The lowest conviction rate in criminal trial is mainly on defective
investigation and poor prosecution of the cases. The police officials
have lack of knowledge and no proper training so also lack of modern
equipments to investigate the offences and cases. The scientific
laboratories are also not adequately adapted with modern devices and
mostly out of the reach of investigation officer. A few labs are there but
the same charge huge fees. The dispatch of samples to laboratories
and improper handling of the case property and samples collected at
the crime scene in another factor of failure of the case. Poor check and
balance of investigation officer at gross root level is also one of the
most important factor in poor investigation and prosecution on one
hand and on the other hand deeming fit appreciation to the competent
investigation officers and technical staff is the way to do the formal
work to fulfill the proforma duty.
This research is aimed to indicate in clear words the defects of
investigation in criminal cases in Pakistan. The method of research is
qualitative based on case laws. The object of this research is to reach
the main points in investigation for improvement of the criminal trial.
Key words: investigation, defects, forensic lab, trainings, criminal
Justice System, police rules
Introduction
The system of legal framework in Pakistan is based on adversarial
system. Islamic Republic of Pakistan is one of the top ranking states
where lowest conviction rate is marked due to defective and
incompetent investigation and prosecution. The investigation in
Pakistan is generally conducted through local police and other
agencies on particular cases i.e. Federal Investigation Agency, Anti
Narcotics Force, Anti Corruption Establishment etc. however, the
general law of procedure is the Code of Criminal Procedure, 1898. As
the investigation process in the country is conducted under the
Criminal Procedure Code, 1989 i and relevant police rules, 1934
particularly Chapter 25. ii It includes pre-investigation stage of
registration of Criminal case i.e. FIR, complaint or case through
directions of the Justice of peace under section 22-A and 22-B Code of
Criminal Procedure, 1898 or Judicial Magistrates under section 156 (C)
of the same code, where police flouts the mandatory provision of
section 154iii Cr.P.C. The Investigation Officers are grossly violating the
crime scene preservation protocols particularly forensic evidence
protocols. Such failure of police causes undue and extra burden upon
the courts in shape of miscellaneous applications and multiplication of
litigation. Court orders, regarding failure of discharge of duties of
Police Officers, are not implemented by the superior police officers in
true letter and spirit. Another important factor, of low conviction and
failure to administer criminal justice in Pakistan, is incompetency, lack
of training of police officers, particularly investigation officers and
prosecutors, lack of interest of the investigation agencies, misuse of
discretion of police officers in conduct of investigation and arrest of
accused, sense of responsibility of prosecutors to secure justice,
thereby maintain peace and tranquility in the society. It is also
observed that there is lack of cooperation between investigation
agency and the prosecution agency in Pakistan. iv The police and
prosecution agency are lacking accountability, lack of adequate funds,
lack of transparency. In recent electronics, computerized and soft-age
technology era, the police investigators and prosecutors are equally
unequipped with the modern training and equipment; which require
special attention by the respective governments to take initiatives for
training, model academies and foreign training courses of the officials
and officers of police and prosecution. On one hand there is lack of
encouraging incentives for good investigators and prosecutors and on
the other hand there is lack of check and balance against delinquent
ones. Another main factor of failure administration of criminal justice
system is highlighted as political influence upon police and prosecution.
Serious and strong action are required to be taken by the authorities
concerned to ensure safe administration of criminal justice to the
common street person by safeguarding his interests, rights and ensure
punishment to the delinquent officers and real offenders to achieve the
main purpose of public peace and tranquility. Guideline and Standard
Operating Procedure (SOPs) are to be devised for close coordination
between investigation and prosecution departments for timely removal
of defects and guiding investigation officer in right legal direction for
securing justice.
