P L D 1978 Karachi 368 (PLP)

These are connected revision applications under section 22(2) of the Sled Crimes Control Act, 1975 (IV of 1975) against the orders of Commis sioner. Hyderabad Division dismissing the appeals of the petitioners against the orders elf detention passed against there lay S. D. M. and Tribunal, Kotri and Hyderabad respectively. Since all these cases involve common questions of law and fact they will be disposed of lay this order.

2. In Revision Application No. 175/76 the report of S. H. O., R. A, Jamshoro submitted in the Court of S. D. M. Kotri shows that the petitioner Sheroo was a habitual dealer of charas and illicit liquor and he moved about at odd hours of the night in disorderly manner. No specific acts were mentioned in the report nor any other particulars given but under the heading "record of the accused" a case under section 110, Cr. P. C. pending from the year 1974 was mentioned. The witnesses cited were S. H. O. Jamahoro, S. I. P. Zaheer Hussain and two persons Khuda Bus and Faqir Muhammad. Neither the professions nor the addresses of these two persons were given.

3. In Criminal Revision No. 175/76 also the facts were more or lees similar. Petitioner Nasrullah proceeded against in this case was mentioned in the report of S. H. O., Jamshoro as habitual offender dealing in charas and illcit liquor. No other particulars were given nor was any cars against the petitioner mentioned. The witnesses cited were exactly the same, namely, the

9. H. O., the S. I. P. and Khuda Bux and Faqir Muhammad.

4. In Criminal Revision Applications Nos. 177, 178, 179 and 180 action had been taken by S. D. M., City & Tribunal, Hyderabad on the report of Inspector War Muhammad, S. H. O., Market Police Station that the petitioners had link with certain prostitutes of Hyderabad and some of them exported prostitutes to Arab Countries. No previous convictions were shown. The wit‑eases cited are all police officers excepting one or two newspaper reporters.

5. The S. D. M. and Tribunal in all these six cases issued warrants and straightaway passed orders under sections 8 (1) and 8(3)(b) directing detention of there persons until the conclusion of the enquiry. For passing the orders of interim detention no enquiry had been held and the above reports of the

3. H. O. were relied upon.

6. It has been pointed out by Mr. Muhammad Ali Sheikh that in all these cages the reports contained vague allegations and some of these allegations are not even covered by the various clauses of section 14 of the said Act, That the requirements of section 6 of the Act have not been complied with its the sense that no copies of any documents were delivered to the persons proceed against nor were arty acts with which they were charged mentioned in these reports. There were no details of any time or place in respect of any acts while the general allegations were in the nature of mere expression of suspicion and no evidence of general repute was cited. Mr. Muhammad Ali Sheikh has further pointed out that in cases started by S. H. O., Market Police Station the proceedings were mala fide as the petitioners were first arrested on 1‑11‑1976 under orders of the Home Secretary, Government of Sind, under the Public Order Ordinance. This detention was challenged by a writ petition which was admitted because no grounds of detention had boon communicated to the petitioners. The orders of detention of the petitioners were accordingly revoked but before they could be released these reports under section 14 of the Sind Crimes Control Act were tiled against the very Fame petitioners and orders of interim detention were obtained from the S. D. M. and Tribunal, Hyderabad without even a formal enquiry to show any emergency. That since the persons were already in jail the question of any emergency did not arise at all.

7. The fiat two petitions mentioned the petitioners as habitual thieves etc., without mentioning a single instance of theft. Habit implies a tendency ox capacity resulting from the repetition of the same acts. It implies frequent indulgence in such acts connoting depravity of character. To prove a person to be by habit a thief the prosecution must adduce evidence o commission of number of similar acts in each of which the person must be shown to have been involved. For, habit has to be proved by aggregate, facts and mere suspicion or complicity in isolated acts would not constitute habit. Thus the allegations must not be vague but there should be definite instances of such acts against the persons proceeded against with details of time and place of such acts. The report should also cite evidence of general repute. Suspicion is some times mistaken as evidence of general repute. Suspicion is not, however, admissible as the evidence of general repute is alb governed by the ordinary rules and principles of evidence. By reputation is meant tile estimation or the collective opinion of those in whose midst a person lives and this should be disclosed by the facts stated by such persons. General reputation must be distinguished from rumour which is inadmissible in evidence, for, rumour is mere hearesay evidence while evidence of repute is the evidence of the persons to whom the man is known and amongst who he has lived showing that such persons by observing the man closely would know his habits and tendencies. An S. H. O. or a police officer mating report against a person on the basis of police record of suspected cases could not be considered to be giving authoritative evidence in respect of general repute of a person as such evidence would be based on suspicion and rumour and would hardly be admissible as evidence of general repute.

8. In the above cases these requirements are not contained in the reports on which the proceedings were started and the acts or instances wit time anti place were not mentioned in the report nor was any indication give regarding evidence of general repute. Since this is an enactment for prevention of crimes by detention of persons and curtailing their liberty, the provision of the Act have to be followed strictly. In case the provisions are disregarded, the emission would affect the entire proceedings. In the remaining four cases the principal allegation is that these petitioners have link with certain prostitutes. The allegations must be shown to fall under definite clauses of section 14 of the Act. If a person is a pimp or a tout of the prostitutes or lives wholly car partly on the earrings this fact should be specifically mentioned. Likewise if a person keeps a place for the consumption of intoxicants the particulars of such place and the facts should be specifically mentioned By merely saying to vague terms that a person is connected with the prostitutes or seals in intoxicants would not brig the case within tit purview of section

14. Want of particulars as provided under section 6 has already been held in a number of decisions to be fatal to the prosecution Abdul Hameed v. The Tribunal P L D 1977 Kar. 575, Uris v. The Tribunal P L D 1977 Kar. 506 and Arsallah Khan v. D. m., South & Tribunal 1977 P Cr. L J

746. In all these decisions it has been emphasised that where the proceedings had been initiated on police reports containing no particulars of times and place of acts alleged, nor were such reports accompanied by copies of F. I. Rs, or complaints made by resident of locality the proceedings were held to have been initiated in disregard of provisions contained in sections 5 and 6 and were quashed in fns circumstances.

9. In an unreported Division Bench judgment in Constitution Petition No. V19/75 it was observed by my learned brother Muhammad Halim, J, that an order for furnishing interim security would be without jurisdiction when there was no material to sustain such an order. That an order under Section 8(3) (b) of Crimes Control Act could not be based on more specula tions or an apprehension expressed by the Police. The order should be objective one, showing the material leading to a conclusion that immediate measures are necessary for making such an order. That the necessity of an enquiry is for furnishing material for formulation of an opinion that such an emergency in fact exists. In all the above cases orders under section 8(3) (b) were passed merely on the vague reports of the S. H. O.

10. Mr. R. A. Qureshi appearing on behalf of the Advocate‑General, frankly concedes that the impugned orders initiating the proceedings and directing interim detention ;.ending the enquiry cannot be maintained as the allegations in the reports do not oven show that such cases fall under any of the clauses of section

14. That the allegations are so vague that neither acts or instances nor particulars of time and place have been mentioned. While the orders under section 8(3) (b) have been passed without any enquiry.

11. For the reasons stated above the proceedings initiated by the Tribunal against the petitioners appear to be without lawful authority and they are accordingly quashed and the petitions are allowed. S. A. H. Petitions allowed.