P L D 1979 Karachi 645 (PLP)

(c) generally, for giving effect to the provisions of this Act. (3) All rules made under this Act may from time to time be amended, added to or cancelled by the Provincial Government." 5. (a) Referring to the other two contentions advanced by the learned counsel for the petitioner referred to hereinabove, it may be observed that according to the learned Assistant Advocate‑General Mr. Sattar Shaikh the impugned actions have been taken on the basis of the registration of the following cases against the petitioner. (i) Case under sections 302 and 307, P. P. C. (ii) Case under section 324, P. P. C. (iii) Case under sections 324 and 148, P. P. C. (iv) Case under section 307, P. P. C. (v) Case under sections 323 and 504, P. P. C. (vi) Case challaned under D. P. R. which order has already been with drawn by the Provincial Government. (vii) complaint under section 14 of the Sind Crimes Control Act, 1975, the proceedings of which have been quashed by this Court through the judgment dated 9‑1‑1978 passed in Constitutional Petition No. 455/77. It is an admitted position that the petitioner has not been convicted for any of the alleged offences for which the cases have been registered against him. The question which requires consideration is, as to whether the petitioner is a person reasonably believed to be a habitual offender or receiver of stolen property within the meaning of rule 23.5(b) or a person reasonably believed to be habitually addicted to crime or to be an eider or abetter of such person within the purview of rule 23.9(2) of the Rules. In support of his contention Mr. Syed Nasiruddin has relied upon the case of Mohd. Ramzan v. Government of West Pakistan and others P L D 1962 Lab. 957, the case of Malik Ghulam Rasul v. Supdt. of Police, Mianwalli P L D 1969 Lab. 781, the case of Mirajuddin v. Senior Supdt. of Police, Lahore District, Lahore and others P L D 1970 Lab. 569, the case of Mazan ‑v. State P L J 1975 Cr. C 570, the case of State v. Hassad P L D 1976 Kar. 928, the case of Shah Maaar Khan v. Assistant Commissioner and S.D.M. Malir, Karachi and 3 others P L D 1977 Kar. 582 and the case of Sharoo v. State P L J 1978 Kar. 155(?). (b) Referring to the first case of Lahore High Court, namely. Mohd. Ramzan v. Government of West Pakistan, it may be stated that the question for consideration before their Lordships (Shabbir Ahmad and Anwarul Haq, JJ.) was whether a person can be said to be habitually addicted to crime who has committed a number of offences in the course of the same transaction. In the above case the petitioner a meat seller of Lahore challenged the order of the police regarding the opening of history sheet in respect of the petitioner. In the statement filed by the respondents, it was alleged that the petitioner had stood' trial for offences under sections 394, 393/34, 459 and 307/34, P. P. C., the offences alleged to have been committed by the petitioner and some others in the course of one transaction. It was also asserted that the petitioner was also tried for an offence under the Arms Act, but was acquitted in respect thereof. In the back ground of the above facts of the said case, their Lordships were pleased to observe that the expression "habitually addicted to crime" can apply to a person who has committed crime on many occasions, and cannot by any reasonable cannon of interpretation be held to cover of a person who had committed a number of offences in the course of the same transaction and that the commission of one crime or of a number of crimes in the course of the same transaction cannot amount to habitual addiction to crime, and therefore, it follows that the provision of sub‑rule (2) of rule 23.9 of the Punjab Rules, 1934 on the basis of which the history sheet of the petitioner was opened was not justified. Consequently, their Lordships were pleased to accept the petition and directed the respondents to remove the name of the petitioner from the history sheet. (c) The facts of the second case namely, Malik Ghulam Rasul v. Supdt. of Police, Mianwali, were that the petitioner's name was entered in surveillance register No. X and a history sheet was also opened in respect of the petitioner in 1967. The respondents in order to justify their action asserted that the petitioner ' was convicted in June 1937 under section 147/323, P. P. C. but his above conviction was set aside on appeal. They also relied upon a challan in respect of an offence under section 394, P. P. C. entered on 18th November 1966. It was also asserted that there were reports of intimidation of the prosecution witnesses in the aforesaid case under section 394, P. P. C. and that there was also report of the stolen property passing to the petitioner in the case of theft against one Faiz Muhammad. It was alleged that the petitioner had married one Mst. Mehran a woman of easy‑virtues. Marriage of this woman was not denied by the petitioner but it was asserted