Criminal Investigations in Pakistan
Perceptions and realities ineluctably differ. The case in point is the comparison between criminal and civil justice streams in Pakistan. Popular perception is that civil justice is faring better than criminal justice. Contrary to this, the evidence, as recorded in the Rule of Law Index, 2020, suggests that criminal justice in Pakistan is in better shape than civil justice. The point is evidenced by the fact that criminal justice ranks 98/128 whereas civil justice is placed at 118th position.
The comparison is not artificial. Qualitative and anecdotal evidence suggests that criminal justice is preferred over civil justice in Pakistan. The preference may be due to many reasons; one of them being the element of efficiency. Another factor is the element of coercion, which can only be brought about by resorting to criminal proceedings. In an unfair, unprofessional, power-driven and unaccountable criminal justice system, chances of influencing decision-making of investigation agencies always remain high. These inbuilt elements of efficiency and influence work as incentives for the status quo, and cause inertia against any efforts to reform or improve things on the ground. In addition, these elements are designed in favour of street bureaucrats as compared to top bureaucrats resulting in distorted public sector organizations. This is true across the spectrum of investigation agencies starting from police organizations to revenue authorities to anti-corruption bodies. In this context, the oft-used tool for putting state machinery into action is criminal law, which becomes kinetic through the mechanism of criminal investigations. Since most of the criminal investigations are carried out by police, therefore, the framework for this adumbration is situated in police working; in abstract form, however, the information may be equally applicable to all forms of criminal investigations in Pakistan. The purpose, concept, definition, types, principles and allied matters related to criminal investigations are being discussed here in a thematic manner:
- Purpose and object
The purpose and object of a criminal investigation are stated in Rule 25.2(3) of the Punjab Police Rules, 1934, (adopted by all police organizations in Pakistan). It states that:
(1) It is the duty of an investigating officer to find out the truth of the matter under investigation;
(2) His object shall be to discover actual facts of the case
- Concept and definition
Inquiry and investigation are often used as interchangeable terms by non-practitioners. In practice, the two concepts are different in their scope. While inquiry is limited to fact-finding generally, investigation goes beyond mere fact-finding and focuses on collection of evidence, besides its preservation, processing and presentation. In terms of authorization, inquiry is conducted by a magistrate, but investigation is done by police. No doubt, owing to its legal significance, the investigation is defined by Section 4(l) of the Code of Criminal Procedure, 1898, as ‘collection of evidence by police…’.
- Types and authorizations
Each type of offence may be investigated differently, resulting in as many types of investigations as many species of offences. For example, offences against person may involve collection of medical evidence alongside the testimonial evidence. On the other hand, for offences against property, the documentary evidence may be collected along with testimonial evidence. In similar manner, white collar and tax fraud offences require an investigator to collect documentary evidence comprising bank accounts, wealth statements and incorporation certificates to build up his case. The investigations may also be classified on the basis of the officers’ authorizations. For example, a terrorism case is to be investigated by a Joint Investigation Team (JIT) under Section 19 of the Anti-Terrorism Act, 1997. The police officer investigating a terrorism case has to be an officer of no less than the rank of an inspector. Similarly, a narcotics case can only be investigated by a sub-inspector of police or above. The blasphemy case is to be investigated by an officer of the rank of Superintendent of Police or above. The authorizations have been included in law to ensure that experienced officers investigate heinous offences.
The law does not prescribe principles of investigation in the statutes. For instruction purposes, however, the following cardinal rules emanating out of statutory law, case law and international best practices are considered principles of investigation:
- Statutory right to investigation
Investigation agencies/police have a statutory right to investigation implying non-interference from all. The basis of this statutory right is deep-rooted in jurisprudence of Pakistan. It owes its origin to a Privy Council judgement in Emperor v. Kh Nazir Case (1944) that acknowledged the right to investigation and expounded its rationale in the following words:
“The functions of the judiciary and the police are complementary, not overlapping, and the combination of individual liberty with a due observance of law and order is only to be obtained by leaving each to exercise its own function…”
- Duty to find the truth
As noted above, the duty of an investigator is to find the truth. The number of versions and formalism of reports are no obstacles to his duty. This principle is based on Rule 25.2(3) of the Police Rules, 1934, as well as the decision of the Supreme Court of Pakistan in Sughran Bibi Case (2018), wherein, the duty of police to find truth irrespective of the formal process was reiterated.
