1. These are 24 Criminal Miscellaneous Applications filed under section 561-A, Cr.P.C. No.5 of 1986 to 28 of 1986, which are listed today for hearing of Miscellaneous Applications therein No. M.A. 94 of 1986 to 117 of 1986. Both the learned counsel agreed before me that these are identical applications in which the facts and points of law are same and since a very short question of law is involved for their final disposal so 1 have heard the learned counsel in detail on merits for final disposal of the main applications.
2. Records in all these 24 cases from the Court of S.D.M., Hala are available which have been perused.
3. Criminal Miscellaneous application 5 of 1986 is filed by applicant Jurio and against him Case No. 120 of 1986 is pending in the Court of S.D.M., Hala under section 110-F, read with section 55, Cr.P.C. It appears that Mahboob Ahmad Jatoi, S.H.O. Metyari Police Station submitted reports in the Court of S. D.M , Hala against 24 applicants and 5 others for action under section 110, Cr.P.C. Allegations are identical and stereo type. Case No. 120 of 1986 of the Court of S.D.M. Hala is taken up for perusal which shows report of S.H.O. Alleging that applicant is a thief by habit and commits theft and disposes of stolen property on Bhung money and criminals visit him and he gets offences committed through them and he has no ostensible means of livelihood except crime and is responsible for spreading fear and terror hence action under section 110, Cr.P.C. Is requested. At the foot of the report names of three witnesses are mentioned who are all from Police, one Head Constable and two Police Constables. One case is also mentioned as Crime No. 216-A, P.P. C.
4. On 14-12-1985 learned S.D.M. Passed production order requiring applicants to be produced before him for further proceedings under section 110, P.P.C. On 16-12-1985. On that day enquiry was taken in hand and order under section 112, Cr.P.C. Was passed in all the cases against 24 applicants and 5 others. Order under section 112, Cr.P.C. Is available on the record in which allegations made by S.H.O.
5. Are repeated and reliance is placed on Criminal Case No. 68/85 under section 216-A, P.P.C. And applicants were called upon to show cause why they should not be ordered to execute bonds for keeping good behaviour for a period of 12 months with two sureties solvent in the sum of Rs.5,000 each who shall be able to control over activities of applicants. Such orders as stated above have been passed by learned S.D.M. In all 24 cases. Since the facts are same and reliance in all 24 cases is made on only one pending case under section 216-A, P.P.C. And the allegations made against the applicants by S.H.O. In his reports and by learned S.D.M. In his orders under section 112, Cr.P.C.
6. Are also same then all these cases can be disposed of together on the basis of same arguments.
7. Learned counsel for the applicants has assailed proceedings pending in the Court of S.D.M., Hala against applicants on the ground that allegations are vague and general in nature and in support instances have not been quoted to prove habit and reputation as is alleged against the applicants.
8. Perusal of reports of S.H.O. And orders passed by the learned S.D.M. Under section 112, Cr.P.C. Clearly show that only vague allegations are made and no instances have been quoted excepting one pending case. In support of the contention learned counsel for applicants has put reliance on the case of Mazan alias Manzo v, State PLD 1975 Kar. 1035 in which Mushtak Ali Kazi, J. (as he then was) in the proceedings arising from the case under section 110, Cr.P.C has described Habit as under:- "Habit implies a tendency resulting from repetition of the same act. It connotes depravity of character as evidenced by frequent repetition or commission of offences of theft, receiving of stolen property etc. It 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."
9. Learned Judge further has described Reputation as under: "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."
10. Now if section 110, Cr.P.C. Is read carefully, it would appear that in the instant cases while passing orders under section 112, Cr.P.C. Learned S.D.M. Has taken action under section 110(a), (b), (c) and (f), Cr.P.C. (a), (b) and (c) relate to habit. In (a) tine applicants are alleged to be by habit thieves in
(b) they are alleged to be by habit receivers of stolen property and (c) they are alleged to be habitually protecting harbouring and thieves but allegations made are vague in nature. No instances have been quoted. No witnesses from the village or area where applicants live have been produced. Only three Constables from Police are proposed to be produced and the whole reliance is proposed to be placed on one pending case. Clause (f) of section 110, Cr.P.C.
11. Contemplates action against persons who are desperate and dangerous by reputation. To prove this allegation also, there is no evidence worth the name in possession of prosecution. Perhaps for this also reliance is being placed on that one ,ending case.
12. It is submitted by the learned counsel for the applicants that pending case Criminal No. 68 of 1985 under section 216-A. P.P.C. Which is pending in the Court of A.C.M., Matyari arises from three F.I.Rs.
13. Filed by same S.H.O. Matyari on 11-12-1985 one day earlier than his reports filed in the Court of S.D.
14. M., Hala for action against applicants under section 110, Cr.P.C. Those three F.I.Rs. Cover all 24 applicants and. Five others. In those cases offence mentioned in section 216-A, P.P.C. Which relates to penalty for harbouring robbers or dacoits. Offence is punishable with R.I. For a term which may extend to seven years and also is liable to fine. Offence is bailable as such applicants have furnished sureties in that case which have been accepted. It is not disputed by learned A. A.-G.
15. That that case is still pending and has not been finally disposed of. This point Is also not disputed that a pending case can never be considered to prove habit or reputation or past criminal record because the result may also end in acquittal. In any case it is a general principle of law that accused is to be presumed innocent unless the prosecution proves its case against him and the conviction is recorded which is not disturbed or set aside in other forums of appeal and revision. I do not want to make any comments on the merits of that case although it is submitted by the learned counsel that in those F.I.Rs. Four dacoits are mentioned and from them present applicants have filed murder cases against two of them and in such circumstances how could it be alleged that applicants have been harbouring those dacoits This is for the trial Court in that case to decide.
16. I would only say this much that filing of these cases by the same S.H.O. One day earlier is certainly indicative of mala fides when attempt is made by him to make use of that case as a pending case in order to proceed against the same persons under section 110, Cr.P.C. Learned counsel for the applicants has also relied upon other two cases in support of his contention. One is case of Aftab Alam alias Matoo v. Province of Sind and 2 others PLD 1979 Kar. 645 and the other case is Ali Sher v . S.D.M, Mirpur Mathelo 1982 PCr.LJ 750.
17. For the facts and reasons mentioned above and particularly legal position enunciated in the reported cases cited above, I am of the view that in the instant cases orders passed by the S.D.M, under section 112, Cr.P.C. Which are impugned before me are not sustainable and are liable to be quashed for the reason that they are based on the material in possession of the prosecution which is insufficient, inadequate and which does not prove either habit or reputation and .He allegations made therein are vague in nature without specification of particular instances. I also hold that no reliance can be placed on one pending case to support such vague allegations. In the result I quash proceedings pending in the Court of S. D. M. Against applicants. Records may be sent back.
18. In the result all the 24 applications are allowed.