This criminal revision application under sections 435 read with 561-A, Cr. P. C. Is directed against the order under section 112 and another order under section 117(3). Cr. P. C. Both passed by the Sub- --Divisional Magistrate, Mirpur Mathelo, District Sukkur, on 22nd February, 1981 on a report lodged by the S. H. O., Police Station Khanpur, Mehar.
2. The facts giving rise to this revision briefly stated are.
3. The S. H. O., Police Station Khanpur, Mehar arrested the applicant on 22nd February, 1981 under section 110; 55, Cr. P. C. And produced him before the Sub-Divisional Magistrate, Mirpur Mathelo, District Sukkur with a report against him under section 110. Cr. P. C. Containing allegations that the applicant was a habitual thief, barbourer of thieves, receiver of stolen property which he disposes of on receiving 'Bhung', moves about with unlicensed arms and uses the same in commission of offences.
4. The learned Magistrate on the same day passed an order under section 112, Cr. P. C. In the following terms :- "Whereas it has been reported to me that you reside within the local limits of this Court. You are habitual offender, bad character, receiver and disposer of stolen property on bhung. You move armed with unlicensed weapons. You are so desparate and dangerous that your remaining at large without surety is hazardous to the general public.
Now therefore I, Nisar Ahmed Siddiqui, Sub-Divisional Magistrate, Mirpur Mathelo hereby call upon you to show cause as to why you should not be ordered to execute a bond in the sum of Rs. 10,000 and P. R. Bond in the like amount for keeping good behaviour for a period of one year. The surety should be solvent, resident of this Sub-Division and able to control over your activities." The learned Magistrate on the same day after examining the S. H. O., passed another order under section 117(3), Cr. P. C. Requiring the applicant to execute a bond in the sum of Rs. 10,000 with one surety in the like amount for maintaining good behaviour until the completion of the enquiry and on his failure to furnish the same the applicant was remanded to custody. The applicant has therefore come up in this revision.
5. It appears that four other persons namely, Mohammad Sharif, Waris, Allan, and Jam Sher all caste-fellows of the applicant were also arrested by the same S. H. O. On the same day at the same place and were also produced before the same Magistrate. All the aforesaid four persons were dealt with similarly. They all preferred Criminal Revision Applications hearing Nos. 15/81, 16/81, 17/81 and 18/81 against the identical orders of the learned Magistrate in this Court and succeeded.
6. I have heard Mr. Abdul Haleem Pirzada learned counsel for the Applicant and Mr. S. Sarfraz Ahmed Assistant Advocate-General for the State.
7. It is submitted by the learned counsel for the applicant that the allegations made in the report were vague and general and they did not attract the provisions of section 110, Cr. P. C. Inasmuch as the instances of commission of any acts or offence are cited in the report nor were the number of cases, pending or decided cited in support of the allegations. It is further submitted that the order under section 117(3), Cr. P. C. Was passed only after recording the evidence of S. H. O., Police Station Khanpur, Mehar whose evidence was hearsay and no more and without affording any opportunity to the applicant.
8. I have already mentioned that Mohammad Sharif, Waris, Allan and Jam Sher had filed separate criminal revision applications against the identical orders which were allowed by my learned brother Zafar Hussain Mirza, J. By a common judgment dated 1st June, 1981. It would have sufficed to rely on that judgment and allow this application, but I think, I should re-state the law on the points raised so that all concerned have clear and complete view of the law before them.
9. Under section 110, Cr. P. C. a District Magistrate or Sub---Divisional Magistrate or an Executive Magistrate specially empowered in this behalf by the Provincial Government can take cognizance only 'if he receives the information that any person within the local limits of his jurisdiction :-
(a) is by habit (underlining is for emphasis) a robber, house--breaker, thief, or forger or (b) by habit a receiver of stolen property knowing the same to have been stolen, or (c) habitually protects or barbours thieves or aids in the concealment or disposal of stolen property, or (d) habitually commits, or attempts to commit, or abets the commission of, the offence of kidnapping, abduction, extortion, cheating or mischief, or any offence punishable under Chapter XII of the Pakistan Penal Code, or under section 489-A, section 489-B, section 489-C or section 489-D of that Code, or (e) habitually commits, or attempts to commit, or abets the commission of, offences involving a breach of the peace, or (f) is so desperate and dangerous as to render his being at large without security hazardous to the community.
[Here in Italics]
10. Now, a person can be proceeded against under tire provisions of section 110, Cr. P. C. Only if he is by habit a robber, housebreaker, thief, etc. Or habitually commits the acts mentioned therein. The words 'habit' and 'habitually' are not defined in the Code. But ordinarily, imply frequent practice or use, and the word `habit' implies a tendency or capacity resulting froth the frequent repetition of the same act. (See : D. N. Singh v. State of 1I. P. (AIR 1960 All. 754).
