By this criminal revision application under section 561-A, Cr. P. C. The applicant Abdul Rashid alias Sheedu seeks quashment of the order under section 112, Cr. P. C. Passed by the Sub-Divisional Magistrate. Ghotki on 12th August, 1982. The order is based on the report dated 10-8-1982 laid before the said Magistrate by the S. H. O. Police Station Ghotki. The allegations made in the report are that the applicant is a dangerous thief and habitually commits thefts and robberies and disposses stolen property on receiving Bhung. It is further alleged that he creates harassment amongst people and his remaining at large would be hazardous to the public.
2. Mr. Paryaram representing the applicant contended that the Impugned order does not fulfil the legal requirements spelt out in section 110, Cr. P. C. Inasmuch as that it is not backed by specific instances to the effect that the applicant by habit, engages himself in committing thefts and robberies and disposing stolen property on receiving Bhung. According to the learned counsel the allegations which have been made the basis of the order are vague, stereotyped and are of general nature. He pointed out that the solitary instance which has been quoted in support of the allegations against the applicant relates to the case under sections of offences specified in section 307/326, P. P. C. And this does not fall within the category of offences specified in section 110, Cr. P. C.
Therefore, the learned counsel was of the opinion that it does not advance the prosecution case. In support of his view point be placed reliance on several precedent cases. Mr. Gul Bahar Korai appearing on behalf of the State does not support the impugned order.
3. In order to appreciate the arguments addressed at the bar, the order under section 112, Cr. P. C.
May be reproduced as under :- "Whereas information has been laid down before me by the S. H. O. P. S. Ghotki vide his report No. C- 27 dated 10-8-1982 produced in the Court on 11-8-1982 that you are residing within the jurisdiction of P. S. Ghotki and so also of this Court.
And whereas it has been further laid before me that you are habitual offender, bad character, receiver and disposer of stolen property on accepting Bhung money. That you are associated with thieves of other places through whom you get crimes committed. That you are so dangerous that no one from public is prepared to depose against you and that your remaining at large without proper surety is hazardous for public peace and tranquillity. That you stand challaned in the following cases, Crime Nos. 234/76 under section 307/326, P. P. C., P. S. Ghotki. That the following witnesses are cited against you: (1) Inspector Muhammad Nawaz S. H. O., P. S. Ghotki. (2) A. S. I.
Muhammad Khan, P. S. Ghotki. 13) A. S. I. Riaz Hussain Shah. (4) H. C. Gul Hassan No. 705.
You are therefore called upon to show cause why you should not be ordered to execute bond in the sum of Rs. 10,OC0 and P. R. In the like amount with one surety in the like amount for keeping good behaviour for a period of 12 months. The surety should be solvent, resident of Ghotki Sub-Division and able to control your activities."
4. Oil perusal of the above order, I am of the view that the arguments of the learned counsel for the applicant carry a lot of weight and cannot be easily overlooked. The allegations made against the applicant are patently vague of general import. They are not supported by concrete instances. The only case mentioned in support relates to the offence under section 307/326, P. P. C. Of course the applicant is stated to have been challaned in that case, but as stated by the learned counsel for the applicant this case was subsequently withdrawn. A copy of the order dated 14-12-1981 by which the Assistant Sessions Judge Ghotki allowed the withdrawal of the case (vide Annexure 'C' at page 19 of this Court's record) obviously supports his statement. Even if that case is taken into consideration, it does not prove the applicant to be habitual thief or robber or the on disposing stolen property on receiving Bhung. As pointed out above, it does not fall in the series of offences specified in section I10, Cr. P. C. There is no other specific instance to back the prosecution allegations.
5. No doubt it is permissible to lead even evidence of general repute of the accused to establish a case under section 110, Cr. P. C. But such evidence should come from the mouth of those persons in whose midst the accused resides. Not only this but the persons giving the evidence about the general reputation of the accused should be trustworthy and command respect in the locality. In the instant case all the four witnesses cited for evidence are police personnel. Muhammad Nawaz is S. H. O., Muhammad Khan and Riaz Hussain Shah are A. S. Is. And Gul Hassan is Head Constable. It is true that police officers do possess the intelligence about e the habitual offenders residing within their jurisdiction. They can also be l examined as competent witnesses to convey such information in the court. But their oral evidence uncorroborated by the solid and authentic material cannot be accepted for the purpose of final decision in the cases of this kind. Excepting the case under section 307/326, P. P. C. Referred to above, there is no indication either in the police report or in the order under section 112, Cr. P. C. That any such evidence is available to lend support to the oral evidence of the police personnel.
