 Cr.P.C. and having friends or relations or other acquaintances living in the area of P.S. Battal whom he was likely to visit.
7. The case of the present petitioner would fall under Part II of the register, had it been so proved, as mentioned in Rule 23.4 (3). The petitioner, however, was not a person convicted twice or more of offences mentioned in Rule 27.29, or person under security under Section 109 or 110 Cr.P.C. or a convict released before the expiration of his sentence under the Prisons Act or Remission Rules without the imposition of any condition. His case could be considered as a case of a person who was reasonably believed to be habitual offender or receiver of stolen property, whether convicted or not. There is no allegation against the present petitioner that he, is a receiver of stolen property.
The only ground left for the entry of the name of petitioner in Part II of the surveillance register was that he was to be reassonably believed to be habitual offender. But, for entry of his name in Part II, of the Register, a notice was necessarily to be given to the petitioner, in view of Rule 23.5(3).
8. The respondents contended that conviction itself was not the sole ground for entry of the name of the petitioner in the register. The learned counsel for the Petitioner tried to meet all the objections of the respondents by stating that the petitioner had every right to challenge the preparation of his History Sheet as well as the entry of his name in the surveillance register at any time, especially when no show-cause notice was ever issued to him, for any of the two actions, and it was the general principle of law that no one can be condemned unheard and no action be taken against any person except after notice to him. He referred to (PLJ 1971 Cr.C. Karachi 19, PLD 1971 SC 55 and PLD 1974, SC 3)1 in support of his arguments.
9. The word "reasonable" as explained in the Book "LEGAL THESAURUS' by WILLIAM. C. BURTON", as adjective for using it for fairness, means, "conscionable, equitable, fit, fitting, judicious, just, not excessive, not extreme, proper, restrained, suitable, temperate, tempered, tolerable, un- extravagant, un-extreme. The same word, as adjective for using it as rational, means amenable to reason, broadminded, capable of reason, clearheaded, cognitive, credible, discerning, fit, intelligent, judicious, justifiable, probable, proper, ratiocinative, rational, realistic, right, sagacious, sapient; sensible, sound, tenable, understandable, unjaudiced, unprejudiced, valid, warrantable, well advised, well-founded, wise.
10.A stray, abstract, vague and unsupported by evidence allegation, without notice to the person alleged against, and without affording him an opportunity of being heard, does not fall, by any stretch of imagination, under the meanings of the words "reasonably believed". There is nothing on record to the effect that a notice either' by an Inspector in Police Establishment, for the purpose of the history sheet, or by a Superintendent of Police, for the purpose of entry of his name in Part II of the Surveillance Register, ever given to petitioner with an opportunity of his hearing.
In the light of all that has been said above, the preparation of history sheet of the petitioner, without notice to him and without providing opportunity of hearing to him, and the entry of his name in the Surveillance Register, if any, made without notice to him and without providing opportunity of hearing to him, is without lawful authority and void, and inoperative against the rights of the petitioner.