::Re-Investigation of criminal case in the garb of verification of investigation in Pakistan

RE-INVESTIGATION IN THE GARB OF VERIFICATION IS VIOLATION OF ARTICLE 18(6) OF POLICE ORDER 2002.

About three decades ago, in a Supreme Court judgment titled Riaz Hussain Vs. The State[2], successive change of investigation was disapproved with the observation that:

“The system of re-investigation in criminal cases is a recent innovation, which is always taken up at the instance of influential people and favourable reports obtained. This in no way assists the courts in coming to correct conclusion, it rather creates more complications to the court administering justice, we therefore, disapprove this system altogether.”

(At page, 1942)

It reflects that in our dispensation of justice system, there is a lack of equality between the powerful, wealthy litigant and the under resourced litigant. This discrimination is a serious threat to the existing judicial system in the country, which have direct nexus with the law and order and it impacts negatively in maintenance of peace in the society. These evils can be cured provided that we learn from the past. Once again the same view was expressed in a case cited Zaheer Ahmed Vs. The State[3] that:

“Repeated investigations and repeated transfer of investigations was a menace which was attaining alarming dimensions and unless this system was checked with an iron hand, the same might erode in the very system of investigation and administration of justice.”

(At page, 587)

For the above-said reasons, legislature thought it proper to regulate the question of investigation and control of successive investigation permanently, by incorporating Art. 18(6), in Police Order 2002, the same was observed in the case cited Muhammad Ashfaq Vs. Amir Zaman[4] that,

“The question of investigation has now been regulated for the first time by promulgation of Police Order 2002”.

(At Page 1926)

Article 18(6) of, Police Order 2002 is reproduced for ready reference as below:-

“Investigation shall not be changed except after due deliberations and recommendations by a Board headed by an officer not below the rank of Senior Superintendent of Police and two Superintendents of Police, one being In-charge of the investigation of the concerned District:

Provided that the final order for the change of investigation shall be passed by head of investigation in the general police area who shall record reasons for change of such investigation:

Provided further that the second change of investigation may only be allowed with the approval of the Provincial Police Officer, or the Capital City Police Officer, as the case may be.”

It is clear from the above said provision that Police Order 2002 controls the investigation of the cases and has limited the number of investigations only to two providing procedure for change of 1st   and 2nd investigation.

The first change of investigation can be in areas other than the Capital City Districts be ordered only by the Additional Inspector General of Police and that too only after deliberations and recommendations by a board headed by an officer not below the rank of SSP of the police and including two superintendents of police, one being In-charge of Investigation in the concerned districts.

According to the same Article 18(6), the 2nd change of investigation may only be allowed with the approval of Provincial Police Order. There is no other law authorizing or empowering any other police officer or authority to change the investigation or a criminal case. These above said provisions of Police Order 2002 are violated in the name of verification of investigation as it has been observed in the case cited Amanullah Vs. I.G.P. Punjab Etc.[5]

“Too much investigations are deprecated by superior courts, that was the idea behind the latest legislation but the desired objectives arc not being achieved for reason of too much interference from different forces that should be discouraged.”

(At Page 770)

The relevant sections of Cr.P.C. dealing with the duties and obligations regarding investigations are as follows: –

S.4 defines the word “Investigation”, S.160 deals with attendance of witnesses, S.161 deals with power of police to examine any person during investigation.

According to S.4, of Cr.P .C. investigation includes all proceedings under the code for collections of evidence conducted by the police. Collections of evidence cannot be confined only to such evidence, which favours the prosecution but from contents of Ss.160, 161 & 163, of Cr.P.C. it is clear that law doesn’t make any distinction in the matter of recording statements made in the favour of accused or the prosecution in the course of investigation.

The same position was reiterated in the case of Abdul Latif Vs. I.G. Police[6].

“The purpose of investigation is to find out the truth and to present the same before the court by way of admissible and acceptable evidence as it is undertaken to protect the innocent and never to let the guilty escaped because of careless, excess of zeal or negligence of police officer.”

In another case cited Zaheer Ahmed Vs. The State[7], it is observed that

“Purpose of investigations is collection of evidence and nothing more.”

It has been time and again found that provisions of Police Order 2002 are violated in the name of verification. The term verification is dealt with in the case cited Jehangir Beg Vs. D.I.G.[8] “Verification means the process or an instance of establishing the truth or validity of something.”

The moot point is whether such power of verification exists in Police Order 2002 or not? Is there any provision which provides concept of verification in Police Order 2002?