The phrase 'habitual offender' came up for consideration before the Supreme Court of India in Dhanji Ram Sharma v. Superintendent of Police (AIR 1966 SC 766) and it was ruled that a habitual offender is one who is criminal by habit or by disposition formed by repetition of crimes.
It therefore, follows that a person can be said to be by habit or habitually thief or robber when he repeatedly commits thefts or robberies. In my opinion therefore, one or two instances would not be sufficient to prove that a person does such acts by habit as come within the purview of section 110, Cr. P. C. There should be numerous instance to establish the habit. Then there should be evidence that the person proceeded against is by habit thief, robber, etc. Evidence of general reputation can be given but the same should be by those among whom or in whose neighbourhood the person lives. Evidence of Police Officers alone unless-they had some special means to know the reputation in the course of their duties, would not be sufficient. Vague and general allegations as to the nature of the acts or offences contemplated by the provisions of section 110, Cr. P. C. Would also not be sufficient.
I may here refer to the observations of Mushtak Ali Kazi, J in Mazan alias Mazno v, The State (PLD 1975 Kar. 1035) with advantage :- "Habit implies a tendency resulting from repetition of the same acts. It connotes depravity of character as evidenced by frequent repetition or commission of offences of theft, receiving of stolen property, etc. 1t does not mean mere inclination to commit such offences by temperament, but persistence capable of proof by evidence. Habit must be proved by aggregate instances and not on the basis of complicity in an isolated instance of theft or suspicion in respect of another such incident. Thus it is necessary that there should be evidence by large number of persons in respect of definite instances of theft etc, in which the person complained against was involved.
It is true that in cases under section 110, Cr. P. C. Evidence of general reputation can also be given, but reputation means, what is thought of a person by others, and the general reputation of a person, is the collective opinion of those in whose midst he lives. Evidence which discloses the existence of such collective opinion, is the evidence in proof of general reputation: This general reputation should, therefore, be distinguished from mere opinion or rumour. A man's general reputation is the reputation which he bears in a place in which he lives amongst all the villagers or townsmen. If his fellow villagers or townsmen look upon him as thief or robber or a dangerous man that would be strong evidence of bad character. This collective opinion must be distinguished from individual opinion or suspicion of a Police Officer. Police records of suspects or history-sheets maintained by the Police or even entries in the police diaries, would all be inadmissible as evidence of general repute. Likewise mere oral word of a Police Officer giving his opinion that a particular person is a habitual thief would also be inadmissible as hearsay evidence."
I may here also refer to a decision of Z. A. Channa, J. In Miral v. The State (1978 P Cr. L J 161)
"Coming now to the third ground of attack on the impugned proceedings, it may be pointed out that an order under section 112 is not to be passed automatically on lodging of information or report by the police or any other person under Chapter V111, Cr. P. C. But is only to be passed where the Magistrate is of opinion that there is sufficient ground for proceeding against the person informed against. The Magistrate can reach this opinion only on an examination of the information laid before him. The information thus should be of such a nature and contain such particulars and details that the Magistrate can reasonably form the opinion that there is need for taking proceedings. Mere vague and general allegations against a person that he is a habitual robber, house-breaker, thief, receiver of stolen property, taker of bhung harbourer of criminals etc. Would therefore, not be sufficient for initiating proceedings against such person unless such general allegations are backed by particular instances or details and particulars of the criminal habit or habits alleged against him. 1n the instant case no such instances or particulars are given in the police report which, as already pointed out, merely contains general and vague allegations against 'the applicant. Moreover, though in the report the applicant is alleged to be a notorious and habitual thief, receiver of stolen property anal taker of bhung, no respectable person of the locality where the applicant is residing or any other private person is cited in the information laid against him and the only witnesses cited against him are police officers."
