P L D 1962 (W (PLP)

Maulvi Mushtaq Hussain, Additional Advocate‑General for Respondents. Date of hearing : 11th July, 1962. SHABIR AHMAD, J.‑Muhammad Ramzan, meat seller of Mozang which is a part of the city of Lahore, has presented this petition with a view to having his name removed from the list termed as history sheet `B' which is kept by the police. The respondents to this petition are Government of West Pakistan through Secretary, Ministry of Home Affairs, the Senior Superin tendent of Police, Lahore, and the Station House Officer, Police Station Mozang, Lahore, all three of whom were represented at the hearing by Maulvi Mushtaq Husain, Additional Advocate -General, West Pakistan, while the petitioner was represented by Agha Abdul Ali, Advocate.

2. Learned counsel for the petitioner contended that the names of habitual offenders only could be brought on the sheet `B' kept at police stations, and as the petitioner was not a habitual offender, the order, by means of which his history sheet was opened at Police Station Mozang, was without jurisdiction. It was further urged, as asserted in the petition, that the history sheet of the petitioner had been opened because he had had the misfortune of annoying some police officers. Both the above contentions of learned counsel for the petitioner were con troverted by learned counsel for the respondents, who urged that this Court could not go into the question whether or not there were sufficient grounds for opening the history sheet of the petitioner, because that question should, by the very nature of things, be left to people responsible for maintaining law and order. I cannot accept the contention of learned counsel for the respondents, because the opening of history sheet by the police is not a matter left entirely to their discretion but is governed by rules. Rule 23,9 of the Punjab Police Rules, 1934, which occurs in Volume III of the 1957 Edition of the book, reads as follows: ‑ ` "(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 abettor 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

238. They will open history sheets themselves for criminals living premises, who have been absent from their original so long that the railway premises may be regarded as permanent residence. They may also open history wandering strangers reasonably believed to be addicted to crime on the railway, whose original homes be traced." In the present case, it not being alleged by the that the order regarding the opening of his history by an officer below the rank of an Inspector of Police, it is obvious that the order regarding the opening of the history sheet of the petitioner cannot be declared inoperative on the ground that it was passed by a person who had no authority to pass it. But the matter does not conclude there. It is clear from the language used in sub‑rule (2) of Rule 23.9 of the Punjab Police Rules, 1934, under which sub‑rule action was admittedly ‑taken, that history sheets of only those persons can be opened who are reasonably believed to be habitually addicted to crime or to be aiders or abettors of such persons. I am clear in my mind that if the petitioner is not habitually addicted to crime or is not an abettor or aider of persons habitually addicted to crime, the provisions of sub‑rule (2) of Rule 23.9 of the Punjab Police Rules, 1934, could not be considered to be attracted.

3. In the written statement, put in on behalf of the respondents, it was alleged that the petitioner had stood a trial for offences under' sections 394, 398/34, 459 and 307/34 of the Pakistan Penal Code alleged to have been committed by the petitioner and some others in the course of one transaction. It was further urged that the petitioner was tried for an offence under the Arms Act. It was however, not denied by learned counsel for the respondents that the case under the Arms Act, on which reliance was placed on behalf of the respondents, was an offshoot of the case of robbery etc., for which the petitioner was tried along with two others. Learned counsel for the petitioner made a reference to annexure `A' to the petition, which is a copy of the judgment of the Additional Sessions Judge, Lahore, whereby the petitioner was acquitted of the above mentioned offences under the Pakistan Penal Code on the 21st of November 1960. Learned counsel for the petitioner asserted, without being contradicted, that the petitioner had been acquitted in the case under the Arms Act and it is; therefore, obvious that the Court has to proceed on the assumption that the case against the petitioner under the Arms Act did not succeed either. It might be mentioned here that it was not denied by learned counsel for the respondents that the case under the Arms Act was an offshoot of the case under section 394, P. P. C. etc. men tioned above.

4. Learned counsel for the respondents urged that the acquittal of the petitioner would, be of no avail to him, because if the petitioner was reasonably believed by the police to be a habitual offender, the fact that the evidence produced against him in Court did not satisfy the standard of proof set for cases in Court would be of no benefit to the petitioner. I do not consider it necessary to determine in this case whether the fact that sub‑rule (2) of Rule 23.9 can be invoked only against a person who is reasonably believed to be habitually addicted to crime or to be aider or abettor of persons so addicted, would not make the opinion of a police officer final with regard to the matter, because it appears to me that the petition must succeed on another ground.

5. It was admitted by learned counsel for the respondents that the only offences in which, to the knowledge of the police, the petitioner had been concerned were those for which he was stated to have been tried and acquitted. He contended, how ever, that as the petitioner had been accused of having committed a number of offences in the same transaction, he could be con sidered to be habitually addicted to crime. I find it difficult to' accept this contention of learned 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 inter pretation, 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, and as it follows, therefore, that the provisions of sub‑rule (2) of Rule 23.9 of the Punjab Police Rules, 1934, on the basis of which the history sheet of the petitioner was opened, was not satisfied, the question arises whether or not this Court, in the exercise of its writ jurisdiction, can and should issue an order that the name of the petitioner be removed from the history sheet.

6. That the name of the petitioner has been placed on the history sheet by the police in contravention of the relevant rules is not open to question. That being the case, it would be anomalous to say that this Court, which can issue a writ for correction of errors committed by officers of the Government in the discharge of their duties, is powerless in the matter. I am clear in my mind that the impugned order, whereby the history sheet of the petitioner was opened by the police deserves vacation, and if the order is not vacated, this Court would be countenancing the perpetuation of an injustice which had been perpetrated. It may be, as contended by learned counsel for the respondents, that this Court cannot interfere in the detailed working of officers charged with the duty of maintaining law and order, but I am clear in my mind that if an officer of police contravenes the very law under which he purports to act, the power of this Court to issue a writ is attracted. Consequently, I would accept this petition and direct that the name of the petitioner be removed from history sheet opened under Rule 23.9 of the Punjab Police Rules, 1934, and that the petitioner shall have his costs from any of the three respondents. ANWARUL HAQ, J.‑I agree A. H. Petition accepted.