P L D 1969 Lahore 781 (PLP)

A. R. SHEIKH, J.

‑This writ petition calls in question the order (date of which is not available on the record) of the Station House Officer, Police Station Isa Khel, District Mianwali. (respondent No. 2), entering the name of Malik Ghulam Rasul, petitioner, in the Surveillance Register No. X, opening his history‑sheet and putting his name in Bundle `A' of bad characters and placing him under police surveillance. It is submitted that the petitioner is a member of a respectable family of Isa Khel, a member of the Town Committee, Isa Khel, and a Councilor of the Pakistan Muslim League of District Mianwali and this action has been taken by respon dent No. 2 at the instance of Col. Muhammad Aslam Khan, who is a Convenor of Council Muslim League from District Mianwali and is inimical towards the petitioner on account of the last Presidential election in the country. It is further stated that on the 18th of November 1966, one Muhammad Nawaz Khan, who happens to be the real brother of a domestic servant of the said Col. Muhammad Aslam Khan, got a false case under section 394, P. P. C. registered against the petitioner and his three partymen, in which case the peti tioner along with the other accused was arrested but bailed out subsequently. The petitioner on the 14th of December 1966 filed a complaint under sections 409, 405 and 420, P. P. C. in the Court of the Additional District Magistrate with powers of Special Judge, Mianwali, against respondent No. 2 for having misappropriated the sum of Rs. 190.00 belonging to the petitioner, recovered by the said respondent at the time of search of his person before arrest. The complaint was, how ever, filed by the Additional District Magistrate saying that the petitioner should have approached the Senior Special Judge,. Mianwali. Consequently, the petitioner filed the same complaint before the latter Court on the 20th of January 1967, where it is still pending. Respondent No. 2 being annoyed by the action taken by the petitioner has opened the history sheet of the petitioner and entered his name in the surveil lance register declaring him a bad character of Bundle. `A'. with a mala fide intention to wreak vengeance against the petitioner on account of the deep grudge that he bears because of the complaint having been filed by the petitioner against him. It is claimed that a parvana informing him of his having been placed on the surveillance register and to inform respondent No. 2 about his movement was served on, the petitioner on the 25th of January 1967. The petitioner made a representation to the Superintendent of Police, Mianwali, against the action taken by respondent No. 2, but his appli cation has been consigned to the record room without any orders. The impugned orders are challenged as illegal ultra vires and without lawful authority on the ground that under rule 23.4 (3) (b) of the Punjab Police Rules, 1934, Volume III, only names of persons who are reasonably believed to be habitual offenders or receivers of stolen property whether they have been convicted or not, can be entered in Part II of Surveillance Register No. X under orders of the Superinten dent of Police, and as the allegations against the petitioner do not in any manner fall within the ambit of any of the r1auses (a) to (d) of sub‑rule (3) of rule 23.4 of the Punjab Police Rules, 1934, the action taken against him is without lawful authority.

2. In order to substantiate his contention, learned counsel has referred to the various allegations levelled against the petitioner in the reply submitted by the respondents and also the police record produced in Court by a Police Official, which was perused and returned. He maintains that the first conviction of the petitioner was in June 1937 under section 147/323, P. P. C. but the same was set aside on appeal. The next offence is a challan under section 394, P. P. C. entered on the 18th of November 1966 with respect to the report lodged by one Muhammad Nawaz Khan at the instance of the aforesaid Col. Muhammad Aslam Khan, which case is still sub judice. Again, in the police record, there are reports of intimidation of prosecution witnesses in the aforesaid case under section 394, P. P. C., which have been entered on the 13th of January 1967, 4th of February 1967, 12th of June 1967 and 14th of June 1967. The next is a report of stolen property passing to the petitioner in the case of theft against one Faiz Muhammad on the 7th of July 1967. The next allegation is that the petitioner has married Mst. Mehran alias Bali, a woman of easy virtues. Marriage with this woman is not denied by the petitioner, where after she had started living a virtuous life and had died in 1965. Learned counsel contends that keeping in view the aforesaid facts, action taken against the petitioner on the 17th of January 1967 for the first time, is mala fide, arbitrary and capricious. It is further contended that the word "habitual" used in the aforesaid rule imports a sense of continuity, e.g. the accused being concerned in a large number of offences in. a comparatively short space of time. For this interpretation he referred to Ramzan Ali v. The State (PLD 1967 SC 545). It was also contended that according to the law laid down in Malik Ghulam Jilani v. The Government of West Pakistan etc. (P L D 1967 SC 373.) the phrase "reasonable belief's is a stronger expression than a mere "suspicion", and on that view of the matter some conviction, ultimately resulting in acquittal in 1937 or the alleged intimidation of witnesses in a ease under, section 394, P.P. C. registered in November 1966 at the instance of an enemy of the petitioner, during the period after 13th January 1967 and other reports already detailed above, the impugned action savours of mala fide and caprice. He has also invited our attention to the following observations in Muhammad Ramzan v. Government of West Pakistan and others (P L D 1962 Lab. 957): I find it difficult to accept this contention of learn ed counsel for the respondents, because the expression `habitually addicted to crime can in my opinion, apply only to a person who has committed crimes on many occasions and cannot, by any reasonable canon of interpretation, be held to cover the case of a person who had committed a number of offences in the course of the same transaction. Commission of one crime or of a number of crimes in the course of the same transaction cannot amount to habitual addiction to crime, . . . . ." .

