KHALID MAHMOOD, J. --- Taimur Khan petitioner seeks the Constitutional jurisdiction of this Court praying for:-- "that on acceptance of this writ petition, the impugned order may graciously be set aside and respondents be directed to remove the name of the petitioner from the surveillance register and his history sheet may kindly be closed."
2. As per contents of writ petition, petitioner is a law-abiding citizen of Pakistan, remained member of District Council as well as Committee constituted by District Nazim, Haripur and never remained involved in any crime but came to know that respondents have opened the history sheet against him which too without giving any show-cause notice. It is averred in the petition that entering he name of petitioner in surveillance register and opening of history sheet has caused grave mental agony and anguish to the petitioner besides irreparable loss to his reputation.
3. Learned counsel for petitioner argued that impugned act of respondents is based on mala fide and ulterior motive and against law, facts and circumstances. It was argued that petitioner has never remained involved in any criminal case or has been convicted and sentenced by the Court. It was argued that without any show-cause notice or hearing the petitioner the respondents have passed the impugned order, which is liable to be set aside.
4. On the other hand learned Additional Advocate-General opposed the contentions of petitioner and supported the impugned actions of respondents.
5. Arguments heard and record perused.
6. Previously name of petitioner was entered on 2.8.1998 on the basis of case F.I.R. No. 437, dated 9.6.1998 registered under Sections 302/324/148/149, PPC, Police Station City Haripur and other cases registered vide F.I.R. Nos. 637, dated 30.8.1998, 28, dated 9.1.1999 and 340, dated 23.8.1998 registered under Sections 302/34, PPC, 324, PPC and 302/324/34, PPC respectively, as he remained absconder for sufficient long time in the said cases. Later on, he was acquitted and his name was deleted from the Bundle B to P.F. Register on 17.12.2009. The grievances of the petitioner are that after deletion of his name from Bundle A & B, once again his name was entered in Bundle B on 17.4.2010, on the recommendations of SHO concerned vide order of S.P. Headquarter dated 25.2.2010. The main grievance of the petitioner is that before entering the name of. Petitioner in the Bundle B of register maintained by the concerned Police Station no show-cause notice has been issued to him, which is gross violation of established principle that "no one should be condemned unheard". It is on the record that petitioner was elected as District Councilor of Illaqa and gained respect in the society, though was charged in numerous criminal cases but was acquitted in the said cases. The name of petitioner in Surveillance Register as Bundle B was entered on the ground of his absconsion in the above-mentioned criminal cases. The proceedings against petitioner were initiated under Chapter 23.4 of Police Rules, 1934, which reads as under:-- 23.4. Surveillance Register No. X. -- (1) In every Police Station, other than those of the Railway Police, a Surveillance Register shall be maintained in Form 23.4(1).
(2) In Part I of such register shall be entered the names of persons commonly resident within or commonly frequenting the local jurisdiction of the Police Station concerned, who belong to one or more of the following classes:--
(a) All persons who have been proclaimed under Section 87, of Code of Criminal Procedure, entries relating to residents of the Police Station should be in red ink.
(b) All released convicts in regard to whom an order under Section 365, Criminal Procedure Code, has been made.
(c) All convicts the execution of whose sentence is suspended in the whole, or any part of whom punishment has been remitted conditionally under Section 401, Criminal Procedure Code.
(d) All persons restricted under the Rules of Government made under Section 16 of the Restriction of Habitual Offenders (Punjab) Act, 1918.
(3) In Part II of such register may be entered at the discretion of the Superintendent,-
(a) persons who have been convicted twice, or more than twice, of offences mentioned in Rule 27.19.
(b) persons who are reasonably believed to be habitual offenders of receivers of stolen property having more than one conviction.
(c) persons under security under Section 109 or 110, Code of Criminal Procedure.
(d) convicts released before the expiration of their sentences under the Prisons Act and Remission Rules without the imposition of any conditions.
(e) all persons not resident of the Police Station concerned, who have been proclaimed under Section 87, Criminal Procedure Code and having friends or relations or other acquaintances living in the Police Station. Concerned whom they are liked to visit:
7. It is incumbent on the police official while passing the order for entering the name of the history sheeter in the prescribed register the show-cause notice should be issued to the person concerned. The law has been laid down by the apex Court in case of Rana Muhammad Afzal Vs. Inspector General of Police, West Pakistan, Lahore and another, reported as PLD 1974 Supreme Court 31, wherein it was held as under:- "Whether a history sheet is opened under Rule 23.9 of the Punjab Police Rules on the ground that the person concerned is reasonably believed to be habitually addicted to crime or to be an aider or abettor of other criminals, an opportunity of showing case against the opening of the history- sheet must be given to the person.-
8. This Court has already dealt similar nature case "Sardar Malik Jan Vs. The State and 3 others" reported as PLD 2007 Peshawar 116, wherein it was held as under:-- "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 persons 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 belittled in the eyes of the people 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 under Rules 23.8 and 23.9 of the Police Rules, 1934. The principles of natural justice who discourage the condemnation of a person without hearing. There is also nothing on record that petitioner is a hardened, desperate or dangerous criminal or there are reasons to believe that he ever edicted to crimes or had aided and abetted the crimes in the past."
9. In another case "Malik Khan Afsar Vs. The State and 3 others" reported as PLD 1992 Peshawar 114, this Court has held as under:-- "Petitioner admittedly had not been issued any notice of show cause alongwith a statement of allegation either in writing or orally by the Station House Officer of the Police Station concerned before making the entry of his name in the Surveillance Register and opening his history sheet., SHO had, thus, not only violated the mandatory provisions of Police. Rules but also the rule of natural justice which is presumed to be ingrafted into every law---Action of SHO whereby he entered the name of the petitioner in the Surveillance Register of the Police Station and opened his history sheet was, thus, without any lawful authority, absolutely illegal and of no legal effect and the same was set aside accordingly."
10. The peace and tranquility creates harmony in the Society and is the basic requirement regarding the progress and economic growth of a country. The police has a pivotal role for keeping peace in society. For peaceful society, it is incumbent on the police to have an eye on the edicted in crimes, hardened and desperate criminals. To have a check on such persons for achieving the object of peace, Rules have been framed under Chapter XXXIII of Police Rules, 1934 for the prevention of offences. There is no embargo on the police to enter the name of any absconder, convict, hardened, desperate and habitual to crime in the Surveillance Register No. X. However, the person whose name is so entered in the said register should know the facts that on what grounds he is declared history sheeter in the prescribed register. If the name of any citizen is so entered without notice certainly will belittled in the eyes of the people of the locality from where he belongs and will also cause embarrassment before the public, especially for a person, who has achieved some public post through election and has gained good reputation in the society.
11. As, in the instant case, admittedly no notice was given to the petitioner before initiating action to his detriment. 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 Bundle B of the Surveillance Register maintained by the respondents, is without lawful authority and of no legal effect. It is, however, observed that the police force for the prevention of crimes is always at liberty to proceed against the criminal(s) or the person(s) habitually edicted to crimes but in accordance with law and procedure, as ordained under Chapter XXXIII of Police Rules, 1934. .