INVESTIGATION THROUGH POLICE
As discussed above that the investigation is commonly conducted
through local police. The police in Pakistan have many other jobs to be
done in addition to the investigation of criminal cases. The police is
also burdened with protocols, security duty on different occasions,
security of VVIPs. The main requirement of securing a conviction in
criminal trial, is to prove the charge against accused. The link in
investigation chain generally is broken at several places during
investigation. The extra burden to a police officer in addition to
investigation decreases his focus and expertise so also interest to
conduct best of the best investigation.
DEFECTS AND LACUNA IN CONDUCTING INVESTIGATION
Here it is to highlight the defects and lacuna in criminal investigation
and prosecution which adversely affect the criminal administration of
justice and trial of cases. Due to faulty investigation, be it for
intentional or unintentional, the ultimate aggrieved person is victim
and the society. In many a cases it is felt that the investigation officer
has no legal knowledge for collection of admissible evidence and
avoiding inadmissible evidence as per requirement of law of evidence
and procedural laws. Some other times it is felt that public avoids to
furnish assistance to the investigation and prosecution to secure
ultimate conviction to the accused at such juncture, the police and
prosecutors are handicapped. The investigation officers of police team
are also preoccupied in several other duties in routine and in some
special circumstances, thus fail to give full and due attention to the
investigation of cases. It is highlighted here that the modern world has
reformed most of their criminal justice system and thus securing
maximum conviction rate which ultimately resulted in public peace and
tranquility in the society. Japan has more than 98% of conviction and
United States of America has more than 84% of conviction whereas
Pakistan has hardly upto 10% of conviction ratio. v Except in few
agencies where focus is given on training of prosecutors and
investigator so also there is close check and coordination between
prosecution and investigation, thus there conviction ration is more than
90%.vi Pakistani laws are tailored and readymade laws inherited from
British Rulers which are almost 100 to 150 years old. In a few
independent Law Enforcement Agencies, like Anti Narcotics Force
(ANF), Pakistan Customs, Federal Investigation Agency (FIA) and
National Accountability Bureau (NAB) has a raised conviction rate,
which is because of close coordination, check and balance of
Investigation and prosecution wings of the agencies. The experience of
ANF, Pakistan Customs, FIA and NAB may be helpful for the
investigation and prosecution of Police department to be more
effective and improved.
The respective Governments may devise policy and frame rules and
SOPs for effective and stable investigation and prosecution to secure
ultimate justice thereby assist the trial courts to announce a sound
judgment and orders which may last and sustain in the appellate
forum.
The main reasons for defective investigation is social, economical and
political influence upon investigating officer. Socially the investigation
officer is influenced by the caste fellows to favor the accused as much
as possible during investigation. Sometimes, the accused becomes
victim of social pressure in a false case. Economically police officials
used to incur huge expenditures during investigation. To meet such
expenditure, it leads to corruption to reach out the expenditures.
Though the government pays a meager amount to the IO for
conduction of investigation but the same amount is insufficient
comparatively. vii The investigation Officers (IOs) have to visit
laboratories, government officers, semi government offices and private
sector entities to seek evidence regarding
REVAMPING OF INVESTIGATION SYSTEM
The investigation system is conventionally old and based on the Code
of Criminal Procedure, 1898 and Police Rules, 1934. Both statutes are
almost out dated and may not be able to help out investigation officer
in most of the cases who requires modern, sophisticated, technical and
state of art work. Though there are certain amendments introduced
time and again. The amendments are not sufficiently able to fulfill the
required target. The attempt of separation of investigation wing in
police station was a positive move in this regard. Mere separation of a
wing in the police station and deployment of same police officers in
the investigation branch may be insufficient to get the required up to
the mark results. The investigation officers are in dire need of targeted
training on the modern steps. It is observed that international training
or international training coordination are result oriented.
