JAMALUDDIN H. AHMED, J.-Upon a report filed by the Incharge Police Station, Mallr, under section 14 of the Sind Crimes Control Act, 1975, the Assistant Commissioner and S. D M., Malir Division, Karachi, came to the conclusion that the case fell within the mischief of clauses (li), (IF), (VI). (xxlr) and txxsfr) of that section, and registered the same. He issued a non--bailable warrant for the arrest of the petitioner as an application was separately ma's in this regard. The allegations contained in the report were that the petitioner had been selling charaq and opium illegally within the jurisdiction of Malir Police Station, continuously for several years and in spite of repeated cases filed against him, he had persisted in the said illicit trade and employed other poor persons to work as his agents. He had not improved his conduct but resorted to commission of offences like rioting, davoity and even murder. His criminal activities did not decrease and his name was entered in the surveillance list maintained at the police station, but he had become a habitual offender of selling charas and opium, committinp attempts of murder, murder and dacoity ate. In the result, the members of the public had become fearful and disturbed due to his criminal activities and his persistent obstinacy, and disturbance of law and order were likely to take place any time.
Four Police Officers of the rank of D. S. P., Inspector and Sub-Inspector were cited in the complaint as witnesses of the petitioner's repute, besides which a long list of 31 persons which included police officers as well as members of the public were cited as witnesies as to prove the case of the prosecution. Apart fro .n this a list of about 20 cases wal given which bad been registered against the peti*ioner from the year 1965 to the year 1976 under various laws including Opium Act, Abkari Act and P. P. C. These cases were mentioned in the complaint as "details of documents". There is nothing mention ed about the result o' these cases except a statement in the body of the report that "Cballans have been submitted in Courts and he was o^. Nvicted in some cases and was discharged in others".
2. The learned counsel for the petitioner, initialll attacked the act of the Magistrate in taking cognizance of the case against the p.Titioner-and criticizes the same as being without any application of mind: In this contexts he contender that the sub-clauses mentioned by the Magistrate in hits order whereby he to:1 cognisance, are not all made out from tho allegations con- -tained in the report. He, however, -conceded that the allegations referred to above could fall within the mischief of some of the clauses mentioned in the order. According to him. Since he had taken cognizance of the ca!e t nder some of the clauses of section 14 of the Act, which were not attracted the very taking cognizance was bad, and could be declared to be an act without lawful authority. To support this contention the learned counsel attempted to draw an apology between taking cognizance upon a report with an order of detention passed under the known preventive.Laws and he relied on the view expressed by Gaw)er. C. J. In the well known case of Keshew Talpada v. Emperor (1) and which was that "If a detaining authority ives four reasons for detaining a man without distinguishing between them anclany two or three of the reasons arc held to be bad, it sin never be certain to what e:tent the bad reasons operated on the mind of the authority or whether the detention order would have bean made at all, if only one or two good reasoui had been before them".
(1) A R 1943 FC 1
3. Now, although the Sind Crimes Control Act, 1975 was, as its pre--amble shows enacted to provide effective machinery of law to prevent the commission and repetition of crimes the question will remain whether it could be said to fall in the category of law relating to "preventive detention". The question came under consideration, with regard to West Patistan Control of Goondas Ordinance, which was repealed by this Act, but was a law part materla, with this Act in the case of hlehbnob All v. Deputy Commissioner and Tribunal (1) in which a Full Bench of this Court replied the same In the negative.
