Investigation (Part 1)

Question: Some clients have asked for a lecture on the stages of investigation, from registration of a case onward. I told you that a case is registered under Section 154 for cognizable offences. Now what are cognizable offences, and what are non-cognizable offences?

Solution: From the word 'cognizable' itself, you should be able to tell — an offence classified in the Pakistan Penal Code such that, after its commission, the investigating officer or police officer has the authority to arrest an accused without a warrant of arrest obtained from the relevant magistrate — that is called a cognizable offence. Now, a report of a cognizable offence will be registered by the police under Section 154 of the CrPC. Now the question arises: cognizable is covered, but under which section and how will a report, a case, of a non-cognizable offence be registered? Now, for a non-cognizable offence, after Section 154 comes Section 155 — under Section 155 that case will also be registered, it too will be called an FIR, but it will be registered under 155, whereas cognizable offences will be registered, will be called, under 154 — also an FIR, but there is a difference in registration. Whenever a police officer receives information of the commission of an offence that is non-cognizable, he will write that report, that information, in a register specially made for this purpose — just as there is a register for 154, there is a similarly separate register — he will write all that information in it, and he will give notice of that information — of the non-cognizable offence — to the magistrate. Now, during investigation of this, he cannot arrest any accused — I'm talking about non-cognizable offences — until he obtains a written arrest warrant against that specific, named accused from the area magistrate, from the area judicial magistrate — he will not issue an arrest warrant, he cannot arrest him. Now you understand both these formations — that in cognizable offences it's under 154, and in non-cognizable offences these matters will be under 155.

Now comes the stage of investigation. For a cognizable case, a cognizable offence, its investigation will be under Section 156 — in this the police have full authority to arrest without any warrant, they will also take physical remand in this, they will conduct a complete investigation, and after conducting a complete investigation they will give their findings of guilt or innocence. Now the question arises: if the investigating officer, once investigation of a cognizable offence comes to him, if he believes, has doubts, that the offence as described did not actually occur, then Section 157 comes into play — he will immediately inform the magistrate that I am differing [in my findings] regarding investigation of this case because I have doubts about the commission of the cognizable offence — either this incident never happened, or it didn't happen the way it's being described, and particularly that those being accused did not do it — suspension is created, that this offence was not committed — that is the procedure where a cognizable offence is involved: immediate notice to the magistrate. Now there are some special offences regarding which, if a report is made and an FIR is registered, its investigation cannot proceed under 156. These offences include blasphemy offences. Blasphemy offences, particularly under 295-C PPC — in this a team will be formally constituted of investigating officers, and if no team is constituted, then a single officer will conduct its investigation, but his rank will not be lower than SP, Superintendent of Police. Whenever any blasphemy offence is reported, its investigation will not be conducted by anyone of a rank lower than SP — if it is, it will be unlawful. Then there's an offence — if a rape allegation is made against a woman, if a woman has confessed to zina under the Hudood Ordinance, even then no one below the rank of SP can investigate it — the Hudood Ordinance has, in any case, since been repealed. Now, after this, there's a common practice where these police officers, investigating officers, throw dust in complainants' eyes — the complainant goes to report the commission of a cognizable offence, saying, sir, this cognizable offence has been committed, and the policeman simply won't register the case; the poor fellow comes and knocks on the court's door, and when they come they say, sir, we've taken action under 157, sir, the offence was suspended, we've taken this 157 action. Keep in mind: 157 action has nothing to do with the registration of an FIR — registration of an FIR is under 154; Section 157 CrPC, the code of criminal procedure, deals with the differing view on investigation only, it has nothing to do with registering the case. The police wrongly take shelter in this, saying, we've taken 157 action — 157 action comes after registration of the FIR, not before registration of the FIR. The law says you cannot even conduct an inquiry before registration of the FIR — if you conduct an inquiry before registering the FIR, and only then register the case, then where will you take Section 182, because 182 says that whoever gives false information to the police will face action under 182 against him — and if the police themselves conducted an inquiry first and only then registered the case, how can that information be called false? The police themselves got involved in it. This is the intent — why did the law prohibit inquiry before 154 action, why did it stop the police — you will not conduct an inquiry — because 182 is also on the statute book: if you register a case and the information proves false, you can take 182 action. After this, the investigating officer, the IO, under Section 160 will summon witnesses — no witness can refuse to come; a person acquainted with the facts cannot refuse to be interviewed by the IO — no witness has the authority to say, yes, I know the facts, but I won't give a statement, I won't do it. Yes, he can say, no sir, I don't know, it's not within my knowledge — he can take that shelter. He will assess the witnesses. Keep one thing in mind: no witness, when giving a statement before the police, will sign it, will put a thumbprint on it. If he signs it, puts a thumbprint on it, that statement will not be considered a statement — that is the intent of 161 CrPC; 162 formally states that whatever statement any witness gives will not be signed, but it will be usable in evidence. Now witness statements are written under 161. Now a moment comes during investigation, in some case or other, when the accused says, yes, I committed the offence — now what are the investigating officer's responsibilities at that point? When any accused, in police custody, says, yes, I have committed this offence, in this manner, and that entire procedure tallies exactly with the FIR and the post-mortem report, or, if it's a different offence, with that — then he will immediately produce that accused before the area judicial magistrate and say that this accused has confessed before me and has described the entire procedure of how he committed this offence, and this procedure tallies with the complainant's statement, therefore his statement should be recorded under 164 by the magistrate. Now the interesting thing is that at that point no recovery has been made, nothing at all — no weapon of the offence has been recovered, no incriminating material has been recovered. Now, as soon as he takes him to the magistrate, and the magistrate records his statement after following proper procedure, after satisfying himself, without any doubt, that he is under no pressure, in no danger — after all that satisfaction, the magistrate records his statement — after that, his custody cannot be handed back to the police; he will be in judicial lock-up custody, his body will be confined in judicial lock-up, not handed to the police. If, after recording the confessional statement, his custody is handed back to the police, this is extremely beneficial for the accused and extremely damaging for the prosecution. Something the prosecution had proven beyond doubt, with nothing left to question, the accused himself will destroy it — if custody goes back to the police for physical remand, they have, with their own hands, strangled it: the accused benefits, because that confessional statement becomes worthless. After that, whatever recoveries follow — if they recover a pistol after the confession, if they recover incriminating material after that — all worthless.