1. WAHEEDUDDIN AHMAD, J.-This appeal by special leave is directed against the judgment of the former High Court of West Pakistan, Lahore, in Writ Petition No. 1425 of 1964. By this judgment, the writ petition of the appellant was dismissed in limine.
2. The subject-matter of this appeal is opening of history-sheet of the appellant under rule 23.9(2) of the Punjab Police Rules, 1934. The allegation of the appellant is that he is a businessman of Lahore and belongs to a respectable family. He is proprietor of Rana Engineering Company, a factory registered under the Factories Act, 1934. He owns considerable immovable property in Lahore, which is as under :-
(i) Bungalow No. 68-C, Model Town, Lahore.
(ii) Property No. S. XX-PS-5, Canal Park, near Gulberg Market,. Lahore.
(iii) Property No. 7, Astana Street, Muslim Town, Lahore.
3. It is also alleged that the appellant owns two taxi-cabs. According to him,. Out of the above property, he makes- out respectable livelihood for himself and his family.
4. The history-sheet of the appellant was opened in October 1964, on the --following material:
(1) During the Martial Law, a murder case was being investigated by the Kahna Police in the jurisdiction of P. S. Kahna. Rana Mohammad Afzal put on the uniform of the military Captain and went to the Investigation Officer. He took up the case file from him and went away. He destroyed the file later on. So a case F. I. R. No. 6,. Dated the 10th January 1962, under section 20/A/38, Martial Law Regulation was registered against him. He was acquitted in this case by the learned Additional Sessions Judge, Lahore, by order dated the 1st February 1964.
(2) It is also learnt through a source that some time ago, Muhammad, Afzal prepared a false transfer order of Government transferring a Magistrate of a District and also his own appointment order in his place. He actually took over the charge and worked for two or three days. He decided some cases against his criminal friends and discharged them. Later on, he was detected and arrested. The source could not give the name of the district, hence could not be verified.
(3) It is also stated that about 12/13 years ago, Rana Muhammad Afzal collected Kashmir Fund and embezzled a huge amount out of it. A case was registered against him in P. S., Old Anarkali.
(4) There is a Pioneer Tin Printing Factory, situated at Dev Samaf Road, Sant Nagar, Lahore, which is not functioning at the moment. Rana Mohammad Afzal was a shareholder. But later on, he sold his share to his partner. Now he has nothing to do with the factory. It is stated that he has opened a bogus office "Fine Tin Printing Factory" by name at Dhani Ram Road, Anarkali Lahore. He has mentioned on the board the names of cities, Multan, Lyallpur, Montgomery etc., as its branches. But it is said that actually there is no such factory in existence.
(5) It is alleged that he has got three young ladies, stated to be his sister-in-laws with him. They are corrupt women and he uses them in time of need to overawe some corrupt officers when he is caught and also uses them for income purposes.
5. The appellant challenged the legality of the order under which his history-sheet was opened, in Writ Petition No. 1425 of 1964 in the former High Court of West Pakistan, Lahore, which was dismissed in limine on the 28th September 1965,, mainly on the ground that it could not be urged with .Success that the belief on the part of respondent No. 1 that the appellant .Was habitually addicted to crime was wholly without any foundation. It was further observed that it was reasonable belief of the Police Offcer which matters in such a case and as long as that belief is based on some material .On the record, the High Court could not substitute its own belief for that of the police officer.
6. The appellant challenged this order in Civil Petition for Special Leave ,to Appeal No: 337 of 1965 and leave was granted to consider the question whether the facts on which the police relied for opening a history-sheet were -not sufficient for creating a reasonable belief that the appellant was .Habitually addicted to crime.
7. The appellant has moved an application dated the 1st November 1973, ,to add the following ground to his petition for special leave to appeal :- That no show-cause notice was issued to the petitioner by respondent No. 1 before opening his history-sheet `B' in sheer disregard to the rule of natural justice that no one shall be condemned unheard. This application is opposed on behalf of the respondents.
8. After hearing the learned counsel for the parties, we are of the opinion] -that no prejudice will be caused if the additional ground is allowed to be taken in support of the appeal. We would, therefore, permit the appellant to add this ground.
9. Kh. Sultan Ahmad, learned counsel for the appellant, has contended that as no show-cause notice was issued to the appellant, the order of the respondent No. 1 opening the history-sheet of the appellant is illegal and void. In support of his contention, he has relied on a decision of his Court fn Government of West Pakistan and others v. Mohammad Akhtar Mir (PLD1971SC55It was held in that case as under :- "We are, therefore, of the view that whenever a history-sheet is opened. Under rule 23.9 of the Punjab Police Rules on the ground that the person concerned is reasonably believed to be habitually addicted to crime or to be an aider or abettor of other criminals, an opportunity of showing cause against the opening of the history-sheet must be given to the person."
10. This decision supports the contention of the learned counsel for the appellant. Under the Constitution of 1962, taking of any action detrimental to the life, liberty, body and reputation of any person except in accordance with law is forbidden. There is a constitutional guarantee for the protection of a person's reputation. As held in the above case, "the rule of natural justice is to be presumed to be grafted into every law. According to this rule, no action affecting the reputation of any person can be taken unless he has been given an opportunity of showing cause against the action proposed to be taken." The learned counsel for the respondents has not been able to satisfy us that the view taken in the above case is not in accordance with law. We would, therefore, hold that a show-cause notice should have been issued to the appellant and as that was not done, the impugned order is illegal.
