Sardar Muhammad Iqbal, J.---By order dated the 2nd of September 1968 of the Superintendent of Police, Jhelum made by him under rule 23.9 (2) of the Punjab Police Rules, 1934 the peti tioner Mst.
Ghulam Fatima was history-sheeted. This is a petition calling in question the validity of that order on the grounds, namely (a) that she was not given any notice to show cause against the proposed action (b) that the petitioner was not a previous convict and unless a person has been convicted for more than one offence action under rule 23.9 (2) was not competent and (c) that at any rate the Superintendent of Police had no reasons to take action against the petitioner under the said rule and the order was mala Tides.
2. It was not denied on behalf of the respondents that the petitioner was not served with a show- cause notice before the impugned order was passed. Learned Advocate-General who was assisted by Mr. Mumtaz Hussain, however contended that it is not necessary for a police officer to hear a person before his history-sheet is opened under sub-rule 2 of rule 23.9 and also that to open the history-sheet under the said rule it is not a condition pre-requisite that the person should necessary be a previous convict.
3. The history-sheet of the petitioner was opened on the 2nd of September 1968 and she was informed of it by the Station House Officer, City Police Station, Jhelum by calling her to the police station. It is stated in paragraph l(/)of the petition. ............ the finger prints of her hands and feet were also taken at the police station. The S. H. O.. instructed that she should report to the police station after a week so that her photograph be taken and hung at the police station. "In reply to this allegation it is stated by the Superintend nt of Police in the written report it is correct that the history-sheet of the petitioner was prepared by the S. H. O. P. S. City. It is further correct that the photographs are needed for completion of the file. "Clause (iv) of paragraph 2 of the petition reads. "A person who is a history-sheeter and his history-sheet has been opened is liable to strict surveillance by the police and he is to report to the police station before leaving the jurisdiction of the police station in which the history-sheet is placed warranting a curb on his free movements. A list of history-sheeters is pro minently displayed at the police station along with the photo graph and thus he becomes an out-caste in the society. "This allegation is also not denied in the report. All that is stated is opening of a history-sheet of an individual notorious character is a procedural matter and it is simply a technique whereby the police department maintains a summary of the criminal career of a person so that his activities may be watched properly and he may not go underground. The purpose of maintaining such record is not to penalize a person unnessarily ..... The movements of the history- sheeter are no curbed and she will be only watched in respect of her anti-social activities. It is also not correct that her photograph will be prominently hung at the police station."
It was canvassed at the bar that the police constables enter the house of the petitioner at odd hours and disturb her privacy unnecessary. She is asked at times to report to the police station to appear before the S. H. O. These allegations were however denied. The learned Advocate-General frankly conceded that there is no provision for taking finger prints of hands or feet that the rules do no provide for taking photographs that there is no valid justification for displaying the names of the history-sheeters on the notice board that the police constables caunot only because a person is a history-sheeter enter his house and that he cannot be summoned by any person for appearance before the S. H. O. of the police station. We have also examin ed the Rules in all details and did not find any provision under which any of these actions could be taken. If any police officer or an official were to take any such action it is not warranted by law. In fact he will be out steaping the limits of his authority and will expose himself to a legal action by the aggrieved person for such remedy as may be available to him under law.
However the fact that the police officers in pursuance of the history-sheet indulge in illegal acts cannot furnish any basis for declaring an order to be without lawful authority which other wise is in accordance with law.
4. It is to be examined with reference to the rules whether any notice is necessary before an order opening the history- sheet of a person is passed under rule 23.9 (2) of the rules aforesaid.
