P L D 1971 Karachi 473 (PLP)

The learned Magistrate passed an order under section 112, Cr. P. C. Subsequently the evidence was recorded. The pro secution produced three witnesses Mr. Gahimal S. H. O., Khairpur Nathanshah, Wali Muhammad Head Constable and Ghulam Muhammad Constable. On the basis of their evidence the impugned order was passed. The appeal against that order was dismissed by the Distrct Magistrate. It was urged by the learned counsel for the applicants that there was no sufficient material on the record to order the applicants to furnish security. The entire case was based on hearsay evidence which was inadmissible and could not form the basis for the order. No independent witness was examined in support of the allegations which had been made. On consideration of the material on record I find considerable force in the contentions raised by the learned counsel. There is the only evidence of the three police officers whose evidence is vague and of general nature. Besides, it lacks support. Section 110, Cr. P. C. prescribes six clauses dealing with different categories of offences for the purpose of taking action against the persons who habitually engage themselves in the commission of the offences covered by the first five clauses and those who are desperate and dangerous are covered by the sixth clause. "Habitually" must be taken to mean repeatedly or persistently. Habit implies a tendency resulting from the frequent proof by adducing evidence of commission of a number of similar acts. It, therefore, follows that a stray act or two are not enough in proof of habit. Evidence of general repute which is otherwise inadmissible can be given in the proceedings under this section in proof of the habit as laid down A by section 117 (4). This is an exception to the general rule of evidence which excludes evidence of general repute. So the fact that a person is, a habitual offender can be established by proof of his general reputation founded on the general opinion of the persons of the village, town or locality where he lives or is ordinarily found. This will be the opinion of those persons because of their personal knowledge or observation. The opinion need not be of the entire community but all the same it must be of a considerable number of persons as the opinion of a few cannot serve to provide the proof of general character of a man, strangers of the locality are not expected to know the character and disposition of a person unless somehow or the other they acquire personal knowledge or having some authority in the area receive persistent complaints against that person. In this connection the following observation made in the case of Perne Maila Rae (39 Cr. L. J 808) may be read with advantage: "The question what is person's reputation is a question of fact. It can be spoken to by any one who knows what his general reputation is. The Police Officer who goes to the place where a particular person lives and who makes enquiries to find out what his reputation is, is perfectly competent to speak, in the witness‑box about the result of his enquiries. His evidence that the reputation of such and such a person is so and so is evidence of a fact and it is not to be excluded as mere hearsay evidence. In one sense the evidence of general repute is of course hearsay but it is hearsay of a particular kind which is made admissible in cases under section 110 by section 117, Criminal Procedure Code. It is not necessary that the witness who speaks to the general reputation of a person must be resident in the same place. A stranger can find out that the general repute of a person is and he is competent to testify to that fact." The present case suffers from the lack of evidence of the nature indicated above except the police officers posted to that area. Not a single witness from the area was produced to testify the accusations against the applicants. There is bare evidence of three police officers viz., S. H. O., Head Constable and Constable. Indeed, the police officer is a competent witness to speak about the reputation of a person who resides within his jurisdicton and with regard to whom he has the occasion to make observations and inquiries in the course of his official duties. All the same the evidence of a police officer should be put to strict scrutiny in the light of the circumstances which B formed the basis of his belief and it is unsafe to base the order on his view alone if it is not founded upon solid fact. Hearsay evidence is a weak evidence and so prudence requires that it should be substantially corroborated by independent evidence, either direct or circumstantial, for the sustenance of the order under section 118, Cr. P. C. In this connection I would like to reproduce the observation made in the case of Muzaffar v. Emperor (A I R 1942 Pesh. 84). It reads as under: "The Sub‑Inspector may show that the individual had been suspected in connection with criminal cases. He may further inform the Court as to the occasions on which his house was searched or some other such steps were taken in connection with the charges brought against him. The Court will weigh the evidence and decide in each case whether it is sufficient to bind down the accused or not. On the other hand, it would be very dangerous to base any order on the bare ipse dixit of the Sub‑Inspector. He may have motive for expressing the opinion against the accused. The Court has no means to check it, and a miscarriage of justice is likely to result." Similarly it was observed in the case of Karey v. State (AIR 1959 All. 347) as under: "An Investigating Officer's statement that he suspected a certain person to have committed a burglary or theft is inadmissible because it is only an opinion of his and not a statement of fact within his personal knowledge. An opinion about certain persons having been concerned in a crime is inadmissible even that of a person who is expert in investigations. What he should depose about is the facts personally noticed by him and on which he found his opinion that the accused was a burglar or thief; it would be for the Court to decide whether to draw the same inference from those facts or not." Taking up the evidence as already pointed out, there were three police officers, namely, Mr. Gehimal S. H. O., Wali Muhammad Head Constable and Ghulam Muhammad, Constable who professed to know the reputation of the applicants. They repeated the accusations on the basis of which the proceedings were drawn against the applicants citing the two instances of thefts. It is further in evidence that they were called for interrogation in certain crimes and their houses were searched. On consideration of the evidence given by the witnesses, I am of the opinion that it is insufficient to sustain the order passed under section 118, C. P. C. The evidence is general in nature and is not supported by any substantial evidence. There was said to be a general cry but none was produced in aid of this cry. Two instances of thefts were relied upon yet none of those persons was produced in evidence. The absence of evidence was founded on the plea that on account of fear of the applicant, they refused to give evidence although they were contacted. However, it was admitted that those two persons had made no complaint in respect of their thefts but the knowledge was derived from others whose names were not disclosed. Even no inquiry about these thefts was made from the persons whose thefts were committed. Thus this in formation is based on rumours which can hardly be treated as legal evidence. The witnesses further admitted that there was no other instance of the commission of any offence by the appli cants. In view of this admission there can be no justification for reaching a conclusion that the applicants are habitual offenders, even if it be presumed that they had committed the two thefts. Law requires a persistent engagement in the offences and not a few stray incidents. Admittedly the applicants are not previous convicts. However, it was alleged that they were challaned in a few cases, but were acquitted. Apart from the fact that no detail was given, it is not legally correct to take this into account as by acquittal, the accused person is completely ex onerated of the charge and cannot be judicially treated as guilty nor this can serve to provide the instance of disposition to commit an offence. Similarly vague allegations have been made and details are lacking in respect of the allegations that the applicants were called for interrogation several times, their houses were searched, they had created terror in the locality and carried deadly weapons during the hours of night. No record has been produced. Nothing incriminating was recovered from their house nor they were apprehended on any occasion for carrying deadly weapons at night. No act of violence has been disclosed in order to provide an indication that they are desperate or dangerous. The evidence of the police officers lacks support from any source and is not based on any dependable data. Thus the impugned order based on the aforesaid evidence is not sustainable. I, therefore, allow the revision application and set aside the order. K. B. A. Petition accepted.