Ss.160, 161 & 162, Cr.P.C. empowering police to investigate any person would include actual accused and suspects-

1999 P Cr. L J 1198

(a) Criminal Procedure Code (V of 1898)---

----Ss. 160, 161 & 162---Police Rules, 1934, S.25.2---Powers of police to investigate---Extent---Expression "any person" in Ss.160, 161 & 162, Cr.P.C.---Meaning and scope---Scope of Ss.160, 161 & 162, Cr.P.C. empowering police to investigate any person would include actual accused and suspects--- "Any person" in S.160, Cr.P.C. included person of antagonist parties acquainted with circumstances of case and said section itself was self-explanatory in that respect---"Any person" in Ss.161 & 162, Cr.P.C. would include persons then or ultimately found to be accused---Any person supposed to be acquainted with facts and circumstances of case would include "accused person" who was familiar with facts of case---Said supposition might later prove a fiction, but that would not repel Ss.160, 161 & 162, Cr.P.C. nor would marginal note "Examination of witnesses by police" would close matter, as "marginal note" of sections would not control meaning of sections---Interrogation of accused and recording his version---Purpose of---Investigation of an accused and recording of his version was to acquire true facts with which he was acquainted---To be witness from a functional angle, was to impart knowledge in respect of a relevant fact which was purpose of questioning accused under Ss. 161 & 162, Cr.P.C. so that final opinion in matter could be expressed by Investigating Officer after weighing version of parties.

Syamo Maha Patro and another v. The Emperor AIR 1932 Mad. 391 ref.

(b) Interpretation of statutes

----Marginal notes on statutes---Significance---Such note would not control meaning of a statute.

(c) Criminal Procedure Code (V of 1898)---

----Ss. 160, 161 & 162---Police Rules, 1934, S.25.2---Investigation by police-- Summoning of accused---Object---Duty of Police Officer was to summon accused even if he was enjoying concessional pre-arrest bail and it was not liability of accused to go himself to police to join investigation---Investigating Officer was also bound under 8.25.2 of Police Rules, 1934, to summon witnesses and accused---Wisdom behind that was to record version of accused so that Investigating Officer could give his final verdict after verifying divergent contentions of parties and after discovering actual facts of case.

(d) Criminal Procedure Code (V of 1898)---

----Ss. 160, 161 & 162---Constitution of Pakistan (1973), Arts.25(1) & 199-- Constitutional petition---Investigation by police---Discrimination between contesting parties---Effect---No discrimination could be made between contesting parties during investigation and if it was made, petitions for transfer of investigation were not only made before superior Police Officers, but Constitutional jurisdiction of High Court could also be invoked when in some cases discretion was used in favour of accused for conclusion of investigation to a logical end---In case oral and documentary material being produced by complainant party was collected during investigation, it was also the right of accused to place his oral as well as written evidence according to his version before Investigating Officer.

(e) Criminal Procedure Code (V of 1898)---

----S. 169---Investigation---Powers of police---Administration of justice---Justice was not to be administered in Courts only, but even during investigation, police had to do justice to parties---Police under provisions of S.169, Cr.P.C. was empowered to get discharge accused and to get cancelled F.I.R., if no material was available against accused due to deficient evidence or for want of reasonable ground of suspicion to justify forwarding of accused to a Court on basis of collection of material from both contesting parties, F.I.R. could be cancelled, accused discharged or challan could be submitted for trial of accused and that .result could be achieved if stands of both parties were before Investigating Officer which were also analysed by him.

(f) Criminal Procedure Code (V of 1898)---

----Ss. 160, 161 & 162---Penal Code (XLV of 1860), S.324/148/149/109-- Constitution of Pakistan (1973), Art. 199---Constitutional petition---Investigation by police---Non-recording of version of accused during investigation ---Effect-- Plea of accused for recording his version was not attended to by Police Officer with any seriousness rather that aspect was ignored by police during investigation---Validity---If version of accused was not recorded during investigation, his defence in trial could be considered to be afterthought---Plea of self-defence, plea of alibi and that of non-participation in occurrence etc. generally were agitated by accused during investigation who could produce even written material to strengthen same and, thereafter, during trial he could prove his defence, otherwise he had to face aforesaid objection/situation---To achieve relief accused had to get transferred investigation or make applications before superior Police Offices or file Constitutional petition.