The intention of opening the history-sheet of a person is to keep watch over the movements of the suspect. The rules are framed for the guidance of the police officers and they are not to offer any resistance in any sense to the freedom of a person. They intend to keep a confidential watch over the movements of such a person in the interest of the general public and for the maintenance of public order. It is clearly provided in rule 23.31. All records connected with police surveillance are confidential nothing contained in them may be communicated to any person nor may inspection be allowed or copies given save as provided in Police Rules. It is further provided in rule 27.24 that the history-sheet is a privileged document under section 123 of the evidence act and that when its production is demanded a certificate must be obtained from the Inspector- General by the police officer called upon to produce it. It clearly implies that if the police in the larger interest of the society wants to keep watch over the activities of a suspect it should do so in such a manner as not to affect his liberty or that it may be noticed by any other person. Our attention has not been drawn to any rule except rule 23.11 the observance of which may expose the identity of such a person. Rule 23.11 lays down Gazetted Officers on tour and Inspectors shall personally check the entries in history-sheets by local enquiry. In the presence of the persons concerned and their Zaildars and Lantbardars and so far as possible at their homes. Such officers shall also carefully scrutinize the conviction register rule 22.59 (e), in order to see that history-sheets are opened or properly kept up as the case may be for all convicts whose record justifies such action."
The learned Advocate-General stated that a Gazetted Olliccr or an Inspector may in their discretion go to the house of such a person and the fact that he is a history-sheeter may thus remain secret from public. He may or may not do so and instead summon hint to the police station. The police station is a public place and his presence there and appearance before a Gazetted Officer or the Inspector and that too in the presence of other presons can hardly leave any doubt about the purpose for which he is sent and in fact the purpose is manifest in the rule itself. We have otheryvise noticed in a number of cases that an open requisition is sent by the S. H. O. to such persons where they are described as bad characters and are directed to appear before the Superintendent of Police or the Deputy Superin tendent of Police. We are also unable to agree with the learned Advocate-General that if a Gazetted Officer were to visit the house of such a person the fact of his being a history-sheeter or being of a doubtful character can remain secret. 11 is on the other hand bound to create an adverse impression about him even in the minds of those who otherwise may have had nothing against him. We also know that a visit of a police officer in our country to the house of any such person can never give an impression of a casual courtesy call on him.
5. It is not the case of the learned Advocate-General that rule 23.11 is ultra vires the provisions of the Act and that it should not be acted upon. In the presence of this rule it cannot be said that an order to open the history-sheet, of a person does not adversely affect him. Reputation of a person is a valuable right and is guaranteed even by Article 2 of the late constitution which lays down that no action detrimental to the reputation of any person shall be taken except in accordance with law."
Salmotid on jurisprudence says. ' In a man's reputation that is to say in the good opinion that other persons have of him he has ah interest just as he has an interest in the money in his pockets, in each case the interest has obtained legal recognition and protection as a right and in each case the right involves an object in respect of which it exists."
It was contended on behalf of the State that if a person is habitually addicted to crime and is called to appear before a Gazetted Police Officer he is not adversely Sheeted because he has no reputation to suffer. The point here is not that a person who is habitually addicted to crime is adversely affected in any likelihood of a person being called to appear before a police officer although he is by no means a criminal, and other wise enjoys such a reputation that no reasonable person can believe that he is habitually addicted to crime. What shall happen to the reputation of such a person ? Is it not possible that without ascertaining the facts from the person concerned, ' he may on a data furnished to him reasonably believe that he was addicted to crime but the same officer if he hears the person and knows that the information given to him was incorrect or that the person who has collected the material had mala fides against him may find that he is not only not habitually addicted to crime but is a gentle and well-respected in his sphere of society. It is to protect such persons who may be insignificant in number that it becomes imperative that an oppor tunity should be given to be heard. If such a person is required to appear before an officer under rule 23.11 he can as well be called to the office of such an officer to show cause before an order under rule 23.9 (3) is made. His visit to the officer in such a situation will not be detrimental to his reputation because the officers are visited in their office even by the res pectables of the locality. The visit moreover, will not be in the presence of the Zaildar or the Lambardar. To afford such an opportunity would not be against the public interest or in any way cumbersome. It is not the case of the Advocate-General that such an opportunity cannot be given to a person because of any urgency of situation and in fact there cannot be an urgency for the simple reason that the history-sheet is opened only to enable the police officials to keep a secret and clandestine watch over his activities and not that on the opening of the history- sheet any imminent action against such a person becomes neces sary. We, therefore, see no valid justification for an officer taking action under rule 23.9 (2) not to give notice to the person concerned before a final order to open the history-sheet is passed and particularly for the reason that the right of a person to his exposed as a bad character to the public by observance of rule 23.11. It is now well established that no person should be adversely affected in his right without affording him an opportunity of showing cause. It was held by the House of Lords in Board of Education v. Rice ( ). They (that is those who are to make orders) can obtain information in any way they think best, always giving a fair opportunity to those who are parties in the controversy for correcting or contradicting any relevant statement prejudicial to their view. In Faridsons Ltd. v.
