MUHAMMAD AFZAL ZULLAH, J.---The Additional Superintendent of Police, Lahore, on the report of the police from Police Station, Baghbanpura, recommended by the Deputy Superintendent of Police, passed the following order, on 12th May 1958, against Miraj-ud-Din petitioner in respect of the opening of his history sheet and putting him under surveillance:- "Meraj Din H. S. To bundle `A' and name in Register No. 10 Part (II)."
The petitioner has challenged this order, by means of the present writ petition.
2. The facts stated in the petition, which are by and large admitted in the report and the written statement submitted on behalf of the respondents, are that the petitioner is an M. Sc. In Civil Engineering, has performed a Hajj and is a big landlord. He is married to the sister of Mian Miraj- ud-Din, ex-MPA and Parliamentary Secretary. The father of said ex--MPA was killed in 1951 and the petitioner was prosecuted for the said murder. He, however, was acquitted by the High Court in 1952. The opposite-party, i.e., Mian Miraj-ud-Din, ex-MPA, obviously nursed a grudge against the petitioner. Mr. Bashir Hussain Sayyed, formerly Inspector-General of Prisons, is a friend of Mian Miraj-ud-Din ex-MPA. Some threatening letters were received by said Mr. Bashir Hussain who thereupon wrote two demi-official letters No. 241-G, dated 3rd April 1958 and No. 315-G, dated 30th April 1958, to the Inspector-General of Police. Though the petitioner denied the authorship of the first mentioned letters, yet, he asserted that in spite of that denial and due to the influence of the Inspector---General of Prisons, he was proceeded against and challaned under the Control of Goondas Ordinance, 1959. But he was discharged by the Tribunal, by the order, dated 15th June 1960, (Annex. `A'). It is asserted that almost simultaneously, the S. H. O., Baghbanpura, P. S. Moved in the matter for opening the history sheet, as a result of which the impugned order referred to above was passed.
"(h) The order is legal and based on the following grounds:-
(i) The petitioner was sentenced to 2 years' R. I. By A. D. M., Lahore under sections 467, 468, 419, 420, P. P. C. On 14-3-51.
(ii) The petitioner was bound down under section 107/151, Cr. P. C. To keep peace for one year on 10- 11-54 by Kh. Masud M. I. C., Lahore.
(iii) The petitioner was sentenced to death by the Sessions Judge in case F. I. R. No. 202 dated 23-4- 51 under section 302/109, P. P. C., P. S. Moghalpura but was acquitted by the High Court.
(iv) A case F. I. R. No. 201 dated 25-9-52 under section 19/11/78, Arms Act was registered against the petitioner and he was challaned but was acquitted by the Court.
(v) Four reports on different dates by different persons were got recorded at the Police Station against the petitioner for his highhandedness and that the petitioner was a desperate man and threatened them.
(vi) The petitioner was sentenced to one year R. I. Under section M. L. R. 8 by the Summary Military Court on 6-1-60."
3. Out of the above material against the petitioner, it is admitted that the item at No. (vi), i.e., the conviction by Martial Law Authorities in 1960, in respect of the making of a complaint relating to said Mr. Bashir Ahmad Sayyed, was not available to the police for opening the history sheet because the same was opened in 1958. It is also admitted that the petitioner was acquitted in the Arms Act case at item No. (iv) and the murder case mentioned above at item No. (iii). Item No. (v) is a vague and general allegation that different persons on different dates lodged reports at the Police Station against the petitioner showing his high-handedness and desperate character. It is important to note that that item does not, at all, show that these reports were in connection with the commission of any offence. The fact that the petitioner was bound down under section 107/ 151, Cr. P. C., only once in 1954, as mentioned at item No. (ft) above, has been admitted by the learned counsel for the petitioner during the arguments, It has also been admitted that the petitioner was convicted in relation to the case mentioned at item No. (i) but only under section 477-A, P. P. C. And not under sections 467, 468, 419, 420, P. P. C. The learned counsel appearing for the respondents took time to ascertain whether the assertion of the petitioner with regard to con--viction under section 477-A only, was correct or not. When he appeared on the adjourned hearing, the S. I. Of Police was also present and this assertion of the petitioner was not controverted. Therefore, we will treat that conviction under section 477-A, P. P. C. Only. The factum of conviction, however, has been admitted by the petitioner. Thus, according to the report submitted on behalf of the respondents in this Court on 13th September 1967, there was only one conviction of a criminal offence and one order under section 107/151, Cr. P. C. Against the petitioner, when the impugned order was passed. In the written statement, however, two other items relating to 1964 and 1965 have been added but it was admitted before us that they are not relevant for the purpose of considering the validity of the impugned order. In any case, those two items only show that two cases were pending against the petitioner, one before the Chairman of a Union Council and another before a Magistrate 1 Class.
