1984 P Cr (PLP)

Syed Riaz Ahmed for A. A. G. for the State. Date of hearing: 7th December, 1983. Ali Akbar son of Haji Walan, the applicant, was arrested by the S. H. O. Police Station, Thatta on 22nd September, 1982 and produced before the learned Magistrate on the following day i.e. 23rd September, 1982. The arrest was on the basis of an action taken under section 110, Cr. P. C. on the report of the S. H. O. Police Station, Thatta. The allegations were that "he commits thefts and causes thefts to be committed and disposes of stolen property. Thieves from distant places come and stay with him. He gives them stolen property of locality committed. He keeps dangerous weapon with him which committing thefts. At the time of committing theft he does not spare Bhagias in case they wake up. He is ever ready to play with his own life."

2. Two instances of previous record mentioned in this report were crime No. 52 of 1979 under section 382134, P. P. C. in which he was acquitted and crime No. 18 of 1980 under section 109, Cr. P. C. in which he was discharged. This report is based on the statement of Abdul Ghafoor who is an A. S. I. and Ali Nawaz who is a Constable at P. S. A Thatta. The two cases in which he was exonerated are the entire material brought out in the report and the entire evidence relied in this report is of a Constable and an A. S. I. of the same Police Station where the complainant is posted as S. H. O. It has been held in a number of cases, the last one of them being the well considered judgment of Mr. Justice Naimuddin, reported in 1982 P Cr. L J 750, in which it is held that provisions of sections 110 to 117, Cr. P. C. cannot be invoked unless the person against whom the action is proposed to be taken under these sections happens to be:- (a) by habit, a robber-house breaker, thief or forger, or (b) is by habit a receiver of stolen property knowing the same to have been stolen, or (c) habitually protects or harbours thieves or aids in the concealment or disposal of stolen property, or (d) habitually commits or attempts to commit or abets the commis sion of the offence of kidnapping abduction extortion, cheating or mischief or any offence punishable under Chapter XII of the Pakistan Penal Code or under section 489-A, section 489-B, section 489-C or section 489-D of that Code, or (e) habitually commits or attempts to commit or abets the commission of offences involving a breach of the peace, or (f) is so desperate and dangerous as to render his being at large without security hazardous to the community.

3. Mere repetition of the words of section 110, Cr. P. C. in the report, which has been done in this case would not justify an action against the applicant unless it is proved that he is a person involved in a large number of crimes and criminal mentality and commission of offences is his habit and hallmark of his bad character action under these sections would not be permissible. This would be a question of fact in each case as to how a person is to be proved a habitual offender. In some case series of convictions spread over a number of years coupled with evidence from independent members of society enjoying a good reputation may be taken as proof against a person charged under these sections. Mere repro ducing the phraseology of the section and seeking to support these stereotype allegations by the testimony of a Constable and an A. S. I. of the Police Station would not be enough to condemn a men as a habitual thief, a habitual robber a habitual bad character ere. Such is the balance of authority in a chain of decisions reproduced in the well-considered judgment of Mr. Justice Naimuddin, referred to above. 1 can do no better than to quote the following portion from the judgment of Mr. Justice Mushtaq Ali Kazi, reported in P L D 1975 Kar. 1035 and relied upon in the judgment of Mr. Justice Naimuddin:- "Habit implies a tendency resulting from repetition of the same acts. It connotes depravity of character as evidenced by offences of theft, receiving of stolen property etc. It does not mean mere inclination to commit such offences by temperament but persistence capable of proof by evidence. Habit must be proved by aggregate instances and not on the basis of complicity in an isolated instance of theft or suspicion in respect of another such incident. Thus, it is necessary that there should be evidence by large number of persons in respect of definite instances of theft etc. in which the person complained against was involved. " It is true that in cases under section 110, Cr. P. C. evidence of general reputation can also be give but reputation means what is thought of a person by others and the general reputation of a person is 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 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 look upon lives amongst all the villagers or townsmen. If his villagers or townsmen look upon him as thief or robber or a dangerous nian 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 word of a Police officer giving his opinion that a particular person is a habitual thief would also be inadmissible as hearsay evidence."

4. The learned counsel appearing for the applicant has argued before me that the case of the applicant is on a higher footing than the cases relied upon in the judgment of Mr.. Justice Naimuddin, as in this case only two police Officers have been examined against the applicant and even these p have not been able to substantiate their allegations with any cogent and specific instances on which action could be taken against the applicant and be charged as a habitual offender within the meaning of he could section 110, Cr. P. C. This revision application is therefore, allowed. The proceedings against the applicant are quashed. The bail bands are discharged. M. Y. H. Proceedings quashed.