1. JUDGMENT M.HUSSAIN ADIL KHATRI, J.-The applicant has challenged the legality of the order dated 6-2-1991 passed by Sub-Divisional Magistrate Orangi, Karachi under the provisions of Sindh Crimes Control Act, 1975, whereby he had ordered immediate arrest of the applicant. The above order was passed on the report submitted to him by the SHO P.S. Orangi. In the said report general and vague allegations were made against the applicant wherein he has been shown as quarrel some person who keeps on rioting and fighting with the people.
2. In the report three cases pending, against the applicant have been mentioned. The petitioner has alleged that his father Ashqeen had lodged report at Police Station Orangi Town on 26-4-1990 being FIR No.164/90 against some persons for offences under section 307/34 PPC. The SHO took no action against the culprits and the father of the applicant had to report against him to the higher authorities including D.I.G. Police. On 7-9-1990 two F.LRs at Nos.236/90 and 237/90 were lodged at the same Police Station against the applicant, his father, his brother Sadiq and one Imtiaz who is witness in FIR Case No.164/90. The first FIR was lodged by Zahid Mohammed Khan and the other by Mohammed Tariq for offence under Section 147, 148, 149, 336, 323/504, and 506/34/323/504 PPC respectively. On 6-2-1991 a report U/S 107/117 Cr.P.C, was submitted to the said S.D.M, against the applicant, his father Ashqeen, his brother Sadiq and Abid and Imtiaz, the latter two being the witnesses in FIR No.64/90. It is to be noted that the last report was submitted on the same day when the SHO submitted the report against the applicant under section 14 of the Sindh Crimes Control Act, 1975.
3. It is contended by Mr.Amir Ahmed Khan that the report submitted by SHO did not fulfil the requirements of the Sindh Crimes Control Act, 1975 and the learned S.D.M had passed the order thereon without applying his mind to the facts of the case and the relevant law. He has relied on the following cases. Shah Nazar Khan Vs. A.C & S.D.M. Malir Karachi (PLD 1977 Kar.582), Amir Ali Vs. The State (1986 P.Cr. L.J. 30), Sachu alias Sache-e-Dino Vs. The State (1984 P.Cr.LJ. 647), Jan Mohammed Vs. The State (PLD 1981 Kar. 682). Ali Bux Vs. S.D.M. Naushahro Feroze (1988 P.Cr.LJ. 619)
4. Mohammed Sadiq Vs. S.D.M. Tribunal (PLD 1981 Kar. 685) and Bahadur Ali Vs. The State (1990 M.L.D 1120).
5. The report against the applicant submitted under Section 14 of the Sindh Crimes Control Act 1975 is vague and general in nature and does not contain any specific instances, to enable the court to conclude that the applicant is a habitual offender and frequently or repeatedly commits the acts of fighting with the people or rioting. No instances with to time, date'and place have been mentioned.
6. The two cases in which the name of the present applicant appears as an acused person and the third report which is under section 107/117 of the Cr.P.C., do not and cannot stand the test of definition of the words habitual offender which have been repeatedly interpreted in several authorities as a person with continuance and permanence of criminal tendency, that is, some thing 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 traits of his personality, and is regarded as his customary or usual behaviour which is almost inevitable when the appropriate conditions arepresent. Similarly habit implies a tendency or capacity resulting from the repetition of the same acts or indulgence therein.
7. It implies frequent indulgence in such acts connoting depravity of character.
8. Mr.Vakil Ahmed Qureshi learned advocate appearing for the State has referred the case of Inayat Vs. State (1989 P.Cr.LJ. 1115) and frankly concedes that he is not in position to justify the order dated 6-2-1991 passed by the learned Sub-Divisional Magistrate Orangi Town Karachi.
9. The impugned order is hereby quashed being illegal, unwarranted and without jurisdiction and $o also the proceedings pending before the learned Sub- Divisional Magistrate Orangi Karachi.