4. It is admitted that the case of the petitioner does not fall under sub-rule (2) of rule 23.4 of the Police Rules, 1934. That sub-rule relates to proclaimed offenders against whom proceedings under section 87, Cr. P. C. Have been instituted; released convicts in regard to whom orders under section 565, Cr. P. C. Have been passed; the convicts, orders, in respect of the execution of whose sentence, have been passed under section 401, Cr. P. C. And persons restricted under the Rules of Government made under section 16 of the Restriction of Habitual Offenders (Punjab) Act, 1918.
Reliance has been placed by the learned counsel for the respondents on the provisions containedst in sub-rule (3) of rule 23.4. It is straight--away observed that a note has been appended under rule 23.4(3) which reads as follows:- "This rule must be strictly construed, and entries must be confined to the names of persons falling in the four classes named therein."
Therefore, sub-rule (3) is to be construed very strictly and for the purpose of convenience the same is reproduced:- "(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;
(c) persons under security under section 109 or 110, Code of Criminal Procedure;
(d) convicts released before the expiration of their sentences under the Prisons Act and Remission Rules without the imposition of any conditions,"
It is agreed that the case of the petitioner does not fall under sub-clause (a) of the said sub-rule because: firstly he was not convicted twice, and secondly he has never been convicted of an offence mentioned in rule 27.29; nor his case falls under clause (c) or (d) because he was never proceeded against under section 109 or 110, Cr. P. C. And he is not a convict released (under the Prisons Act) before the expiration of his sentence. Therefore, reliance has been placed only on the remaining clause, i.e., (b) of rule 23.4(3). It is again admitted that the petitioner is not alleged to be the receiver of stolen property. But it has been vehemently contended that there was reasonable belief, on the basis of the averments made in the report and the written statement and as analysed by us above, that he was a habitual offender. We do not agree with the argument that the petitioner, in the circumstances of this case, can be treated to be habitual offender. The order under section 107/151, Cr. P. C. Cannot be-- considered in this context, to be an order of conviction nor they proceedings with regard to that can be treated as relating to ant offence. Therefore, while considering whether or not a person is a habitual offender, the fact that an order under, section 107/151, Cr. P. C. Has been passed against him cannot; be taken note of. Thus we are left with only one conviction, before the impugned order was passed.
The question arises whether a person with only one conviction in his record can be treated as a habitual offender. While interpreting the phrase "habitually addicted to crime", it was observed in Muhammad Ramzan v. Government of West Pakistan and two others (PLD 1962 Lah. 957) that the said phrase applies to a person who has committed crimes on many occasions and cannot, by any reasonable canon of interpretation, be held to cover the case of a person who had committed a number of offences in the course of the same transaction. It was further held in that case that history sheet could not be opened under rule 23.9 on the strength of the alleged commission of several offences, in the course of a single transaction, and the order was set aside in writ jurisdiction. In Webster's New International Dictionary (2nd Edn.) "habitual criminal" means as follows:- "a person who is legally considered to do criminal acts by force of habit. In some jurisdictions criminals convicted a certain number of times, as three times of felony or five times of misdemeanour, are under statutory provisions declared habitual criminals."
