Investigation and dictates of justice

Renowned lawyer and Senator Azam Tarar’s speech at the floor of the Senate, expressing his anguish on the dispensation of justice in the criminal administration of justice, was mind-blowing and requires serious consideration. Senator Tarar narrated the ordeal of one of his acquaintances who was charged in a murder case at his village. Despite providing CCTV footage and an affidavit proving the accused’s innocence, the police arrested him and failed to present the crucial evidence. Consequently, the court did not consider his plea of an alibi at the bail stage and the innocent remained behind the bars for three years. This is not an isolated case. In fact, there are thousands of such cases in which innocent people are charged despite having alibis.

The Senator vehemently called for amendments to the Code of Criminal Procedure (CrPC). The fundamental question that arises here is: is there any flaw in the CrPC, Police Order, or Police Act and Police Rules framed thereunder? Nay! The fault is not in the stars but us because we are underlings.

During British rule and after the dawn of independence, the same Criminal Administration Justice System operated quite well. Why did the police exercise authority and declare people innocent during the investigation back then? Why were the trials held on a day-to-day basis, promptly resulting either in conviction or acquittal? Why is it not the same anymore?

Investigation officers have lost sight of the fact that justice begins from the police station and must be accorded priority with a thorough investigation. In this context, investigation under the code is a collection of evidence. This has been further elaborated in the police rules in the chapter on investigation, the objective is to find out the truth — sifting the chaff from the grain.

In this connection, the view held by all the superior courts is that the first information report (FIR) is not always the gospel truth. Therefore, the objective of the investigation is to procure evidence, which can help the investigating officer form an opinion for the final report. However, the registration of the FIR and the investigation of a case do not mean that the accused must be arrested.

The investigating officer has been vested with vast powers in matters of investigation to find the truth based on cogent evidence. The law permits him to defer an arrest if material evidence is not forthcoming. He even has the authority to discharge a suspect if he finds him innocent at the investigation stage. In this regard section 169 of CrPC has clarified that if the officer in charge of the police station who is investigating the case finds that there is insufficient evidence or reasonable grounds or suspicion to justify the forwarding of the accused to a magistrate, the officer can release the person in custody on bail. However, this is usually avoided.

A police officer is under an obligation to investigate the matter honestly, fairly, and justly, by bringing the truth to the surface. Such investigation shall not be one-sided or tainted with malice. The investigation does not and cannot mean that only material against the accused must be gathered by any means. At the same time, it also means that when there are suspicions concerning the guilt of the accused, the investigating agency must probe all avenues to reach the truth. The investigating officer should be independent, impartial, and above board and shall acquire the confidence of both parties.

The aforementioned discussion establishes that the objective of the investigation is not just prosecution but also to do justice. The aim is not to persecute but to prosecute with a just cause. But why do we face impediments in pursuit of a fair investigation?

The unfortunate fact is that we operate in a culture of blood feud enmities, immersed in conspiracies, traps and revenge. In this venom of revenge, truth is the biggest causality.

The attributes of an investigating officer include knowledge of legal authority, efficiency, honesty, fairness and justness, independence, impartiality and broadness. When these are lacking, the desired justice is hard to achieve. Fear of complaint, pressures, corruption and lack of capacity further compound the problem. In particular, complaints put tremendous pressure on the investigating officer who finds it safe to leave matters to the court instead of doing justice at the initial stage. More often, in high profile cases, even the senior-most officers are fully cognizant of the truth and are hesitant to bring it on record to justify the innocence of a suspect. This omission to exercise the legal authority prolongs the agony of the innocent person and can be termed maladministration, which causes a miscarriage of justice.

The solution lies not with amendments but is achieved by inculcating traits in the investigation officer considered necessary for the independent investigation. This can only be done in an environment where the police are independent and do not act in the clientele status of the influential.