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Constitutional Petition No. D-1214 of 1980, decided on 1981.

-- Art. 199 - History-sheet, opening of - Laches, Petitioner having a recurring cause of action question of delay in filing petition against opening of history-sheet, held, does notarise-Petitioner convicted only in one case and no conviction recorded in other cases-Petitioner also not served with show--cause notice before taking action against him---Opening of history--sheet and entering petitioner's name in surveillance register, held further, without lawful authority and of no legal effect.---[Natural justice, principles of]

Arsala Khan v. Province of Sind through Secretary, Government of Sind, Karachi and 3 others P L D 1976 Kar. 848l; Aftab Alam alias Matoo v. Province of Sind and 2 others P L D 1978 Kar. 645 and Government of West Pakistan v. Muhammad Akhtar Mir P L D 1971 S C 55 ref.

S. Nasiruddin for Petitioner.

Abdul Sattar Shaikh, Addl. A.-G. for Respondents.

Date of hearing : 20th May, 1981.

-This petition is directed against the action of the respondent No. 3 opening history-sheet, against the petitioner in 1961. The allegation of the petitioner is that before opening the above history sheet no notice was given to the petitioner as was required under the law nor other provisions of the relevant rules were complied with. The respon dent has not filed any counter-affidavit to refute the above allegations. On the contrary, Mr. Abdul Sattar Shaikh, learned Additional Advocate-General appearing for the respondents conceded that the above action of the respondents No. 3 cannot be sustained, in view of the case-la w on the subject. Learned counsel for the petitioner has referred to the cases of Arsala Khan v. Province of Sind through Secretary, Government of Sind. Karachi and 3 others (P L D 1976 Kar. 848) and case of Aftab Alam alias Matoo v. Province of Sind and 2 others (P L D 1978 Kar. 645) the first case, it was held by a Division Bench of the erstwhile High Court or Sind & Baluchistan, Karachi, that opening of history-sheet gives a continuances cause of action and, therefore, the question of laches does not arise. Whereas in the aforesaid Karachi case of P L D 1978 Kar. 645, a Division Bench of this Court while considering section 14 of the Crimes Control Act, read with rules 23.9 (II), 23. 4 (III) (b), 33.9 (II) held that opening of history-sheet or inclusion of names in surveillance register, which caries with it a stigma, cannot be taken, solely ore the basis of initiation of criminal proceedings and unless such action is justified by some reliable evidence in the form of conviction or otherwise proving, that person proceeded against, could be reasonably believed to be a habitual offender. In the instant case, since the petitioner has recurring cause of action, the above Karachi case reported in P L D 1976 Kar. 848 is on all four applicable to the instant case and, therefore, the question of delay does not arise. Furthermore, the petitioner was not served with any show-cause notice nor there was sufficient evidence before the respondent authority for justifying taking of the above action. It is the case of the petitioner, that he was convicted only in one of the cases, of which a copy of the judgment is attached to the petition and that no conviction was recorded in the other cases mentioned in Annexure B'. Reliance has also been placed by the learned counsel for the petitioner on the case of Government of West Pakistan v. Muhammad Akhtar Mir (PLD1971 SC 55) in which it was held that before opening the history-sheet, the person concerned should be given an opportunity and that one convic tion is not sufficient to hold a person, as habitually addicted to crime. In view of the above case-law, it is evident that the impugned action cannot be sustained. We, therefore, declare that the action of the respondent of opening the history-sheet of the petitioner and entering the name of the petitioner in the surveillance register is without lawful autho rity and is of no legal effect. We also direct the respondents to restrain from acting upon the above action.

There will be no order as to costs.

Petition allowed.

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