The purpose and need for this article
is to clear the ambiguities which has made the process of “investigation”, a
symbol of embarrassment for investigating agencies and judicial system.
Criminal justice system has always remained under discussion before the
superior courts. As his lordship Hon’ble Chief Justice Athar Minallah held,
“State has neglected the most crucial part of the governance system for the
past seven decades because it is obvious that Criminal Justice System was never
our priority” [1].
Similarly, the August Supreme court held, “Supreme Court observed that
existence of a high degree of political and administrative apathy had translated
into failing criminal justice system”[2].
We will discuss the strongest pillar of criminal justice system which is in
fact in its weakest form i.e. investigation. Investigation is treated as a
secondary subject with merely procedural importance. Mostly investigation is
discussed as a procedure without contributing to the meaning to the term
“Investigation”. In routine we have only treated it as a process but it is more
than that. Unless we are able to assimilate this, we cannot improve it.
Investigation is the strongest and most important pillar of Criminal Justice
System. It is the reason for the low rate of convictions. As a result, people
trust from the system is evaporating with time. The biggest dilemma with our
criminal justice system is that there are multiple forums for challenging the
trial court verdict but there is no forum for correcting the blunders made
during investigation which means once it is done it is in its final form
forever. There is no room for making corrections at any subsequent stage.
2. INVESTIGATION AS DEFINED
"Investigation" includes all the
proceedings under this Code for the collection of evidence conducted by a
police officer or by any person (other than a Magistrate) who is authorized by
a Magistrate in this behalf”.[3]
3.
INGREDIENTS OF INVESTIGATION
The
definition is complete but understanding of the term “Investigation” needs
explanation. From the definition we have the following breakup which
“includes”:
·
All the proceedings under this code
·
Collection of evidence
·
By Police officer or by any person
authorized
For better understanding, we will take
the breakup one by one.
4.
ALL THE PROCEEDINGS UNDER THIS CODE
a.
Importance of the Code: Criminal
Procedure Code 1898, is the bible for proceedings for administrating any penal
substantive law[4].
In practice it is commonly observed that the criminal courts don’t follow the
procedures in letter and spirit as much as the civil courts. The courts and the
parties including learned counsels exploit the spaces for accommodating the accused
persons under the garb of “accused is the most favorite child of the law”[5].
However, it is also on record that the procedural illegalities[6] often
result in vitiating the whole trial.
b.
Proceedings: The term
“proceedings” is a comprehensive expression which includes every step taken,
towards further progress of a cause in court or tribunal, from its commencement
till its disposal.[7] Although we cannot conclude the proceedings
of an investigation, but the basic proceedings which involve in investigation
are:[8]
i.
Proceedings on the spot (Site
inspection)
ii.
Ascertaining the facts/ circumstances
of the case
iii.
Discovery of arrest of suspended
offender
iv.
Collection of evidence relating to
commission of offence
v.
formation of opinion as to trial of
the case.
For summoning and arrest: It
includes the procedure to be adopted for compelling appearance of a person
which include procuring arrest of an offender if needed and to suspend the same
if the facts of the case permits. Also the procedure to summon any witness or
any other person for the purpose of any interrogation. However, the same has to
be done in line with the guidelines given in the code[9].
For search and seizure: The
investigation progresses with the recovery of case properties. However, the
procedures if not adopted make the whole effort question mark and Vital
recoveries become a symbol of disgrace for the whole investigation process.[10]
For recording information: The
manner for recording information given by the complainant whether cognizable or
non-cognizable is explicitly mentioned with minute details[11].
Such details if not properly followed amount to vitiate the proceedings.
For recording Statement and Confessions: The
manner of recording statements and confessions under section 164 CrPC are to be
followed with precise guidelines. Any deviation from guidelines will result in
depreciation of evidence.[12]
For requesting physical custody for the purpose of remand:
The most crucial stage of any investigation involves the physical custody of
the accused. It is of such an imminent importance that the Constitution of
Islamic Republic of Pakistan emphasized under article 10 that a person arrested
must be produced within 24 hours before a Magistrate. Therefore, remand period
if granted by the Learned Magistrate must be utilized in the best possible
manner and similarly the Learned Magistrate is also duty bound to assess and
measure the effort of the Investigating Officer while granting subsequent
physical remand. The superior courts had laid down guidelines[13]
and rules[14]
for the learned Magistrates to be followed while exercising their powers under
this code. [15]
For conducting medical examination:
In hurt and homicide cases, the medical
examination report is of star importance and Special provisions regarding
medical examination and the procedure for conducting the medical examinations
are mentioned under Chapter 14 of the code.
For conducting Identification Parades:
Identification Parade is also a tool for collecting evidence. However, the
procedure for using every tool varies and must be catered in the manner
prescribed. The principles for
appreciating the identification parade proceedings were elaborated by the
August Supreme court of Pakistan[16].
