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ٰ ‫ﺼﻠﱢﯽ َﻋ‬
َ ُ‫ﻧَۡﺤَﻤُﺪٗه َو ﻧ‬

Law of
Investigation
By
[Justice ® Dr. Munir Ahmad Mughal]

Introduction

According to Charles Wagg-


Prosser “Freedom without law
degenerates into anarchy and
law without freedom is
tyranny”.1 The Criminal Justice
system in all civilized countries
of the world aims at to maintain
1
The Police and the Law, Charles Wegg-Prosser, Oyez Publishing Company, London, 1973, p. vii.

Electronic copy available at: http://ssrn.com/abstract=1962373


freedom of their citizens. Law
comes by making, abused and
misused by breaking, for repair
and redress there are the roles
of the Police, the Courts and the
Implementing actors in the
society. Police is “Muhafiz” in
Pakistan and to play this role is
expected to act under the law
and in accordance with law and
in a manner whereby the dignity
of mankind is maintained and all
feel safe and secure and it is
shown that rule of law prevails
throughout the society fairly.
State can do within its
resources. People at large have
also to cooperate and coordinate
at all occasions according to

Electronic copy available at: http://ssrn.com/abstract=1962373


their capacity to bring in the
desired results.
In Pakistan the general
substantive penal law is
contained in the Pakistan Penal
Code, 1860 and the general
criminal procedural law is
contained in the Code of
Criminal Procedure, 1898. There
are special and local laws and
there are special jurisdictions of
power and special forms of
procedure which are not
affected by the Code of Criminal
Procedure, 1898. The Code has
no application in such a situation
and the provisions of the special
or local law govern the
procedure in the said situation.

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The moment an FIR is lodged
the duty and function of the
Police to investigate fairly
begins.

WHAT IS INVESTIGATION?

Investigation according to the


Code of Criminal Procedure,
1898 includes all proceedings
under it for the collection of
evidence conducted by a police
officer or by any person (other
than a Magistrate) who is
authorised by a Magistrate in
this behalf. [s.4 (1)].

From the above definition it


transpires that an investigation

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has the following essential
ingredients,-
 It is a proceeding.
 It is a proceeding by a police
officer or a person authorized
by a Magistrate to
investigate.
 It is for the collection of
evidence.
 It is for ascertaining as to
whether an offence has been
committed.
 If the investigation reveals
that no offence has been
committed, the case may be
filed and no action is taken.

WHAT STEPS ARE TO BE


TAKEN BY THE
INVESTIGATING OFFICER?

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The following steps are taken by
the Investigating officer?
1. Proceeding to the spot.
2. Ascertainment of the facts
and circumstances of the
case.
3. Discovery and arrest of the
suspected offender.
4. Collection of evidence
relating to the commission of
the offence which may consist
of?
(i) the examination of
various persons including
the accused and the
reduction of their
statements in to writing,
if the officer thinks fit,

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(ii) the search of places or
seizure of things
considered necessary for
the investigation and to
be produced at the trial.
5. Formulation of opinion as
to whether on the material
collected there is a case to
place the accused before a
Magistrate for trial and if so
taking the necessary steps for
the same by the filing of a
charge-sheet under section
173.

WHAT IS THE DIFFERENCE


BETWEEN INVESTIGATION
AND INQUIRY?

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Following is the difference
between an investigation and
an inquiry:
 An investigation is made by a
police officer or by some
person authorised by a
Magistrate or a Court.
 The object of an investigation
is to collect evidence for the
prosecution of the case.
 Investigation is a scrutiny
instituted generally by the
police to ascertain if an
offence has been committed
at all, if so by whom and
what is the evidence which
can be adduced in offence
committed, they send the
accused to the Magistrate
with report which contains

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the result of the investigation
and a list of witnesses who
should be summoned to
prove the charge.
 Investigation is the first stage
of the case and normally
precedes the Inquiry.
 Investigation is not a judicial
proceeding. The term judicial
proceeding includes any
proceeding in the course of
which evidence is or may be
legally taken on oath. 2
 An investigation is never
made by a Magistrate or a
Court.
 Investigation regarding the
commission of offences is
both the duty as well as the
2
Section 4 (m) of the Code of Criminal Procedure, 1898.

