P L D 1983 Karachi 118 (PLP)

By this Constitution Petition, the petitioner Haji Chakar has called in question the opening of the history sheet against him. His case is that no notice was given to him before opening .of the. history sheet which is being maintained secretly at Police Station, Pano Akil. It is alleged that on the basis of the history sheet, the petitioner is being victimised and harassed by implicating him in false cases. He has been run down by police at their will, in false proceedings under section 110, Cr. P. Q. or Sind Crimes Control Act by labelling him as bad character, and harbourer of thieves and the one dealing in disposal of stolen property. The petitioner however claims to be a peace-loving and law-abiding citizen. According to him even the Sardar of his community who has always been trying to curb the petitioners tendency self-respect, has not succeeded in his designs despite the fact that in order to achieve his objective, he has joined hands with police and got him challaned in many false cases. He has further averred that not in a single case he has been convicted.

2. As disclosed in the petition, the petitioner came to know about his name having appeared in the Bundle 'B' of history sheeters, for the first time from his nephew adopted son Din Muhammad who is employed as Inspector in the Co-opeative Department. As the petitioner was arrested a few days prior to filing of the petition, the said Din Muhammad went to the police station to enquire the reason of his arrest. It was on that occasion that he found the name of the petitioner in the list of the history sheeters hung in the office of the S. H. O. Pano Akil. On enquiry he learnt from the S. H. O. that the petitioner was an old history sheeter.

3. In course of the arguments addressed at the bar, it was disclosed that the petitioner's name was entered in the list of history sheeters as far back as 1957. When the learned counsel for the petitioner was asked if the petition suffered from laches, he contended that inclusion of the name as a history-sheeter is a continuous wrong, therefore, the question of delay in .such case would not arise. In this connection reliance was placed on Arsala Khan v. Province of Sind through Secretary, Government of Sind and 3 others ( P L D 1976 Kar. 848) and Khuda Bux v. Superintendent of Police, Badin and another ( P L D 1976 Kar. 1005). In the first case the petition was filed after 15 years from opening of the history sheet. But the view taken was that in a case of continuous wrong the question of laches would hardly arise. In the second case the Division Bench of this High Court agreed with the view expressed in the case of Mian Mirajuddin v. 'Senior Superintendent of Police, Lahore District (P L D 1970 Lab. 569) and the unreported case of the Constitution Petition No. 1098 of 1975 of the Division Bench of this High Court. In the case of Mian Mirajuddin, the following observations made by M: A. Zullah, J. were noted with approval "However, in our view, it is not necessary to embark upon that enquiry because the impugned order is in the nature of a continuing wrong. Therefore, a cause of action in respect thereof, arose continuously. Even if there would have been a bare of statutory limitation, the petitioner would have urged the plea of continuous wrong. But in this case there being no statutory limitation, under Article 98 of the Constitution the objection is as to ]aches with regard to which the same plea, of continuous wrong, can legitimately be urged by the petitioner..."

4. The view taken in above authorities is fully applicable in the petitioners case. It is not denied that in the instant case no show-cause notice was given to the petitioner before opening of his history sheet. As stated above he learnt about the existence of the history sheet against him from hi adopted son Din Muhammad. He has also sworn affidavit to this effect. A No counter-affidavit has been filed controverting the statement of the petitioner in this regard. Accordingly I have no reason to doubt his statement that he had no knowledge about the opening of history sheet until he was informed for the first time by Din Muhammad. In this view of the matter the arguement with regard to laches would not arise.

5. As for merits of the case: history sheet is opened under rule 23.9 of the Police Rules, 1934. Sub-rule (4) of this rule reads as under - "(4) Notwithstanding anything to the contrary contained in these Rules a Police Officer having authority in this behalf shall, before opening the history sheet of any person, serve on such person a notice in writing, together with a written statement of the allegations requiring him to show cause either in writing or orally within period of not less than seven days and not more than fourteen days from the date of the service of such. notice as to why history sheet should not be opened. If such person within the specified period shows sufficient cause for the proposed action to the satisfaction of such Police Officer, the notice shall be discharged ; but if such person does not show cause within the specified period or the cause shown by him is not sufficient to satisfy such police officer, his history sheet may be opened."

