P L D 1984 Peshawar 257 (PLP)

FIAZ MUHAMMAD KHAN, J.‑Mukhtiar Ahmad, petitioner herein, is resident of Peshawar City. He is a history. sheeter. His name also appears in the Surveillance Register kept by the Police. These are the documents which are prepared by the police under Police Rules, 1934.

2. The petitioner claims that he belongs to a respectable family of Peshawar City and is dealing in Ready Made Garments in the business premises situated in Meena Bazar, Peshawar City. He alleged that in the month of April, 1981 a police officer visited his Mohallah in his absence and left. after message at his house that be should report to the Station House Officer, Police Station 'C' Division, Peshawar in connection with his history sheet. He alleges that after receiving this information be met the Deputy Inspector‑General of Police with the request that the history‑sheet, if opened, may be closed, which, however, was not done. He alleges that quite often the police officers are bothering him for appearance before the S. H. O. concerned and in his absence such messages are left with Mohallahdar (Lambardar) of the Mohallah in which he is living The petitioner claims that before opening history‑sheet he was not served with show‑cause notice and that the action taken against him, which affects his reputation and social status and contacts, was mala fide as he is neither addicted to crimes nor an aider or abetter of such persons. He, therefore, filed this constitutional petition for declaring the action of the respondents as being, without lawful authority and of no legal consequence.

3. The respondents Nos. 2 and 3 (Deputy Inspector‑General of Police and S. H. O. concerned) filed joint counter‑affidavit. They do not deny the opening of the history‑sheet of the petitioner. They admit that show‑cause notice was not served upon him before opening of the history‑sheet because such was not a mandatory requirement of law and rules. In reply to ground 3 six cases are mentioned in which the petitioner was challaned. It is also admitted that the petitioner was being summoned by the police off‑and‑on for mending his conduct.

4. In rejoinder the petitioner alleges that in the first case mentioned in counter‑affidavit of the respondents Nos. 2 and 3 he was convicted in the year 1953 and that was a case under section 307, P. P. C./19, Arms Act in which the houour of the family was involved. Respecting other cases mentioned in the said para. the petitioner in his rejoinder claims that he was not convicted nor was any notice issued to him and that those cases were 5ased on malafide.

5. Mr. Raza A. Khan, Advocate appeared on behalf of the petitioner and S. Ibne Ali Additional, Advocate‑General, appeared on behalf of the respondents. Their arguments were heard. The record produced by the S. H. O. concerned was also gone through. Some copies from the record, with the agreement of the learned Additional Advocate‑General, have also been placed on this file.

6. The main contention of the learned counsel for the petitioner was that at the time of opening of history‑sheet the petitioner was not served with show‑cause notice and for that reason the action of opening of history‑sheet, being in violation of the principles of natural justice, was without lawful authority and of no legal consequence. In this regard he relied on P L D 1974 SC31;PLD1964SC461;PLD1971SC55;PLD1970Lah.569and P L D 1971 Lah. 498.

7. The learned Additional Advocate‑General, in reply, contended that the history‑sheet of the petitioner was opened in the year 1968 and at that time it was not necessary to issue show‑cause notice to him before action was taken with respect to him. The learned Additional Advocate‑General supported his argument by relying on a case from Indian Jurisdiction (reported as 1982 P L C 632).

8. We have considered the arguments of both the learned counsel on this point in the light of the law cited at the Bar. The law laid down by the Supreme Court in this regard is quite clear and is to be followed by all Courts in Pakistan. The decision of the Supreme Court of India would, therefore, be of no avail to the respondents. Undoubtedly, when a history‑sheet of a person is opened, his reputation suffers and he receives a setback in his social status and social contacts. Opening of history‑sheet without show‑cause notice is an act which cannot receive approval of the Superior Courts.

9. The learned Additional Advocate‑General, in justification of the action taken by the respondents, then argued that this writ petition is not maintainable for laches. He argued that the history‑sheet of the petitioner was opened in the year 1968 and it is much long after that the petitioner has challenged the action through this constitutional petition, which, according to him, merits dismissal on this ground alone. In reply, the learned counsel for the petitioner contended that as the petitioner is being summoned by the police on various occasions to police station and that he is being asked Oil various occasions to mend his conduct, this action of police and opening of history‑sheet gave recurring cause to the petitioner and for that reason this constitutional petition is not hit by laches. He relied on 1981 P Cr. L J 952, a Division Bench Authority of Sind High Court. Respectfully agreeing with[ the view expressed by Sind High Court in this authority, in which references to other authorities has also been made, we are of the view that the opening of history‑sheet and the summoning of the petitioner to police station and asking him to mend his behaviour, as admitted by the respondents in counter‑affidavit, gave a recurring cause to the petitioner. This writ petition cannot, therefore, be dismissed on the ground of laches.

10. In justification of the action taken by the Police Authorities in opening history‑sheet of the petitioner, the learned Additional Advocate. General further argued that the name of the petitioner was first brought in 'h the Surveillance Register kept by the police and on that basis history‑sheet of the petitioner was opened under rule 23.9(1) of the Police Rules, 1934. He contended that when this be the course of action it is not necessary, to serve person concerned with a show‑cause notice. In this respect the learned Additional Advocate‑General placed reliance on P L D 1971 Lah. 498.

11. As already observed, we have seen the record produced before us by the S. H. O. concerned. The name of the petitioner was directed to be entered in the Surveillance Register kept by the police in the year 1968. Under rule 23.4(3) (of the police rules) such directions could have been made by the Superintendent of Police. Note added to this rule is instructive and requires the Superintendent of Police to direct action after applying his mind to the facts of each case. Under rule 23.5 it is provided that Superintendent of Police is prohibited from delegating his authority. We have seen from the record, copy placed on this record, that the final order made on the suggestion of A. S. I. was by the Deputy Superintendent of Police. This Order is dated 13‑6‑1968. It was, therefore, not an order passed by the competent Authority, nor would this. order show that it was the result of application o C mind to the facts of the case. To us it appears that it was a mechanical signing of the suggestion made by A. S.

1. Again, at that time, according to the counter‑all' davit given by the respondents Nos. 2 and 3 and the re joinder given by the petitioner, the petitioner had to his credit only one conviction of the year 1953, under section 307, P. P. C./19, Arms Act, but in two other cases challaned under the Goonda Ordinance and the Gambling Ordinance D he was acquitted. In such circumstances, the petitioner could also not have been believed to be habitual offender. Action against him was, therefore, unwarranted by law and lacked legal backing.

12. For the reasons aforesaid, this constitutional petition must succeed. We, therefore, declare that the action of the respondents of opening the history‑sheet of the petitioner and entering his name in the Surveillance Register was without lawful authority and of no legal consequence. The petitioner would, consequently, not be bothered in persuance thereof. We make no order as to costs. M. B. A. Petition accepted.