Primacy of crime scene investigations increased with the advancement of use of scientific methods for investigations. It was already well known that best investigations are based on connecting criminals with the crime scenes. The scientific basis of this knowledge was buttressed by Locard’s “Exchange Principle” that became a cornerstone of modern criminal investigations. The principle is based on Dr Edmond Locard’s theory that ‘every contact leaves a trace’. It may be interesting to note that Locard belonged to France and was known as its Sherlock Holmes. This principle reaffirmed the importance of crime scenes, leading to development of techniques regarding protection, preservation, photography, labelling, packaging, lifting, documenting and processing evidence from crime scene. Statutory rules regarding crime scene management are as under:
- Police Rule 25.10 requires police to preserve crime scene and secure presence of witnesses;
- Police Rule 25.13 requires police to prepare plan of scene
iii. Police Rule 25.14 enables police to seek technical assistance from experts
- Police Rule 25.17 empowers supervisory officers to supervise and inspect crime scenes
- Police Rule 25.26 deals with use of footprints and track evidence
- Police Rule 25.33 provides actions required from an investigation officer at the scene of occurrence in cases of death
vii. Police Rule 25.54 holds it mandatory for an investigation officer to send record of case-diaries from scene of occurrence (crime scene) to police station
viii. Police Rule 21.35(2) codifies the instructions that an investigation officer has to follow in cases of crimes against property on the examination of crime scene.
- Use of information technology
Use of all pervasive information technology must now be counted in the principles of investigation. From crime scene to furthering investigation to trial, information technology remains central. In form of centralized data of identity like National Database and Registration Authority (NADRA), information technology-based identity system serves as basic tool for identifying the complainant, victim, unknown accused, witnesses and experts. Likewise, the data of convicted and challaned criminals is also frequently used as a basic tool to further the investigation. IT-based communication systems in the form of telecommunication companies and service- providers help in verifying and corroborating varying stances in investigations. Information technology serves in two ways: one, it helps in maximizing the information base for furtherance of investigation; two, it may be used to collect, collate, preserve and process evidence in efficient manner.
With no definition of a defective investigation and owing to the fact that every case has its unique circumstances, the debate on what constitutes a defective investigation remains subjective. The only requirement under the law to charge an accused is ‘sufficiency’ of evidence; the ‘sufficiency’ has not been made quantifiable or no qualitative standards have been developed to objectively gauge performance of an investigator. There is need to introduce professional standards, certifications and accreditations for investigators. The accountability is mostly done through courts during the trials and by the supervisory officers who initiate departmental actions against delinquent investigation officers. In addition, the Police Order, 2002, in its Article 156 criminalized illegal search and vexatious arrest. Likewise, Section 27.2 of the Anti-Terrorism Act, 1997, specifically declares defective investigation as an offence.
- Administration of investigation
From administrative viewpoint, many issues relate to criminal investigations. The chief amongst those are:
- Cost of investigation
After introduction of Article 8 of the Police Order, 2002, the cost of investigation got statutory basis and, therefore, budget was allocated for this head. The quantum of money allocated for different heads of crimes needs periodical review in order to keep pace with inflationary pressures. In addition, the disbursement of cost of investigation needs a lot of effort and may be specialized and simple audit rules are required to be issued to make claims of the cost of investigation efficient as well as widespread within police.
- Transfer of investigation
Under the Police Act, 1861, criminal investigations were perpetual in the sense that criminal cases could be opened anytime by using unbridled discretion. This problem was addressed by Police Order, 2002, which provided that there could not be more than three investigations in a criminal case and each transfer was to take place through collective decision-making of a board comprising senior police officers. Whereas the mechanism introduced by Police Order, 2002, remedied the mischief of malicious prosecution, in practice, it was interpreted in a sense that second and third investigations were either changed, horizontally or vertically, with every change taking the investigation away from the crime scene. The reform brought stability to criminal investigation processes and needs to be further refined to keep the second and third investigations proximate to the crime scene.
- Inter-provincial investigation
The inter-provincial investigation needs lot of coordination between the Home Departments of the provinces. This aspect has not been fully researched, and transfer of offenders and case property consumes a lot of time involving bureaucracy and judiciary.
- Case property
The case property of criminal cases has to be preserved for long time and is to be produced by police in the courts. The custody is partially with forensic agencies for sampling and examination, but the custody of the case property essentially remains with low-level police officers. The regime of case property management needs to be improved especially with regard to electronic logging of case property to ensure chain of custody.
- Production of witnesses
The production and protection of witnesses are responsibilities of police. There have been witness-protection laws, but without allocation of dedicated resources and clear lines of authority and responsibility, there is little likelihood of qualitative improvement with regards to witness protection and production.
The criminal investigations define police performance in Pakistan, besides reassuring trust in them by all and sundry. A good mix of preventive and detective policing strategies affects crime control and police image. Pakistan’s quest for the rule of law very much depends on its commitment to introduce reforms relating to police and policing.
The author is an independent researcher and has done his BCL from the University of Oxford. Email: firstname.lastname@example.org