Zia Ur Rahman Tajik
The complainant is the person who provides first-hand information to the officer in charge of the police station regarding the commission of the cognizable offence and the officer in charge of the police station converts the information furnished into the First Information Report commonly known as FIR under section 154 of the Criminal Procedure Code 1898 and such information is signed and thumb impressed by the complainant.
After registration of the FIR, the FIR is sent to the investigation officer of the police station who investigates the case under the supervision of the investigation head of the police station as per the mandate of section 26(3) of the Khyber Pakhtunkhwa police Act 2017.
Investigation as per section 4(1) of criminal procedure code 1898 is the collection of evidence by the police officer. Investigation officers dig out the truth and present it before the court through SHO under section 173 of Criminal Procedure code 1898 in the shape of a police report commonly known as a complete challan.
Investigation plays an important role in the dispensation of justice and the eradication of crimes from society. For impartial and fair investigation, a separate investigation wing has been established under section 26 of Khyber Pakhtunkhwa police Act 2017 at the provincial, District and police station levels and the function of the investigation wing is also separated from other functions of the police.
In police order 2002 investigation and operation were also separately established. The foremost duty in the dispensation of Justice is to apply the correct law and to act in accordance with the law being a constitutional command provided by Article 4 of the Constitution of the Islamic Republic of Pakistan 1973.
Entrustment of a criminal case for investigation to the investigating officer who is also the complainant of the said FIR then the conducting of an investigation by the same police officer (complainant) would be illegal and unconstitutional for the following reasons.
1- The said complainant being an Investigating officer will collect and consider only the evidence which is in favors of the prosecution and would strengthen the prosecution case such investigation would affect the accused and it would be difficult for the accused to prove his innocence during the investigation and even before the trial court.
2- There would be a lack of fairness, transparency and impartiality and the investigation officer would try to establish the prosecution version mentioned in the FIR.
3- In a criminal case complaint and the accused are two different contesting parties and the complaint try its best to establish the guilt of the accused and the accused tries his level best to prove his innocence, malafide and false implication by the complainant and investigation of the case by the same police officer as investigation officer would increase remorse of the accused.
4- Rule 25.2(3) of police rules 1934 provides that investigating officers must be a third (3rd) neutral person for honest, fair and impartial investigation for digging out the truth. The said third neutral person would consider as per article 2(c) and 164 of Qanoon e shahadat oral and documentary evidence and also that evidence which is available before him because of modern devices and techniques along with direct, circumstantial, last seen and medical evidence.
5- Conducting an investigation by the same complainant would also be against the Doctrine, of Natural Justice and Article 10 A of the Constitution of the Islamic Republic of Pakistan 1973.
Article 10-A is the fundamental Right of a fair trial available to everyone whether he is a citizen of Pakistan or not.
Natural Justice is justice by itself, indeed and in truth. One of the principles of Natural justice is (Nemo judex in cause sua) which means that no man should be a judge in his cause. And the principle of no man should be a judge in his cause would be applied to a criminal case in which an investigation is carried out by the complainant of the said case as an investigating officer.
6- The principles of social justice provided by Article 2A of the Constitution of the Islamic Republic of Pakistan also emphasize the fair and proper administration of justice.
7- Doctrine of Administration of Justice also emphasizes that justice should not only be done by the courts but should also be done by the public functionaries and public office holders who in their capacity also decide matters pending before them.
Hence Khyber Pakhtunkhwa police Act 2017 should be properly amended and the complainant of a criminal case should be prohibited from investigating the same case as an Investigation officer in the best interest of justice and of the accused because the accused is the favourite child of the law.
The author is LLM (Constitutional Law)