P L D 1976 Karachi 928 (PLP)

A. K. Lakhan for the State. Respondent (absent). Date of hearing : 25th November 1975. This is a reference by Additional Sessions Judge, Jacobabad recommending that order passed by S. D. M., Kandhkot against the applicant in an enquiry under section 110, Cr. P. C. directing him to furnish security for good be haviour for a period of 12 months, and the appellate order of District Magistrate, Jacobabad dismissing the appeal preferred against the said order, may be quashed.

2. The facts of the case in brief are that applicant Hasad was arrested by Kashmore Police and broughr before S. D. M., Kandhkot for proceedings under section 110, Cr. P, C. on 10-2-1973. The S. D. M. straightaway signed an order purporting to be an order under section 112, Cr. P. C. The record of the S. D. M. at page 3 shows that this was an already typed order in which only the blanks were filled up on that date. These blanks were in respect of the name of the applicant i.e. Hassad Khan son of Abdul Jan Mazari, the name of the police station i.e. Kashmore, the date of the report, namely, 9-2-1973 and the date of the order. All that the S. D. M. wrote on this sheet was "he pleads guilty to give security." The S. D. M. then recorded a brief statement of one Shah Mir Khan S H. O., Kashmore consisting of 13 lines. This was mere repetition of the matter from the already typed order under section 112, Cr. P. C. It is in general terms and possibly this deposition is also one of the already typed deposition. The learned S. D. M. then recorded the statement of the accused and the question purporting to have been put to the applicant contained the allegations inter alia whether his remaining at large would be hazardous to public peace and tranquillity and to this the answer recorded was 'yes sir, it is correct'. The order was then passed under section 118, Cr. P. C. that the plea of the respondent together with the evidence of S. H. O. Shah Mir Khan of Police Station Kashmore were sufficient to confirm the order passed under section 112, Cr. P. C. To this was added another order under section 123, Cr. P. C. that respondent was remanded to custody to undergo R. I. for 12 months for failure to furnish the required pacca surety.

3. Against the above order applicant Hasad filed an appeal in the Court of D. M., Jacobabad. The learned District Magistrate dismissed this appeal observing : "The appellant did not claim to be tried when the contents of the order passed against him under section 112, Cr. P. C. were read over and explained to him by the Magistrate and he did not examine any body in his defence which fact is clear in the deposition of the respondent recorded by the Magistrate (Exh. 3). As the appellant pleaded guilty of the allegation levelled against him at his own free will, I see no reasons to interfere with the order passed by learned Magistrate. The appeal is, therefore, rejected." Chapter VIII of the Criminal Procedure Code under which all these proceedings are described relates to prevention of offences. This Chapter is divided into two parts. Part A relates to security for keeping the peace and Part B to security for good behaviour. The procedure applicable to Part A is that of summons cases and that applicable to Part B is of warrant cases, but such procedure is applicable only as far as practicable. These are not accusa tions for any 'offences' as such and no charge is framed in proceedings under section 110, Cr. P. C. nor is any plea recorded. The order under section 112, Cr. P. C. serves the purpose of the charge but actually it is the memorandum of allegations in the nature of complaint on which the proceedings are started. The question, therefore, arises whether consent of the person proceeded A against to give security would dispense with the necessity to proceed with the enquiry and recording of evidence in proof of the allegations. Almost all the High Courts in the pre-Independence days except perhaps the High Courts of Allahabad and Oudh were of the view that mere consent or readiness to furnish security cannot be considered as a plea of guilty to the charge contained in the order under section 112, Cr. P. C. and the Court is not justified in binding down the person on the strength of such consent alone without a proper enquiry and sufficient evidence. The only High Courts that dissented from this view as already mentioned above, were the High Courts of Allahabad and Oudh, but even they decided that the question as to whether consent to give security amounted to a plea of guilty depended on the facts and circumstances of each case. There is, however, unanimity as far as the decisions of Sind, Lahore and Peshawar High Courts are concerned that consent to give security cannot dispense with the necessity of a proper enquiry and the order must be based on relevant and admissible evidence. In the Sind case of Allah Ditto v. Emperor (A I R 1925 Sind 321) it was held that even where the person sought to be bound over admits the several allegations contained in the notice sunder section 112 the Court is not justified in dispensing with an enquiry. The observations of Kennedy A. J. C. in this case are as under : "Now the procedure adopted by the learned Magistrate was not in some respects strictly in accordance with the law as laid down in the Criminal P. C. Section 117, clause 1 and 2 require that when an order section 112 has been read or explained under section 113, to a person present in Court when that person appears or is brought before the Magistrate in compliance with or in execution of a summons or warrant issued under section .114, the Magistrate shall proceed to enquire into the truth of the information upon which action has been taken and take such further evidence as may appear necessary. By virtue of sub section (2)-the enquiry is to proceed on the lines of an enquiry into a warrant case, except that no charge need be framed. The order, there fore, on which 4be proceedings start is in no way a charge, but something more like a complaint and just as it would be unlawful or inexpedient-to convict an accused person of a serious offence without ascertaining whether on the facts admitted a legal offence was com mitted, so it does not seem intended by the Code, that even where the accused persons do admit they fall under the categories given in section 112, no enquiry should be made. It is obvious that the people exposed to the operation of Chapter VIII are often illiterate and ignorant people and a mere admission is not conclusive proof that they are persons who should be bound over. The whole Chapter is Chapter which vests extraordinary powers in the Police and the Magistrate and if it is not to form an instrument of intolerable oppression it must be worked with the utmost discretion. The proper procedure, therefore, in the case of these three appellants not having been followed, the order of the learned Magistrate is set aside and the case remanded for disposal according to law." The Lahore view has been expressed amongst other cases in the case of Haji Jalal and others v. The State (P L D 1960 Lah. 819) by late Kayani, C: J. In that case the prior decisions in Crown v. Sheodan (25 P R 1915), Prem Singh v. Emperor (A I R 1917 Lah. 304) and Ujagar Singh v. Emperor (A I R 1929 Lah. 504) were relied upon. In all these cases it was expressed that any admission in such matters of preventive detention would sound absurd, for instance, a person Would not admit and state that he was likely to commit a breach of the peace unless he was bound down; that none but a lunatic would say directly or indirectly to the Magistrate "I admit intend to break the peace. I cannot, therefore, resist the demand for security". In the last case of Ujagar Singh under section 110, Cr. P. C. the Sub-Inspector of Police bad even made statement in Court that the petitioner had a very bad repu tation and he associated with bad-characters. Addison, J. relying on Sheodan and Prem Singh cases, held that the mere statement that the petitioner was willing to give security was not sufficient to justify an order against him. The Peshawar view is contained in a recent decision in the case of Sherzaman Khan v. The State (1972 P Cr. L J 617). In that case which was under section 110, Cr. P. C. the learned Magistrate after giving notice to the person proceeded against under section

