MUSHTAK ALI KAZI, J.-This constitutional petition under Article 199 of the Constitution is directed against the act of Baghdadi Police, Karachi in entering the name of the petitioner in surveillance register of Baghdadi Police Station and in other words treating the petitioner as a history- sheeter.
The allegations levelled against the petitioner are that he is a history-sheeter since the year 1961 and he has been convicted in several cases and also declared as a dangerous and disorderly person and externed from Karachi for a period of 5 years. The record of his previous convictions is as under: 20-11-1948 convicted under section 379, P. P. C.
11-11-1948 convicted under section 379, P. P. C.
17-3-1958 convicted under Abkari Act.
11-11-1961 convicted under section 325, P. P. C. But acquitted as a result of compromise in appeal".
After these convictions a history-sheet was opened in respect of the petitioner in 1961 and since that time he is being called at the Baghdadi Police Station off-and-on, while a watch is being kept over his movements.
2. It has been argued by Mr. Nasiruddin on behalf of the petitioner that the history-sheet was opened in respect of the petitioner without giving him a show-cause notice and this action of the police is, therefore, against the principles of natural justice as these principles are applicable not only in judicial proceedings but also in executive actions. The learned advocate for the petitioner has relied upon the case of Muhammad Akhtar Mir (PLD1971SC55). In that case a history-sheet was opened in respect of Muhammad Akhtar Mir at Police Station Naulakha, Lahore as in the opinion of the police he was habitually addicted to crime. The history-sheet was opended for him under rule 23.9 of the Punjab Police Rules. It was pleaded in that case on behalf of the police that the history-sheets were confidential documents of police and solely meant for their own use for effective discharge of the duties in respect of prevention of crime and its detection. It was accordingly pleaded that it was not necessary to give a show-cause notice to a person before opening his history-sheet. It was observed by M. R. Khan, J. That Article 2(2) of the 1962 Constitution expressly forbade the taking of any action detrimental to the life, liberty, body and reputation of any person except in accordance with law. That there was a constitutional guarantee for the protection of a person's reputation. 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 to show cause against the action proposed to be taken.
This is a well-settled rule and its adherence has been emphasised by this Court in some of its decisions which are well known and that it is hardly necessary to repeat them. As the res-- respondent had only one conviction to his credit he deserved all the more oppor--tunity to show cause before entering his name in the history-sheet in as much as entry fn the absence of more than one conviction was very likely to have been made only on the belief that he is habitually addicted to crime. Had he been given such opportunity he could have explained that no material was there against him justifying the opening of a history-sheet. In conclusion it was observed 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 the crime or to be an alder or abetter of the criminals, an opportunity of showing cause against the opening of the history-sheet must be given to the person. Here the respondent was not given any such opportunity before the opening of his history sheet. The declaration wade by High Court was, therefore, correct. Hence we dismiss the appeal but make no order as to costs".
3. The above decision was again relied upon and quoted in a later case of the same nature which came up before the Supreme Court, namely, Rana Muhammad Afzal v. Inspector-General of Police West Pakistan (PLD 1974 SC 31). It was observed in that case by Waheeduddin Ahmed, J.
Reiterating the earlier decision, that there is a constitutional guarantee for the protection of a person's reputation and the rule of natural justice is to be presumed to be grafted into every law.
That no action affecting the reputation of a person can be taken unless he has been given an opportunity of showing cause against the action proposed to be taken. That since a show-cause notice should have been issued to the appellant and as that was not done the impugned order was illegal.
4. The learned Additional Advocate-General appearing on behalf of the state frankly concedes, that in the present case also, show-cause notice was not given. He has explained that the action was started against the petitioner in the year 1961 when the Punjab Rules were not applicable in the city of Karachi and the Bombay Police Manual governed the actions of the police. That in any case the action was taken in the year 1961 and apart from taking the finger prints etc. The petioner used to be summoned to attend at the police station off-and-on and he had there before, sufficient notice of being a history-sheeter of that police station. That in any case he has come to Court in 1975 after. 15 years and this being a discretionary and equitable relief the Court cannot come to his aid on the ground of laches. The learned Additional Advocate-General has referred the case of Abdul Aziz v. Muhammad Ali & others (PLD 1967 Lah. 62) on the point. He has pointed out that power to issue orders and directions in Writ Jurisdiction is discretionary, the relief available being an equitable relief. That discretion will not be exercised in a case, where, though impugned order may be technically incorrect but setting it aside would be inequitous. In such circumstance, therefore, where substantial justice has been done the Court will overlook the technicalities and will not disturb the order in question in any case. That discretion will not be exercised in favour of a petitioner who has been guilty of laches and delay.
5. It is true that ordinarily on general principles, delay in putting in application for relief of this nature has always a great bearing in the exercise of discretion in granting such a relief; but in case of the petitioner the alleged acts of the police in posting police constables at the house of petitioner, calling him to police station and putting in repeated phone calls, has given rise to a continuous cause of action. The petitioner has explained that this actively has been accelerated shortly before the filing of the writ petition though it was not so disturbing in the past. It has also been pointed out that the alleged convictions and externment orders under the Goondas Ordinance were subsequently set aside in appeals and revisions and if the petitioner had been allowed an opportunity he would have explained that there was in fact no case for taking action against him at all. Apart from expressing any opinion on merits whether the action against the petitioner was justified or not, in a case of continuous wrong, the question of laches would hardly arise.
6. An opportunity, therefore, ought to have been given to the petitioner to explain his conduct and show cause against the action of the police in entering his name in surveillance register and starting the history-sheet against him. As held in the above quoted decisions of the Supreme Court, the action taken by the police without affording the petitioner an opportunity to show cause, would be in violation of the principles of natural justice and, therefore, on the face of it illegal. The action taken was a. Nullity in the eye of law and cannot validate itself by influx of time, and each day that passes gives the petitioner a fresh cause of action. The petition is accordingly allowed and it is hereby declared that the order in question passed by the authority for opening of history- sheet of the petitioner was void and continues to be so.