' MIAN MUHAMMAD AJMAL, J.--- The petitioner herein, has challenged the show-cause notice/proceedings relating to the opening of his history-sheet in this writ petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, to be illegal, without lawful authority and of no legal consequence.
2. As per assertions of the writ petition, the petitioner is an educated, law-abiding citizen of Pakistan and hails from a respectable family owning considerable property. The petitioner's character has been certified to be good by the Head Master, Government High School No,1, Abbottabad.
3. Learned counsel for the petitioner contended that the petitioner passed Matriculation examination in the year 1988 securing 422 marks and thereafter in the year 1990 passed Intermediate examination securing 502 marks. He has been issued Character Certificate by the Headmaster, Government High School No,1, Abbottabad showing his character to be good during his stay at the school. He also referred to the character certificates which have been issued by the Chairman, Union Council, Dhamtour, Ex-Vice Chairman, Cantonment, Abbottabad, Chairman, Union Council, Namli Maira certifying that the petitioner is a gentleman with good character and belongs to a respectable family. He referred to Rule 23.9(2) of Punjab Police Rules, 1934 and argued that the petitioner is not a habitual offender as he has not been convicted in any case registered against him and stands acquitted in all the cases, therefore, Rule 23.9(2) ibid cannot be made applicable to him. Reliance was placed on PLD 1974 SC 31.
4., Learned Assistant Advocate-General submitted that the petitioner is a habitual offender as several cases have been registered against him. He referred to F.I.R. No,448, dated 23-5-1991 under section 13, A.O. F.I.R. No,680, dated 21-7-1992 under section 3/4, P.O. F.I.R. No, 978, dated 27-10-1992 under section 324/506/34, P.P.C. And F.I.R. No, 167, dated 17-2-1993 under section 3/4. P.O. And argued that in view of the aforesaid F.I.Rs, it can be ascertained that the petitioner is accustomed to the commission of crimes. He submitted that since the petitioner was accused in the aforementioned cases, therefore, opening of his history-sheet is justifiable. The S.H.O. Who was present in Court, produced the history-sheet of the petitioner which had been opened after the issuance of the impugned show-cause notice.
5. We have given due consideration to the submissions of the learned counsel for the parties and have gone through the record of the case.
6. The perusal of the record would show that although the petitioner was charged in the aforesaid F.I.Rs, for the offences mentioned therein, but after trials he has been acquitted in all the cases by the Courts of competent jurisdiction. According to legal maxim "Omnis indemnatus pro innoxis legibushabetur" (every uncondemned person is regarded by law as innocent), the petitioner shall be presumed to be innocent as he has not been condemned in any of the cases registered against him by any Court.
7. The aforesaid material led the respondents to proceed against the petitioner under Rule 23.9(2) of the Punjab Police Rules, 1934 which reads as under:-- "23.9(1) ................................................................................
(2) 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 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 persons."
' This rule came under consideration before the august Supreme Court of Pakistan in case of Rana Muhammad Afzal v. Inspector-General of Police West Pakistan, Lahore and another reported in PLD 1974 SC 31 wherein it was observed as under:-- 'The phrase habitually addicted to crime was considered in Muhammad Ramzan v. Government of West Pakistan and 2 others PLD 1962 Lah.
957. It was observed in this case that 'the said phrase applies to a person who has committed crimes on many occasions and cannot, by reasonable cannon 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 single transaction and the order of Police Officer was set aside in writ jurisdiction."
' In Webster's New International Dictionary (2nd Edition), '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 phrase was also considered in the case of Mian Miraj-ud-Din v. The Senior Superintendent of Police, Lahore and others PLD 1970 Lah. 569 and Mst. Ghulam Fatima v. Government of West Pakistan and 2 others PLD 1971 Lah.
498. In the case of Mian Miraj-ud-Din, it was held as under:-- "The consensus of the commentators on the meaning of 'habitual offender' in the context of section 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 abettor in the concealment or disposal of stolen property; habitual kidnapper, abductor, cheater 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 under Rule 23.4 of the Punjab Police Rules, 1934."
' In sub-rule (2) of Rule 23.9, Punjab Police Rules, 1934 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".
' It was further observed as under:-- "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 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."
' In the case of Mst. Ghulam Fatima, it was observed as under:-- "The fact that the condition precedent for opening the history-sheet under sub-rule (2) of Rule 23.9 is that a person should be reasonably believed to lie habitually addicted to crime' as also that reasons are not required to be recorded, as is required in cases of non-convicts to be done by the Superintendent of Police in order that their names are mentioned in surveillance register manifest that the expression 'habitually addicted to crime' was intended to apply only to a previous convict."
In the light of the above discussion, it appears to us that the phrase "habitually addicted to crime", means that the person concerned has committed the crime on more than one occasions and it applies to cases where the person concerned has been convicted in more than one cases. It does not apply to cases where the person concerned has been acquitted honourably".
8. As the petitioner stands acquitted in all the cases, therefore, in view of the above discussion and the case-law cited above, we accept this writ petition and declare the show-cause notice to be illegal and without lawful authority. The history-sheet which has been opened in pursuance to the impugned show-cause notice is also declared to be without lawful authority.