Monday, 21 December 2020

INVESTIGATION IS MORE THAN “COLLECTION OF EVIDENCE"

  1.      ABSTRACT

 

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.

Monday, 23 March 2020

CORONA BAIL TO UNDER TRIAL PRISONERS- ISLAMABAD

“A dissent in a court of last resort is an appeal to the brooding spirit of law, to the intelligence of a future day when a later decision may possibly correct the error into which the dissenting justice believes the court to have been betrayed.”                                                                                                               ― Justice Charles Evans Hughes
History has always been very kind in referring the life time events. Being a student of law, Corona Virus was something like blessing in disguise for the under trial prisoners. Although we don’t find room for such orders but we always need to make room for situations which could have devastating effects on the life of people. I can witness many cases where the poor suffer and the rich gets relief in our judicial system. The very much awaited relief which the court wants to give to the prisoner, sometimes due to a lot of factors is delayed hence denied. Without naming or pointing out characters, we as a whole need to step forward for the rights of the weakest class of a society i.e. prisoners.  Superior courts had always spoken against high bail bonds for poverty stricken accused person and had recommended their enlargement on bail on personal bond and even without sureties, today millions of people are jailed pending trials because they are either too illiterate to apply for bail or too poor to furnish the bail amount.

Purpose of Bail
 The basic purpose of bail is to give custody of the accused person to the surety to make sure that the accused person will appear before the trial court. For this sole purpose the accused who are unable to arrange surety or sometimes their circumstances don’t allow the court to grant this relief to the accused person remain in judicial custody as the state is responsible for their appearance before the court. This means that tax payer money is responsible for the whole stay of the accused person in the prison which includes all the basic facilities to which he is entitled unless he is given bail or the trial concludes. 

Bail as a form of Punishment
We have totally changed the dynamics of this relief and in fact this relief itself has become part of punishment. Chapter 3 of Pakistan Penal Code 1860 deals with different kinds of punishments which can be given to an accused person. However, I was unable to figure out the punishment given to an accused, in form of his imprisonment in jail, who is pronounced innocent after trial. Why, how and who can be blame is a Pandora box which will only complicate the situation instead of addressing the issue and finding the solution.

Bail on Corona Virus Ground
Legally speaking there are different forms of bails to which an accused person is entitled. However, the discretionary relief of bail on the ground of Corona Virus is itself an exception to all those categories. Corona Virus is a deadly incurable disease but still this bail cannot be said to be granted on medical grounds. Therefore, we need to find the legal footing of this stupendous decision taken by the Honorable Court. This decision of the Honorable court is more than a step towards betterment of our criminal justice system where reformation of prisoner was the basic purpose of establishing Jails. However, with the passage of time it has become a place to level scores between parties. Even sometimes the state itself is a party to such heinous crime. Our Judicial standards in human rights are uniformly pathetic and secondly that judges are universally unwilling to punish prison officials and policemen. However, it is the basic duty of the court to make sure that the basic purpose of keeping the inmates behind the bars is properly served. The state took the custody of the UTP to make sure that they will produce them on every date before the trial court for proceeding with the trial. However, there are circumstances when the proceedings are adjourned due to unavoidable conditions, as in the present scenario of health emergency. For such conditions there is provision to adjourn proceedings as the inmates cannot be kept in judicial custody for the sole purpose of trial and on the other hand the state is unable to procure the attendance of the inmates before the court for trial. For such conditions where the state is in state of emergency and the trial proceedings itself are a question mark, the proceedings can be adjourned or postponed. The legislature has used the word, “any reasonable cause, it becomes necessary or advisable to postpone the commencement of trial” clearly fits in to the present scenario. There are plethora of dictums of the superior courts which somehow also support the gist of this order. This order has clearly shown that the real power of the constitutional courts and purpose of making such courts. The extra ordinary jurisdiction is intended primarily, for providing expeditious remedy in a case where the illegality of the impugned action of an executive or other authority can be established without any elaborate enquiry into complicated or disputed facts.

Conclusion
The representative of the government is very much admitting that the population of the jail is beyond their control. No one can come up with a policy to reduce number of inmates as it involves a lot of questions. Questions of law and facts involving rights of people and duty of state. Prison Rules have mentioned all the procedures to be adopted to deal with such like situations. However, no such step was taken by the government neither any plan was presented instead of showing their will to reduce the inmates with a magic stick. Giving priority to health over safety needs some parameters. We did move ahead but there should be parameters or guidelines for such pandemic conditions.  

            

Tuesday, 30 September 2014

A Lahori CEO indicted in USA for selling mobile spyware app in USA

The CEO of a Pakistani company has been indicted in the U.S. for selling a product called StealthGenie that buyers could use to monitor calls, texts, videos and other communications on other people's mobile phones, the U.S. Department of Justice said.The indictment of Hammad Akbar, 31, of Lahore, Pakistan, represents the first time the DOJ has brought a criminal case related to the marketing and sale of an alleged mobile spyware app, the DOJ said in a press release Monday.
Akbar is CEO of InvoCode, the company selling StealthGenie online. Akbar is among the creators of StealthGenie, which could intercept communications to and from mobile phones, including Apple, Android and BlackBerry devices, the DOJ said.
StealthGenie was undetectable by most people whose phones it was installed on and was advertised as being untraceable, the DOJ said.Akbar was charged in U.S. District Court for the Eastern District of Virginia with conspiracy, sale of a surreptitious interception device, advertisement of a known interception device, and advertising a device as a surreptitious interception device. He was arrested in Los Angeles on Saturday and is expected to appear before a magistrate judge in the Central District of California late Monday.
"Selling spyware is not just reprehensible, it's a crime," Leslie Caldwell, assistant attorney general in the DOJ's Criminal Division, said in a statement. 
"Apps like StealthGenie are expressly designed for use by stalkers and domestic abusers who want to know every detail of a victim's personal life -- all without the victim's knowledge."
StealthGenie was hosted at a data center in Ashburn, Virginia. On Friday, a federal judge in the Eastern District of Virginia issued a temporary restraining order authorizing the FBI to temporarily disable the website hosting StealthGenie. The StealthGenie.com website remained down on Monday. StealthGenie allowed users to target mobile phone owners and record all incoming and outgoing voice calls, according to the indictment. It also allowed purchasers of the app to call the phone and monitor all surrounding conversations within a 15-foot radius, and to monitor the targeted user's incoming and outgoing email and text messages, incoming voicemail, address book, calendar, photographs and videos.
Akbar and his co-conspirators allegedly programmed StealthGenie to synchronize communications intercepted by the app with the customer's account so that the customer could review intercepted communications almost immediately from any computer with access to the Internet, the DOJ alleged. To install the app, a purchaser needed to obtain physical control over the phone to be monitored for only a few minutes. Invocode's target population for marketing the app was spouses, boyfriends and girlfriends who suspected their partners of cheating, the DOJ said. Testimonials on the StealthGenie website focused largely on potential purchasers who did not have any ownership interest in the mobile phone to be monitored. Akbar and his partners fabricated the testimonials, the DOJ alleged.



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