1. The above proceedings were initiated by the learned Magistrate on the report of S.H.O. Police Station Tando Allahyar. In the report it was stated that the applicant was an influential person, Zamindar and harboured notorious dacoits. Gangs of Haji Abbas Khashkheli, Pariyo Khashkheli and Achar Machhi used to visit him and he used to provide shelter, arms and ammunition to them. Not a single instance of such activities was mentioned in the said report. The report disclosed names of three witnesses all of whom were police personnel of the said police station. The list of cases against the applicant showed that three of them pertained to the year 1972, and the fourth one to the year 1974. It is stated that in none of the said cases the applicant was sent up for trial. This statement is not controverted. So far as the fifth case is concerned, it is Criminal Case No.247 of 1990 and is said to be pending before the First Class Magistrate. Learned Advocate of the applicant has pointed out that the applicant has filed petition in this Court challenging the proceedings in Criminal Case No.247 of 1990. The petition has been admitted for regular hearing and the proceedings before the learned First Class Magistrate have been stayed by this Court.
2. The Sub-Divisional Magistrate on receiving the above police report, as is disclosed in the impugned order dated 2-10-1990 recorded statements of the S.H.O., A.S.I. Khalid Tagar and Head Constable Dhani Bux. The said order further shows that in the statements, nothing was disclosed except the contents of the F.I.Rs. That were mentioned in the report submitted by the police under section 14 of the Sindh Crimes Control Act, 1975 and the general allegations that were made in the said report.
3. The learned Magistrate relying on the above statements observed `commission of offence cannot be prevented otherwise than by the immediate arrest of the respondent As respondent is already under custody in another case, I order that production warrant be issued ...."
4. I have heard Mr. Muhammad Moosa Leghari, the learned counsel for the applicant and Mr. Zaheer Ahmed Qureshi for the State.
5. It is contended that the proceedings that have been commenced against the applicant and the impugned order are mala fide and are not warranted under the provisions of the Sindh Crimes Control Act, 1975. The allegations made against the applicant are vague and general in nature. No date, time or place of the alleged acts or any of them have been mentioned in the report. Learned counsel has relied on several reported cases including Amir Ali and 22 others v. The State 1986 P Cr.
6. L J 30, Muhammad Nasim Qureshi v. The State 1990 P Cr. L J 1249 and Shehbaz Dino v. The State 1991 P Cr. L J 269.
7. For maintaining an action under section 14 of the above Act the prosecution has to show that the person proceeded against acts habitually and frequently or repeatedly commits one or more of such acts as are mentioned in sub-clauses (i) to (xxxv) of section 14 of the Act or has the reputation of habitually committing such acts.
8. PLD 1977 Kar. 582 a Division Bench of this Court dilated upon as to what constitutes reputation. It was observed that a man's general reputation is the reputation, which he bears in the place in which he lives. Reputation of a man's character is the inference from or estimate of the sum total of a man's-actions and qualities drawn or formed by persons who are acquainted with him or among whom he resides and with whom he is chiefly conversant or the circles in which he moves. It is the prevailing opinion formed by those, with whom he associates and. Who would have the best opportunity of knowing his habits and general behaviour. Therefore, the essence of law is that the prosecution should first come out with such instances with necessary particulars as would prima facie show that, the person proceeded against has been habitually or frequently committing such of the acts as are mentioned in section 14 of the said Act, that have become imbibed and embedded in his personality with the result that he has come to acquire a particular reputation amongst the persons with whom the person proceeded against associates himself or lives amongst. In final analysis such reputation or character is to be proved by the persons who belong to the locality where he resides or works for gain, and they should come forward and state before the Tribunal with regard to the reputation or character of the person proceeded against. The evidence of the police personnel cannot be included amongst the category of such persons who could best give evidence regarding the reputation or character of the person proceeded against. .
