P L D 1984 Peshawar 184 (PLP)

ABDUR REHMAN KHAN KAIF, J.‑Muhammad Sadiq son of Noor Hussain, Zamurrud Khan son of Khalil Khan, Sain Muhammad son of Noor Hussain and Sardar Muhammad Khisro son of Sardar Muhammad Afzal, have filed separate Writ Petitions Nos 16/79, 18/79, 17/79 and 44/80, respectively wherein they have challenged the legality of the order under which entries in the Surveillance Register were made and the history sheets were opened. Since similar and identical question of law is involved in all these petitions, we propose to dispose of all the mentioned petitions by this single judgment.

2. The subject‑matter of the above petitions is the entry of the petitioners' names in the Surveillance Register and opening of their history sheets under Rules 23'4 and 23'9 of the Police Rules. The allegations in all the four petitions are identical and are to the effect that the petitioners are respectable law‑abiding citizens of Pakistan; that they were never convicted for any offence under Chapters 12, 16, 17 and 18 of the Pakistan Penal Code and that the local police has opened their history sheets and made entries in the Surveillance Register without affording them any opportunity to show cause.

3. In the written statement filed by the respondents, some details of the previous convictions of each of the petitioners have been supplied. It is also evident from the written statement so filed that no proper show‑cause notice was served in connection with the action taken regarding the opening of history sheet excepting in the case of Sain Muhammad petitioner.

4. In order to keep a close watch on habitual offenders or persons habitually addicted to crimes. the provisions of opening history sheets and entering the names of such persons in Surveillance Register are provided for in Chapter XXIII of Police Rules, 1934. Rules 23'4 (4) provides:‑ (3) In Part It of such register may be entered at the discretion of the Superintendent:‑ (a) Persons who have been convicted twice, or more than twice, of offences mentioned in rules 27 to 29; (b) Persons who are reasonably believed to be habitual offenders or receivers of stolen property whether they have been convicted or not: (c)?????????????????????????????????. ? (d) ?????????????????????????????????. Similarly rule 23'9 of the Police Rules which have been made applicable reads as under: (1) A history sheet, if one does not already exist, shall be opened in Form 23,9 for every person whose name is entered in the Surveillance Register, except conditionally released convicts. (2) A history sheet may be opened by, or under the written orders of, a Police Officer not below the rank of Inspector for any person not entered in the Surveillance Register who is reasonably believed to be habitually addicted to crime or to be an aider or abettor of such persons. (3) ?????????????????????????????????. (4) ?????????????????????????????????. From the above provisions of the rules, it is clear that once the name of a person is mentioned in the Surveillance Register, he is subject to close watch over his movements by persons mentioned in rule 23'

7. It appears that till this stage the action is kept secret but once a history sheet is opened the matter no longer remains secret. It, therefore, follows that. the inclusion of the name of a person in the Surveillance Register or opening of a history sheet carries with it a stigma and obviously effect the reputation and respect of such persons in the locality.

5. Learned counsel appearing for the appellant while making his sub?missions contended that the offences for which some of the petitioners have been shown convicted were not of a serious nature and there being no fresh allegations or conviction, their cases are not covered by the relevant provisions of the Police Rules referred to above. He also made a half‑hearted submis?sion that there should have been reliable material to prove that the person proceeded against can be said to be a person reasonably believed to a habitual offender or habitually addicted to crime. Learned A. A.‑G. representing the respondents made a reference to the record of convictions of the petitioners and stressed that the evidence in the form of convictions is most reliable material to prove that they are habitual offenders or habitually addicted to crime and such material is available on the record. He accordingly submitted that the cases of the petitioners come within the clear scope of the relevant provisions and the respondents were justified in taking the action in question.

6. Learned counsel for the petitioners next contended that no oppor?tunity of showing cause of the opening of the history sheet or the entry of their names in the Surveillance Register, was given to the petitioners. Relying on Government of West Pakistan and 2 others v. Muhammad Akhtar Mir (PLD1971SC55) and Rana Muhammad Afzal v. Inspector‑General of Police (PLD1974SC31), he contended that no proper notice to show cause having been given, the action taken was illegal. Learned counsel for the respondents frankly contended that no such notices were‑ issued to the petitioners in Writ Petitions No. 18/79 and 16/79 while opening their history sheets but such notices were issued to the petitioners in Writ Petitions Nos. 17/79 and 44/80. It was stated that although a notice in connection with opening of history sheet was issued‑ in the name of Sardar Muhammad Khisro in W. P. No. 44/80 but he was not served as he had declined to accept the notice. No clear material however was placed before us showing that proper notices were issued even in the mentioned two cases. The learned A. A.‑G. was, however, unable to show that any such notice was issued while making entry in the Surveillance Register in respect of all the four petitioners and finally frankly conceded that no such notices were issued so far the entries in the Surveillance Register are concerned.