Guidelines by the apex Court
The Honourable Supreme court has been pleased to provide
guidelines in this connection in many of its judgments when observe
the weakness in the investigation and prosecution of the cases. Out of
such case laws some detailed guidelines are provided in reported case
laws of Haider Ali v. DPO Chakwal 2015 SCMR 1724, Muhammad Bashir
v. Station House Officer Okara Cantt and others PLD 2007 SC 539 and
took serious view regarding defective investigation and prosecution
thereby directed the concerned authorities to formulate policy,
guidelines for effective investigation, prosecution to secure proper
justice in the trial courts to curb menace of false, fabricated litigation. It
is however, view of the superior courts that mere defects in
investigation may not come in the way of dispensation of criminal
justice before the court of law. Dr Raana Khan in the book “Guidelines
for forensic investigation in trial of murder cases caused by firearms
injuries” has dedicated separate chapters for guiding the investigators
and prosecutors. She emphasized on the role and responsibilities of
investigator and prosecutors and also referred specific provisions of the
Police Rules, 1934 and corresponding provisions of Criminal Procedure
code, 1898. The guidelines devised by the honourable Supreme Court
and other researchers are not implemented in true letter and spirit,
thereby causing low rate of conviction in criminal cases, which impacts
the failure of criminal justice system as compared with other countries.
It is primary duty of the prosecutor to minutely scrutinize the Report
under section 173 Cr.P.C and see if the accused is charged under
proper sections of the substantive law. The Public Prosecutor is an
expert and his opinion with regard to scrutiny of challan and adding or
deletion of a particular section is of much worth as held in case law of
Abdul Hafeez Junejo v/s The State.viii Even the prosecutor may disagree
with the recommendation of Investigation Officer regarding
cancellation or discharge of accused. The prosecutor is duty bound to
pin point the defects in investigation and make his recommendation to
correct the same in due course of time. The recent legislation regarding
criminal prosecution has given vast powers to the prosecutors
particularly scrutiny of challans and advising the investigation officers.
Even in KPK, the Criminal Prosecution Act, 2005 provides the
prosecutor Suo Motu powers to give advice to the investigation officer
on scrutiny of FIR, as it is mandatory upon SHO of PS to sent the copy
of FIR to the District Public Prosecutor. Recently, the Honourable
Supreme Court has given directions in case of Zahid Sarfaraz Gillix, it
was held that the photographs and videos may be taken at the time of
arrest of accused and recovery of drugs.
EFFORTS FOR IMPROVEMENT OF INVESTIGATION
Many efforts had been taken by the authorities to improve the
investigation and prosecution agencies to make sure the upholding of
criminal justice system. The provincial governments have take serious
steps by creating distinct criminal prosecution department and devised
the laws for the said purpose but yet there is need to enhance the
same steps to make a it visible in the justice system that there is strong
bonding and cooperation between the investigation and prosecution
departments to get ultimate results of the endeavors made by both of
them. This paper is also aimed to provide guidelines and recommend
for improving the proper investigation and effective prosecution to get
positive results of all efforts made by the agencies.
LIMITATIONS OF THE COURTS
The courts have to impart justice without fear and favor as per available
record collected by investigation agency and put before the court by or
through prosecutor in shape of documentary, oral, and other sources
of evidence. The technical evidence in shape of forensic reports,
chemical reports, DNA results and expert opinions are also considered
by the court if the same are produced in accordance with the relevant
rules and laws. The While acquitting an accused, who apparently has
been involved in the commission of crime but due to glaring flaws in
investigation and weak prosecution, the courts are giving benefit of
doubt to an accused (a real culprit) or who managed to proved himself
innocent. At such juncture, the victim and his/her family has no option
but to keep mum or at least appeal. It is fairly seen that the appellate
court has also been keeping consideration in the circumstances
whichever are in the file/record but nothing more, as the law does not
permit the appellate court to go beyond the record. In few and rare
cases, the appellate courts remand the case for further inquiry but that
is not seemed to be more beneficial for the victim per se’. Here we
should also realize that in case an innocent person is convicted due to
messing up of investigation and prosecution, his sufferings shall be
incomprehensible and unfathomable. The prosecution should
acknowledge that every acquittal is deemed to be failure of
administration of criminal justice. There are three main pillars in the
criminal Justice System of Pakistan, the Police, the Prosecution and the
Judiciary.x The crime scene investigation is the most important pillar of
the investigation of a criminal case in justice system in Pakistan and
India. The said system is mainly based on the procedural law of crime
viz. Criminal Procedure Code, 1898.