This meaning of `habitual criminal' was referred to and relied upon by a Division Bench of this Court in Raja Pir Muhammad v. Govt. Of West Pakistan, etc. (Writ Petition No. 1913 of 1966) decided on 23rd May 1969. We respectfully follow and adopt the same meaning of `habitual criminal' and hold that the material relied upon, by the respondents, at the time of passing the impugned order was not sufficient to bring the petitioner within the meaning of habitual offender. Some assistance can be derived from the commentary on section 110, Cr. P. C. Which relates to security for good behaviour from "habitual offenders". The consensus of the commentators on the meaning of "habitual offender" in the context of sec--petition 110, Cr. P. C. Is that the expression will include habitual robber, house-breaker, thief or forger; habitual receiver of stolen property; habitual harbourer of thieves or habitual abetter in the concealment or disposal of stolen property habitual kidnapper, abductor, cheat or habitually committing mischief, offences relating to coins, stamps and currency notes The heading of section 110, Cr. P. C. Uses the expression "habitual offenders". Therefore, the contents of section 110, Cr. P. C. With regard to the meaning of habitual offender are not entirely irrelevant for the purpose of interpreting the expression used in rule 23.4 of the Police Rules. If the above meaning is applied to the facts of this case, the petitioner does not fail within the definition of `habitual offender'.
5. It is admitted that actions under rules 25.4 and 23.9 were taken against the petitioner simultaneously, i.e., he was put under surveillance and his history sheet was opened at the same time. Admittedly, the history sheet was not opened under rule 23.9(1) because at that time the name of the petitioner was not entered in the surveillance register. Therefore, the history sheet purported to have been opened under rule 23.9(2). In sub-rule (2) of rule 23.9, again the phrase "habitually addicted to crime" is used. The above discussion with regard to the definition and meaning of "habitual offender" will also apply to the expression "habitually addicted to crime". And in view of our finding on the question of "habitual offender", the provisions of rule 23.9(2) will also have to be held to be not applicable.
6. There is another aspect of the matter. Both in rule 23.4(3)(6) and rule 23.9(2), reasonable belief by the officer passing the order is sine qua non, for proceeding thereunder. The belief, if to be reasonable, has to be supported by some reasons. No reasons are mentioned in the impugned order. What it appears is that an Inspector-General of Prisons was involved in the matter. He had sent two demi-official letters to the Inspector-General of Police and the local police, probably to please some high officers, made a report against the petitioner for the purpose of opening his history sheet. We sent for the history sheet of the petitioner and have gone through the report on which the impugned order was passed. It is significant to note that all the good points which could favour the petitioner, for example, his educational qualifications and status in life mentioned in para. 9 of Annexure 'A', reproduced here in the succeeding paragraph, are conspicuously absent from that report. It does not appear from the impugned order that the officer concerned took note of the entire antecedents of the petitioner at the time that he passed the said order. To us it appears that only the so-called dark side of the character of the petitioner was brought to his notice. Had he considered the other side. i.e. The bright side, the result might have been different. It cannot, therefore, be held that the condition as to "reasonable belief" has been satisfied in this case. The existence of "reasonable belief" is very important and cannot be ignored. Mere "suspicion" or "information" does not am tint to "belief" It is a stronger conception qua application of mind and satisfaction as to the need for action under the relevant law. Moreover, the use of prefix of "reasonableness" with "belief" is highly significant. If a belief is lacking in the qualification of reasonableness, it cannot be the basis of the action under the rules and the order thus passed may be said to be tainted with mala fides in law even if not accompanied by any malice in fact.
The above view is respectfully adopted from the pronouncement of their Lordships of the Supreme Court in the case of Government of West Pakistan and another v. Begum Agha Abdul Karim Shorish Kashmiri (PLD 1969 SC 14). In this view of the matter, the impugned order, not being based on any grounds on which a reasonable person would have acted, cannot be said to have been passed under the authority of the law and is thus unlawful and merits to be set aside.
7. There is yet another aspect of the matter. The proceedings as to the opening of history sheet and entry of the name in surveillance register are similar and akin to the proceedings, at least, under three other provisions of law. They are -
(i) under section 110, Cr. P. C.
(ii) under section 565, Cr. P. C.