(g) Criminal Procedure Code (V of 1898)---

----Ss. 160, 161 & 162---Police Rules, 1934, 8.25.2---Penal Code (XLV of 1860), S.324/148/149/109---Constitution of Pakistan (1973), Art.4(1)-- Investigation by police---Applicability of principles of natural justice ---Non recording of version of accused---Effect---Plea of accused for recording his version in investigation was not attended to by Police Officer---Principle that nobody should be condemned unheard, was also applicable at investigation stage---Fair and impartial investigation could not be made unless version of accused was also recorded by police during investigation.

(h) Constitution of Pakistan (1973)---

----Art. 4---Police investigation---Version of accused---Non-recording of, by police---Violation of Art.4(1) of the Constitution---Accused was entitled to benefit of Art.4(1) of Constitution of Pakistan (1973), whereby every citizen was entitled to enjoy protection of law and was to be treated in accordance with law---Without recording version of accused investigation conducted by competent person, could not be said to be fair and impartial or in accordance with law---Constitutional and statutory right of accused was to get his version recorded during investigation and Investigating Officer had to form and give his opinion after collecting divergent versions of parties keeping in view the demands of justice at stage of investigation.

(1) Criminal Procedure Code (V of 1898)---

----Ss. 160, 161 & 162---Investigation by police---Recording version of accused in matters of offences on basis of documentary evidence---Necessity---In matters of offences based on documentary evidence, importance of recording version of accused was that of more prominence as in. case the execution or ownership was denied, further steps had to be taken during investigation to lay foundation of strength of prosecution case.

Khurrum Shelizad Baig for Petitioner.

Syed Zulfiqar Ali Bokhari, Asstt. A.-G. for the State (on Court's call).

Date of hearing: 10th December, 1998.

MAQBOOL AHMED VS STATION HOUSE OFFICER, POLICE STATION CHANGA MANGA, DISTRICT KASUR

1999 P Cr. L J 1198

[Lahore]

Before Muhammad Nasim Chaudhry, J

MAQBOOL AHMED ---Petitioner

Versus

STATION HOUSE OFFICER, POLICE STATION

CHANGA MANGA, DISTRICT KASUR and another---Respondents

Writ Petition No.25164 of 1998, heard on 10/12/1998.

JUDGMENT

Haider Ali complainant got recorded F.I.R. No.273, dated 27-8-1998 at 12-20 p.m. at Police Station Chhanga Maanga, District Kasur under section 324/148/149/109, Pakistan Penal Code with the allegation that his workshop, wherein the tractors were repaired, was situated on Jhambar Road wherein some boys also learnt the art. On 27-8-1998 at 11-30 a.m. he alongwith Miraj Din and Muhammad Sharif was sitting on the workshop where Saeed Ahmad and Mahmood Ahmad were repairing the tractors. Amanat Ali, Muhammad Amin, Manzoor Ahmad and Muhammad Farooq arrived on the motorcycles while armed with weapons who fired at him. He was saved. However, Manzoor Ahmad and Mahmood Ahmad were injured. The accused persons made good their escape alongwith the weapons. According to the complainant the occurrence take place at the instance of Maqbool Ahmad and Din Muhammad accused persons who had threatened him in this regard earlier.

2. Expressing that the investigation is not being conducted in accordance with law and his version is not being recorded by the police, Maqbool Ahmad petitioner filed this petition to get issued a writ against the S.H.O., Police Station Chhanga Manga, District Kasur for fair and impartial investigation and also for recording his version during the investigation.

3. There is no need to get the comments from the police and the filing of the writ petition is enough to make me to further process with this matter. This writ petition has been admitted for regular hearing.

