1980 P Cr (PLP)

3. The petitioner's appeal against his conviction under the Arms Ordinance was accepted by the learned Sessions Judge, Kasur by his order dated 10th June, 1978. It further appears that the petitioner filed an appeal against his conviction under section 307/34, P. P. C. afore-referred, before the learned Sessions Judge, Kasur which was rejected, against which he filed Criminal Revision No. 527/78 which is pending before this Court, and in which bail was allowed to him on 15th April, 1979.

4. After his release on bail, the petitioner came to know that his history sheet has been opened by the order of respondent No. I dated 31st August 1979 afore referred. Accordingly, on 16th September, 1979 he impugned the opening of the history sheet by means of this petition.

5. I had called for the para-wise comments from respondent No. 1 which have been received.. Ghulam Rasool A.S.I. Police Station, Kasur is present in Court today alongwith the record which has been examined with the assistance of learned counsel.

6. Learned counsel for the petitioner contends, in relation to the grounds contained in the show cause notice and on the basis of which the petitioner's history-sheet apparently has been directed to be opened that (a) The petitioner was neither involved, challaned or convicted in the case under section 61 of the Excise Act, 1914. He has appended an attested copy of the F. I. R. No. 61 recorded in that case, from which it is apparent that the person accused of the offence in that F.

1. R. was Muhammad Aslam son of Ali Muhammad, Caste Sheikh, resident' of Gali Wakilan, Kasur City. Learned counsel has drawn attention to the show-cause notice in which the petitioner is described as "Muhammad Aslam son of Ali Muhammad, Caste Ansari, resident of Kot Aazam Khan, Kasur", and contends that this bears out his contention. From the record produced by Ghulam Rasool, A. S. I. it appears that the petitioner is presently 25 years of age and if this be so he would hardly have been 13 years of age in 1968 when the conviction against him was allegedly recorded. Apparently, the petitioner is not the person who was convicted under the Excise Act by Ch. Nazir Ahmad Magistrate 1st Class, Kasur on 26th April; 1968. (b) The petitioner had been acquitted by the '..earned Sessions Judge, Kasur by his order dated 10th June, 1978 of the offence under Section 14 of the Arms Ordinance, 1965. Reference to the show cause notice shows that the Superintendent of Police, Kasur appa rently was not aware of the acquittal of the petitioner and this fact is not mentioned in the notice. Even an examination of the record produced by Ghulam Rasool A. S. I. also shows that there is no reference to the petitioner's acquittal. (c) The petitioner's revision against his conviction under section 307/34 has been admitted for regular. hearing by this Court and is pending disposal and the petitioner has been allowed bail by this Court. It is contended that in the circumstances no final order has been made in this case.

7. Before examining the contentions of learned counsel for the peti tioner, it would be appropriate to reproduce relevant provisions of the Police Rules, 1934 which are as follows:-,,.,.,. "23.9. History Sheets when opened.

(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 condi tionally 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) .. 23.10. Custody of historv-sheets:-- (1) The history sheets at police station shall be kept in three separate bundles as follows :- (a) Bundle containing the, history sheets of person whose names are entered In the surveillance register ; (b) .

8. It is firstly contended by learned counsel for the petitioner that no opportunity of hearing was given to the petitioner before the making of impugned order against him. It is pointed out that the petitioner was in jail at the time when the show-cause notice was issued to him, that he received the show-cause notice in jail and replied to it through a learned Advocate denying the first two allegations and pointing out that his Revision against his conviction under section 307/34 was pending hearing before . the High Court. It is further contended that the petitioner .continued to remain in judicial custody till 15th April, 1979 when he was allowed bail by this Court, and that at no time was the petitioner allowed an opportunity to rebut .the allegations against him. Learned counsel relied on a judgment of the Supreme Court .in Rana Muhammad Afial v. L-G. Police (P L D 1974 S C 31) to contend that nn action could be taken effecting the reputation of the petitioner unless he was given an opportunity of showing cause against the action proposed going to be taken. In that case a show-cause notice had not been issued, whereas it was admittedly issued in this case. However, this doe not mean that after the issuance of show-cause notice in the event o allegations being controverted by the person sought to be proceeded against, duty is cart on the Police Authorities to given opportunity of hearing to the respondent to enable him to substantiate his reply. In the present case, the petitioner had denied the veracity of the first two grounds and had he been allowed an opportunity, it would have been possible for him to show to the satisfaction of the Superintendent of the Police that the allegations contained in these two grounds were factually incorrect. There is con siderable force in the argument of learned counsel for the petitioner that in such an eventuality it is quite possible that the Superintendent Police may not have made the impugned order.

9. Learned counsel for the petitioner has secondly argued that according to rule 23.9 (2) of the Police Rules, 1934, a history sheet can only be opened of a person who is reasonably believed to be habitually addicted to crime of to be an aider or abettor of such persons. Learned counsel for the petitioner contends that in relation to the grounds furnish ed to the petitioner, the first is factually incorrect, the petitioner had been acquitted m the second and in the third no final order has yet been made. Learned counsel for the petitioner' relied on the judgment of Supreme Court in Rana Mohammad Afzal's case afore referred in which after noting three judgments of this Court in the case of Muhammad Ramzan v. Government of West Pakistan (P L D 1962 Lah.957) ; Mian Miraj-ud-Din v. S. S. P. Lahore (P L D 1970 Lah. 569), Mst. Ghulam Fafima v. Government of West Pakistan (P L D 1971 Lah: 498), it was observed that: "It. appears to us that the phrase "habitually addicted to crime", means that the person concerned has committed the crime on more than one occasion and it applies to cases where the person concerned has been convicted in more than one case. It does not apply to cases where the person concerned has been acquitted honourably." In this context reference can also be made to the judgments in Government of West Pakistan v. M. Akhtar Mir (P L D 1971 S C 55), Aftab Alam v. Province of Sind (P L D 1979 Kar. 645), Shah Nazar Khan v. S. D. 'M., Karachi (P L D 1977 Kar. 582), Mazan v. State (P 'L D 1975 Kar. 1035), Malik Ghulam Rasool v. S. P. Mianwali (P L D 1969 Lah. 781).

10. On the basis of the allegations contained in the show-cause notice the petitioner cannot be said to be a person who has committed crime on many occasions, or to have been convicted on a number of occasions or to be a previous convict. The petitioner's conviction in the second case was set aside by the learned Sessions Judge. Kasur whereas the conviction in the third case is the subject matter of Criminal Revision (No. 527/78) pending before this Court fix any case it cannot be said that the petitioner has been convicted in more than one case.

11. I, therefore, hold that no reasonable person could have held in the present case, on the basis of the allegations contained in the show cause notice, that the petitioner is habitually addicted to crime. Accord ingly, the impugned order is set aside and the petition is accepted. There will be no order as to costs. Petition accepted.