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prerogative of the police and
is a matter which is not within
the domain of the Courts.3
 Inquiry includes every inquiry
other than a trial conducted
under the Code of Criminal
Procedure, 1898 by a
magistrate or Court, it relates
to proceedings of Magistrate
prior to trial.4
 An Inquiry is a judicial
proceeding made by a
Magistrate.
 The object of an inquiry is to
determine the truth or falsity
of certain facts with a view to
taking further action thereon.

3
2001 P.Cr.L. Journal 1054.
4
Section 4(k) of the Code of Criminal Procedure, 1898 .

10
 An inquiry does not
necessarily mean an inquiry
in to an offence for it may as
well relate to matters which
are not offences e.g. \inquiry
made in disputes as to
immovable property with
regard to possession. Public
nuisances, or for the
maintenance of wives and
children.
 The term inquiry is not
confined to proceedings in
which an accused is actually
placed before a magistrate on
a charge for an offence. It is
meant to include everything
done in a case by a
Magistrate whether the case
has been challaned or not.

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Thus it will include an inquiry
under section 159 of the Code
of Criminal Procedure, 1898.
 Section 159 the Code of
Criminal Procedure, 1898
empowers a Magistrate on
receipt of a police report
under section 157 of the said
Code to hold a preliminary
inquiry in order to ascertain
whether an offence has been
committed and if so whether
any person should be upon
their trial.
 An inquiry in respect of an
offence never ends in
conviction or acquittal, at the
most it may result in
discharge or commitment of
the case to sessions.

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 An inquiry extends to:
(i) a proceeding under section
133;5
(ii) a proceeding under section
144;6
(iii) a proceeding under section
145 ;7
(iv) the recording of statement
under section 164.8
(v) a proceeding under section
176 into the cause of
death.9
(vi) Inquiry under section 202
into the truth or falsity of
complainant before issuing

5
1972 Criminal Law Journal 1236.
6
AIR 1958 Patna 92.
7
AIR 1953 Madh B 1 (Pr.5).
8
1897 Pun Re 3.
9
1928 Bombay 390.

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process against the
accused.10

A trial is a judicial
proceeding.
 A trial must invariably end in
acquittal or conviction of the
accused
 The Code of Criminal
Procedure, 1898 provides two
types of trials. One is called
summary and the other is
called ordinary or regular. A
regular trial and summary
trial both are conducted
according to the procedure
laid down for them. For
ordinary trial the procedure is

10
1991 Pakistan Criminal Law Journal 806; 1992 P.Cr. L.
J. 1870

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given in chapter 19 of the
Code of Criminal Procedure,
1898. For summary trial the
procedure is laid down in
Chapter 20 (ss.260-265) of
the Code of Criminal
Procedure, 1898. It is a trial
where procedure is the same
as prescribed for summons or
warrant cases but formal and
elaborate or detailed taking
down of the evidence and
writing down a full length
judgment are not required. In
a summary trial if the offence
is summons case, evidence is
not recorded. If the offence is
a warrant case, the
Magistrate makes
memorandum of the

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substance of evidence of each
witness. At conclusion of trial
the magistrate enters the
accused’s plea and the finding
in a form prescribed by the
Government. Normally in
cases which are hotly
contested, involve intricate
questions of title and
possession, necessitate
taking of lengthy evidence or
requiring a local inquiry to be
made are not tried
summarily.
Much law has developed in
the light of the judicial
precedents such as:
 In the famous case Imtiaz
Ahmad v. State [1994 SCMR
2142], the honourable

16
Supreme Court of Pakistan
examined the whole
development from 1945 till
1994 on the question of
nature of investigation and
observed: The jurisdiction
which the High Courts
exercise under clause (a)(ii)
of clause (1) of the Article
199 of the Constitution is the
jurisdiction to declare that
any act done or proceedings
taken within the territorial
jurisdiction of the Court by a
person performing functions
in connection with the affairs
of the Federation, a province
or a local authority has been
done or taken without lawful