Government of Pakistan (2). Cornelius, C. J., observed. "The reason why there is absence of express provision for the accused to be given a hearing under Chapter XXVII is clearly that the rule of natural justice is too well established to require mention, viz., that no person shall be condemned unheard. The purpose is stated the powers are given and as to procedure the Court knows its duty".
S. A. Rehrnan, J. expressed his view at page 554 of the report. "This Court laid it down as a rule in Chief Commissioner, Karachi v. Mrs. Dina Sohrab Katrak (3) that the maxim audi alteram partem (No man shall be condemned unheard) applies to judicial as well as administrative bodies specially where the proceedings taken may affect the person or property or other rights of the parties concerned in the dispute". A similar view was expressed by Fazle-Akbar, J. Kaikaus, J. remarked at "page 562. "As regards the question whether the appellants were entitled to an opportunity to show cause it is true that there is in the relevant sections no express provision as to the right of the person proceeded against to be heard. But there is at the same time nothing in the section militating against the grant of an opportunity to show cause"................ "Hamoodur Rahman, J., (as he then was now Chief Justice of Pakistan) observed at page 571 of the judgment.
"It is difficult to imagine how he could possibly arrive at a correct decision without giving the importer or exporter concerned an adequate opportunity of presenting his own case or meeting the case sought to be set up against him. I have therefore no doubt in my mind that these
(3) PLD 1959 SC (Pak.) 45 provisions clearly cast a duty upon the chief controller to act judicially and intended that he should follow the procedure which is necessary to enable him to discharge that duty efficiently namely by acting in good faith without any bias and by giving to the party sought to be adversely affected a fair opportunity of presenting his case." A similar view was taken in Commissioner of Income-tax v.
Fazlur Rehman (1), Abdur Rehman v. Collector and Deputy Commissioner, Bahawalnagar and 13 others (2) it was held. Although there is no specific provision in the Basic Democracies order entitling the member proceeded against for removal to an opportunity to show cause the member is entitled to such opportunity on principles of natural justice which are to be read in every enactment in the absence of a provision to the contrary. No person can be condemned without an oppor tunity to defend himself. Same view was expressed in Province of West Pakistan v. Nur Ahmad (3). Reliance was placed on the observations of Hamoodur Rahman, J. in AbuI A'la Maudoodi v.
Government of West Pakistan (4) viz. "It is difficult to conceive of cases where from the very nature of the action to be taken this principle cannot possibly have any application. Thus can it be said that where a breach of peace is taking place in the view of the officer or authority empowered to prevent breaches of peace by restricting the movements of persons, he must first give them an opportunity of showing cause before taking action ? To hold so would in my view amount to stultifying the action itself and therefore T cannot agree that this rule is of universal application as is sought to be contended by the learned counsel......... in the case of action properly coming within the scope of the Criminal Law Amendment Act, 1908 the rule and/ alteram partem would not be applicable, for the circumstances in which it would become necessary to take action under the said act are such that they can brook no delay nor does the statute impose upon the Provincial Government any duty to adjudicate or to decide controversies. The power is conferred in the nature of a police power designed for taking preventive action in an emergent situation upon merely the satisfaction of the Govern ment as to the existence of certain circumstances." We have already observed that the power conferred on a police officerunder rule 23.9 (2) does not aim at taking any preventive action in an emergent situation. The question was considered in some detail by his Lordship in Universty of Dacca v. Zakir Ahmad (5) and it was held that in all proceedings by whom so ever held whether judicial or administrative, the principles of natural justice have to be observed if the proceedings might result in con sequence affecting the persons or property or other right of the parties concerned. This rule applies even though there may be no positive words in the statute or legal document whereby the power is vested to take such proceedings for in such cases this requirement is to be implied into it as the minimum requirement of fairness. It was further observed that "the general consensus
