' This Revision Application has been directed against the Oder under section 112, Cr. P. C. Passed by the S. D. M., Naushero Feroze in proceedings under section 110, Cr. P. C., instituted on the complaint of S. H. O., Naushero Feroze Police Station, dated 13-5-1975. I the Police cOmplaint it is alleged:-
(a) That the applicant is a thief and disposer of the stolen property on (0 The thieves come from long distances and vi t him, whom he provides lodging and .Board, as well as, protection. He also supplies them arms.
(c) He is a vagabond, and commits heinous offences through others,
(d) He is a dangerous person. Therefore no one dare to state a inst him.
(e) He has no other source of livelihood d his remaining out, is dangerous for general public..
(f) He is already in Jail, in a case of Crime No, 24 of 1975 under section 380, P. P. C. Which, after filing of the charge-sheet is pendi hg in the Court.
2. On the basis of this complaint, proceedings under section 110, Cr. P. C. Were instituted against him. Instances of other cases were also cited in the ' ' ' complaint ViZ.:-
(1) Crime No. 6611967 under section 379.
(II) Crime No. 77 of 1968 under section 457/380, P. P. C.
(III) Crime No. l /l974 under section 380, P. P. C. ' in the complaint, only three witnesses were shown as prosecution witnesses, one being the S. II.
0. Himself, as the complainant, and the two police constables of the same police station.
3. On the basis of the police complaint, the case was challaned in the Court on 14-54975. The learned Magistrate was pleased to pass the impugned order dated 21-54975 under section 112, Cr.
P. C mentioning therein (0 That the applicant is a habitual thief, receiver and disps'ser of the stolen property.
(I1) That he is a patharidar' where thieves and bad characters of different places visit him, with whom he has got connectioils.
(III) That he keeps we pans without licence with himself.
((V) That he is so desperate and dangerous, that his being at large without surety for good behaviour, will be hazardous to general public. ' tinder the sal, e order the applicant was called upon to show cause, why he should not be ordered to execute a bond in the sum of Rs, 10,000 for maintaining good behaviour for a term of 12 months with two sureties each, in the sum of Rs. 5,000 and P. R. Bond in the like amount. The sureties should be of Zamandari Class residing within the radius of two miles who should be able to control his activities to the satisfaction of the Court. The above order was read over and explained to the applicant, who did not admit the allegations and pleaded innocence and wanted to be tried.
4. Since the applicant was already in Jail custody in Crime No. 24/75 under section 380, P. P. C. The surety was produced through' the Advocate and the learned Magistrate was pleased to pass the following order on 20-9-1975:e- 1 have perused the record and beard Mr. Mir Mohammad, defence Advocate for the opponent, who has stated that the accused is not a thief and has been involved in theft eases due to matrimonial affairs for which he could Not produce any recorded evidence in his support. The record shows that the opponent is facing trial in a house-breaking theft case and he was ehallaned previously in theft cases in the years 1968, 1967 and 1974. This has not been rebutted so far in the inquiry. On the outset there is a charge made out by the Police that the opponent is a habitual thief, which charge has not so far been rebutted by the opponent or his defence Advocate. Moreover the applicant offered as surety for opponent does not appear to be solvent as he has produced land revenue receipt for Rs. 95 and does not appear to be solvent in the sum of Rs. 5,s as is required under section 112, Cr. P. C. Hence applicant is not accepted to stand surety for the opponent."
' S. As a result of this Revision Application the applicant was directed to be released on bail, in the sum of Rs. 5,000 with one surety for his appearance to the satisfaction of the Sessions Judge, Nawabshah.
