2. On 26-5-1990 an information was laid by S.H.O. Rustam Police Station before S.D.M., Garhi Yasin, to the effect that the applicant herein is by habit a thief, deals in disposal of stolen property, receives BHUNG money, and thieves of distant places visit him to whom he harbours. It was also alleged that the applicant is so desperate and dangerous as to render his being at large without security hazardous to the community. On the basis of this information the learned S.D.M. Passed an order on 27-5-1990 under section 112, Cr.P.C. Calling upon the applicant to show cause as to why he should not be directed to execute a bond in the sum of Rs.10,000 with one surety in the like amount for good behaviour for a period of 12 months. On the same day the learned S.D.M. Recorded the statement of S.H.O. Rustam P.S. And passed an order under section 117(3), Cr.P.C. The applicant who was produced in custody was, therefore, remanded to custody for want of requisite surety. He has, now questioned the legality of the said proceedings drawn against him under section 110, Cr.P.C. By filing this application under section 561-A, Cr.P.C. With a prayer that the same may be quashed.
3. Mr. Shahbaz Ali Brohi, learned counsel for applicant-has referred to several points but eventually confined his arguments to the following contentions;
(i) That mere involvement of the person proceeded against in one case is not sufficient for taking action under section 110, Cr.P.C., which is intended for habitual offenders.
(ii) That vague expression of opinion by police officials without disclosing specific instances cannot form the basis of proceedings under section 110, Cr.P.C.
(i.e) That the evidence of general reputation within the meaning of section 117(4), Cr.P.C. Must come froth persons living in neighbourhood and the evidence of police officials alone is not sufficient to warrant an action under section 110, Cr.P.C.
(iv) That the orders passed under sections 112 and 117(3) on the same day violated the principles of natural justice as no proper opportunity was afforded to applicant to defend himself.
4. The object of section 110, Cr.P.C. Is preventive and not punitive. In Emperor v. Kudua Bari, reported in AIR 1930 All. 37, it was observed: "The object of section 110, Criminal Procedure Code, is to offer protection to the members of the public and is not intended to be an engine of oppression. The Courts below have got, in all cases coming up either under sections 108, 109 and 110, Criminal Procedure Code, to pay strict regard to the question whether the evidence produced is legal evidence in the case on the question of repute. Nothing is more easy than to put forward a general charge against a certain person that he is a burglar and thief. The said statement has got to be tested in the light of tangible facts and particulars if there are any such facts to support the story. If there are no such facts, the evidence loses its value."
5. While commenting upon the object of section 110, Cr.P.C. In re: K.S. Rathinam Pillai and another, reported in AIR 1938 Madras 35, it was remarked that: "A mere perusal of section 310 is sufficient to show that it is intended to deal with ex-convicts or habitual criminals and dangerous and desperate outlaws who are so hardened and incorrigible that the ordinary provisions of the penal law and the normal fear of condign punishment for crime are not sufficient deterrents or adequate safeguards for the public. As an additional measure of protection against this hopelessly irresponsible class of persons, the section provides that they may be called upon, to find truth responsible send reliable persons willing and able to answer for the good behaviour of their prot--g--s. In other words, persons so addicted to crime that the ordinary sanctions of law are powerless to control their incurable proclivities are placed in much the same category as lunatics. They must either find eligible and responsible guardians or be temporarily confined for the public safety."
6. Applying the above test to the facts of the present case it appears to me that the evidence of `habitual' commission of `offence' indicated in section 110, Cr.P.C. Is lacking in this case. The word `habitually' was examined in the case of Qasim and 2 others v. The State PLD 1971 Kar 473, in relation to the proceedings under section 110, Cr, P.C., and it was held: "Section 110, Cr.P.C. Prescribes six clauses dealing with different categories of offences for the purpose of taking action against the persons who habitually engage themselves in the commission of the offences covered by the first five clauses and those who are desperate and dangerous are covered by the sixth clause. `Habitually' must be taken to mean repeatedly or persistently. Habit implies a tendency resulting from the frequent proof by adducing evidence of commission of a number of similar acts. It, therefore, follows that a stray act or two are not enough in proof of habit."
7. In the case of Mehar Khan v. The State, reported in 1975 PCr.LJ 257, it was observed: "Furthermore, before proceedings can properly be taken under the aforesaid section, it must be shown that the person complained against habitually or persistently or repeatedly commits one or more of the acts which have been specified in the said section, which, however, is not the case here. The mere fact that the applicant was suspected of being involved in a case of abduction and theft can also not be used against the applicant for the purposes of proceeding against him under section 110, Cr.P.C.