7. It appears that after the decision of the case reported in P L D 1971 S C 55; clause 3 to rule 23'5 and clause 4 to rule 23 9 were added by virtue of a notification, dated 19‑11‑1971 which provides that before entering the name of a person in the Surveillance Register under rule 23'4 a notice is to be served on such person in writing together with a statement of allegations requiring him to show cause either in writing or orally within a period of not less than seven days and not more than 14 days from the date of service of such notice as to why he should not be entered in the said register. To the similar effect are the contents of clause (4) of rule 23'9 concerning opening of the history sheet of a person.

8. It was held in the above‑mentioned case reported as P L D 1971 S C 55 as under :‑ . "We are, therefore, of the view that whenever a history‑sheet is opened under rule 23'9 of the Punjab Police Rules on the ground that the person concerned is reasonably believed to the habitually addicted to crime or to be an aider or abettor of other criminals, an opportunity of showing cause against the opening of the history sheet must be given to the person." A similar view was taken in the above‑mentioned authority, namely, P L D 1974 S C 31; wherein their Lordships observed that whenever a history sheet is opened under rule 23'9 of the Police Rules on the ground that the person concerned ' is reasonably believed to be habitually addicted to crime or to be an aider to abettor of other criminals, opportunity of showing cause against the opening of the history sheet must be given to the person. Supporting the observations made in P L D 1971 S C 55; their Lordships further observed that rule of natural justice is to be presumed to be grafted into every law and according to this rule, no action effecting the reputation of any person can be taken unless he has been given an opportunity of showing cause against the action proposed to be taken. It was accordingly held that where no show?cause notice was issued to the person concerned, the order passed by the authorities in such matters shall be considered as illegal.

9. The contention of the learned counsel for the respondents that in some of the cases the action was taken before the mentioned amendment in rule 23'5, has no force for the simple reason that the requirements as laid in the principle of natural justice required the issuing of a show‑cause notice as upheld in the authority reported is P L D 1971 S C 55; which necessitated the introduction of the mentioned amendment in the abovementioned rules. According to the observations made in the said authority, no action effecting the reputation of a person can be taken unless he has been given an opportu?nity of showing cause against the action proposed to be taken. Their Lordships in the mentioned authority observed that rule of natural justice is a well?-settled rule and its adherence has been emphasised by that Court in some of its decisions which are so well‑known that it is hardly necessary to repeat them.

10. The opening of a history sheet or inclusion of the name in the Surveillance Register as already stated carries with it a stigma involving the reputation of and respect of the person concerned and according to the rule of natural justice, no action effecting the reputation of a person can be taken unless he has been given an opportunity of showing cause against the action proposed to be taken. As already mentioned, it is an admitted position that in all these cases no such notice was issued so far the entry of the names in the Surveillance Register is concerned. As regards the opening of history sheet there is a mention of the serving of a notice to the petitioner in Writ Petition No. 17 of 1979 but even that has not been properly established. Even if it is presumed that a proper show‑cause notice was served on Sain Muhammad petitioner in Writ Petition No. 17 of 1979, there is still a lacuna concerning serving of notice about entry in the Serveillance Register which as frankly conceded by the learned counsel for the respondents was never served on any of the petitioners.

11. We, therefore, feel that unless proper show‑cause notices in the manner provided for under the law are served, the action will not be legal. Relying, therefore; on the principles laid down in the case reported in P L D 1974 S C 31; without touching the merits of the case on factual position, we are of the view that where no show‑cause notice was issued to the petitioner, the order passed by the authorities for making entry in the Surveillance Register and for opening of history sheet of the petitioners is illegal.

12. For the reasons stated, we allow the petitions with no order as to costs. This order will, however, have no effect to preclude the respondents from taking fresh action if they so desire strictly in accordance with the requirements of law. M. A. K.????????????????????????????????????????????????????????????????????????????????????????????? Petition accepted.