6. The main ground advanced in support of the application is that the complaint is a stereotype one and does not disclose ingredients necessary for initiating the proceedings under section 110, Cr. P. C. It is urged that nothing has been mentioned in the complaint, in respect of the cases cited, whether they had ended in conviction or acquittal of the applicant. The manner in which the surety, by the Magistrate, was rejected, clearly indicated an abuse of the process of the Court, resulting in the harassm ent (4' the applicant. The second contention that was raised, was that except the three police witnesses, there was no one else cited from the public, as witnesses, in support of the allegations s made in the complaint, It was further argued b) the learned counsel for the applicant that by general reputation as is envisaged under section 110, Cr. P. C., there should be evidence from the public to depose, as to the reputation of the applicant. Making a mere allegati n oil hearsay. Evidence, not supported by any direct and legal evidence, in support thereof, is not sufficient, The hostile police, having vast powers of arrest and institution of cases, are capable of filing such complaints to intimidate and harass innocent people. It is argued that there was no legal evidence available, to pursuade the learned Magistrate for taking cognizance, and passing the impugned order under section 112, Cr. P. C. Reliance was placed on the case reported lit Mazan alias Mazno v. The State' (1). The relevant portion is reproduced as under "It is true that tit cases 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 existe ce of such collective opinion, is the evidence in proof of general reputation. This general repu tion should, therefore, be distinguished from mere opinion or rumour. A man's general reputation is the reputation which he bears in a place in which he lives amongst all the villagers or townsmen. If his fellow villagers or townsmen look 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 or history-sheets, maintained by the police or even entries in the police diaries, would all be inadmissible as evidence of general repute. Likewise mere oral words of a police officer, givi g his opinion that a particular person is a habitual thief, would also be inadmissible, as hearsay evidence."
' In another case, reported in Qassinim and others v. The State (2) Ghulam Rasool Shaikh, J. Had observed :- "That in such proceedings evidence of a police officer should be put to strict scrutiny in the light of the circumstances forming the basis of his belief and it was unsafe to base the order on his view alone, if it was not founded upon solid facts. The learned Judge relied upon an earlier decision in the case of !Carey v. State. It was held in that case that "an investigating officer's statement that he suspected a certain person to have committed a burglary or theft, is inadmissible, because, it is only an opinion of his and not a statement of fact, within his personal knowledge. An opinion, about certain persons, having been concerned in a crime, is inadmissible, even if it is of a person, who is expert in investigation. What he should depose about, is the facts personally noticed by him and on which he formed his opinion that the accused was a burglar or thief; it would be for the Court to decide whether to draw the same inference from those facts or not."
' Same view was held in a recent decision of this Court reported in the case of Mehar Khan v, The State, 1975 P Cr. L .1 257 that it {{FOOT NOTE}}
(1) P L 1) 1975 Kar. 1035 (2) PLD 1971 Kar.
473. {{FOOT NOTE}} was true that a police officer was a competent witness to speak about reputation of a person, residing within his jurisdiction and regarding whom he had occasion to make enquiries 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 hie belief; and if the view of police officer was not founded upon any solid facts, then it would be unsafe to base an order on such view alone."
' There is nothing on the record in respect of the cases sited in the complaint whether they are still pending disposal.
Therefore, the evidence of general repute in these proceedings, should also be by means of direct evidence and not necessarily, an expression of a mere opinion based on rumour. The witnesses shown in the complaint ar only police constables. No public man has been shown as a witness to statement the reputation of the applicant, who must be the witness, havin the first hand knowledge about the facts and he should himself self know the applicant. As a matter of practice, evidence of general repute, should be given, by respectable persons, who are acquainted with the person sought t be bound-over, who live in the same neighbourhood and are aware of hi reputation, as is done, while calling upon the person to produce solven sureties of the respectable persons of the locality. In this" regard the C urt ought not to accept the evidence of the police officers or their subordinat alone, unless they had special means and occasion to know the reputation o a particular person.
7. The impugned order is passed on the evidence of general reputation and in support thereof, no public man has even been cited as a witness. Under such circumstances, it becomes unsafe, I should say, highly unsatisfactory, for a Court to base the order such as the impugned order, which may be liable to harass an innocent person.
8. Mr. Hasan Inamullah, learned Advocate appearing for Advocate-General for the State, very frankly conceded that from the nature of th evidence, so far available in the documents (complaint and the order under section 112, Cr. P. C.) discloses only the opinion in respect of the reputation of the applicant and is contrary to the spirit of the provisions of section 110, Cr. P. C. In addition, he has further stated that the applicant was bound down for a period of 12 months, commencing from the date of the orde passed on 21-5-1975, which is already over. The applicant was also in Jail custody uptill 5-12-1975, when he was ordered to be released on bail. He ha therefore supported the application for quashment. The application I accordingly allowed and the impugned order under section 112, Cr. P. C. o the S. D. M., Naushero Feroze is hereby quashed. The bail bonds furnished by the applicant are discharged.