4: I have heard the learned counsel for the petitioner as well as the learned Assistant Advocate-General and gone through the record before me. The main contention of the learned counsel for the petitioner is that the fair and impartial investigation is the duty of the Investigating Officer as keeping in view the shape of scale of justice no party should have the impression that the proper investigation has not been conducted. He referred to sections 160, 161 and 162 of the Code of Criminal Procedure according to which the "witnesses" and "any person" can be joined in the investigation by the Investigation Officer to reach at the right conclusion after analysing the respective factual and legal stand of the parties. On the contrary the learned Assistant Advocate-General conceded in the matter and scrupulously expressed that it is the duty of the Police Officer to conduct the fair and impartial investigation and to record the version of the accused to avoid the objection of the complainant party regarding his defence being afterthought during the trial. Since this matter is that of legal importance, I proceed to dispose of the same keeping in view the legal provisions.

5. First of all I would reproduce as under Rule 2 from Chapter 25 of the Punjab Police Rules, 1934 Volume III:--

"25.2 Powers of Investigating Officers.--- (1) The powers and privileges of a Police Officer making an investigation are detailed in sections 160 to 175, Criminal Procedure Code.

Any officer so making an investigation shall invariably issue an order in writing in Form 25.2(1) to any person summoned to attend such investigation and shall endorse on the copy of the order retained by the person so summoned the date and time of his arrival at, and the date and time of his departure from, the place to which he is summoned. The duplicate of the order shall be attached to the case diary.

(2) No avoidable trouble shall be given to any person from whom enquiries are made and no person shall be unnecessarily detained.

(3) It is the duty of an find of the matter under investigation facts of the case and to arrest the real offender not commit himself prematurely to any view of any person."

6. The relevant Form No.25.2(1) for summoning the "person" incorporated in the said Police Rules, 1934 is reproduced as follows:--

"Chap. XXV Investigation

Form No.25.2(1)

Order to require attendance at investigation under sections 160 and 175, Criminal Procedure Code.

Name ..son of .caste, ..Resident of

Whereas the presence of the aforesaid person is necessary for the purpose of enquiry into the offence reported to have been committed under section .at Police Station therefore, the said person is hereby directed to appear before the undersigned at (place hour ....date) there to give such information relating to the said alleged offence as he may possess.

Signature and Designation of issuing Police Officer.

Date ..Hour

Note.--- mentioned in this order attended on at at and was permitted to leave on .at ..at

Dated

Signature and Designation of issuing Police Officer."

7. A perusal of the aforesaid Rule 25.2 of the Police Rules, 1934 has made out that the Investigating Officer has to discover the actual facts of the case. He can pass the order to require the attendance of any person during the investigation and for that matter the notice can be and has to be issued to the prosecution witnesses and even to the accused according to Form No.25.2(1) of the Police Rules, 1934 provided therein. In the aforesaid Form 25.2(1) the word "person" instead of the prosecution witness" or the "accused" has been used which projects that the version of the prosecution and the accused has to be recorded and by practically joining them in the investigation to reach at the truth.

8. Now it is proper to refer sections 160, 161 and 162 of the Code of Criminal Procedure. Sections 160, 161 and first portion of section 162 of the Code of Criminal Procedure, 1898 are reproduced as under:--

"160. Police Officer's power to require attendance of witnesses.--- Any Police Officer making an investigation under this Chapter may, by order in writing, require the attendance before himself of any person being within the limits of his own or any adjoining station who, from the information given or otherwise, appears to be acquainted with the circumstances of the case; and such person shall attend as so required.

161. Examination of witnesses by police.-- (1) Any Police Officer making any investigation under this Chapter or any Police Officer not below such rank as the Provincial Government may, by general or special order, prescribe in this behalf, acting on the requisition of such Officer may examine orally any person supposed to be acquainted with the facts and circumstances of the case.

(2) Such person shall be bound to answer all questions relating to such case, put to him by such officer, other than questions the answers to which would have a tendency to expose him to a criminal charge or to a penalty or forfeiture.

(3) The Police Officer may reduce into writing any statement made to him in the course of an examination under this section, and if he does so he shall make a separate record of the statement of each such person whose statement he records. .

162. Statements to police not to be signed use of such statements it evidence.-- (1) No statement made by any person to Police Officer in the course of an investigation under this Chapter shall if reduced into writing be signed by the person making it; nor shall any such statement on any record thereof whether in a police-diary or otherwise or any part of such statement or record, be used for any purpose (Save as hereinafter provided) at any inquiry or trial in respect of any offence under investigation at the time when such statement was made. "

9. I would express that the scope of sections 160, 161 and 162 of the Code of Criminal Procedure includes actual accused and suspects. The words "any person" in section 160 includes the person(s) of the antagonist parties acquainted with the circumstances 'of the case and the said section 160 itself is self explanatory in this respect. The expression "any person" in sections 161 and 162 of the Criminal Procedure would include persons then or ultimately found to be accused. Any person supposed to be acquainted with the facts and circumstances of the case includes the- "accused person" who fills that role because the Investigating Officer supposes him to have committed the crime and must, therefore, be familiar with the facts of the case. Legally and factually the supposition may later prove a fiction but that does not repel the sections nor does the marginal note "examination of witnesses by police" close the matter. Legally the "marginal note" does not control the meaning of the section. The interrogation of an accused and recording of his version is to acquire the true facts with which he is acquainted. To be a witness from a functional angle is to impart knowledge in respect of a relevant fact and that is the purpose of questioning the accused under sections 161 and 162 of the Code of Criminal Procedure so that final opinion in the matter can be expressed by the Investigating Officer after weighing the version of the parties.

10. 1 would refer to the ruling printed as Syamo Maha Patro and another v. The Emperor AIR 1932 Mad. 391 Full Bench. With respect to the status of an accused in the investigation to get recorded his version, the relevant portion from the aforesaid ruling is reproduced as under for the sake of convenience and academic importance which shall clarify this discussion to an enormous extent:--

"Let us take the sections which immediately precede and succeed section 162. Section 160 enables the Police Officer to require by order in writing, the attendance before him of any person, within the limits of his own or any adjoining station who appears to be acquainted with the circumstances of the case. Section 161 enables a Police Officer to examine orally any person supposed to be acquainted with the facts and circumstances of the case. Then comes section 162, which says, that no statement made by any person to a Police Officer, shall, if reduced into writing, be signed by the person making it. The section further prohibits the use of such statements in evidence at the trial, subject to and exception. Sections 163 and 164, which follow section 162 deal with statements made by any person, which obviously include statements by witnesses as also any statement or confessions by accused persons. There is no doubt as to the sense in which the words 'any person' are used in section 163, and we may safely take them to include an accused person also. Are we to take the words 'any person' if section 162 as limited. to witnesses only, by .virtue of sections 160 and 161 which precede it? It is true that the marginal notes to these sections mention 'witnesses'. But the working of the sections is wide and general, and cannot be taken to mean witnesses only and not persons suspected or accused of an offence. Moreover, the scope of section 161 seems to be wider than that of section 160. The power of the Police Officer to examine orally any person under section 161 is not limited to the case of persons whose attendance before him, he may require by an order in writing under section 160. Any person (whether a witness or an accused) whom he cannot under section 160 summon to appear before him, may still be examined by him orally under section 161, if he can have access to such a man in any other way. In construing a section the marginal notes should not be looked into, and cannot be a criterion for determining the meaning and scope of the section. This principle has been clearly laid down by

their Lordships of the Privy Council in Balraj Kunwar v. Jagatpal Singh (8) at p.406, in the following passage--

' It is well-settled that marginal notes to the section of an Act of Parliament cannot be referred to for the purpose of construing the Act. The contrary opinion originated in a mistake, and it has been exploded long ago. There seems to be no reason for giving the marginal notes in an Indian Statute any greator authority than the marginal notes in an English Act of Parliament'.

That being so the use of the word, 'witnesses' in the marginal notes of sections 160 and 161 should not be a guide for construing the wording of the sections themselves. Reference was made to Queen-Empress v. Saminada (9), in support of the contention, that section 160 does not apply to an accused person. The exact point that was decided in that case is that this section does not empower a Police Officer to summon an accused person to appear and answer the complaint made against him. There is nothing in this ruling to indicate that a Police Officer even without having recourse to the procedure under section 160, cannot examine orally an accused person under section 161. It seems to me that the expression 'any person' in section 161 does not exclude a person suspected or accused of an offence. There is nothing repugnant in supposing such a person to be acquainted with the facts and circumstances of the case. Thus, it may be safely taken that even from the stand point of context, the expression 'any person' contained in section 162, includes an accused person also, and is not confined to witnesses only."