3. As against this, the learned Additional Advocate -General and learned counsel for the respondents argue that action has been taken against the petitioner because he has been found to be an habitual offender on the material avail able before the Superintendent of Police, who reasonably believed the petitioner to be so and his history‑sheet was opened under orders of the Superintendent of Police and sub sequently his name was entered under similar orders of the Superintendent of Police in Part II of Register No. X and then placed under surveillance. His history‑sheet was placed on Bundle `A' as provided in Police Rules 23.10 (1) (a) and the procedure adopted was Rule 23.10(1) (a) and not Police Rule 23.4. The filing of representation before the Superin tendent of Police against the action taken by the S. H. O. has been denied. It was further submitted that the petitioner has a shabby past and he is a bad character and. is not a man of means and, therefore, action has been correctly taken against him in accordance with the Police Rules.

4. The relevant Police Rules may be reproduced below with advantage :‑ Punjab Police Rules, 1934, Volume III "Rule 23.4.‑(1) In every police station, other than those of the railway police, a Surveillance Register shall be maintained in Form 23.4(1). (2) (3) In Part II of such .register may be entered at. the discretion of the Superintendent‑ (a) (b) persons who are reasonably believed to be habitual offenders or receivers of stolen property whether they have been convicted or. not;. Rule 23.9.‑(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 abetter of such persons. (3) The Government Railway Police will maintain the history‑sheets of criminals known or suspected to operate on the railway in accordance with Police Rule 23.8. They will open history‑sheets themselves for criminals living in railway premises, who have been absent from their original homes so long that the railway premises may be regarded as their permanent residence. They may also open history sheets for wandering strangers reasonably believed to be habitually addicted to crime on the railway, whose original homes cannot be traced. Rule 23.10.‑(1) The history‑sheets at each police station shall be kept in three separate bunldes as follows :‑ (a) Bundle containing the history‑sheets of persons whose names are entered in the surveillance register. (b) Bundle containing the history‑sheets of persons whose names are not entered in the surveillance register and which have not been removed to personal files under rule 23.12. In this bundle should be recorded the history‑sheets of persons who (1) have been removed, from surveillance on probation owing to there being no recent complaints against them, but who cannot be said definitely to be no longer addicted to crime, (2) have been the subject of action under rule 2.3.30 (1), but have not yet been placed on security for good behaviour or under surveillance. Apply the test laid down in Muhammad Ramzan v. Government of West Pakistan and others we find that the respon dents have failed to show that the petitioner is reasonably believed to be a habitual offender or he is habitually addicted to crime because the first offence is alleged to have been committed by the petitioner some thirty years back and the recent offence under section 394, P. P. C., attributed to him is still sub judice, and his marital tie with a woman, who had loose morals 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 Police Rule 23.4(3)(b) or Rule 23.9(2), the rules relevant for placing a person's name in the Surveil lance Register No. X or opening of his history‑sheet and not Rule 23.10(1)(a), which only deals with custody of history‑sheets in three separate bundles, and the action taken cannot be justified and is a case of excess of jurisdiction. If the petitioner suffers conviction in the criminal case pending against him at present, perhaps fresh action may be taken against him but on the material available on the record, the impugned order is not sustainable.

4. The result is that the writ petition succeeds and is allowed. However, there will be no order as to costs. A. F. Petition allowed