6. Taking into consideration the case law, I may first refer to the case of Mehar Khan v. The State (1975 P Cr. L. J 257). It was observed :- "No doubt section 110, Cr. P. C. Provides for admission of evidence of general reputation or conduct but such evidence must be based on a sound foundation and ordinarily such evidence must be coupled with specific instance of overt acts committed by the person to be proceeded with and particulars of the cases in which he was involved, challaned or convicted."
7. In the above case reliance was placed on Qasim v. The State (PLD 1971 Kar. 473), wherein it was held that although a police officer is a competent witness to speak about the reputation of a person residing within his jurisdiction and with regard to whom he has occasion to make observations and enquiries in the course of his official duties the evidence of such a police officer, should be put to a strict scrutiny in the light of circumstances which from the basis of his belief and it is unsafe to base the order on his view alone if it is not founded upon any solid fact. While commenting on the type of cases which provide "basis for action under section 110, Cr. P. C. It was observed :- "Apart from the fact that the case under sections 324 and 504, P. P. --ended in compromise, the involvement of the applicant in such a case would not bring the applicant within the ambit of section 110, Cr. P. C. For it does not come within the list of offenders specified in section 110, Cr. P. C.
Which can be made the foundation for proceed--ings under the said section."
8. I am in complete agreement with the views expressed in the above reported case. In the instant case, as stated above the allegations... Are merely general in nature and are not supported by concrete instances and the only instance cited in its support does not fall within the category of the cases mentioned in section 110, Cr. P. C. Bringing the applicant within the mischief of that section.
The evidence of police personal who have been listed for evidence in this case is also not grounded on any solid material giving the requisite authenticity to their testimony.
9. Another case relied upon by the learned counsel for the applicant is Dildar Shah v. The State (1976 P Cr. L J 232). In this case for the allegations that the petitioner was habitual mischief-monger and indulged in commission and abatement of offences involving breach of peace were held not to have brought the case of the petitioner within the ambit of section 110, Cr. P. C.
10. Similarly in the case of the Abdul Ghani v. The State (1976 P Cr. L J 1380), the petitioner who was sent up in two cases of smuggling, was not found involved in the cases falling within the purview of section 110, Cr. P. C.
11. Reference was also made to Mustafa v. The State (1978 P Cr. L J 761), wherein it was held.
"Merely because a person is challaned in one or two cases cannot be the basis of being prosecuted under section 110, Cr. P. C. Even with regard to the offence of general repute. The witnesses cited are all police officers and the only other persons is a resident of brothel area within the jurisdiction of Market Police Station. As already held in 1975 P Cr. L J 1025 no action can be taken on the basis of this report under section 110, Cr. P. C. Against the petitioner."
12. Lastly reliance was placed on Ali Sher v. S. D. M. Virpur Mathelo etc. (1982 P Cr. L J 750). In this case after reviewing a great number of authorities, following deductions were made :- "firstly that 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 I10, Cr. P. C., secondly that 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 and thirdly, that it is not necessary that for proving habit there should be convictions of the person proceeded against under section 110/55, Cr. P. C. In some cases."
14. In view of above authorities I would like to reiterate that vague aunt general allegations not backed by concrete instances cannot form tit basis for action under section 110, Cr. P. C. I further hold that the instances involving offences unconnected with the offences specified in section 110, Cr. P. C. Cannot bring the accused within the mischief of the said section. I am also of the opinion that in order to prove that the accused is a o habitual offender within the meaning of section 110, Cr. P. C. It is essential to establish that he has committed the offence more than once. As for evidence of police officers, I am inclined to hold that they are competent, to give evidence of general reputation of the accused. But before placing implicit reliance on their testimony their source of information should be strictly scrutinized so as to ascertain that it is reliable and their evidence is corroborated by solid and authentic material.
14. Applying the above criteria in the instant case. I find that none of them is fulfilled. Accordingly the impugned order cannot be sustained and it is therefore quashed together with the