THEORY OF EXCHANGE, LOCARD’S PRINCIPLE
The Locard ruled that the principle of exchange is one of the most
important factor in collection of evidence. The theory of exchange is to
link people, places and things to a certain circumstance. It is one of the
most important linking factor amongst accused, victim and offence.
Preservation of crime scene plays an important role. For such step, the
investigation officer must have some expertise or training. It is seen
that trainings to some extent are being arranged in Police Training
Colleges for certain rank police officials but the same is not found
effective practically. The microscopy, chemical analysis, and for
evidence comparison purposes, data base technology. xi The trace
evidence is to be collected by IO at his first visit to place of incident.
Not only preservation of trace evidence is important but its safe
custody and safe transmission with certain protocols till testing the
samples from concerned laboratories and report.xii
FAULT OF INVESTIGATION OFFICER (I.Os)
One of the most important factors in failure of criminal cases, is
defective or non collection of material evidence from crime scene. The
over burdened police officers are not equipped with enough training,
sufficient time and adequate knowledge to conduct up to mark
investigation of a criminal case. The IOs are burdened with multiple
cases to investigate within a time of 14 to 17 days as required in the
law.
xiii It is observed that Station House Officer (SHO) of a police
station is the chief investigation officer as per police Rules. It is also
duty of the SHO to maintain the law and order situation in the society
within his jurisdiction. The investigation officers have to maintain daily
movements and developments in shape of diaries. The diaries are of
two types as per police rules. Inside diaries which are kept in a
particular Register No.II in compliance of section 172 Cr.P.C. whereas
the other is outside diaries, when IO is doing something out of the
police station eg. Arrest of accused, seizure of any property related to
the crime investigation, examination of witnesses under section 161
Cr.P.C and visit of IO to different offices seeking data etc.
xiv
COLLECTION OF MATERIAL EVIDENCE FROM SCENE OF INCIDENT
The investigation officer might have seen some physical things at the
scene of incident/crime scene. In case of sexual incidents, the blood
stains, semen stains, heir of accused and victim at the bedding/place of
incident, figure prints, edible bitten things like apple etc. all such
evidence are physical traces and are most important factors of criminal
investigation. The IO not only have to collect the distinct piece of
physical evidence but he has to be vigilant and careful for preservation
of the evidence so collected and to be kept in safe custody in Malkhana
of PS as required in Register No.19 of the Police station as per rules.
xv
As per Locard’s principle the trace evidence may be physical clothing,
glass pieces, paint etc and biological DNA, Finger prints, hair etc.
xvi
It is duty of the prosecution/investigation officer to collect and produce
admissible evidence before the court of law so that the same efforts be
taken a positive effect at the trial. The prosecution must be effective
and time sensitive. The prosecutors shall have to be ready for each and
every case and where there are private advocates for any complainant
party, the prosecutor shall be more cooperative and more proactive in
proceeding the trial of the criminal cases. Professional conduct of the
prosecutor is required to be free, fair and impartial so that ends of
justice be secured. The responsibility of a prosecutor becomes double
fold when he is going to record evidence of a forensic expert or any
other expert of a particular field.
Findings
The findings from above study are summarized as under:
I. There is inefficiency of investigation officers to conduct proper
investigation and failure to follow the protocols of saving crime
scene, preserving properly samples from crime scene and special
care in collecting forensic evidence
II. Failure of police to discharge duties strictly in accordance to law.
III. Lack of training to the police officials especially to those officials
who conduct investigation of an offence.
IV. Lack of training and adequate facilities to the prosecutors to hold
effective prosecution and scrutinize the police file minutely and
property in due time to cure the ailments in it.