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authority and is of no legal
effect.
 Just as it is essential that
every one accused of a crime
should have free access to a
Court of Justice so that he
may be duly acquitted if
found not guilty of the
offence with which he is
charged, so it is of the utmost
importance that the judiciary
should not interfere with the
police in matters which are
within their province and into
which the law imposes upon
them the duty of enquiry.
There is a statutory right on
the part of the Police to
investigate the circumstances
of an alleged cognizable

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crime without acquiring any
authority from the judicial
authorities and it would be an
unfortunate result if it should
be held possible it interfere
with those statutory rights by
an exercise of the inherent
jurisdiction of the court. 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,
always of course, subject to
the right of the Court to
intervene in an appropriate
case:

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 Control over the
investigation exercised by the
Court is prejudicial to the
accused and detrimental to
the fairness of the procedure
apart from being without
jurisdiction;
 High Court cannot assume
the role of investigator. This
could obviously not to be
done, for the authority to
register and investigate a
criminal case in law vests in
Police and not in Court.11

 In PLD 1960 Lahore 97 it was


made clear that an entry in
11
In this case were referred to Jmala Shah’s case PLD1966 SC1; PLD 1966 Supreme Court 50; Imperial
Tobacco Ltd. V. Attorney General (1981) AC 718; Malik Shaukat Ali Dogar etc. v. Ghulam Qasim Khan
etc. PLD 1994 Supreme Court 281 and Khawaja Nazir Ahmad’s case AIR 1945 Privy Council 18. [1994
SCMR 2142-Imtiaz Ahmad v. State].

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the roznamcha of Police
station cannot be deemed to
be an FIR of a cognizable
offence.

 In case PLD 1997 Supreme


Court 408 the apex court held
that there was no legal
prohibition for a Police Officer
to be a complainant if he is a
witness to the commission of
an offence and also to be an
Investigating Officer so long
as it does not, in any case,
prejudice the accused person.

 In the case reported in PLD


2005 Karachi 375 it was
observed that Police officer

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has jurisdiction to investigate
a case in which FIR has been
registered under section 154
of the Cr. P. C. in respective
book of police station. Such
power of police officer
continues even after
submission of challan in
court.

 In the case cited as 2005


P.Cr.L.J 1219 Lahore, a single
bench of High Court had
refused quashing of the FIR
registered against the
accused, by means of the
impugned order. Word
proceedings mentioned in
proviso (1) of section 3 of law
Reforms Ordinance, 1972

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including the FIR whether the
Single Bench of High Court
had allowed registration of a
case or refused the same was
not relevant. Relevant point
was that the controversy
related to FIR and in such
circumstances the Intra Court
Appeal was not maintainable.
Intra Court Appeal was
dismissed accordingly.

 In the judicial precedent 2007


P.Cr.L. J. 124 Lahore it was
observed that the object of
S.22A Cr. P. C. was only that
if a grievance was voiced with
regard to non-registration of
FIR in a cognizable offence,
Justice of Peace in terms of

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said section could only
direct/suggest as to whether
in term of section 154 Cr. P.
C. SHO had acted legally or
illegally, and in case SHO had
refused to act, whether his
inaction was justified. Justice
of Peace under no provision
of law could direct or even
observe with regard to the
nature of offence, commission
of the offence or addition or
deletion of relevant section,
as the same exclusively fell
within the jurisdiction of
either the Investigating
Officer or the trial court at
the time of framing charge.
.

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 In the case reported as 2007
P.Cr.L.J. 145 Lahore where
the medico legal report has
shown that the petitioner
received a firearm injury in
his leg which went through
and through and that the
petitioner was promptly
examined medically, grant of
relief by way of order of
registration of case would be
nothing but putting legal
machinery into motion. If
there was information
relating to the commission of
cognizable offence, it would
fall under section 154 Cr. P.
C. and a police officer was
under statutory obligation to
enter it in prescribed register.