9. The words habitually and habit have been interpreted in several authorities pronounced by this Court as continuance and permanence of criminal tendency, that is, something that has developed into a propensity that is present from day to day and its presence is demonstrated by the frequency of the acts that by repetition have come to be associated with the person as the characteristics, or I traits of his personality, and is regarded as his customary or usual behaviour which is almost inevitable when the appropriate conditions are present. Similarly habit implies a tendency or capacity resulting from the repetition of the same acts or indulgence. It implies frequent indulgence in such acts connoting depravity of character.
10. PLD 1978 Kar. 368, this Court observed as under:-- "To prove a person to be by habit a thief the prosecution must adduce evidence of commission of number of similar acts in each of which the person must be shown to have been involved. For, habit has to be proved by aggregate facts and mere suspicion or complicity in isolated acts would not constitute habit. Thus, the allegations must not be vague but there should be definite instances of such acts against the persons proceeded against with details of time and place of such acts.
11. The report should also cite evidence of general repute."
12. Reference in this connection can also be made to the case of Aftab Alain v. Province of Sindh PLD 1979 Kar. 51.
13. Since the provisions of Sindh Crimes Control Act, 1975 make inroads upon the liberty of the individual it is to be subjected to rule of strict construction. Unless all the conditions as provided in the Act for taking cognizance and exercise of jurisdiction by the Tribunal are shown to exist, the Tribunal should not take cogni-1ance or assume the jurisdiction. If it is done in absence of prerequisites of the said law, the action taken or order passed by the Tribunal would be nullity, abuse of the process of Court and without jurisdiction.
14. So, has been pronounced by this Court in several cases including those that have been referred hereinabove and the following cases:--
(1) Arsla Khan v. District Magistrate and Tribunal 1977 P Cr. L J 746, (2) Haji Ali Muhammad Solangi v.
15. The Tribunal 1980 P Cr. L J 872, (3) Krishan v. Tribunal and S.D.M. 1980 P Cr. L J 1198, (4) Abdul Hamid v.
16. S.D.M. And Tribunal Hyderabad PLD 1977 Kar. 575, (5) Wahid Bux v State 1977 P Cr. L J 275.
17. So far as the present case is concerned, it is somewhat akin to that of the case of Wahid Bux (supra) and it will be of some advantage to reproduce the relevant portion thereof:-- "In support of these allegations, six instances of previous cases have been cited out of which one case pertains to the year 1958, one to the year 1959, two were registered in the year 1962, and the rest are fresh cases which, however, arise out of a single incident. Since beyond these cases, no other instance has been cited in support of the allegations levelled against the petitioner, we questioned the learned Additional Advocate---General whether the previous cases are still pending or these have been disposed of. In reply, learned Additional Advocate-General frankly stated that the petitioner was not even challaned in any of the earlier cases, and the two fresh cases registered against him arise out of a single incident. Learned Additional Advocate-General also frankly conceded that in view of the decision of this Court in Muhammad Ishaq v. The Tribunal and A.D.M., Larkana action under the Act could not have been taken against the petitioner on the basis of a solitary or a single instance relied upon in support of the complaint."
18. "It need not be emphasised here that the above action contemplated under the proviso to section 5 of the Act at the initial stage of enquiry is very stringent in its nature keeping in view the final order which the Tribunal could pass under section 14 of the Act on the conclusion of enquiry.
19. Therefore, such an action can be taken only in exceptional circumstances where the material produced before the Tribunal really discloses a case of extraordinary urgency. Such action certainly cannot be based on routine reports received by the Tribunal from Police Officer which lacks in material particulars."
20. Mr. Zahir Ahmed Qureshi, appearing for the State, states that the report submitted by the S.H.O.
21. Police Station Tando Allahyar does not on the face of it warrant action under section 14 or the order under section 5 of the Act, and therefore, he is not in a position to support the order passed by the learned S.D.M. Tando Allahyar.
22. The above order and the proceedings are, therefore, declared as mala fide and without lawful authority.
23. For the above reasons, the proceedings pending against the applicant and the order passed by the learned Sub-Divisional Magistrate Tando Allahyar being illegal and without jurisdiction are hereby quashed.