Law of Information to the Police and Their Powers to Investigate

‫ﺑﺴﻢ ﷲ اﻟﺮ ّﺣﻤﻦ اﻟﺮ ّﺣﯿﻢ‬ ‫ﺳۡﻮِﻟِہ اۡﻟَﮑِﺮۡﯾِﻢ‬ ُ ‫ﻠﯽ َر‬ ٰ ‫ﺼﻠﱢﯽ َﻋ‬ َ ُ‫َﻧۡﺤَﻤُﺪٗه َو ﻧ‬ LAW OF INFORMATION TO THE POLICE AND THEIR POWERS TO INVESTIGATE Justice ® Dr. Munir Ahmad Mughal http://ssrn.com/author=1697634 Introduction: Part V of the Code of Criminal Procedure, 1898 contains Chapter XIV comprising sections 154 to 176. This is the most important Chapter in the Code. It contains the procedure as to how law was to set in motion and police to come into action. 1 Electronic copy available at: http://ssrn.com/abstract=1983437 A survey of the chapter shows that nearly twenty six provisions of law have been enacted so comprehensively that if those are lawfully, correctly and properly acted upon by all stake holders in the process of criminal justice there would be visible reduction in the crime. These provisions deal with the following subjects:Information in cognizable cases;1 Information in non-cognizable cases.2 Investigation into non-cognizable cases.3 Investigation into cognizable cases.4 Investigation of offences under section 295C PPC.5 Investigation against a woman accused of offences of Zina.6 1 Section 154 of the Code of Criminal Procedure, 1898. Section 155 of the Code of Criminal Procedure, 1898. 3 Ibid, 4 Section 156 of the Code of Criminal Procedure, 1898. 5 Section 156A of the Code of Criminal Procedure, 1898. 2 2 Electronic copy available at: http://ssrn.com/abstract=1983437 Procedure where cognizable offence suspected.7 Where local investigation dispensed with8 Where Police-officer in charge sees no sufficnet ground for investigation. 9 Reports under section 157 how submitted.10 Power to hold investigation or preliminary inquiry.11 Police Officer’s power to require attendance of witnesses.12 Examination of witnesses by Police.13 Statements to police not to be signed; use of such statements in evidence.14 No inducement to be offered.15 6 Section 156B of the Code of Criminal Procedure, 1898. Section 157 of the Code of Criminal Procedure, 1898. 8 Ibid. 9 Ibid. 10 Section 158 of the Code of Criminal Procedure, 1898. 11 Section 159 of the Code of Criminal Procedure, 1898. 12 Section 160 of the Code of Criminal Procedure, 1898. 13 Sectioin 161 of the Code of Criminal Procedure, 1898. 14 Section 162 of the Code of Criminal Procedure, 1898. 15 Section 163 of the Code of Criminal Procedure, 1898. 7 3 Power to record statements and confessions.16 Search by Police-officer.17 When Officer in charge of a police station may require another to issue search warrant.18 Procedure when investigation cannot be completed in 24 hours.19 Report of investigation by subordinate police officer.20 Release of accused when evidence deficient.21 Case to be sent to magistrate when evidence is sufficient.22 Complaianats and witnesses not to be required to accompany police officer. 23 Complainant and witnesses not to be subjected to restraint.24 16 Section 164 of the Code of Criminal Procedure, 1898. Section 165 of the Code of Criminal Procedure, 1898. 18 Section 166 of the Code of Criminal Procedure, 1898. 19 Section 176 of the Code of Criminal Procedure, 1898. 20 Section 168 of the Code of Criminal Procedure, 1898. 21 Section 169 of the Code of Criminal Procedure, 1898. 22 Section 170 of the Code of Criminal Procedure, 1898. 23 Section 171 of the Code of Criminal Procedure, 1898. 17 4 Recusant complainant or witnesses may be forwarded in custody.25 Diary of Proceedings in investigation.26 Report of Police officer.27 Police to inquire and report on suicide etc.28 Grievous injury by burns.29 Power to summon persons.30 Inquiry by Magistrate into cause of death.31 Power to disinter corpses. 32 What are the requirements of section 154 Cr. P. C. ? The requirements of section 154 of the Code of Criminal Procedure, 1898 are: 24 Ibid. Ibid. 26 Section 172 of the Code of Criminal Procedure, 1898. 27 Section 173 of the Code of Criminal Procedure, 1898. 28 Section 174 of the Code of Criminal Procedure, 1898. 29 Section 174A of the Code of Criminal Procedure, 1898. 30 Section 175 of the Code of Criminal Procedure, 1898. 31 Section 176 of the Code of Criminal Procedure, 1898. 32 Ibid. 25 5 Various stages in lodging the FIR:  The Informant comes to the Police Station and gives oral information relating to the commission of a cognizable offence to an officer in charge of a Police station. Stage 1.  Prior to its formal registration a report in the Daily Dairy of the Police Station is recorded. Number, time and date of such report is specifically mentioned in Column No. 1 of the FIR. Stage 2.  The FIR is recorded in writing by the Officer in charge of the Police station either himself or by some other police official under his direction. Stage 3. 6  The FIR so recorded shall be signed by the informant. Stage 4.  The substance of the FIR is entered in a book in the form prescribed by the Provincial Government. Stage 5.  