For examination of witnesses: Examining
the witnesses is one of the most important stage of investigation. However, for
recording statements of the witnesses, the parameters set by the superior courts
are to be kept in mind. This will increase the appreciation of the statement as
authored by Honorable Justice Syed Mansoor Ali of August Supreme Court of
Pakistan[17].
Recently, Honorable Justice Ejaz Afzal Khan of
August Supreme Court of Pakistan held in a case that use of audio and
video devices to facilitate the recording of statements could not be said to
have been prohibited by any interpretation[18].
Formation of Opinion: For finally
concluding the police investigation, the investigating officer has to form an
opinion in light of the evidence collected. This is the final conclusion of the
investigation which can result in even cancellation of the case or challaning
the accused person under column no. 2 or 3 of the Police report under section 173
CrPC. No one can interfere in the investigation especially the judiciary. It is
a pure prerogative of the IO to prepare the police report as per finding of his
investigation.[19]
Sections 157, 160 and 161 CrPC provides a mechanism for check and balance so that
fair and impartial investigation can be conducted.[20]
5.
COLLECTION OF EVIDENCE
This part of the
definition is mainly based on 2 terms i.e. “Collection” and “Evidence”. Collection means the resources and supporting
laws which allows the IO to collect any piece of supporting evidence. All those
manners which are not supported by any law and are forbidden should never be
exercised for the sake of investigation. This is the real gist of this
definition which needs to be explained to the IO with clarity. It also defines
the borderline for the IO to effort, whereas if he crosses any such borderline,
it will amount to colorful exercise of his jurisdiction. Collection of evidence
help the IO to form an opinion for submission of final report under section 173
CrPC[21].
Evidence is well
defined under Qanoon e Shahadat Order 1984[22].
Anything which is beyond this definition has to be procured with the help of
procedures given in the code. Any deviation from the procedures might result in
giving benefit to the accused.
6.
BY POLICE OFFICER OF BY ANY PERSON
AUTHORIZED
Lastly, the IO i.e. Investigating Officer can be any police
officer or any other person authorized by the Magistrate. However, this
excludes the Magistrate from interfering the investigation. However it has been
commonly observed by the august Supreme Court of Pakistan, “Investigation of a
criminal case fell within the exclusive domain of the police”[23].
However, at this point, we should not ignore the fact that the whole criminal
procedure code revolves around the Magistrate and he is bound to play his role
while supervising the investigation for the purpose of its progress and for
scrutinizing any procedural lacunas. Besides this, the Police Rules 1934 also
provide special provision for supervision by gazetted officer[24].
7.
CONCLUSION
Our history is evident that high profile cases were mishandled by our
investigating agencies and as a result the society trust on the criminal
justice system diminishes. We live in a society where pre-trial proceedings
such as Remands and Bails are contested more vigorously whereas the trials are
left at the mercy of the prosecution and court. Court are helpless due to weak
and incompetent investigations which result in low conviction rates. The law of
the land put a heavy responsibility on the investigating officer. It had been
held by superior courts that poor
investigation would lead to poor results in an adversarial system and even good
laws would become bad laws when badly implemented. Plethora of judgments
are available which states that if criminal trial will fail due to poor and
defective investigation, the prosecution will be responsible for the acquittal
of the culprits.
[1] “Aftab
Vs State" Crl Appeal # 55/2016 of Islamabad High Court, Islamabad.
[2]
2015 SCMR 1724
[3] Section 4 (l) of the Criminal Procedure Code 1898.
[4]
Section 5 of the Criminal Procedure Code 1898.
[5]
Case title “Faryad Ali vs The State” of
August Supreme Court of Pakistan (2008 SCMR 1086)
[6]
PLD 1960 DACCA 551, PLD 1958 SC 437, 1993 SCMR 550
[7]
2001 SCMR 1461, 2017 CLD 1382
[8]
2019 PCRLJ 852 IHC
[9]
Chapter 6 of the Criminal Procedure Code 1898
[10]
Daniel Pearl Judgment dated 02-04-2020 of Hon’ Sindh High Court (Spl. Crl. Anti
Terrorism Appeal no. 68 of 2002)
[11]
Section 154 and 155 of the Criminal Procedure Code 1898
[12]
2016 SCMR 274, 2018 PLD 296, PLD 1976 SC 404
[13]
1984 PCRLJ 2588, 2018 PLD SC 595, 2009 PCRLJ 705, 1995 SCMR 429
[14]
Chapter 11 of the 3rd Volume of the Lahore High Court Rules and
Orders
[15]
Section 167 of the Criminal Procedure Code 1898
[16]
PLD 1995 SC 1
[17]
Raza vs The state (Crl petition no. 1124-L of 2015) of August Supreme Court of
Pakistan
[18]
PLD 2019 SC 196
[19]
2019 SCMR 2029
[20]
2019 PCrLJ 852 Islamabad
[21]
2015 PCrLJ 1551 Islamabad
[22]
Under Article 2(1)(c) of QSO 1984
[23]
2019 SCMR 2029
[24]
Rule 17, Chapter 25, Volume 3 of Police Rules 1934.
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