by him that she had started living a virtuous life after the marriage and had died in 1965. A Division Bench of the erswhile High Court of West Pakistan, Lahore Bench, was pleased to hold that the respondent have failed to show that the petitioner is reasonably believed to be habitual offender or he is habitually addicted to crime because the first offence is alleged to have been committed some 30 years t back and the recent offence under section 394, P. P. C. attributed to him was still sub judice and his marital tie with the woman who had a loose moral before marriage and who had as a matter of fact died in 1965 would not bring the petitioner's case within the four corners of the Police Rule 23.4 (3) (b) or rule 23.9(2). Their Lordships were pleased to allow the petition and quashed the above orders. (d) Referring to the third case of the Lahore High Court namely, Mian Mirajuddin v. Senior Supdt. of Police of Lahore District, Lahore, it may be stated that the facts were that the Additional Superintendent of Police of Lahore on the report of the police from the Police Station Baghbanpura recommended by the Deputy Superintendent of Police, passed an order against the petitioner in respect of the opening of his history putting sheet and him under surveillance. The respondents 4 in their written statement relied upon rule 23.4 of the Rules for the opening of the history‑sheet and also relied on factual side on the following cases :‑ "(i) The petitioner was sentenced to 2 years' R. I. by A. D. M., Lahore under sections 467, 468, 419, 420, P. P. C. on 14‑3‑1951. (ii) The petitioner was bound down under section 107/151, Cr. P. C. to keep peace for one year on 10‑11‑1954 by Kh. Masud M. I. C., Lahore. (iii) The petitioner was sentenced to death by the Sessions Judge in case F. I. R. No. 202 dated 23‑4‑1951 under section 302/109, P. P. C., P. S., Mughalpura but was acquitted by the High Court. (fv) A case F. I. R. No. 281 dated 25‑9‑1952 under section 19‑11‑1978, Arms Act was registered against the petitioner and he was challaned but was acquitted by the Court. (v) Four reports on different dates by different persons were got recorded at the police station against the petitioner for his high handedness and that the petitioner was desperate man and threatened them. (vi) The petitioner was sentenced to one year R. I. under M. L. R. 8 by the Summary Military Court on 6‑1‑1960." The Court found that the conviction referred to in the above‑quoted para. VI related to 1960 and whereas the history sheet was opened in 1958 and, therefore, the same could not have been relied upon. The petitioner was not convicted in the other cases mentioned in the above‑quoted extract from the ruling. Their Lordships were pleased to refer to a ruling on section 110, Cr. P. C., wherein, the expression "habitual offender" has been used, and were pleased to hold that the petitioner could not have been said to be a habitual offender or habitually addicted to crime and, therefore, the impugned action was without lawful authority. (e) In the aforesaid Karachi case Mazan v. State Mushtaq Ali Kazi, J., while construing the word `habitual' used in section 110, Cr. P. C. was pleased to observe that the word `habitual' implies the tendency resulting from repetition of the same act and that it connotes depravity of character as evidenced by frequent repetition or commis sion of offence of theft, and receiving of stolen property, etc. His Lordship further observed that it does not mean mere inclination to commit such offence by temperament but persistence capable of proof by evidence. (f ) The case of State v. Nassad was also a case relating to section 110, Cr. P. C. in which Mushtak Ali Kazi, J. observed that the security for good behaviour cannot be ordered on vague and general allegations or on the basis of the consent of the person proceeded against. (g) Referring to the case of Shah Mazar v. Assistant Commissioner of Karachi, referred to hereinabove, a Division Bench of the High Court of Sind (Fakhruddin and Halepota, JJ.) while construing the word "habitual" was ‑ pleased to observe that "habitual" is customary method of doing a thing. It is a customary conduct performing as tendency arising from frequent repetition when a person has, repeatedly acted in a particular way on intervals whether regular or irregular or such length of time as that we can predicate on the reasonable assurance that he will continue so to act. The proceedings taken against the petitioner under the above provision of law were declared as without lawful authority. (h) Reverting to the last case namely Sahroo v. The State, it may be observed that Mushtak Ali Kazi, J. while construing the provisions of sections 6, 8 and 40 of the Sind Crimes Control Act, 1975, observed that the word `habit' implies a tendency or capacity resulting from repetition of the same acts and that it implies frequent indulgence of such acts connoting depravity of character.