After formal registration of the FIR another report in the Daily Diary of the police Station is recorded by the recording officer that the FIR has been registered. This report is also allocated an independent number in the register.33 What is the nature of the provision of law contained in section 154 Cr. P. C.?  This provision is statutory and at the same time mandatory. 33 2000 YLR 2294. 7  The police officer is bound to record at verbatim whatever information is given by first informant to him. He is to record it correctly and honestly, for only then proper investigation would be possible.34  Allegations and counter allegations could be urged by the parties before the Investigating Officer who could arrive at independent conclusion according to law and the matter would ultimately go for adjudication before the Court of law where the parties would be given full opportunity of hearing.35  Section 154 Cr. P. C. regulates the information regarding commission of a cognizable offence i.e. an offence in which police can arrest a person 34 NLR 1997 Cr.655(DB). 35 2001 P.Cr. Law jouirnal 1834. 8 without getting warrant of arrest from the magistrate.  The information given by the informant is called First Information. It becomes foundation of a criminal case and its importance is therefore, paramount in nature.36  Though first information and also of paramount in nature, yet an FIR is not a sacrosanct document. It can prove totally false, totally true , partly false, partly true and all this will transpire during the investigation and not on conjectures or surmises or prejudging by the police officer.  Section 154 secures inherent right of a citizen and bestows a sacred duty upon State machinery established in every police station to register cognizable grievance of a citizen.37 36 37 PLD 2008 Peshawar 53. Ibid. 9  An FIR is not an exhaustive document so as to contain each and every minor detail of the occurrence and photogenic version with a computer like exactness canot be expected to be given in the same.38 What is the legal effect of the fact that no FIR was made or was proved at the trial?  Non registration of FIR deprives the accused of his right to cross examine the first informant on its basis. But it would not vitiate the conviction.39 38 39 PLJ 1996 Cr. Cases 1108. , 2000 YLR 2294 (DB). 10 Where the Police does not register an FIR what remedy is available for the Complainant? In such a case the Complainant may go to the Magistrate and make a Complaint in writing under section 200 Cr. P. C. Law has provided both these methods. They are not derogatory to each other but they are complementary to each other. By lodging FIR complainant’s version comes in black and white. It serves a useful purpose for the accused being protected from subsequent variations. The moment it is lodged the process of investigation is set in. 11 What are the essentials of an FIR? There are five essential of an FIR, namely,1. It should be an information relating to the commission of a cognizable offence; 2. If given orally to an officer in charge of a police station, it should be reduced to writing by him or under his direction. 3. Having been thus reduced to writing , it should be read over to the informant; 4. It should be signed by the informant, giving the information; and 5. Its substance should be entered in a book kept by the Officer in charge of a police station in the prescribed form.40 40 1968 P. Cr. P. Law Journal 1597 (DB) Lahore. 12 Who is competent to lodge an FIR? Every person is competent to lodge an FIR. An injured, an aggrieved person, a legal heir, a relative, a non-relative, a friend, a master, a servant, an eye-witness, a passer-by, a male, a female, a representative, a private person, a government servant, a public servant, a complainant and even an accused can lodge an FIR. Informant may be of any place and not necessarily resident of the place of incident or reporting. Any citizen whether he has got an interest in the matter or not is equally competent to lodge the FIR. This right is available to every member of the public including a Magistrate.41 41 NLR 1979 Criminal 146. 13 The reason is that it is an information to be given to the officer in charge of a police station about the commission of a cognizable offence to set the law in motion. Such information may be oral or in writing. Law could be set in motion by any person.42 No hard and fast rule exists as to who among those claiming to be eye witnesses should or must lodge the report. Anyone of them would be equally competent.43 What is the wisdom in lodging the FIR at a police station? FIR not recorded at Police Station would suffer inherent doubt that same was 42 43 2006 SCMR 1786. 2007 MR 1535. 14 recorded at the spot after due deliberations.44 Why FIR is called First Information Report? It is so called as it is the firs information about the commission of a cognizable offence. The condition precedent is simply two fold: first, it must be information and secondly, it must relate to a cognizable offence on the face of it and not merely in the light of subsequent events. FIR is not a substantive piece of evidence.45 It can only be used to corroborate the statements of the maker46 under article 44 PLD 2008 Supreme Court 349. 