11. Coming now to the second question whether the facts on which the police relied for opening the history-sheet were sufficient for creating reasonable belief that appellant was habitually addicted to crime. Kh. Sultan Ahmad, learned counsel for the appellant, has contended that this is justiciable issue and the Court can go into the question whether the material placed on the record was sufficient to create reasonable belief that the appellant was habitually addicted to crime. In support of his contention, the learned counsel has referred to the cases of Saiyyid Abul A'la Maudoodi and others v. The Government of West Pakistan and another (PLD 1964 SC 673), The Govern--ment of East Pakistan v. Mrs. Rowshan Bijaya Shaukat A.I Khan (PLD 1966 SC 286and Government of West Pakistan and another v. Begum Agha Abdul Karim Shorish Kashmiri (PLD 1969 SC 14He has urged that the reasonable belief that the appellant was habitually addicted to crime must be such as would appea !r to the Court to be reasonable. It will be sufficient to refer here the case of Government of East Pakistan v. Mrs. Rowshan Bijaya Shaukat A.I Khan. In that case at page 311, Rehman, J. Observed as under :- "The validity of arrest and order of detention under section 41 of the Ordinance was assailed by the first petition in the High Court, on behalf of the detenu. This section only authorises a Police Officer of the requisite rank to arrest a person whom he reasonably suspects of having done or of doing or of being about to do a prejudicial act. Whether the suspicion was reasonable or not, is, in my opinion, a justiciable question. The arresting officer therefore had to satisfy the Court that he entertained his suspicion against the detenu on reasonable grounds."
12. At page 312, the learned Judge observed as under :- "I am therefore in agreement with the High Court in holding that in the present case it lay on the arresting officer to justify the arrest by revealing reasonable grounds such as could satisfy the judicial conscience."
13. Mr. Kamal Mustafa Bokhari, learned Assistant Advocate-General, has not challenged the soundness of the views expressed'in the above-mentioned decision. It is, therefore, for the respondents to justify the opening of the history-sheet by revealing reasonable grounds as could satisfy the Court.
14. Rana Muhammad Afzal v. The State (PLD 1962 SC 397). The rest of the material against him is not supported by any reliable evidence and only suspicion has been raised against the appellant.
15. The question, therefore, for consideration is whether the respondent No. 1 could reasonably believe that the appellant is habitually addicted to crime. For this purpose, one has to examine rule 23.9 of the Punjab Police Rules, 1934, which has been made applicable in this case. It reads as under :- " Rule 23.9.-(1) A history-sheet, if one does not already exist, shall be opened under rule 23.9 for every person whose name is entered in the surveillance register, except conditionally released convicts. (2) A history-sheet may be opened by, or under the written orders of, a police officer not below the rank of inspector for any person not entered in the surveillance register who is reasonably believed to be habitually addicted to crime or to be an aider or abettor of such person.
(3) The Government Railway Police will maintain the history-sheets of criminals known or suspected to operate on the railway in accordance with Police Rule 23.8. They will open history- sheets themselves for criminals living, in railway premises, who have been absent from their original homes so long that the railway premises may be regarded as their permanent residence.
16. They may also open history-sheets for wandering strangers reasonably believed to be habitually addicted to crime on the railway, whose original homes cannot be traced."
17. The phrase habitually addicted to crime was considered in Muhammad Ramzan v. Government of West Pakistan and 2 others (1 AIR 1943 Sind 107It was observed in this case that "the said phrase applies to a person who has committed crimes on many occasions and cannot, by reasonable cannon of interpretation be held to cover the case of a person who had committed a number of offences in the course of the same transaction." It was further held in that case that history-sheet could not be opened under rule 23.9 on the strength of the alleged commission of several offences in the course of single transaction and the order of police officer was set aside in writ jurisdiction. "a person who is legally considered to do criminal acts by force of habit. In some jurisdictions criminals convicted a certain number of times, as three times of felony or five times of misdemeanour, are under statutory provisions declared habitual criminals."
18. This phrase was also considered in the cases of Mian Miraj-ud Din v. The Senior Superintendent of Police, Lahore and others (AIR 1943 Sind 1072) and Mst. Ghulam Fatima v. Government of West Pakistan and 2 others (AIR 1943 Sind 1073). In the case of Mian Miraj-ud-Din, it was held as under :- "The consensus of the commentators on the meaning of `habitual offender" in the context of section 110, Cr. P. C. Is that the expression will include habitual robber, house-breaker, thief or forger ; habitual receiver of stolen property ; habitual harbourer of thieves or habitual abettor in the concealment or disposal of stolen property ; habitual kidnapper, abductor, cheat or habitually committing mischief, offences relating to coins, stamps and currency notes. The heading of section 110, Cr. P. C. Uses the expression "habitual offenders". Therefore, the contents of section 110, Cr. P. C.
19. With regard to the meaning of habitual offender are not entirely irrelevant for the purpose of interpreting the expression under rule 23.4 of the Punjab Police Rules, 1934.
20. "The proceedings as to the opening of history-sheet and entry of the name in surveillance register are similar and akin to the proceedings, at least, under three provisions of law. They are (i) under section 110, Cr. P. C., (ii) under section 565, Cr. P. C., (iii) under section 13 of the West Pakistan Control of Goondas Ordinance, 1959."
21. Mst. Ghulam Fatima, it was observed as under :- "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 that their names are mentioned in surveillance register manifests that the expression "habitually addicted to crime" was intended to apply only to a previous convict."