1992 PLP 2475 (MLD)

Abdul Sattar Kazi for Petitioner. A. Latif Ansari, AA.‑G., Sindh for the State. Date of hearing: 16th August, 1992. This application under section 561‑A, Cr.P.C. has been filed for quashment of the proceedings pending in the Court of S.D.M., Hala against the applicant under section 110, Cr.P.C. and the order passed under section 112, Cr‑P.C.

2. The above proceedings were commenced on the report submitted by the S.H.O. Oderolal Police Station against the applicant under section 110, Cr.P.C. alleging that the said S.H.O. and his sepoy have received complaints to the effect that the applicant is a loafer, provides shelter and arms to offenders and thieves. It is alleged that he commits thefts, disposes of stolen property and because of his fear nobody is prepared to openly complain against him. It was prayed that the applicant be detained in jail. In the said report, two cases, one case under sections 365‑A, 307, 353, P.P.C. and another under section 276‑A, P.P.C., are said to be pending against the applicant. The list of witnesses proposed to be examined in proof of the above allegations contains only the names of police personnel of the said police station. 3: The learned S. D. M. on the said report passed an order under section 112, Cr.P.C. requiring the applicant to execute a bond for keeping good behaviour for a period of 12 months with two solvent sureties in the sum of Rs.10,000 each.

4. I have heard Mr. Abdul Sattar Kazi the learned counsel for the applicant and Mr. A. Latif Ansari, AA. ‑G. Sindh for the State.

5. It was contended by the learned Advocate for the applicant that the said report contains vague and general allegations, no instances of commission of the alleged acts are mentioned therein and that there is nothing on record to warrant the conclusion that the remaining al large of the applicant without security would be hazardous to the society.

6. The_ proceedings under section 110, Cr.P.C. are preventive and not punitive and are designed to protect the public against the criminal maniacs and desperadoes who habitually protect and harbour thieves or aid in the concealment or disposal of stolen properties or habitually commit, or attempt to commit, or abet the commission of the offences of kidnapping, abduction extortion, cheating or mischief or any offence punishable under Chapter XII of the Pakistan Penal Code or under sections 489‑A, 489‑B, 489‑C and section 489‑D of P.P.C. or habitually commit or attempt to commit or abet the commission of offences involving the breach of peace or are so desperate and dangerous as to render their being at large, without security, hazardous to the community.

7. It is only when there is material before the Magistrate that he can call upon such person to show cause why he should not be ordered to execute bond with sureties for his good behaviour for such period not exceeding 3 years, as he may think fit to fix, but before a person is to be branded to be one who falls in any of the said categories and is to be called upon to furnish security, the allegations against him are to be tested on the basis of tangible evidence. Section 110, Cr.P.C. no doubt provides for admission of evidence of general reputation or conduct but as observed in the case of Mehar Khan v. The State 1975 P Cr. L J 257, such evidence must be based on a sound foundation and ordinarily such evidence must be coupled with specific instances of overt acts, committed by the person to be proceeded with and particulars of the cases in which he was involved, challaned or convicted. In case such particulars are found lacking to support the allegations, the report would be of no consequence. The above provisions cannot be allowed to be used as vehicle of operation to curtail the liberty of the individual and to deprive him of his freedom. In the case of Qasim and 2 others v. The State reported in P L D 1971 Kar. 473, it was observed that the word `habitually' used in section 110, Cr.P.C. must be taken to mean that the acts are done repeatedly or persistently. Habit implies a tendency resulting from the frequent proof of adducing evidence of commission of a number of similar acts. It was concluded that a stray act or two are not enough in proof of habit. In the case of Mehar Khan v. The State (supra) it was held with reference to the proceedings under section 110, Cr.P.C. that before proceedings can properly be taken, it must be shown‑ that the person complained against habitually or persistently or repeatedly commits one or more of the acts which have been specified in the said section. It was further observed that the mere fact that the applicant was suspected of being involved in a case of abduction and theft, cannot be used against the applicant for the purpose of proceeding against him under the said section. The same view was reiterated in the case of Mazan alias Mazno v. The State reported in P L D 1975 Kar. 1035 with the observations that to sustain a charge under the said section, the person proceeded against must be proved to be by habit a thief, receiver of stolen property etc. Habit implies a tendency resulting from repetition of the same act. It connotes depravity of character as evidenced by frequent repetition or commission of offences of theft, receiving of stolen property, etc. 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 was involved.

8. The above views have been persistently taken in following cases also: (1) Noor Muhammad alias Noorul v. The State 1975 P Cr. L J 1025, (2) Aftab Alam alias Matoo v. Province of Sindh and 2 others P L D 1979 Kar. 645, (3) Maroo v. The State 1980 P Cr. L J 363, (4) Ali Sher v. S.D.M. Meerpur Mathelo and another 1982 P Cr. L J 750, (5) Sajjan v. The State 1984 P Cr. L J 1276, (6) All Akbar v. The State 1984 P Cr. L J 1292, (7) Momin Khan Afridi v. The State 1991 P Cr. L J 1325, (8) Sodho v. The State 1991 P Cr. L J Note 168 at p.120 and (9) Baitullah alias Batik alias Mastana v. The State 1992 P Cr. L J 1903.

9. In view of the rule laid down in the aforesaid cases, the proceedings commenced against the applicant under section 110, Cr.P.C. and the order passed under section 112, Cr.P.C. are hereby quashed being without any substance and in violation of settled law.

10. The learned AA: G. has not opposed the grant of this application. N.H.Q./A‑1256/K Proceedings quashed.