(2) PLD 1964 SC 461
(4) PLD 1964 SC 673 of judicial opinion seems to be that in order to ensure the elementary and essential principles of fairness as a matter of necessary implication the person sought to be affected must at least be made aware of the nature of the allegations against him he should be given a fair opportunity to make any relevant statement putting forward his own case and to correct or controvert any relevant statement brought forward to his pre judice. 'Tn Fazal Din v. Lahore Improvement Trust (1) his Lord- ship the Chief Justice observed that if an action is likely to affect adversely to personal or property or other rights privileges or benefits of some one else, then according to the principles of natural justice the persons so affected must be given a fair oppor tunity of representing their own cases "and that if the statute has provided to the contrary then this general principle will not be available." The rules do not provide that notice should not be given to a person before an action is taken against him under rule 23.9 (7). There being no bar in the rules and also there being no emergence or urgency in taking action under the aforesaid rule in opening the history-sheet it is manifest that since the order is to adversely affect the reputation of a person the officer concerned before he makes the order should give notice to the person concerned to show cause. The precise question was examined by Mushtaq Hussain and Shameem Hussain Kadri, JJ. in Muhammad Hafeez Khan v. Government of West Pakistan etc. Writ Petition No. 529 of 169, (decided on the Tst of July 1969) and it was held, it can hardly be denied that the opening of a history-sheet of a person results in lowering him in the esteem of his fellow citizens and has an extremely adverse effect on the most prized possession of a person, i.e. his reputa tion. Before such an extreme step is taken it is necessary that the person sought to be so condemned should be heard and be given an ormortunitv to show cause why such action be not taken against him. The maxim audt alteram partem has the fullest application to such a case. The case was examined at some length in Mirai- ud-Dln v. M.
4. Wnkil C2) by Muhammad Afzal Zullah and Ghulam Rasul K. Sheikh, JJ. and it was held that the failure to give an opportunity to show cause to the petitioner before passing the order opening the history-sheet under rule 23.9 (2) makes such an order illegal and without lawful authority. We are in respectful agreement with the view so expressed. The notice was not given in the present case. The order is therefore bad and merits to be quashed in these proceedings.
6. We may now examine the question whether an order can be made opening the history-sheet against a person who is not a previous convict.
Sub-rule (I) of rule 23.9 enjoins that 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. "In every police station a surveillance register is to be maintained as required by rule 23.4(1). Under sub-rule (2) of rule 23.4 the names of proclaimed offenders, released convicts, convicts the execution of whose punishment has been remitted conditionally and of all persons restricted under the rules of Government made under section 16 of the Restriction of Habitual Offenders (Punjab) Act, 1918 have to be entered in such a register. The history-sheet of such persons is ipso facto opened and the question of any show-cause notice in such a case does not arise.
7. It is provided in sub-rule (3) of rule 23.4 in the following terms :--
(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 27.29 ;
(b) persons who are reasonably believed to be habitual offen ders or receivers of stolen property whether they have been convicted or not ;
(c) persons under security under section 109, or 110, Code of Criminal Procedure ;
(d) convicts released before the expiration of their sentence under the Prisons Act and remission rules without the impos ition of any conditions.
The Superintendent of Police so far as persons falling in categories (a), (t) and (d) of sub-rule (3) ibid are concerned may in his discretion direct that their names be entered in the surveillance register. It in only with regard to persons mentioned in category (/;) viz. who are reasonably believed to be habitual offenders or receivers of stolen property wh ther they have been convicted or not that the Superintendent of Police has to apply his mind to the facts of the case. He can form such an opinion even if the person had not been convicted. It is however laid down in the proviso to sub-rule (2) of rule 23.5 "that the names of persons who have nev r been convicted or placed on security for good behaviour shall not be entered until the Superintendent has recorded definite reasons for doing so."