A bare reading of the provisions of this Act and examination of Its Scheme, would-show that there is a glaring distinction between an order of detention and an order of taking cognizance which under the Sind Crimes Control Act, is an act of the Tribunal cf applying its mind to the ma!Erial before it, for the purpose of deciding only whether it should take any actior preliminary to the inquiry. Taking cognizance is only an act performed with a view to eventual prosecution but it is always preliminary to the same. A detention order on the other band is an act of the executive authority which ,e in itself is final, and in that authority is required to give reasons for taking such an action as detaining a person for a particular specified period. Clearly, therefore, there can be no apology between the two orders. The, contents of the complaint do show that the allegations made:, fall within the mischief of some if not all of the sub-clauses of section 14 of the Act mention- -ed in the order and this position is not denied. Sub-clause (H) refers to the reputwion of a person engaging himself off in any illicit sale of intoxicants and narcotic drugs. Similarly, sub-clause (xxxlv) refers to a person being so desperate and dangerous as to render his being at large without security hazardous to the community. The learned Additional Advocate-General has referred to section 13, clause (1) which empowers the tribunal, for the purpose of inquiry under this Act, receive and consider the evidence of general repute to prove that the person complained against is a habitual offender or is so desperate and dangerous as to render his being at large without security hazardous to the community etc. Obviously, therefore, the tribunal had actedt within its powers in taking cognizance of the case upon the allegations made `B in the report, for it was only a commencement of the inquiry in which it) was empowered to reccive evidence which could include evidence even o IIf general repute.
4. The learned counsel for the petitioner then attacked the illegality of the grooeedings on the ground that the witnesses enumerated in the complaint were mostly Police Officers and at least those cited to give evidence about general repute were all from the police department. He referred to the case of Mazan alias Mazao v. The State (2) to show what was intended to be meant by evidence of general repute. In that case it was observed by Mushtak A.I Kazi, J as under :-- "It is true that in oases under section 110, Cr. P. C. Evidence of general reputation can also be given, but reputation means, what is thought of a person by others, and the general reputation' of a person, is the collective opinion of those in whose midst he lives Evidence which discloses the existence of such collective opinion, is the evidence in proof of general reputation. This general reputation should, therefore. Be distinguished from mere opinion of rumour. A man's general reputation is the reputation which he bears in a place in which he
(1) PLD 1975 Kar. 391(?,) PLD 1975 Kar. 1035 lives amongst all the villagers or townsmen. If his fellow villagers or townsmen took upon him as thief or robber or a dangerous man that would be strong evidence of bad character. This collective opinion must be distinguished from individual opinion or suspicion of a Police Officer. Police records of suspects of histopy--sheets maintained by the Police or even entries In the Police diaries, would all be inadmissible as evidence of general repute. Likewise mera oral word of a Police Officer giving his opinion that a particular person is a habitual thief would also be inadmissible as hearsay evidence."
This according to the learned counsel supported his .Contention that an opinion of a Police Officer was to be excluded from consideration, but his Lordship while reviewing the case-law on the subject and connotation of the term "general repute" had also referred to the observation made in the case of Mehar xhan v. The Stare "that it was true that a Police Office was a competent witness to speak about the reputation of a person residing within his jurisdiction and regarding whom he had occasion to make inquiries and observations in course of official duties ; but such officer's evidence in this connection was to be strictly scrutinized in light of circumstances forming basis of his belief; and if the view of a police offcer was not founded upon any solid facts then it would be unsafe to base an order on such view alone." The evidence of police officers, therefore, is not inadmissible for necessarily ~C to be excluded merely on that account.
5. As the allegations made in this report are not based solely on the evidence of four Police Officers categorized as witnesses of general repute, but in the long list persons from the public are also named, it cannot judged at this stage as to what would be the result of the inquiry aftep the witnesses are examined.
The argument that the proceedings are incompetent merely because Police Officers have been named as witnesses, therefore, is not, tenable and falls.
6. Since the allegations made in the complaint fall within the mischief of some of the clauses of section 14 of the Act. And since Police Ofccrs are not 'incompetent witnesses whose evidence is necessarily to be excluded as inadmissible, the Tribunal did not act without ,jurisdiction in taking cogniz--ance of the case upon the report.
7. The petitioner has been released on bail by this Court and as tile record reveals even the Tribunal had granted his application which tire petitioner had himself moved under section 8, sub-clause (3-A) of the Act. The 'tribunal had not passed any order under section 8(3-B) of the Act.
8. No other point was argued in this case before us and no legal ground is made out for intetference with the proceedings in exercise of the Constitu--tional jurisdiction of this Court, in consequence of which the petition is hereby dismissed. However, the petitioner shall continue to be on bail as before, to which the Additional A.-G. Also concedes, for even the Tribunal itself had granted that relief.