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Constitutional Petition No. 635 of 1975, heard on 27th May 1976.

Ss. 4, 5 & 14 read with Punjab Police Rules, 1934, r. 23(9)-Open ing of history-sheet-Person concerned convicted and sentenced to fine only once-Opening of history-sheet without giving show-cause notice to such affected person -Held, illegal.-[Natural justice, principle of-History-sheet).

Government of West Pakistan v. Muhammad Akhtar Mir P L D 1971 S C 55 and Muhammad Afzal v. Inspector-General of Police, West Pakistan, Lahore P L D 1974 S C 31 ref.

Constitution Petition No. 1098 of 1975 rel.

-- Art. 199-Writ-Laches-Impugned order (opening of history sheet) in nature of a continuous wrong-Cause of action in respect of such order arises continuously-Constitution petition, therefore, not hit by laches-Punjab Police Rules, 1934, r. 23(9).-[Laches-History sheet].

Constitution Petition No. 10 8 of 1975 and Mian Mirajuddin v. Senior Superintendent of Police, Lahore District P L D 1 970 Lah. 569 fol.

Muhammad Ali Shaikh for Petitioner.

Sulaiman Memon, Asstt. A: G. for Respondents.

Date of hearing : 27th May 1976.

-The facts of this petition are that in the year 1966 the S. H. O. Police Station Pangrio of District Badin opened history-sheet of the petitioner under rule 23(9) of the Punjab Police Rules declaring him a history-sheeter of Bundle A. The petitioner, however, came to know of opening of this history-sheet in May 1975 when he was sent up to face enquiry proceedings under sections 4, 5 and 14 of the Sin& Crimes Control Act, 1975.

Feeling aggrieved by this order of the police, he filed this petition on the grounds (i) that he was a respectable zamindar and a law abiding citizen,. (ii) that the police authorities could not open his history-sheet without giving show-cause notice to him, (iii) that the opening of his history-sheet was illegal inasmuch as he had been convicted only once in a case challaned under sections 307/325, P. P. C. wherein he was sentenced to the fine of Rs. 5,000 in the year 1961, whereas under the relevant rule, history-sheet could be opened only of a person who was found to be a habitual offender.

Mr. Mohammed Ali Sheikh, learned counsel for the petitioner contended that, it having been conceded that no show-cause notice was given to the petitioner before opening of the history-sheet and that the petitioner had been convicted only once, and that too in 1961, and sentenced to fine of Rs. 5,000 only, the action of police authorities was illegal and in support relied upon P L D 1971 S C 55 and P L D 1974 S C 31.

Mr. Suleman Memon, learned Additional Advocate-General, conceded that the petitioner was convicted only once. He also could not controvert that no show-cause notice was given to the petitioner before his history- sheet was opened. He, however, contended that, inasmuch as, the history -sheet of the petitioner was opened in 1966 whereafter the finger prints etc. of the petitioner were taken and he had been also attending the police station regularly, it was too late in the day for him to challenge the opening of his history-sheet. Having so contended, learned Additional Advocate -General himself referred to a decision by a Division Bench of this Court in Constitution Petition No. 1098 of 1975 wherein similar plea raised on behalf of the State was repelled.

Admittedly, no show-cause notice was given to the petitioner before opening his history-sheet and it is also conceded by the learned Additional Advocate-General that the petitioner was convicted and sentenced to a fine of Rs. 500 only once in the year 1961. In this view of the matter, the rule laid down by their Lordships of the Supreme Court in the above cited decision, that opening of history-sheet without giving show-cause notice to the affected person is illegal, is fully applicable to the case in hand and, therefore, the action of the police in opening the history-sheet of the petitioner has to be declared as illegal.

As to the question of laches, this very contention was raised before the erstwhile High Court of West Pakistan at Lahore in the case of Mian Mirajuddin v. Senior Superintendent of Police, Lahore District (P L D 1970 Lah. 569) and was answered by M. A. Zullah, J., at page 580 as under :-

"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 bar of statutory limitation, the petitioner could 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 laches; with regard to which the same plea, of continuous wrong, can legitimately be urged by the petitioner . . . . . . . .".

Similar view was taken by a Division Bench of this Court in Constitution Petition No. 1098 of 1975. We agree with the views expressed in the above decisions and would follow them.

For the aforesaid reasons, we allow this petition and declare the opening of the history-sheet of the petitioner as illegal and without lawful authority.

S. Q. Petition allowed.

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