6. From the above rulings the following principles are deducible ; (1) that a person cannot be said to be a person reasonably believed to be a habitual offender or habitually addicted to crime on the basil of commission of numerous crimes in one transaction. (2) that the mere pendency of cases for the various criminal offences against a person will not make him a person reasonably believed to be a habitual offender or habitually addicted to crime or to be an aider or abetter of such crime. (3) that action under rule 23.9 (2) or under rule 23.4 (3) (b) cannot be sustained merely on the basis of pending cases. I may observe that the words `reasonably believed to be habitually addicted to crime' in rule 33.9 (2) and `reasonably believed to be habitual offenders' used in rule 23.4 (b) are of great significance. The word "habitually" required a continuous and permanence of criminal tendency something that has developed into a propensity that is present from day to day. Its presence is demonstrated by the frequency of acts that by repetition have acquired the characteristic of being customary or usual behaviour that is to be regarded as almost inevitable when the appropriate conditions are present. In other words, a habitual offender or a person habitually addicted to crime repeats on committing of offence/offences whenever appropriate conditions are present. It b.‑comes habit on account of frequent repetition to commit offence. The words "reasonably believed" used before the expression, "to be habitual offender" and to be habitually addicted to crime ' in Rules 23.4 and 23.9, makes it clear that the belie cannot be based on mere suspicion, but should be based on reasonable material. The word, 'reasonably' is not surplusage, but has a definite function, vie. inter alia to limit the discretion of the authority concerned and to make objective satisfaction obligatory, that would otherwise have been subjective satisfaction.

7. In order to keep a check on habitual offenders or persons habitually addicted to crime, the provisions for opening the history sheet and entering the names of such persons in surveillance register are provided for Once the name of a person is entered in a surveillance register, he is subject to a close watch over his movements by the police officers, village watchman, village headman by virtue of rule 23.7, and once a history sheet is opened in respect of a person, it is not kept secret but normally his name is known to the public. His photograph and fingers prints are kept on the police record. The opening of a history sheet or inclusion of the name in the surveillance register carries with it a stigma and the person against whom such an action is taken is not respected by those among whom he moves or lives. In our view such a serious and prejudicia action cannot be taken solely on the basis of initiation of criminal proce ings in pursuance of criminal complaints lodged by private person or initiated by a Government agency, particularly when it is not uncommon that the people are motivated to lodge frivolous criminal complain against their fellow citizens, in order to wreak vengeance instead o seeking Justice for a just cause. In our view in order to justify an action under rule 23.9(2) or under rule 23.4 (3)(b) there should be some C reliable evidence in the form of convictions or otherwise to prove that the person proceeded against can be said to be a person reasonably believed to be a habitual offender or habitually addicted to crime. In the instant case, as pointed out hereinabove, the petitioner has not been convicted in any of the cases. The case registered against him under D. P. R. w withdrawn by the Provincial Government and the proceedings initiated under the Sind Crimes Control Act, were quashed by this Court. In the other cases mentioned in para. 2 of the petition, the petitioner has not been con victed and, therefore, it cannot be said that the petitioner is a person reasonably believed to be habitually addicted to crime or a habitual offender, we, therefore, declare that the impugned orders of opening of the history‑sheet of the petitioner and of entering his name in the surveillance register of the Brigade Police Station, Karachi are without lawful authority, and are of no legal effect, and therefore, the same are hereby set aside. The petition is therefore, allowed with costs. s. A. H. Petition allowed.