Thus the Superintendent of Police can enter the name of a person in (he surveillance register even if he was not a previous convict provided he has reasons to believe that he is a habitual offender or receiver of stolen property. The framers of the rules have ensured that in such a case where there is no conviction he should not only believe that the reasons exist but he should actually record definite reasons for doings, If there is an order of the Superintendent of Police to enter the name of a person in the surveillance register under rule 23.4 (3) it will automatically result in the opening of a history-sheet of the person under rule 23.9(1). Th: notice in such a case will not be necessary He would however like to make it clear that we have not examined and in fact there is no need to examine in the proceedings the question whether any notice is necessary to the person before his name is entered in the surveillance register by the Superinten dent of Police while acting under rule 23.4 (3) (b).
8. It is sub-rule (2) of rule 23.9 which needs examination Under the said sub-rule the history-sheet can be opened by a person not below the rank of an Inspector. It is to be opened by him when the name of the persons is not entered in the surveillance register. He can however do so if he reasonably believes that the person is habitually addicted to crime or be an "aider or abettor of such persons. The fact that the words whether they have been convicted or not" occur in sub-rule
(3) of rule 23.4 is signihcant. If by the words habitual offenders the framers of the rules had intended to include also the persons who have not been convicted there was no point in specifically providi g in rule 23.4 (3) (b) "whether they have been convicted or not." The specific mention of these words implies that but for these words the habitual olTenc'ers were to be understood to mean the persons who had been previous convicts. Since these words are not used in sub-rule (2) of rule 23.9 to follow the words who is reasonably believed to be habitually addicted to crime it is manifest that the framers of the rules intended that before history-sheet is opened of a person under the said rule he should be a previous convict.
There is yet another reason for us to come to this finding. The Superintendent of Police if he is to take action under sub-rule 3(b) of rule 23.4 against a person who is not a previous convict has to record under proviso to sub-rule (2) of rule 23.5 definite reasons for doing so. "It is not conceivable that the rule-makers should have given a power to an Inspector who is far below the rank of a Superintendent of Police to order the opening of the history- sheet in similar circumstances against a person who is not convicted of any offence without recording any reasons. The fact that the condition precedent for opening the history-sheet under sub-rule (2) of rule 23.9 is that a person should be reasonably believed to be habitually addicted to crime as also that reasons are not required to be recorded as is required in cases of non-convicts to be done by the Superintendent of Police in order their names are mentioned in surveillance register manifest that the expression habitually addicted to crime" was intended to apply only to a previous convict. It should however not be understood to mean that it is only the previous convictions which can alone furnish a basis for forming a reasonable belief as to whefher or not a person is habitually addicted to crime The suspicion recorded against a person may also furnish a further material as to whether a history- sheet of a person should be opened. It is provided in sub-rule (1) of rule 23.13. The starting of a personal file should always be the first stage in compiling the record of a suspect. As soon as suspicions have come into record regarding an individual to an extent which indicates that he is addicted to crime or is an associate of criminals such record should be tabulated to form the foundation of a personal file. Subsequently, all information obtained about such person, whether in his favour or against him shall be added to his file, The personal file shall from the main material by which superior officers will be guided as to whether to open a history-sheet or not. It follows that a personal lilc must be maintained for every person of whom a history-sheet exists. We are of the opinion that in order that an action be taken under sub-rule (2) of rule 23.9 a person should be a previous convict and the suspicion recorded against him can furnish the basis for forming a reasonable belief as to whether or not he is addicted to crime.
9. We have, however, examined the provisions of section 110 of the Code of Criminal Procedure which empowers a competent Magistrate to require a person who habitually commits or attempts to commit or abets the commission of offences involving a breach of the peace to show cause why he should not be ordered to execute a bond, in interpreting the words habitually commits "it has been held in Emperor v. Kkuda Baklish (1), The learned Magistrate in this case is clearly incorrect in his supposition that a previous conviction is necessary for proceedings under section 110, Criminal P. C. There is no such provision in the law itself which on the other hand lays down in section 117 (4) that the fact that the man is an habitual offender can be proved by evidence of general repute or otherwise............... The learned Magistrate therefore has erred in law in refusing to consider and weigh the evidence produced by the prosecution to prove that the respondent in this case was an habitual thief. Again in re : Shanmugham Asari (2) it was observed lhat it is not necessary before a person is bound down under section 110 or similar section that a certain number of previous convictions should be proved against him if it can be proved otherwise that the person is a habitual thief, house-breaker or robber. If there are no previous convictions the quantum of proof would of course be greater. Then again, evidence of reputation although admissible and even important must be accepted with caution. It is the weakest form of evidence and requires material corrobora tion by other evidence proving the habits of the persons against whom the police are proceeding".