I may refer yet to another judgment of Mushtak Ali Kazi, J. In The State v. Hassad (PLD 1976 Kar. 918) as follows :- "The question then arises whether the, evidence of the police officer, namely, S. H. O. Shah Mir Khan of Kashmore Police Station could be regarded as sufficient basis for passing the impugned orders in the present case. It has time and again been observed by this Court that enquiries under Chapter VIII are also governed by ordinary rules of evidence and evidence not admissible under the Evidence Act cannot be admitted in proceedings under section 110, Cr. P. C. It is true that where a person is charged under section 110 as being a habitual offender, his character becomes a fact in issue and evidence as to character of a person becomes relevant under the provisions of section 54 of the Evidence Act. But general reputation of a person is the collective opinion of those in whose midst he lives. Whereas evidence of rumour would be mere hearsay evidence, the evidence of general reputation which a man bears in the place in which he lives amongst all the residents of that locality that they look upon the man as a dangerous person and of bad habits would be strong evidence that the man is of bad character. Thus evidence of general repute ought to be given by respectable persons who are acquainted with the person sought to be bound-over and who lived in the same neighbourhood and are aware of his reputation. It would not ordinarily be sufficient to examine merely the police officers and their subordinates to prove the general reputation of a person. The Court cannot accept the evidence of police officers alone unless they had some special means to know the reputation in the course of their duties. Police records of suspected cases of history-sheets maintained by the police or even the entries in the crime register or police diaries would all be admissible as evidence of general repute. Likewise mere oral word of a police officer giving his opinion that a particular person is a habitual thief or receiver of stolen property would be inadmissible as mere hearsay evidence."
In the above-referred two cases the learned Judge placed reliance upon Qasim and others v. State (PLD 1971 Kar. 437) and Karer v. State (AIR 1959 Al. 347).
In Noor Muhammad alias Noorul v. State (1975 P Cr. L J 1025), Mushtak Ali Kazi, J. Had again occasion to observe as follows :- "It has been argued by Mr. Nooruddin Sarki on behalf of the applicant that the proceedings being void ab initio could not be validated by passing a belated order under section 112, Cr. P. C. After a lapse of about eight months. It has also been pointed out by Mr. Sarki that in the police report for starting proceedings under section 110, Cr. P. C. The S. H. O., Harbour has merely mentioned the general reputation of the applicant to be a notorious and hazardous criminal. He has neither mentioned any instances of any offences involving breach of the peace nor has he described any incident in which the applicant has acted in a desperate and dangerous manner. Apart from that not a single witness of the said locality namely, Baghdadi area, has been cited in the report as a witness. All that the S. H. O. Has done is that he has mentioned crime numbers of four cases under section 307, 13-D. 323, 403 and 426, P. P. C. One more case under the Goonda Ordinance has also been mentioned but it has not been stated whether these cases are pending or have been disposed of and whether the applicant has been convicted or acquitted."
Reference may also be had to Maroo v. The State (1980 P Cr. L J 363) wherein G. M. Shah, J.
Observed as follows :- ---It is not denied that in cases under section 110, Cr. P. C. Evidence of general repute can be adduced. The general reputation is what is thought of a person by others. It is a collective opinion of those persons in whose midst the accused lives. Such a reputation is distinguishable from a mere opinion of a few individuals. In majority of the cases, we find, that the evidence of repute comes only from the Police Officers ; whereas, on general reputation of a person, evidence, ordinarily, should come from respectable and independent witnesses of the locality, where the accused lives, amongst his villagers or townsmen whether he is a thief, by habit, a robber or is a dangerous person."
The learned counsel for the applicant also referred to Nazir Ahmad v., The State (1980 P Cr. L J 853), wherein to prove the habit eight instances were cited. Dealing with the eight instances cited in- the report it was observed by the learned-Judge in his very brief judgment as follows :- "Mr. Madad Ali Shah has pointed out that in the complaint dated 30th March, 1979 submitted at Market Police Station, Hyderabad under section 110/55, Cr. P. C. Out of the 8 cases cited for proving that the appellant was habitual Goonda and Badmash or a smoker of charas or had no other ostensible means of subsistence, Case No. 1 has been discharged, Cases Nos. 2, 3 under sections 379, 380, P. P, C. Are still pending. Even the case of charas is still pending while the case of house trespass has been compromised. Case under section 506, P. P. C: has also been compromised and the case under Sind Crimes Control Act has been quashed by the High Court. Certified true copies have been produced. The case under sections 353, 225 is pending and the last case shown under section 13-D of Arms Ordinance is still pending. It could not be, therefore, said that the applicant is by habit a criminal as the habit requires the proof of conviction in some cases.
In these circumstances, it is clear that complaint under section 110/55, Cr. P. C. Has been filed `premature without waiting for the results of those cases and there can be led no evidence to sustain these proceedings."
With utmost respect I do not subscribe to the view that for proving habit there should be convictions of the person proceeded against under section 110/55, Cr. P. C. In some cases. If this rule is followed that in all those cases where a person repeatedly commits such acts as coin within the purview of section 110, Cr. P. C. And are offences within a short time and he is challaned, he cannot be proceeded against until 'some of those cases are decided and resulted in conviction.