6. It was contended- by the learned counsel for the petitioner that as required by sub-rule (4) of the above rule, it is mandatory to give show-cause notice before opening of history sheet. He further submitted that as show cause notice was served on the petitioner the action of opening of history sheet against him was without lawful authority and hence void. As pointed out earlier it is not disputed that the mandatory notice was not given to the petitioner. To support his assertion in this connection, the learned State counsel referred to the parawise comments submitted by the Senior Superintendent Police, Sukkur. In para. 14 of the comments the reply given to the corresponding allegations of the petitioner clearly shows that no show-cause notice was given to him. It is however, added in the same para. that as the history-sheet was opened in 1957, issuance of notice was not mandatory at that time. Although the learned counsel for the petitioner was not sure if the existing rule requiring issuance of notice was in force even in 1957 he argued vehemently that still it was necessary to serve the notice on the petitioner on the principle of natural justice. In support of his argument he relied on Government of West Pakistan and 2 others v. Muhammad Akhtar Mir (P L D 1971 S C 55), Muhammad Aslam v. Superintendent of Police, Kusur (1980 P Cr. L J 795). In the case of Muhammad Akhtar Mir it was observed : "The rule of natural justice is to be presumed to be grafted into every law. According to this rule, no action affecting the reputation of any person can betaken unless he has been given opportunity of showing cause against the action proposed to be taken. This is a well-settled rule and its adherence has been emphasized by this Court in some of its decisions which are so well known that it is hardly necessary to repeat them."

7. In the case of Muhammad Aslam, the Supreme Court authority laid down in the case of Rana Muhammad Afzal v. L-G. Police (P L D 1974 S C 31) was taken note of wherein it was held that no action could be taken affecting the reputation of the petitioner unless he was given opportunity of showing cause against the action proposed to be taken.

8. The learned counsel for the petitioner also made a reference to the case of Arsala Khan and Khuda Bux mentioned above in the aid of his argument that before opening of history sheet, giving of show-cause notice was a must. In the Arsala's case it was held : "As held in the above-quoted decisions of the Supreme Court, the action taken by the police without affording the petitioner an opportunity to show cause would be in violation of the principle of natural justice and, therefore, on the face of it illegal. The action taken was a nullity in the eye of law and cannot validate itself by efflux of time and each day that passes gives the petitioner a fresh cause of action."

9. The Supreme Court authorities referred in the above case are Government of West Pakistan and 2 others v. Muhammad Akhtar Mir and Rana Muhammad Afzal v. Inspector-General of Police, West Pakistan. In the case of Khuda Bux also following the above two authorities of the. Supreme Court it was held that opening of history sheet without giving show-cause notice to the affected person is illegal.

10. After considering the arguments of the learned counsel for the parties and the case-law relied upon by them, I have no hesitation to hold that inclusion of the name of the petitioner in the list of history sheeters is a continuing wrong and with each passing day it provides a fresh cause of B action. Accordingly the delay in challenging the opening of history sheet, is of no consequence. I further hold that as required by sub-rule (4) of rule 23.9 of the Police Rules, 1934 history sheet could not be opened against the petitioner before giving him notice to show cause against the proposed opening of the history sheet. Even if it be assumed that the rule with regard to the mandatory notice was not in force at the time of opening of the history sheet it was still necessary to give such notice in fulfilment of the requirement of the C principle of natural justice. As no notice was admittedly given in the instant case, the opening of history sheet against the petitioner or continuing his name is the list of history sheeters illegal and without lawful authority. Accordingly the petition is allowed with no order as to casts. Petition allowed.