112. Cr. P. C. proceeded to record the statement of a solitary witness, Assistant Sub-Inspector Mohammad Shah, who deposed that the petitioner was suspected in 4 different cases and was challaned in 3 cases; that he was a dangerous and desperate character. At the conclusion of the statement of the police officer the person proceeded against declined to lead any evidence and offered to give security. The Extra-Assistant Commissioner, Manshera proceeded to pass the impugned order which was upheld in appeal by the District Magistrate, Hazara. Bashiruddin Ahmad, J. C. observed that the material on which the impugned orders were based was wholly insufficient to, bind down the petitioner; that on the question whether consent of a person, to furnish security was a good ground to order security in absence of legal evidence, there was string of rulings that an order based on mere consent could not be sustained. The orders were accordingly set aside.

4. The question then arises whether tae evidence of the police officer,. namely, S. H. O. Shah Mir Khan of Kashmore Police Station could be re garded as sufficient basis for passing the impugned orders in the present case. It has time and again been observed by this Court that enquiries under . Chapter VIII are also governed by ordinary rules of evidence and evidence not admissible under the Evidence Act cannot be admitted in proceedings , under section 110, Cr. P. C. It is true that where a person is charged under: section 110 as being a habitual offender, his character becomes a fact in issue and evidence as to character of a person becomes relevant under the pro visions of section 54 of the Evidence Act. But general reputation has to be distinguished from rumour which is inadmissible in evidence. `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. Whereas evidence of rumour would be mere hearsay evidence, the evidence of general reputation which a man bears in the place in which he lives amongst all the residents of that locality that they look upon the man as a dangerous person' and of bad habits would be strong evidence that the man is of bad character. Thus evidence of general repute ought to be given by respectable persons who are acquainted with the person sought to be bound-over and who lived in the same neighbourhood and are aware of his reputation. It would not ordinarily be sufficient to examine merely the police officers and their subordinates to prove the general reputation of a person. The Court cannot accept the evidence of police officers alone unless they had some special means to know the reputation in the course of their official duties. Police records of suspected cases of history-sheets maintained by the police or even the entries in the crime register or police diaries would all be inadmissible as evidence of general repute. Likewise mere oral word of a police officer giving his opinion that a particular person is a habitual thief or receiver of stolen property would be inadmissible as mere hearsay evidence. This view has been repeatedly held in a number of recent decisions by this Court. My learned brother Ghulam Rasool Sheikh, J , observed in Qasim and others v. State (P L D 1971 Kar. 473) 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 plea and it was not founded upon solid facts. The learned Judge relied upon an earlier decision in the case of Karey v. State (A I R 1959 All. 347). It was held in that case that Investigating Officer's statement that he suspected a certain person to have committed a burglary or theft was inadmissible because it was only the opinion of his and not a statement of fact within his personal knowledge. The 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 in respect of the facts personally noticed by him and on which he found his. opinion that the man was a burglar or thief. It would then be for the Court to decide whether that inference could be drawn from those facts or not. Similar view has been held in the case of Mehar Khan v. State (1975 P Cr. L J 257) that a police officer was a competent witness but his evidence was to be strictly scrutinised in the light of the circumstances forming the basis of his belief; and if the' view of a police officer was not founded upon any solid facts then it would be unsafe to base an order on such view alone.

5. Applying these tests the evidence of the S. H. O. recorded in this. case being in vague and general terms and not based on any solid facts would be worth nothing an order for furnishing security could not accordingly be based on such material alone.

6. Thus neither the consent of petitioner Hasad Khan nor mere vague expression of opinion of the police officer could form the basis for the two impugned orders of the S. D. M., Kandhkot and the District Magistrate. The said orders are accordingly set aside.

7. Since the matter is of February 1973 and nearly 3 years old I would not remand the case for a fresh enquiry. Tile Reference is accordingly accepted. S. Q. Reference accepted: