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Official Citation: 2024 LHC 3574
Court / Jurisdiction: Lahore High Court
Year of Decision: 2024
Decision Date: 2024-07-29
Parties: Rahat Abbas & another vs The State & another
Ruling Summary: This decision was rendered by the Lahore High Court on 2024-07-29, officially reported as 2024 LHC 3574. In this matter between Rahat Abbas & another and The State & another, the court adjudicated key questions of statutory construction, procedural regularity, and legal precedent under Pakistani law.
Core Holding: The honorable bench evaluated governing statutory provisions and judicial authorities to establish the rights of the parties, delivering the binding reasoning set out below.
Case cited as 2024LHC3574
Court Name: Lahore High Court Judge(s): Syed Shahbaz Ali Rizvi, Ali Zia Bajwa Title: Rahat Abbas & another vs The State & another Case No.: Crl. Misc. No.1979-B/2024 Date of Judgment:2024-07-29 Reported As: 2024 LHC 3574 Result: Petition Dismissed
JUDGMENT
JUDGMENT ALI ZIA BAJWA, J.:- Through this petition filed under Section 497 Cr.P.C. (hereinafter "the Code") the petitioners seek their release on post-arrest bail in case FIR No.370/2022, dated 10.06.2022, offences under Sections 324, 353, 186, 337-H(2), 148 & 149 PPC read with Section 7 of the Anti-Terrorism Act, 1997, registered with Police Station City Taunsa Sharif, District Dera Ghazi Khan. 2. During the course of proceedings on 25.04.2024, it was observed that, although the aforementioned criminal case had been registered as far back as 10.06.2022, the police report as envisaged under Section 173 of the Code (hereinafter "the investigation report") was yet to be submitted. Consequently, the District Police Officer of Dera Ghazi Khan, along with the Incharge of Investigations for the said District, was directed to appear in person. Additionally, the reports were requisitioned from the Anti-Terrorism Court, Dera Ghazi Khan, and the Special Public Prosecutor to explain the reasons for extending judicial remand without requiring the investigation agency to submit its investigation report. 3. On 02.05.2024, the reports requisitioned from the District Police Officer and the Special Prosecutor of the Anti-Terrorism Court were duly filed. The report submitted by the District Police Officer revealed that an inquiry conducted by the Superintendent of Police (Investigation) concluded with the initiation of departmental action against the delinquent police officials responsible for the delayed submission of the investigation report. However, the report remained conspicuously silent on the reasons for the inaction on the part of the supervisory officer. The report submitted by the Special Public Prosecutor disclosed that the main reason for the non-submission of the investigation report was the nonavailability of the final opinion from the Medical Officer, as well as
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the reports from the Punjab Forensic Science Agency. The report filed by the Anti-Terrorism Court, Dera Ghazi Khan, indicated that, despite a direction being issued on one occasion to submit the investigation report, the needful was not done. The Prosecutor General of Punjab was issued a notice regarding the situation and directed to appear before the Court. Additionally, the Additional Inspector General of Police (Investigation), Punjab, was summoned. A report was also requisitioned from the Forensic Science Agency to address the delayed preparation of the requisite reports. 4. Arguments heard, and the requisite filed reports were perused. 5. The persistent issue of delayed submission of investigation reports continues to plague our criminal justice system. This enduring issue hampers not only the efficiency of judicial proceedings but also impacts the overall integrity and reliability of criminal trials. Delays in the investigation process strike at the very heart of truth, undermining the fairness and sanctity of the investigation itself. In the shadows of these delays, the insidious menace of tampering arises, weaving falsehoods and padding evidence. False implications take root, distorting the truth. Witnesses find their recollections fading, their vivid testimonies growing dim and unreliable. As time goes by, the detailed facts that support a criminal case fade away, leaving a shaky foundation where the truth once stood strong. Moreover, such lags often translate into prolonged detentions for suspects awaiting trial and an agonizing wait for victims seeking closure. The notion of swift justice is consistently compromised by procedural delays in the submission of investigation reports, highlighting systemic inefficiencies that urgently require thorough scrutiny and reform. These persistent issues not only obstruct the administration of justice but also weaken public trust in the legal process, necessitating a critical reassessment of mechanism of submission of investigation reports. The late submission of investigation reports epitomizes the adage 'justice delayed is justice denied.' Despite numerous instances[1] where Constitutional Courts took cognizance of this issue and issued explicit directions, the designated functionaries have consistently failed to fulfill their duties. 6. The late submission of an investigation report also violates several Constitutional provisions in Pakistan, specifically Articles 4, 9, 10, and 10-A of the Constitution of the Islamic Republic of Pakistan, 1973 (hereinafter "the Constitution"). Article 4 ensures that individuals are dealt with according to the law, and delays violate the due process of law. Article 9 protects personal security and liberty, which are compromised by extended incarceration and prolonged uncertainty. Article 10 provides safeguards for arrest and detention, and delays hinder the right to a timely trial resulting in prolonged detention. Finally, Article 10-A guarantees a fair trial, and justice delayed is inherently unjust. The delayed submission of investigation reports flagrantly breaches Article 10-A, undermining the right to a fair trial. Such delays compromise due process, leave both the accused and the victim in a state of uncertainty, and undermine public trust in the judicial system. 7. The procedure and timeframe for submitting an investigation report are delineated under Section 173 of the Code. Initially, the statute did not specify a concrete timeframe. It merely stipulated that the investigation should be concluded without unnecessary delay. This provision was designed to ensure a swift transition from investigation to prosecution, albeit without setting a strict deadline. Although, the Code does not fix a timeline for the completion of a criminal investigation, however, it mandates its completion without unnecessary delay. The term "unnecessary delay" is inherently flexible, as its interpretation varies with the nature and complexity of each case. In simpler cases, a delay might be deemed unnecessary if basic investigative steps are not promptly taken and the available evidence is not collected. Conversely, in more intricate cases involving extensive evidence and multiple witnesses, what constitutes unnecessary delay is more lenient, allowing for thorough and meticulous investigation. This approach ensures that the
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criminal justice system remains both efficient and fair, adapting to the unique demands of each case. 8. Due to persistent and extraordinary delays in the submission of investigation reports, the Government was compelled to introduce an amendment in 1992.[2] This amendment involved the insertion of a proviso clause following subsection (1)(b) of Section 173 of the Code. This legislative change aimed to address the inefficiencies and expedite the process, ensuring a timelier progression from investigation to judicial proceedings. The inserted proviso clause has been reproduced below for better understanding: - [provided that, where investigation is not completed within a period of fourteen days from the date of recording of the first information report under Section 154, the officer incharge of the police station shall, within three days of the expiration of such period, forward to the Magistrate through the Public Prosecutor, an interim report in the form prescribed by the Provincial Government stating therein the result of the investigation made until then and the Court shall commence the trial on the basis of such interim report, unless, for reasons to be recorded, the Court decides that the trial should not so commence], The proviso clause added to Section 173(1) of the Code mandates that if an investigation is not completed within fourteen days from the date the crime report is recorded under Section 154 of the Code, the officer in charge of the police station must submit an interim report to the Magistrate through the public prosecutor within three days after this period expires. This interim report should detail the results of the investigation conducted up to that point. Based on this interim report, the court is expected to commence the trial unless it records specific reasons for deciding not to proceed. The legislation provided no discretionary power to the public prosecutor to withhold the report and return it to the investigating officer for any reason. This mandate ensures a streamlined process, whereby once a report is received, the public prosecutor is compelled to proceed with it according to the legal mandate without the option to delay or divert it for additional investigation or corrections. 9. The concept of an interim investigation report was introduced to serve a multitude of purposes. It establishes judicial oversight to ensure prompt submission of investigation reports, enabling the court to evaluate whether the evidence suffices for trial and facilitating the swift conclusion of criminal cases. It provides the court with crucial insights into the progress of the investigation, thereby upholding transparency and fostering a more dynamic criminal justice system. Moreover, it empowers the court to expedite the investigation by issuing necessary directions when an investigation is incomplete thus preventing undue delays. The submission of an interim report also serves as a safeguard against the fabrication and dishonest conduct by the investigating officer during subsequent stages of an investigation. Given the constraints of Section 172 of the Code, which classifies the case diaries as a privileged document, the interim report stands as the sole document capable of reflecting the status of an investigation. It ensures transparency, preventing the crafting and padding of evidence or the false implication of an innocent person at a later stage. 10. The 1992 Amendment also introduced a pivotal change in the procedure for submitting investigation reports, mandating that such reports must be filed through the Public Prosecutor. The rationale behind routing the investigation report through a prosecutor is to engage the prosecutor at a very early stage, allowing him to assess the investigation report and render his expert opinion. This early involvement is crucial for a successful prosecutorial system, as it ensures that the case is meticulously evaluated from the outset. By scrutinizing the report, the prosecutor can identify any flaws or deficiencies, provide necessary corrections, and ensure that the evidence is robust and legally cogent. It is pertinent to observe here that when the law mandates an investigation report to be forwarded by a specific authority, it must be done with the reasoning of that authority and
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due diligence. This process should not reduce the authority to a mere post office but should involve a thoughtful application of mind to ensure the purpose of forwarding is fulfilled meaningfully. In forwarding even an interim investigation report, the prosecutor should render his opinion and highlight any shortcomings on the part of the investigating agency. This process ensures that the report not only communicates findings but also undergoes preliminary scrutiny to uphold the quality and integrity of the investigation. 11. The next relevant provision of law is Section 9 of the Punjab Criminal Prosecution Service (Constitution, Functions, and Powers) Act, 2006 (hereinafter 'The Prosecution Act'). For the matter at hand, Subsections 4 and 5 of Section 9 are particularly relevant, which have been reproduced hereinafter: - 9. Conduct of prosecution: - ------------------ (4) A police report under section 173 of the Code including a report of cancellation of the first information report or a request for discharge of a suspect or an accused shall be submitted to a Court through the Prosecutor appointed under this Act. (5) The Prosecutor shall scrutinize the report or the request and may- (a) return the same within three days to the officer incharge of police station or investigation officer, as the case may be, if he finds the same to be defective, for removal of such defects as may be identified by him; or (b) if it is fit for submission, file it before the Court of competent jurisdiction. Section 9 (4) & (5) of The Prosecution Act aligns with Section 173 of the Code. These provisions of law ensure a cohesive legal framework by stipulating that investigation reports, including those related to the cancellation of a First Information Report or requests for discharging a suspect or accused, are routed through a designated prosecutor. Under clause (a) of subsection (5), Prosecutors are empowered to return any report they find defective to the investigating officer for correction. The cumulative effect of the afore-referred provisions of law is to establish a mechanism for the timely submission of comprehensive investigation reports. It is Section 9(5) (a) of The Prosecution Act, which created potential complications by granting the prosecutor the authority to point out the defects in an investigation report and return the same within three days for removal of such defects. Although designed to create a successful prosecutorial model, the above provisions have been misused by investigating agencies and prosecutors. Returning defective investigation reports has led to years-long delays in criminal cases. The misuse of Section 9 (5) (a) of The Prosecution Act has rendered the proviso to Section 173(1) of the Code redundant, as even interim reports are now withheld from the courts under the guise of defective reports. The law, originally enacted to facilitate the successful prosecution of criminal cases, has unfortunately led to miscarriages of justice in countless cases. 12. The ambit of Section 9(5)(a) of The Prosecution Act is strictly confined to the act of returning a defective investigation report for the rectification of its deficiencies. It does not extend to directing the investigating officer to reinvestigate or craft the evidence against the accused. In our considered opinion, a "defective investigation report" is intrinsically distinct from a "defective investigation" itself. Allowing the prosecution to review and direct the rectification of investigative flaws would unleash a torrent of reinvestigations, creating ample opportunities for tampering with evidence in an overzealous pursuit of convictions in every criminal case. We are cognizant of the fact that, following the promulgation of The Prosecution Act, the prosecution and investigating agency collaborate closely from the very inception of a criminal case. However, at the conclusion of the investigation, when the investigation report reaches the prosecutor, he cannot be permitted to return it to the investigating agency simply because it lacks plausible and cogent evidence sufficient for conviction. Instead, the report should be forwarded to the court, accompanied by his
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assessm ent as required under Section 9(7) of The Prosecution Act. This ensures that the prosecution does not overstep its bounds, but rather lets the chips fall where they may within the judicial process. Returning the investigation report to the investigating agency after the completion of the investigation to rectify defects in the investigation process would constitute an overreach, going beyond the purview of the provisions of The Prosecution Act. This would be akin to overstepping one's bounds, disrupting the intended separation of responsibilities within the criminal justice system. 13. To discern what constitutes a defective investigation report, one must turn to Section 173(1)(a) & (b) of the Code, which delineates the requisite elements of such a report. The investigation report, in a form prescribed by the Provincial Government, must include the names of the parties involved, the nature of the information received, and the identities of individuals familiar with the circumstances of the case. Additionally, it must state whether the accused, if apprehended, has been remanded into custody or released on bond, specifying whether the release with or without sureties. Furthermore, the investigation report must be communicated to complainant, as prescribed by the Provincial Government, regarding the actions taken by the investigating officer. Should any of these essential elements be missing from the investigation report, it may rightfully be deemed defective. It does not mean that defective investigations shall be swept under the rug. Section 13(9)(d) of The Prosecution Act explicitly mandates that a prosecutor shall report to the District Public Prosecutor any details of investigations conducted in violation of the law or the instructions issued by the Prosecutor General. The District Public Prosecutor, in turn, may inform the head of Investigation of the District and the Prosecutor General to take appropriate action against the delinquent investigating officer. However, under the pretext of a defective investigation, an investigation report cannot be withheld from reaching the court. Such conduct on the part of the prosecutors is a flagrant violation of the mandate of the law. 14. The above-referred provisions of the law clearly establish a mechanism where a report regarding an incomplete investigation cannot be returned to the investigating agency but must be forwarded to the court. However, in the case of a defective investigation report, the same may be returned to the investigating agency to rectify those defects. Section 12(2) of The Prosecution Act further mandates that when a prosecutor returns a defective report for correction, he must also set a deadline for the removal of those defects. The prosecutor must ensure that the investigating officer is not left in the lurch, providing clear instructions and a reasonable timeframe, thus ensuring that the investigation proceeds without a hitch and no stone is left unturned. 15. Although in the domain of the criminal justice system, the timely submission of an investigation report is primarily governed by Section 173 of the Code read with Section 9 of The Prosecution Act, involving the investigating agency and prosecution, each bearing distinct responsibilities, but it would be unjust to lay the blame solely upon these two agencies for the tardy submission of investigation reports. Within the legal framework, along with the investigating agency and prosecution, various other stakeholders have the responsibility to curb the issue of delayed investigation reports with due diligence. Area Magistrates, Trial Courts, Criminal Justice Coordination Committees, and Superintendents of Prisons also stand as pivotal actors in our criminal justice system to ensure the timely submission of investigation reports. They shoulder a statutory burden to ensure the swift submission of investigation reports, as mandated by Section 173 of the Code. We would like to elaborate the legal framework and the measures prescribed therein to secure the timely submission of investigation reports, as envisioned under Section 173 of the Code. Investigating Agency and Prosecution Department 16. The investigating agency and the prosecution department stand as the linchpins of the criminal justice system, entrusted with formidable statutory duties under the provisions of both the Code
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and The Prosecution Act regarding the timely submission of investigation reports as has been discussed above in detail. The primary duty lies with the investigating officer, who must diligently gather evidence and compile the investigation report without unnecessary delay. His role is crucial, as delays often originate at the investigation stage and result in violation of the mandate of Section 173 of the Code. Under the prevailing scheme of the law, the investigating agency and the prosecution department operate in profound collaboration. According to Section 12 of The Prosecution Act, upon registration of a criminal case, it is mandatory to forward a copy of the crime report to the District Public Prosecutor forthwith. The investigation officer is obliged to deliver the investigation report to the designated prosecutor within the prescribed period and if the investigation extends beyond the allotted timeframe, the officer must document the reasons and duly inform the prosecutor of these extenuating circumstances. 17. The essence of the duty prescribed for the investigating officer towards the prosecution is to engage the prosecution from the inception of a criminal case, forging a partnership of vigilance. This responsibility bestows upon the prosecution the role of a watchdog, tasked with overseeing the punctual submission of investigation reports. Through this shared vigilance, the timely submission of investigation reports can be assured, ensuring the seamless progression of criminal cases. When an investigation report is delayed, the responsibility does not rest solely with the investigating agency; the prosecution department must also shoulder its share of accountability, as mandated by The Prosecution Act. This dual responsibility emphasizes the collaborative nature of their roles in the timely submission of investigation reports. As discussed above, under Section 13(9)(d) of The Prosecution Act, a prosecutor is obliged to report any delays in the submission of investigation reports to the District Public Prosecutor. This issue may also be escalated to the district head of investigation and the Prosecutor General, paving the way for necessary actions against the investigating officer. If a prosecutor fails to fulfill this mandatory duty, proceedings should also be initiated against him under The Punjab Criminal Prosecution Service Inspectorate Act, 2018 (hereinafter "The Inspectorate Act"). Role of a Magistrate 18. The Area Magistrate holds the paramount responsibility of overseeing every investigation conducted within his jurisdiction.[3] It is his bounden duty to ensure that the investigation of each criminal case is carried out with steadfast adherence to the law. It was already authoritatively observed in landmark judgment rendered by the Supreme Court of Pakistan in Hakeem Mumtaz supra that: - "On completion of period of police remand under section 167, Cr.P.C. if final or interim report has not been submitted the Magistrate before whom accused has been produced for remand can insist upon the prosecution by passing order in writing to comply with the provisions of section 173(1). Cr.P.C. or record reasons for remanding the accused to judicial custody for want of challan in terms of section 344, Cr.P.C. and simultaneously direct initiation of departmental proceedings against police officer responsible for submission of challan for not complying with mandatory provision of law and proving thereby himself/themselves to be inefficient police officers, the positive result shall start coming forward." The law distinctly delineates the distinction between remand to police custody, as regulated under Section 167 of the Code, and remand to judicial custody, governed by Section 344 of the same Code. Section 344 of the Code envisages that no extension of judicial remand shall be granted without reasonable cause, thereby safeguarding the liberty of the accused against arbitrary detention. "Reasonable cause" is a legal standard that requires a justification rooted in logic and facts, demonstrating that the extension of judicial remand is necessary and warranted under the circumstances. This concept is pivotal in preventing arbitrary and unjust detention, ensuring that any decision to prolong custody is grounded in objective and rational considerations. The
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requirement of demonstrating reasonable cause under Section 344 of the Code for the extension of judicial remand serves as an effective judicial check on the investigating agency and prosecution, guarding against undue delay in submitting the investigation report. Magistrates who extend judicial remand without the submission of an investigation report in the absence of reasonable cause, in effect, become complicit in the illegality perpetrated by the investigating agency or the prosecution. The true essence of Section 344 of the Code lies in its ability to prevent abuses of power by the police or prosecution through the withholding of investigation reports. It is high time that Magistrates, as judicial officers, recognize their duty to eradicate the issue of delayed submission of investigation reports by rigorously applying Section 344 of the Code. By doing so, they can ensure justice is served promptly and uphold the integrity of the legal process. 19. According to the Lahore High Court Rules and Orders, any order to grant or extend judicial remand must explicitly demonstrate good grounds. The relevant Rule,…
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