2007 YLR 239. 46 What is evidence? Evidence is defined in the interpretation clause of article 2(1) (c ) of the Qanun-iShahadat Order, 1984 which states: In this Order, unless there is anything repugnant in the subject or context,- “Evidence” includes – (i) all statements which the Court permits or requires to be made before it by witnesses, in relation to matters of fact under inquiry, such statements are called oral evidence, and (ii) all documents produced for the inspection of the Court, such documents are called documentary evidence. 45 15 153 of the Qanun-i-Shahadat Order 1984 or to contradict it under article 140 of the said Order.47 It cannot be used as evidence against the maker at the trial if he himself becomes Evidence is the basis of justice. It is an instrument by which relevant facts are brought before court, namely witnesses and documents by means of which the Court is convinced of these facts. Evidence of various genres is led or brought on record keeping in view the nature of controversy. There is direct evidence of witnesses of fact and there is evidence proffered by witnesses who are professionals and experts and in criminal trials particularly, public functionaries as well. This evidence is not only relevant but also is admissible as well. Article 153 of the Qanun-i-Shahadat Order, 1984 is reproduced for ready reference: {153. FORMER STTEMENTS OF WITNESSES MAY BE PROVED TO CORROBORATE: In order to corroborate the testimony of a witness, any former statements made by such witness relating to the same fact at or about the time when the fact took place, or before any authority legally competent to investigate the facts may be proved.}. In the Indian Evidence Act, 1872 the corresponding provision is Section 157 of the said Act. The principle enunciated in Article 153 of the Qanun-i-Shahadat Order, 1984 is that consistency is a ground for belief in a witness’s veracity [The judicial precedent on this is laid down in the case cited as 35 Madras 247]. 47 2001 Pakistan Criminal Law Journal 199. { Article 140 of the Qanun-i-Shahadat Order, 1984 is reproduced for ready reference: 140. CROSS-EXAMINATION AS TO PREVIOUS STATEMENTS IN WRITING: A witness may be cross-examined as to previous statements made by him in writing or recorded into writing, and relevant to matters in question, without such writing being shown to him, being proved; but if it is intended to contradict him by the writing his attention must, before the writing can be proved, be called to those parts of it which are to be used for the purpose of contradicting him.}. In the Indian Evidence Act, 1872 the corresponding provision is Section 145 of the said Act. Article 140 of the Qanun-iShahadat Order, 1984 is in two parts, both of them dealing with cross examination. The first part deals with cross-examination other than by way of contradiction, and the second by way of contradiction only. It is not impossible to invoke the second part without putting question on the first part [The judicial precedent on this is laid down in the case cited as AIR 1959 Supreme Court 1012= 1959 Cr. P. C. . Law Journal 1231]. The principle underlying Article 140 of the Qanun-i-Shahadat Order, 1984 in drawing the attention of the witnesses to their previous statements is founded on fairplay and natural justice, that before a witness can be branded as perjurer it is but fair and reasonable that his attention must be drawn to those parts of statements which are irreconcilable with the statement at the trial with a view to give opportunity to explain and reconcile the contradictions if possible. 16 an accused, nor to corroborate or contradict other witnesses.48 So long as FIR is not proved in accordance with law, it is as such no evidence and therefore cannot be taken as a proof of anything stated therein.49 48 49 AIR 1962 Calcutta 641 (DB). 2002 YLR 1843 (DB). 17 Bibliography: 1. All India Reporter 2. Black’s Law Dictionary; 3. Code of Criminal Procedure, 1898 ; 4. Commentary of Cr. P. C. by Shaukat Mahmood, Legal Research Centre, Lahore. 5. Commentary of Police Order, by [Justice ® Dr. Munir Ahmad Mughal], Muneeb Book House, Lahore, 6. Commentary of PPC by M. Mahmood., Al-Qanoon Publishers, Lahore. 7. Constitution of Pakistan, 1973, Commentary by Shaukat Mahmood, Law Research Centre, Lahore. 8. Criminology, [Justice ® Dr. Munir Ahmad Mughal], Muneeb Book House, Lahore. 18 9. High Court Rules & Orders; 10. Pakistan Law Digest. 11. Pakistan Law Journal. 12. Pakistan Penal Code, 1860; 13. Police Laws of Pakistan, Criminal Law Publications, Lahore. 14. Police Order, 2002, 15. Qanun-i-Shahadat Order, 1984; 16. Selected Rulings, by Shakeel Ahmad, Famous (2008-2011), Hassan &Haider Law Books Publishers, Lahore. 17. The Law of Criminal Procedure, Justice ® Fazal Karim, Pakistan Law House, Lahore. 18. The Law of Evidence, Shaukat Mahmood, Law Research Centre, Lahore. 19