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Condition precedent was
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. Police
officer was bound to receive a
complaint when it was
preferred to him; or where
commission of offence was
reported to him orally he was
bound to take down the
complaint. Complaint if not
incorporated in the register it
would mean that the official
concerned had failed to
perform a statutory duty as a
public servant and would
render himself to be dealt

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with by his superior officers
for neglect of duty and it was
not dependent upon the
sweet will of the police Officer
to record or not to record the
same. Regarding availability
of remedy of private
complaint, suffice it to say
that allegation levelled by the
petitioner would be requiring
thorough investigation and
question of recovery of fire-
arm weapon, allegedly used
in the occurrence, would also
be probed into and for that
reason it would be more
appropriate to register the
case. Impugned order was
set aside directing police to
entertain application of

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petitioner for registration of
case and do the needful in
accordance with law.
 In a recently reported case
cited as 2011 SCMR 45 the
apex court observed: If there
is any discrepancy,
irregularity or illegality in
investigation, it can be cured
after taking cognizance by
Magistrate or Court as the
case may be.

 In PLD 2007 Lahore 181


where direction was given by
an ex-officio Justice of Peace
to initiate proceedings against
petitioner under section 182
PPC it was held by the High
Court that it was beyond the

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purview of section 22 A of the
Code of Criminal Procedure,
1898 and was in excess of
the jurisdiction conferred
upon him under the law.

CONCLUSION

Part V of the Code of Criminal


Procedure, 1898 is on the
subject of Information to the
Police and their powers to
investigate.
It comprises sections 154 to
176.
The Police Order, 2000, the
Police Rules, the High Court
Rules and Orders volume III and
the judicial precedents available

29
in the law reports and legal
digests published monthly,
much data is available for
further research. The
investigation is to be conducted
under the law, in accordance
with law and lawfully.
Prerogative does not mean
whimsical exercise of any power
available. All are subject to
Constitution and the law and
expected to play their role fairly.
For Police, for prosecution, for
courts the responsibility is to
exercise their respective powers
within the four walls of the
Constitution and the law. The
object of appeal, review,
revision and even any other
jurisdiction is to observe the rule

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of law fairly, transparently and
with integrity.
The Object and purpose of
investigation is to find out truth
and to present it before the
court by way of admissible and
acceptable evidence (See 1999
P.Cr. L. J. 1831).
Police training institutes can
play a very important role in
imparting the latest education to
the Police as the Judicial
academies are doing in respect
of the judges, and even
advocates. Our law schools,
colleges, universities both in
public and private sectors have
also a role to enlighten the
young generation educated

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there. It is the awareness that
sets the conduct right.

BIBLIOGRAPHY
1. The Code of Criminal
Procedure, 1898.
2. The Pakistan Penal Code,
1860.
3. Criminology, Justice ® Dr.
Munir Ahmad Mughal,
Muneeb Book House, Lahore,
Pakistan, 2009.
4. Law of Bail Applied in
Pakistan, Justice ® Dr. Munir
Ahmad Mughal, Muneeb Book
House, Lahore, Pakistan,
2009.
5. The Police Order, 2002,
Justice ® Dr. Munir Ahmad

32
Mughal, Muneeb Book House,
Lahore, Pakistan, 2002.
6. Juvenile Justice System
Order, 2000, Justice ® Dr.
Munir Ahmad Mughal,
Muneeb Book House, Lahore,
Pakistan, 2009
7. Criminal Trial, Justice ®
Dr. Munir Ahmad Mughal,
Muneeb Book House, Lahore,
Pakistan, 2008
8. Justice of Peace, Justice ®
Dr. Munir Ahmad Mughal,
Muneeb Book House, Lahore,
Pakistan, 2009.
9. Remand by the Criminal
Courts, Justice ® Dr. Munir
Ahmad Mughal, Muneeb Book
House, Lahore, Pakistan,
2011.

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