MAHBUB ALI KHAN, J.---Malik Khan Afsar a resident of Sector No.IV of Khalabat Township, Haripur tehsil by way of this writ petition moved under Article 199 of the Constitution of. The Islamic Republic of Pakistan, 1973 takes exception to the legality of an order under which the entry of his name has been made in the Surveillance Register at Police Station, Haripur by respondent No.4 and his history sheet has been opened. Fie contends that these acts of the local police are without lawful authority and of no legal effect.
2. The petitioner claims himself a respectable person of his area, a landlord and an elected member of the local Zakat Committee. He further states that he has never been involved in any case of moral turpitude. Nevertheless he claims to have earned cash award and commendation certificates from the Superintendent of Police, Abbottabad for his efforts made in. The prevention of anti-social activities in the Ilaqa and a cash award from the Divisional Forest Officer for pointing out the timber smugglers. But in spite of all this respondent No.4, i.e. The SHO Police Station, Haripur without giving any notice to the petitioner and having no regard to his status in society placed his name in the Surveillance Register of the Police Station and opened his history sheet. .
3. To keep a constant watch on persons habitually addicted to crime the provisions for entering the names of such persons in the Surveillance Register and opening history sheet have been made available in Chapter XXIII of Police Rules, 1934. Rule 23.4 (3) provides:-- "(3) In Part II of such register may be entered at the discretion of the Superintendent:---
(a) Persons who have been convicted twice, or more than twice, of offences mentioned in rule 27.29,
(b) Persons who are reasonably believed to be habitual offenders or receivers of stolen property whether they have been convicted or not; Similarly rule 23.9 of the Police Rules reads as under:--
(a) 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.
(b) 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 no; entered in the surveillance register who is reasonably believed to be habitually addicted to crime or to be an aider or abettor of such persons."
4. Mr. Weed Akhtar Khan Advocate appearing on behalf of the petitioner argued that his client has never been convicted of offences mentioned in Chapters 12, 16, 17 and 18 of the Pakistan Penal Code read with rule 27.29 of the Police Rules. He further stated that without giving a notice of show cause to the petitioner the S.H.O. Chose to enter his name in the surveillance register and opened his history sheet in clear contravention of clause 3 to rule 23.5 and clause 4 to rule 23.9 which provide, that before entering the name of a person in the surveillance register under rule 23.4 a notice in writing is to be served on such person together with a statement of allegations requiring him to show cause either in writing or orally within a period not less than 7 days and not more than 14 days as to why his name should not be entered in the said register.
5- We have been taken through a judgment of the Supreme Court of Pakistan reported in PLD 1971 Supreme Court 55 wherein the Supreme Court has laid down the following law on the subject:-- "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."
It appears that after the pronouncement made by the Supreme Court. In the case aforesaid clause 3 was added to rule 23.5 and clause (4) to rule 23.9 in the year 1971 by a notification. The Supreme Court again took the same view in the year 1974 in another case reported in PLD 1974 Supreme Court 31 and laid down that whenever history sheet is opened under rule 23.9 opportunity of showing cause against the opening of the history sheet must be given to the person concerned.
6. The learned Assistant Advocate-General when confronted with this situation conceded that he sees no conviction of the petitioner on any offence under Chapters 12, 16, 17 and 18 of the Pakistan Pedal Code and the offences mentioned in Rule 27.29. Of the Police Rules. This position has' been also conceded by the S.H.O. Himself in his written statement. It is strange that the very person who has been awarded two commendation certificates by Superintendent of Police of his District in the years 1988-89 coupled with some cash award in recognition of his services in aid of the police followed by another cash award of Rs.5,000 by the Divisional Forest Officer, Haripur for his help to the department in checking the transportation of illicit forest produce besides his being an elected Chairman. Of the Zakat Committee, Khalabat Township has been put to such a decree of embarrassm ent by the local police for no good reasons shown on the record.
7. It is an admitted fact that petitioner has neither been issued any notice of show cause along with a statement of allegations either in writing or orally by the S.H.O. Before making the entry of his name in the surveillance register and opening of history sheet. The S.H.O. Thus not only violated the mandatory ` provisions of his own Police Rules but also the rule of natural justice which is presumed to be ingrafted into every law. The entry of the name of a person in. The surveillance register and opening of history sheet is not an ordinary action on the part of the police. The Constitution expressly restrains from taking any action detrimental to the life, liberty, body and reputation of any person save in accordance with law. We, in the circumstances, find that the impugned action on the part of respondent No.4 whereby he entered the name of the petitioner in the surveillance register of the police station and opened his history sheet is without any lawful authority, absolutely illegal and of on legal effect. It is accordingly set aside on the acceptance of this writ petition. Costs shall follow the event.