(iii) under section 13 of the West Pakistan Control of Goondas Ordinance, 1959, It is admitted that the proceedings under all those provisions are of judicial nature and orders thereunder are passed after regular trial, in which the person affected gets the normal. Opportunity r of hearing. Those provisions being statutory, it cannot be imagined that the Legislature intended that same or similar action could be taken against individuals under a subordinate legislation, i.e., the Police Rules, and that too without giving an opportunity of show cause to the person concerned. There--fore, in our view, orders under rule 23.4 and rule 23.9 of Police Rules, if they are passed without giving an opportunity of show cause to the person concerned, are without lawful authority; because of the infringement of the well established rule of natural justice, i.e., audi alteram partem.
The same conclusion can be reached by reference to Article 2 of the Constitution of 1962. It provides that to enjoy the protection of the law and to be treated in accordance with law and only in accordance With law is the inalienable right of every citizen; and in particular no action detrimental to the life, liberty, body, reputation or property of any person shall be taken, except in accordance with law. Right to reputation has thus been recognised as equal to other rights mentioned above. It is, by now, very well known that when a history sheet is opened or a person is brought on the surveillance register, this action does not remain only on the papers with the police but also gets fairly known to the other persons particularly, the residents of the locality. The thumb- impressions and photograph of the person concerned are taken and they are exhibited in the Police Station. A proof of this fact is found in this history sheet of the petitioner himself. On or about 19th June 1958, the D. S. P., in execution of the impugned order and immediately below thereof, passed the following order "His photo, fingerprints and footprints may be obtained."
It was not denied during the arguments that the photos and particulars of history sheeters are exhibited at the Police Station in the form of charts. Moreover, we have come across cases where witnesses were disbelieved or where writ petitions have been filed against orders passed by various Executive Authorities, for example, in the matter of grant of food-grains and arms licences or in the matter of bringing the name on the panel of Tribunal under the West Pakistan Criminal Law (Amendment) Act, 1963, where adverse orders have been passed against persons, on the basis that their names were entered on the surveillance registers or their history sheets had been opened. Therefore, it is legitimate to presume that as soon as a person is brought on the surveillance register or his history sheet is opened, immediately he suffers in his right to reputation and, to some extent, with regard to his right to liberty as well. He almost becomes an out-case. In these circumstances, unless the relevant law specifically prohibits the giving of opportunity to show cause against the proposed action in the nature of the impugned order in this case, it will be presumed that the person concerned is, under the law, entitled to such a show-cause notice; because, as it has been held time and again, this will have to be presumed to be an unwritten provision of every law which deals with the taking away of these rights of citizens. It may be mentioned that it was specifically alleged in the petition that no opportunity of show cause was given to the petitioner before passing the impugned order. This averment has not been denied, either in the report or in the written statement; nor at the time of arguments before us. The learned counsel for the petitioner could not appear on the adjourned day of hearing when this aspect of the case was brought to our notice by the petitioner. The learned counsel appearing for the State informed us that, at least, in one case decided by this Court, a similar impugned order has been set aside as without lawful authority, on the basis that no opportunity of show cause was given to the person concerned. We asked the learned counsel to find out the case but he was unable to do so.
The question of show cause, in this case, is all the more important because of another very important circumstance. The petitioner was proceeded against under the Control of Goondas Ordinance which, as observed above, is a more com--prehensive statute dealing with the same subject-matter, as is contained in rules 23.4 and 23.9 of the Police Rules. On the same allegations, the petitioner was challaned before a Tribunal at Lahore constituted under the said Ordinance. A copy of the order of the Tribunal is on the file. The material relied in the report and the written statement, in this petition, was produced before the Tribunal in the form of evidence. The following observations by the Tribunal are very pertinent:- "7. The relations of the respondent with Mehraj Din, P. W. Are very much strained, is fully confirmed by the statement on record of the former to the effect that his father was got murdered by him and he had committed a murderous assault on one of his supporters for which he was challaned under sections 302 and 307, P. P. C. With the above noted result.
8. Except S. I. Muhammad Hussain, P. W. 8, Fateh Muhammad, P. W. 10 the same remarks apply to the other P. Ws. As well, including Col. Bashir Ahmad, who are proved on record to be either members of Mehraj Din's party or have personal causes of annoyance against the respondent.