Before a final order is passed under section 118 of the Code in respect of proceedings which are initifated under section 110 not only the Magistrate is required by section 117 to afford an opportunity to the persons concerned to appear and controvert the allegations before hint but it is also provided that he must judicially consider the evidence and base his finding on judicial principles.
There is no judicial element involved in the decision of an officer before he can order the opening of the history-sheet under rule 23.9. It is true that the word habitual by itself does not imply that a person should be a previous convict but we have held in the context of the rules by considering Rule 23.4 (3) (b) in that juxtaposition with rule 23.9 (2) that in case the action is taken under the latter lule the person should be a previous convict.
(2) A 1 R 1938 Mad. 428
10. In order that a history-sheet be opened under rule 32.9 (2) in respect of any person it is necessary that he should be reason ably believed to be habitually addicted to crime or to be an aider or abettor of such person. The learned Advocate-General has frankly conceded that the use of the word "reasonably believed" makes the order justiciable and the Court can always examine whether or not there were reasons for the officer to form the belief. In Ghulam fil/ani v. Government oj West Pakistan (1) action was taken against the detenu under rule 204 of the Defence of Pakistan Rules which provided "any police officer or any other officer of Government empowered in this behalf by general or special order of the Central Government may arrest without warrant any person whom he reasonably suspects of having acted or acting or of being about to act (a) with intent to assist any state at war with or engaged in military operations against Pakistan or in a manner prejudicial to the security the public safety or interest or the defence of Pakistan or to the efficient conduct of military operations or prosecution of war. "In inter preting this rule Cornelius, C.
J. observed. The power of a police officer or other empowered officer given by rule 204 is dependent upon suspicion based on reasonable grounds that the person in question has performed or is performing or is about to persorm a prejudicial act. It was held : The ascertainment of reasonable grounds is essentially a judicial or at least a ^nosi-judicial function. It is too late in the day to rely as the High Court has done on the dictum in the English case of Liversidge (L R 1942 A C 206) for the purpose of investing the detaining authority with complete power to be that judge of its own satisfaction. Public power is now exercised in Pakistan under the Constitution of 1962 of which Article 2 requires that every citizen shall be dealt with strictly in accordance with Law." In Abdul Baqi Baluch v. Government of Pakistan (2) it was observed by Hamoodur Rehman, J. that it is no longer regarded as sufficient for the executive authority merely to produce its order saying that it is satisfied. It must also place before a Court the material upon which it so claims to have been satisfied so that the Court can in discharge of its duty under Article 98 (2) (b) (t) be in turn satisfied that the detenu is not being held without lawful authority or in an unlawful manner. The same view was expressed in Government of West Pakistan v. Begum Agha Abdul Karim Shorish Kashmiri (3).
The question arises whether the Superintendent of Police could on the material before him form a reasonable belief that the petitioner was addicted to crime. The petitioner in the instant was convicted once in the year 1958 for an offence under section 363/342, P. P. C. There is no conviction recorded against her subsequent to that. She was also not suspected for the commission of any crime. She was prosecuted in the year 1964 but was acquitted. The only allegation against her is that there is a case pending against her under the Suppression of Prosti tution Ordinance II of 1961.
What is to be seen is whether a [11] person by habit is a criminal. The word habit implies a tendency or capacity resulting from the frequent repetition of the same act. The words by habit and habitually imply frequent practice or use. One conviction and that too in the year 1958 and the trial under the Suppression of Prostitution Ordinance, 1961 in 1968 in our view do not furnish a basis to form a reasonable belief that she is criminal by habit. There should be a number of cases before it can be said that she is habitually addicted to crime. We are of the opinion, that the history-sheet cannot the opened on vague allegations and if it is permitted to be so done nobody will be safe.
11. For the foregoing reasons, we would accept the petition and declare the impugned order to be without lawful authority and consequently of no legal effect. There shall however be no order as to costs.