This Constitutional petition calls in question the order of opening of history sheet and of entering the name of the petitioner in the Surveillance Register vide order, dated 12-11-1985.
2. Facts, relevant for the disposal of this writ petition are, as follows:-- The petitioner was involved in nine cases of theft in November, 1983 registered at Police Station Sadar Gojra. In all those cases the allegation against the petitioner was that he had stolen goats and sheep. After the submission of the challans, the petitioner made confession before the Magistrate First Class, Gojra and he was convicted in those cases vide order, dated 21-2-1984 passed by Malik Mushtaq Ahmad. Copies of orders are attached as Annexures `B/1' to `B/9', The trial Court instead of sending him to jail, bound him down for a period of one year. During the probation period, the character of the petitioner remained good and no complaint whatsoever was made against him. It is alleged that petitioner's name was put in the Surveillance Register on the direction of one Muhammad Rafique A.S.I. Who was very close to one Abdul Rashid, tenant of the petitioner with whom the petitioner had grievance regarding non-payment of rent of the shop belonging to petitioner's father, which was rented out to aforesaid Abdul Rashid in 1983. It is further averred that the petitioner was not given any notice before putting his name in the Surveillance Register, hence the order putting his name under Surveillance is contrary to the principle of natural justice, as it was done by getting his signatures on a plain paper. Then a case under section 457/380/411, P.P.C.
Vide F.I.R. No.174/86, dated 30-9-1986, was mala fide got registered against him by respondent No.2, in which he was ultimately acquitted by order dated 10-9-1986, passed by Rao Muhammad Hayat A.C., City Gojra, attached as Annexure 'D'. Thereafter a Qalandara under sections 13 and 14 of Goondas Ordinance was also prepared and he was acquitted by the learned A.C., City Gojra on 24- 1-1989, attached as Annexure `E'. Besides that another Qalandara under section 55/110, Cr.P.C. Was prepared and in that the petitioner was bound down for cane year by the A.C., City Gojra, vide Annexure `F'.
3. In the written reply submitted by respondents 1 and 2, they have denied the factual position and submitted that the petitioner was involved in nine different cases which took place on different dates and was released on probation placing him under the supervision of Probation Officer on account of his raw youth and tender age. The respondents also denied that no show-- cause notice was given to the petitioner. In fact, it was averred that a show-- cause notice dated 17-10- 1985 was served before putting his name in the Surveillance Register, which was served upon the petitioner personally on 25-10-1985. When the petitioner, failed to show cause and did not appear then the order dated 12-11-1985 was passed by respondent No.1 putting his name in the Surveillance Register. The perusal of personal file of the petitioner shows that he was also involved in case F.I.R.
No. 62/86, under section 457/380/411, P.P.C. Registered at Police Station Gajra and later on he was discharged by the Court.' Thereafter he was found involved in case F.I.R. No. 174, dated 30-9-1986, under section 457/380/411, P.P.C. Of Police Station City Gojra. So after complying with the provisions of Rules 23.4(3)(b) and 23.9(2) of the Police Rules, the impugned action was taken and the action of the respondents cannot be termed as action without lawful authority.
4. In support of this petition, Mr. B.A. Fakhari, learned counsel for the petitioner raised the following contentions:--
(1) That under Rule 23.4(b) the names of those persons can be entered in Surveillance Register who are reasonably believed to be habitual offenders or receivers of stolen property, whether they have been convicted or not, and as the petitioner cannot be said to be a person reasonably believed to be an habitual offender or, receiver of stolen property, the entering of his name in the Surveillance Register is beyond the purview of the above rule.
(2) that under Rule 23.9(2), history sheet can be opened on written order of a police officer not below the rank of Inspector of Police 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 and as the petitioner cannot be said to be a person reasonably believed' to be habitually addicted to crime or to be an aider or an abettor of such person, his name could not have been entered in the surveillance register;
(3) that as the petitioner was conditionally released, in the theft cases and the proceedings under section 55/110, Cr.P.C., therefore, his history sheet cannot be opened as required under Rule 23.9(1) of the Police Rules; and
(4) that no notice was given to the petitioner before putting his name in the Surveillance Register X, hence the order of respondent No.1 putting his name under surveillance is against the principle of natural justice.
In support of his contentions, learned counsel has placed reliance on PLD 1969 Lah. 781 and PLD 1979 Kar. 645.
5. The learned Law Officer appearing for the State submitted that the petitioner being a convict in nine different cases of theft, though the order was passed on the same date due to his confessional statement by the learned Magistrate, it can be safely said that the petitioner is an habitual offender or receiver of stolen property and as such he has got criminal tendency and is prone to repeat the criminal acts whenever he got the chance to do so. Even the petitioner has maintained his contacts with the persons who are reasonably believed to be receivers of stolen property during the period when he was under surveillance by the police, hence the conditions' laid down in Rule 23.4(3)(b) and Rule 23.9(2) of the Police Rules have been fulfilled.