This question is dealt in the case of Aziz Ahmed Vs. Provincial Police Officer (I.G.P.) Punjab[9], wherein honourable court observed that

“I have gone through the Police Order 2002 myself and also requested to the learned counsel and Advocate General to show me any provision which deals with the concept of verification or what are administrative or technical grounds with regard to investigation, we could not find any provisions an these points”

(At page, 189)

The scope of verification has been explained in the landmark judgment cited Khizar Hayat Vs. I.G. Punjab Etc.[10]  that

“If an investigation by an investigating officer is to be verified by some other officer, then such verification must be confined to verification of the record of the investigation and such an exercise cannot be allowed to be conducted in a manner giving it a colour of fresh investigation with fresh conclusions”

(At Page 551)

Under the newly enacted law, when investigating officer is entrusted with investigation of the case, he has been given free hand to conduct investigation without accepting the outside influence yet he cannot be absolved of his duty to explain his strange unreasonable, particular conduct in the course of investigation to his high-ups.

This aspect was again commented upon by honourable court in the case of Abdul Rauf Vs. Station House Officer[11] that,

“It may be kept in view that District Police Officer has got supervisory power under Police Order 2002 or the Police Officials of the District, while S.P. investigation is the head of investigation branch of police as prescribed in subsection 3 of S.18 of Police Order 2002 and therefore, to supervise and to keep this smooth running of police department and to maintain the high standard and quality of honest and fair investigation, a check system against dishonest subordinate police investigating officials cannot be considered to have been evaporated by the enacted law”

(At Page 703)

Here are different instances where investigation was transferred by high police officials in garb of verification or supervision which are declared as illegal, void  ab initio and nullity in the eyes of law being in violation of Police Order 2002.

The honourable court strongly deprecated and disapproved the trend of multiple investigation by observing as follows in a case cited Muhammad Akram Vs. D.P.O. Lodhran etc.[12]

Wherein, the brief facts of the case were that the investigation of the case was conducted by Khalid Mehmood SI Police Station but DPO Lodhran transferred investigation to DSP on an application by the accused. It was contended by the petitioner that DPO had no authority to transfer the investigation, even not competent to interfere with the investigation, court held that:

“A bare reading of the above article 18(6) would show that the DPO doesn’t figure anywhere in the procedure laid down for transfer of investigation and the investigation transferred to DSP Dunyapur was declared as illegal and returned to 1.0., who was previously conducting the investigation of the case”.

Again honourable court while dealing with the petition against illegal transfer of investigation observed in a case cited Ijaz Ali Vs. DPO Bahawalnagar Etc. Petitioner filed a writ petition against illegal and unauthorized. change investigation by the DPO Bahawalnagar on telephonic message from S.H.O. PS Saddar to DSP ·of the area in the garb of verification, which according to petitioner was violative of provision of Art. 18(6) of Police Order 2002, the honourable court held that

“DPO in terms of Art. 18(5) cannot interfere with the process of investigation except to collect information about progress of the cases but such verifications cannot be used as a device to have a case reinvestigated from the verification officer and to substitute the opinion either about the previous investigation or conduct of previous investigating officer.”

The court further observed while discussing that what course DPO should adopt if any application is filed by an aggrieved person as follows: –

“That instead of changing investigation in the garb of investigation, which on its face is colorful exercise of jurisdiction, if the DPO is not satisfied with the conduct of investigation, he may place the matter before the District Investigation Board seeking change of investigation, if he himself feels so, or by receiving information from any person along with his note giving reason for change of investigation and further DPO may refer matter to Additional Inspector General Police provided under Art.18 of Police Order 2002 but in no way can change the investigation directly or in garb of verification/supervision of the investigation by any other person already conducted by the competent authority”

(At page 1599.)

In a case cited Jehangir Baig Vs. DIG etc.[13] wherein, petitioner was declared innocent by SI investigating officer and after transfer of Yaqoob SI, investigation was transferred to Inspector S.H.O. by the S.P. investigation under the garb of verification. It was observed that

“New investigating officer was not authorized to conduct fresh investigation unless he is specifically directed by a board provided under Art. 18(6) of Police Order 2002.”

For change of investigation, it is incumbent upon the transferring authority to give reasons as it has been declared in the case cited Kaneez Fatima Vs. I.G. Police Punjab Lahore[14], that it is compulsory for I.G. police to give reasons for change of investigation and the court observed that respondent No.1 did not apply his judicial mind and did not give reasons in support thereof and also without seeking recommendations from the committee transfer was made, which is illegal.

In a case cited Mazhar Siddique Vs. DPO Etc.[15] wherein, local police declared all the accused guilty but investigation was started by SP investigation with orders of Additional Inspector General of Police who recommended cancellation of case, which was declared illegal as same was transferred without recommendation of standing board.

In another case cited Sufi Sher Muhammad Vs. The State[16] writ petition was filed to challenge the legality of transfer of investigation. It was contended that sub-articles (3) and (4) of article 18 Police Order 2002, and S.551 Cr.P.C. empower SP, investigation to supervise and conduct investigation. It was laid down by Honourable Mr. Justice Khawaja Muhammad Sharif that the very transfer of investigation by Additional I.G. Police to SP investigation, is in violation of Art.18(6) of Police Order 2002.