V. Frequent transfer of police officer from one station to an other
without following the rules and policy, merely on political influence.
VI. Lack of coordination in between police officer and prosecutors to
overcome the lacuna and defects during investigation of a criminal
case which usually result in failure of the case.
VII. Lack of disciplinary actions against delinquent investigation officers
at the event of failure of the case on part of investigation officer.
VIII. Lack of interest of prosecutors in scrutinizing the challan before
submission in the concerned court of law.
IX. Non recommendation of disciplinary action by prosecutors against
the investigation officer at the time of scrutiny of a defective
investigation and challan.
X. Non compliance of the directions and guidelines of the superior
courts by police and prosecutors.
XI. At the event of registration of FIR police hurry to arrest the
nominated accused and then investigate, such act of police in many
cases cause undue harassment to the innocent and victimized
persons.
XII. Investigation officer fails to secure finger print impression at the
scene of incident.
XIII. Lack of incentives for result oriented prosecutors and police
officers which results into the disinterest in investigation competent
persons are not interested in criminal prosecution.
XIV. All acquittal cases should be studied by the prosecution
department and find out reasons of acquittal, thereby devise
procedure to uphold justice at any cost, to improve the prosecution
and investigation agencies in light of such study regularly.
XV.Every acquittal case, if caused due to failure of investigation or/and
prosecution, should entail some consequences in shape of
disciplinary action or an alter compensation to the innocent person
who suffered a lot during course of investigation, trial and appeal.
Conclusion and recommendations
From the above it is concluded that the defective investigation and
prosecution has a great impact upon the trial of the cases before the
court of law. The designed and negligent investigation and prosecution
must not be overlooked by the concerned departments. After study of
such defective and negligent investigation and prosecution punitive
action should be recommended for disciplinary action, result oriented
so that faith of common people would raise in the criminal justice
system of the state on one hand and on the other hand every acquittal
case shall be studied for guidance of investigation and prosecution to
improve for future. The delinquent investigation officers and
prosecutors should not be shown any leniency in discharge of their
duties. The Government may devise rules for compensation to the
innocent persons who are acquitted due to failure of investigation and
prosecution so that both the agencies discharge their duties more
vigilantly and actively. Training on modern standards may be arranged
specially with regard to electronic and cyber criminal trend in society.
Foreign training courses and local practical workshops may be
arranged with collaboration of sister agencies which have more
expertise in a particular field of criminal investigation and prosecution
to enhance capacity building in the officers of police investigation wing
and criminal prosecution agency.
****_____****
i Code of Criminal Procedure 1898 Chapter XIV sections 154 to 176
ii Police Rules, 1934 Chapter 25 rules 25-1 to 25-58
iii Registration of Criminal case in cognizable offence.
iv Guidelines for Forensic Investigation by Dr Raana Khan, Chapter VII and VIII,
Pakistan Law House-2013
v Guidelines for Forensic Investigation by Dr Raana Khan, Chapter VIII, P.362,
Pakistan Law House-2013
vi www.anf.gov.pk last retrieved on 29.01.2019
vii https://www.pakistantoday.com.pk/2021/07/25/defective-investigation/ (last
retrieved on 22.12.2023)
viii 2010 YLR 470 (Karachi)
ix Zahid Sarfaraz Gill vs The State Criminal Petition No.1192 of 2023 order dated
22.1.2023.
x https://doi.org/10.52131/clts.2022.0201.0010
xi https://www.forensicsciencesimplified.org/trace/principles.html
xii https://sciencestruck.com/locards-exchange-principle-in-forensic-science
xiii See Section 173 Code of Criminal Procedure, 1898
xiv https://journals.internationalrasd.org/index.php/ctls/article/view/1149/739
xv See chapter 22 Rule 70 of Police Rules, 1934
xvi https://sciencestruck.com/locards-exchange-principle-in-forensic-science