This will make the provision ineffective at least partially. Moreover, no such condition or limitation can be read in the provisions of section 110/55, Cr. P. C. I may here quote a passage from the "Woodroffe on the Code of Criminal Procedure (Pakistan Edition) by Shaikh Abdul Halim, page 307 :- `6The power given by this section should be exercised sparingly and with. Much discretion by the Magistrate and only in those cases where the evidence is very clear and precise, nor on the other hand, should its exercise be confined only to cases in which positive evidence is forthcoming of the commission of offences."
Reliance is placed by the learned author on In re : Peddasiva Reddi (I L, R 3 Mad. 238).
In the present case no particulars or details of any acts or offences are given. Not only that but also no numbers of any cases, pending or decided, are stated. There are only general and vague allegations lacking in all material particulars.
Now, I may take up the ground that two orders were passed on the same day without affording any opportunity to the applicant to engage a counsel. The grievance is valid. In similar circumstances it was observed by late Jamaluddin H. Ahmed, J. In Adam v. The State (1977P Cr. L J 1107) as follows :- "Although this was a case in which the final order has been passed under section 118 on the same day when the proceedings were initiated and it was shown that the accused pleaded guilty, still in so far as the proposition that a person produced in cannot possibly be said to have any adequate opportunity of engaging a counsel or to make any arrangement for properly defending himself, the case can be relied upon as an authority. In such circumstances the presumption will also be in favour of the person proceeded against and if the law requires that a proper opportunity of defence should be given, I do not see why the applicant in this case should have been denied, much before adverse orders were passed against him. The orders passed without giving him a proper opportunity are therefore liable to be set aside.
The learned Assistant Advocate-General in view of the above decided case, has fairly conceded that the orders under section 11.7(3) Cr. P. C. Are not sustainable."
It will be seen that the present order was passed merely on the evidence of the S. H. O., Police Station, Khanpur Mehar which evidence is nothing but hearsay and on such evidence it was observed by Ghous Ali Shah, J. In Uris v. The State (PLD 1981 Kar. 50), following Mazan alias Mazno :- - "The proceedings pending against the applicant are also based on evidence of police officers only.
It would be therefore highly unsatisfactory to pass an order on mere evidence of police officers regarding general reputation. It is, therefore not proper to allow the proceedings before the learned S. D. M., Naushero Feroze to continue as that would be leading to unnecessary harassment of the applicant."
I may lastly mention that in Revision Application No. 15 of 1981 and connected Revision my learned brother Zafar Hussain Mirza, J., following Mazan alias Mazno Miral, Uris and Maroo had allowed the petitions. It will be useful to reproduce paragraph 4 of the judgment and first sentence of paragraph 5 which reads as follows :- "It is pointed out that the S. H. O. Himself is the complainant and two witnesses have been cited who are both A. S. Is. Of Police and no private person of the locality has been cited as a witness. It is vehemently contended on behalf of the petitioners that the complaint did not disclose sufficient material for the learned Magistrate to exercise his jurisdiction and take cognizance of the proceedings. It is further submitted that none of the petitioners have a previous conviction. Indeed they have never even been challaned in any criminal case. The submission is that the vague and general allegations levelled against the petitioners in the complaint do not come within the purview of section 110, Cr. P. C. 1n this connection, reference has been made first to Mazan v. State (PLD 1975 Kar. 1035), in which proceedings taken under section 110, Cr. P. C. Were quashed by the High Court on the ground that it will be highly unsatisfactory to base a final order on mere evidence of general repute deposed to by the police officers which will result in unnecessary harassment of the applicant. Learned Judge observed that habit must be proved by aggregate instances, so that it is necessary that there should be evidence by large number of persons in respect of definite instances of criminal acts in which the person complained against was involved. Further, it was elucidated that evidence of general repute in proceedings under section 110 must be direct coming from the respectable person of the locality and not mere opinion based upon rumour. Reference was then made to Uris v. State (PLD 1981 Kar. 50) in which the aforesaid view was followed. In Miral v. State (1978 P Cr. L J. 161), it was held that mere vague and general allegations against a person that he is a habitual robber, house breaker, thief, receiver of stolen property, etc. Would not be sufficient for initiating proceedings unless the allegations are backed by particular instances or particulars of criminal habits. Similar view was taken in Maroo v. State (1980 P Cr. L J 363).
The case of the present petitioners clearly, therefore, falls within the mischief of the dicta laid down in the aforesaid reported cases."
The present case is fully covered by the judgment of my learned brother Zafar Hussain Mirza, J. For the allegations levelled against, evidence and orders in the present case and those decided by any learned brother are identical. Indeed in those cases the learned Assistant Advocate-General had not supported the orders as is done by Mr. S. Sarfraz Ahmed in the present case. Therefore, the petitioner is entitled to succeed. I accordingly, allow the petition and quash the proceedings and cancel the bail bond furnished by the applicant. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.