9. As admitted by Abdul Ghani, P. W. 3 in his cross---examination, the respondent is a person of substantial means having immovable property worth lacs of rupees, including an Ice Factory and other business concerns. He is highly educated and possesses a degree for M.Sc."
After noticing that the West Pakistan Control of Goondas Ordinance is basically preventive measure to bring anti-social elements under control and to keep them under check, the Tribunal proceeded to observe as follows:- "Since it is an admitted fact that the provisions of the West Pakistan Control of Goondas Ordinance, 1959, are meant for checking and imposing restrictions on the move--ments of irresponsible persons, who are proved to have taken part in anti-social activities and have caused annoyance to the public in general, the respondent whose activities are confined to Mehraj Din and his party only I am of the view that the case judged on merits also does not justify any action against him.
He is accordingly discharged."
Our supposition that the provisions contained in the West Pakistan Control of Goondas Ordinance apply to the situations intended to be covered by the Police rules 23.4 and 23.9, is fully justified by the facts and circumstances of the present case, as particularly noticed in the above quoted observations by a Tribunal acting under the said Ordinance. Our further supposition that, if given opportunity to show cause, a person concerned in such like proceedings may be able to convince the authority concerned against the proposed action, is also fully justified by the facts of this case; because when given an opportunity in respect of the same allegations, the petitioner was able to satisfy a Tribunal constituted under the law that no action was called for against him. Therefore, we hold that the failure to give an opportunity of show cause to the petitioner, before passing the impugned order, makes the said order illegal and without lawful authority and the same merits to be set aside for that additional reason.
8. Before closing this judgment, it may be mentioned that Kh. Saeed-ul-Hassan, the learned counsel for the respondents, raised the plea of laches as, according to him, the impugned order having been passed in 1958, the delay of about nine years in filing the writ petition in 1967 amounts to laches and, therefore, the petitioner, even if otherwise entitled to any relief under Article 98 of the Constitution, should be denied the same because of this bar. It was explained on behalf of the petitioner that the impugned order was passed in a surreptitious manner and that he could not obtain full information about it till the time that he filed the writ petition. The contents of the writ petition do support this version of the petitioner. But the carried counsel for the respondents has controverted this fact. It is not possible to determine the above disputed question off fact in these proceedings because it may require taking of lengthy in evidence from both the sides. However, in our view, it is not necessary to embark upon that enquiry because the impugned order is in the nature of a continuing wrong. Therefore, a cause of action in respect thereof arose continuously.
Even if there would have been a bar of statutory limitation, the petitioner, could have urged the plea of continuous wrong. But in this;, case there being no statutory limitation, under Article 98 of' the Constitution, the objection is as to laches ; with regard to J which the same plea, of continuous wrong, can legitimately b le urged by the petitioner.
It may be remarked that except when there is a bar of limitation, the delay simpliciter has never been treated as a bar. Laches has often been defined as such negligence or omission to assert a right, as, taken in conjunction with the great lapse of time and other circumstances, causes prejudice to an adverse party. If a person seeking a remedy has not committed such a delay as would cause prejudice to the other side or would amount to waiver or acquiescence on the part of the person seeking the remedy, technical plea of laches, by itself, would not be sufficient to bar the remedy. Support can be had, for this view, from Muhammad Wazir v. Jahangirimal (AIR 1949 Lah.
72), Habibullah Khan and others v. Qazi Muhammad Ishaq and others (PLD 1966 SC 505), Mst.
Noor Jehan Begum v. Abdul Majid Shaida and another (L N 1967 (NUC) SC 15), Lindsay Petroleum Company v. Hard (1874 L R 5 P C 221), Dalton v. Angus ((1887) 6 A C 740) and "Extraordinary Legal Remedies" by Farris. In this case, admittedly, no other party has been affected by the delay in filing the petition, even if it is held that the same is without any reasonable explanation. Proceeding on the basis that the remedy sought in this petition is against a continuing wrong and that the delay, if any, has not prejudiced any other party, we repel the contention raised by the learned counsel for the respondents.
9. In the light of the above discussion, we accept this petition with costs, set aside the impugned order as without lawful authority and direct that the petitioner's name shall stand removed from the surveillance register maintained by the police and that his history sheet shall be closed and be treated as never to have existed.