All reported judgments are guidelines for the public functionaries and also binding on all the authorities in the country in terms of Art.189 of the constitution and also judgments of high courts are binding under Art. 201 of the constitution but police officers are flagrantly violating judicial decisions as the same has been reiterated in the case Ijaz Ahmed Vs. D.P.O.[17] .that

“In future no D.P.O. shall act, which amounts to assumption not lawfully vested in them in fact is a colourful exercise of jurisdiction under the law and if it is brought to the notice of this court again a serious actions shall be taken and concerned DPO shall be liable to face contempt proceedings.

(At Page 1599)

While giving certain parameters for effective functioning of investigating system and by placing a check on the’ transferring authority. The honourable court in the case cited Muhammad Younis Vs. IG Police[18] made the following observations:

“This evil can be successfully combated by making incumbent upon the authority transferring the investigation or ordering investigation should comment upon the quality of investigation and pin point the shortcomings of lapses made by the investigating officer and further observed That;

“If authority convinced after going through record, that either the investigating officer is inefficient, incapable or mixed up with one of the parties for any reason and only then investigation may be transferred that too after recording reasons in writing. It shall propose action against investigating officer for misconduct, inefficiency and corruption as the case may be that would be effective measure to check the illegal tendency of transferring the investigation or ordering reinvestigation without any study of “zimnis” and appreciating the efforts made by the investigating officer. The honest and efficient investigation is the obligation. of the state but concerned authorities are dealing with these matters as the sole purpose is to please the parties or their recommendees”

(At Page 166)

On the same scenario, it has been reiterated by the honourable court in the case of Syed Ghulam Mustafa V s. The State[19] that

” Police Officer sending a case to a court for trial of an accused without collecting sufficient evidence against him either cause an innocent person to undergo unnecessary botheration of trial for which he may incur damages as well as disciplinary actions are provided to a guilty person to escape punishment for which also he may incur disciplinary action. It is high time to take practical steps for improving efficiency of system of investigation”.

Mr. Justice Asif Saeed Khan Khosa, in the case cited Khizar Hayat Vs. I.G. Punjab Etc.[20] has discussed the practice of illegal transfer of investigation by litigants as a marathon and their ever lasting effects in the delay of dispensation of justice in a criminal case,

“A misconceived competition and race between the parties to obtain a favourable opinion from the investigating officer despite such opinion being inadmissible in evidence, being irrelevant has been found by us to be the real reason for most of the bids made by the parties to a criminal case to get the investigation of such case transferred”

The honourable court further observed that:

“Such trends and tendencies have to be curbed with all the firmness that is required as they are playing havoc with investigations, breeding corruption amongst the police, introducing extraneous influences in the working of the police delaying finalization of investigations and trials.”

In view of the above discussion, it needs to be stressed that it is the function of the I.O. to collect evidence and not to opine as to the guilt or innocence of the accused, which is the sole power of the court and a tag of war between the parties for reinvestigation/change of investigation without contention of tendering evidence should be discouraged. First/Local Investigating Officer should be independent and should not be interfered except under Art.18(6) of Police Order 2002, by constituting standing board and after pinpointing the lapses of the investigation by declaring it as dishonest investigation and thereby taking legal action against the delinquent police officer/I.O. Also if well-founded allegations are leveled then instead of ignorantism, obscurantism or spectatorship on the part of police authorities would encourage the corrupt officials whose conscious remains dormant, to increase their brutalities, which is a root cause for prolonging the agony and creating dissatisfaction among the people. More than one and half century has been passed when police force was established to maintain law and order and to redress the grievance of the people but still innocent citizens are forced to scramble to their miseries under the atrocities of certain barbarians, meaning thereby that no one individual in our homeland dreams to rise and fight for respectable survival, which is an unforgivable sin on the part of delinquent police officials on the day of judgment before Almighty Allah.

[2] 1986 SCMR 1934

[3] NLR 2000 Criminal 587

[4] 2004 SCMR 1924

[5] 2005 Cr.L.J.767

[6] 1999 P.Cr.L.J. 1357@1379

[7] NLR 2000 Criminal 583

[8] 2007 MLD 583

[9] PLD 2005 Lah. 185

[10] PLD 2005 Lah. 470

[11] 2007 P.Cr.L.J. 701

[12] 2006 YLR 1815

[13] 2007 MLD 579

[14] 2004 MLD 1520

[15] PLJ 2008 Lah. 319

[16] 2008 MLD 517

[17] 2006 P.Cr.L.J.1596

[18] 1999 P.Cr.L.J.163

[19] 2007 Cr.L.J.602

[20] PLD 2005 Lah.470

By:

CH. MUBASHAR AHMED OTHI Advocate High Court

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