Learned Law Officer further contended that petitioner's name was brought in the Surveillance Register in the year 1985, after his conviction in the cases referred above and thereafter in the same year his history sheet was opened, but both these orders were challenged through the present writ petition after the lapse of about six years. Due to this inordinate delay, this petition is liable to be dismissed for laches.
Learned Law Officer also contended that the case-law relied upon by the petitioner is distinguishable as the petitioner was never convicted on the basis of commission of numerous crimes in one transaction. On the contrary, he committed different offences on different dates and thereafter made confession in Court on the same date in nine cases. Placing reliance on PLD 1979 Kar. 645, learned Law Officer submitted that the word `habitually' requires a continuous and permanence of criminal tendency something that has developed in 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.
6. I have considered the respective submissions of the learned counsel for the parties and have gone through the personal file of the petitioner. I find that when the Superintendent of Police passed the impugned order on 12-11-1985, at that time he was the convict in nine cases under section 411, P.P.C. And there was no other case pending or registered against him. The point of determination is whether at the relevant time, there was sufficient material before the Superintendent of Police, on the basis of which he came to the conclusion that the petitioner is reasonably believed to be habitually offender or receiver of stolen property. With regard to the nine cases, referred above, I find that the recovery of the stolen animals was effected from the petitioner on 1-11-1983 and he made his confessional statement before the trial Magistrate on 21-2-1984 and not on 21-11-1984, as mentioned in the report of the S.H.O. On the basis of which the impugned order was passed. Even the said report is vague, because it refers to only nine cases and does not contain any specific allegation against the petitioner that he has no ostensible means of livelihood to warrant the impugned action against him. The relevant rules under which, action has been taken against the petitioner are not applicable to the case of the petitioner. Rule 23.4(3)(b) is reproduced as under:-- Rule 34.4---. (1) In every police station, other than those of the Railway Police a Surveillance Register shall be maintained in Form 23.4(1).
(2) ..................................................................
(3) In Part II. Of such register may be entered at the discretion of the Superintendent.
(a)------------------------------------------------..
(b) persons who are reasonably believed to be habitual offenders or receivers of stolen property whether they have been convicted or not; Rule 23.9(2) is also reproduced for facility of reference:-- Rule 23.9.--- (1) 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.
(2) A history sheet may be opened by, or under the written order 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 abetter of such persons."
Applying the aforesaid rules, I find that the respondents have failed to show that the petitioner is reasonably believed to be a habitual offender or he is habitually addicted to crime, because nine cases under section 411, P.P.C. Were registered against the petitioner from 1-11-1982 to 9-11-1983, in which he confessed his guilt and was convicted by the trial Magistrate on 21-2-1984, who keeping in view his extreme youth instead of sending him to jail released him on furnishing a bond for good behaviour for one year. During this period, no complaint whatsoever was lodged against the petitioner. Thus the case of the petitioner is fully covered by Rule 23.9(1) of the Police Rules (reproduced above), and the rules under which' the action was taken against him do not apply to his case. His being bound down under section, 55/110, Cr.P.C. For one year, cannot be taken note of, because it happened after the history sheet of the petitioner was opened.
I also find considerable force in the submission of the learned counsel for the petitioner that the principles of natural justice have been violated, because I have compared the disputed signatures of the petitioner on the show---cause notice, with the admitted signatures on the affidavit filed alongwith the writ petition. The signatures on the notice appear to have been affixed by some other person: In addition to variation of the' word 'Khalil', there is no semblance of the word `Ahmad' with the admitted signatures of the petitioner. In the circumstances, the plea of the learned Law Officer that this petition suffers from laches is of no consequence.
For the foregoing reasons, it is concluded that the Police Officer who submitted the report was not in a position to note the entire antecedents of the petitioner but was obliged to take into consideration only the dark side of his conviction under section 411, P.P.C. In which he was conditionally released. The belief of the police officer was not supported by any reasons.
Furthermore, the petitioner was not given any opportunity to show cause against the impugned order and the impugned order has also been passed in a perfunctory and slip-shod manner .By the Superintendent of Police merely on the report of the police officer without the application of mind. I, therefore, declare that the impugned orders of opening of the history sheet of the petitioner and of entering his name in the surveillance register of Police Station City Gojra are without lawful authority and are of no legal effect, and therefore, the same are hereby set aside. The petition is allowed with no order as to costs.
N.H:Q./K-34/L