8. The word `habit' was again considered in the case of Mazan alias Mazno v. The State, reported in PLD 1975 Kar. 1035, wherein it was held: "To sustain a charge under section 110, Cr.P.C. The person proceeded against must be proved to be by habit a thief; receiver of stolen property, etc, Habit implies a tendency resulting from repetition of the same acts. 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. The same view was taken in the case of Aftab Alain alias Matoo v. Province of Sindh and 2 others, reported in PLD 1979 Kar. 645, in which a Division Bench interpreted the word `habitually' as under: "The word `habitually' required a continuous and permanence of criminal tendency something that has developed into a propensity that is present from day to day. Its presence is demonstrated by the frequency of acts that by repetition have acquired the characteristic of being customary or usual behaviour that is to be regarded as almost inevitable when the appropriate conditions are present. In other words, a habitual offence or a person habitually addicted to crime repeats on committing of offence/offences whenever appropriate conditions are present. It becomes habit on account of frequent repetition to commit offence."
10. This view was followed in the cases reported as Saban v The State 1984 PCr.LJ 1276, and Ali Akbar v The State 1984 PCr.LJ 1292.
11. The construction that has been placed on the language of section 110, Cr.P.C. Makes it clear that the provisions of sections 112 and 117, Cr.P.C. Cannot be invoked unless it is shown to the satisfaction of the Magistrate that the person proceeded against under clauses (a) to (e) of section 110, Cr.P.C.
Is a habitual offender, although it is not necessary that he should be a previous convict.
12. 1 now address myself to points Nos.2 and 3, which are inter-connected. The evidence of general repute, which is vague in nature can hardly serve the required purpose. The cases of Rahim Ali and another v The State, reported in 1973 P Cr. L J 200, The State v. Hassad, reported in PLD 1976 Kar 928, Allan v. The State, reported in 1978 P Cr. L J 269, Maroo v. The State reported in 1980 PCr.LJ 363, Ali v.
The State, reported in 1986 P Cr. L J 418, and Muhammad v. The State reported in 1986 P Cr. L J 1100, are relevant on this point. In the last cited judgment clause (f) of section 110,, Cr.P.C. Was examined by Muhammad Zahoorul Haq, J. (as he then was), who was pleased to make the following observations: "The only sub-clause (f) of section 110, Cr.P.C. Does not speak of a habit, but requires that a person should be so desperate and dangerous as to render his being at large without security hazardous to the community. Therefore, the operation of this clause does not require that conviction should be proved against a person in order to bring the case under this sub-clause. But even then the police or prosecution is bound to state specific instances, which could show in prima facie manner that the person is desperate and dangerous. But even such instances are lacking in the case and there is general allegation by the police that the applicants inspire a general awe or any terror in public and public has lost their peace of mind. This state of the mind of the public can only be the result of some action on the part of the applicants which should be specifically and clearly mentioned and unless and until the instances of the desperate and dangerous actions of the applicants are pointed out in the complaint and the Magistrate has exercised his mind in respect of the same, it would not be asserted that they are of a desperate and dangerous character. I would emphasise that sub-clause (f) requires a different type of allegation than sub-clauses (a) to (e) of section 110, Cr.P.C., and if the desperate and dangerous character is required to be established by conviction is brought out in respect of sub-clauses (a) to (e) then the same should be so mentioned but if this desperate and dangerous character is different from those sub-clauses then the instances of various actions, which a person is alleged to have committed, should be clearly brought out in the complaint otherwise the complaint would be groundless. In the present case, the complaint seems to be groundless as not a single instance is quoted."
13. It, therefore, follows that the evidence of police officials alone, unless they have special means to know the reputation of the person proceeded against, is not sufficient to justify an action under section 110, Cr.P.C. I am fortified in my view by the case reported as Ali Sher v. S.D.M., Meerpur Mathelo and another 1982 P Cr. L J 750, in which it was held: "Then there should be evidence that the person proceeded against is by habit thief, robber, etc. Evidence of general reputation can be given but the same should be by those among whom or in whose neighbourhood the person lives. 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. Vague and general allegations as to the nature of the acts or offences contemplated by the provisions of section 110, Cr.P.C. Would also not be sufficient."
14. No such evidence is available in this case and the proceedings are liable to be quashed on this score alone.
15. Admittedly the learned S.D.M. Passed both the orders, viz., order under section 112, Cr.P.C. And under section 117(3), Cr.P.C. Simultaneously. No proper opportunity was provided to applicant to defend himself. The opportunity must be real, fair and reasonable. This aspect was also examined in the case of Ali Sher referred to above and it was held that such a procedure violated the principle of natural justice.
16. Faced with this situation, the learned counsel appearing on behalf of State has also supported the case of the applicant, who should succeed on all the above grounds. 1, would, therefore, accept the application filed by the applicant under section 561-A, Cr.P.C. And quash the proceedings pending against him under section 110, Cr.P.C. In the Court of S.D.M., Garhi Yasin.
N.H.Q./S-652/K