11. The assertion of the writ petitioner/accused is that even though he claims to have been admitted to pre-arrest bail, the police is not joining him in the investigation to record his version. My view is that the simple reason for such a recalcitrant attitude/working is that custodial interrogations are generally favoured and liked by the Police Officers as in the case of the physical remand of an accused the Police Officer, according to his whims, is in a safe and better position to effect coercion which is avoided by the accused and about which type of working of the police muss fuss is emanating in the country. It is the duty of the Police Officer to summon the accused even if he is enjoying the concession of pre-arrest bail and it is not the liability of the accused to himself go to the police to join the investigation. Rather it is a matter of common knowledge that his presence/arrival, even if made by him, is not recorded by the police. As expressed above, under Rule 25.2 of the Police Rules, 1934 the Investigating Officer is bound to summon the person i.e. the witnesses and the accused and the wisdom behind is to record the version of the accused who (Investigating Officer) has to give his final verdict after verifying the divergent contentions of the parties and discovery of actual facts of the case.

12. I would also refer to Article 25(1) of the Constitution of the Islamic Republic of Pakistan, 1973 which provides that "all citizens are equal before law and are entitled to equal protection of law. As such during the investigation no discrimination can be made between the contesting parties and if it is made the petitions for transfer of investigation are not only made before the Superior Police Officers, the Constitutional jurisdiction of- this Court is also invoked when in some cases the discretion is used in favour of the accused for conclusion of the investigation to a logical end. In case the oral and documentary material being produced by .the complainant party is collected during the investigation; it is also the right of the accused to place his oral as well as written evidence according to his version during the investigation before the Investigating Officer. I am tempted to express that the justice is not to be administered in the Court. Even during the investigation the police has to do the justice to the parties. It is on the basis of this theory that section 169 of the Code of Criminal Procedure has been incorporated to play the legal role whereby the police is empowered to get discharged the accused person(s) and to get cancelled the F.I.R., if there is no material against the accused due to deficient evidence or reasonable ground of suspicion to justify the forwarding of the accused to a Court. Practically the verification of the divergent versions of the parties can motivate the Officer Incharge of a Police Station in this regard. It is on the basis of weighing the material in favour of the complainant that the challan is submitted under section 173 of the Code of Criminal Procedure for the trial of the accused. In short it is on the basis of the collection of material from both the contesting parties i.e. the complainant party and the antagonist party i.e. the accused party that the F.I.R. is got cancelled and accused, discharged or the challan is submitted for the trial of the accused. The aforesaid relevant result can be achieved if the stands of both the parties are before the Investigating Officer, which are also analysed by him.

13. Yet another aspect of the matter cannot be lost sight of which is to this effect that if the version of the accused is not recorded during the investigation, his defence in the trial may be considered to be afterthought. Generally the plea of self-defence, the plea of alibi and that of non-participation in the occurrence etc. etc. are agitated by the accused during the investigation who can produce even the written material to strengthen the same and thereafter, during the trial he can prove his defence otherwise he has to face the aforesaid objection/situation.

14. The plea of the accused for recording his version is not attended to by the Police Officers with all the seriousness and rather this aspect is ignored by him. To achieve the relief the accused has to get transferred the investigation or make the application(s) before the Superior Police Officers or file the writ petition as in the instant case. The case-law is not bereft of the judicial decision to the effect that due to the presence of the cross-version got recorded during the investigation even the concession of bail is allowed to him or he is awarded the lesser sentence or even he is acquitted. The experience is that the Police Officers adopt autocratic attitude and proceed in routine under the impression and prospective goal of getting convicted the accused. The golden principle that nobody should be condemned unheard is also applicable at the investigation stage. Even the satin was not punished without being heard. It is proper to express that the fountain of justice has its basis on fair and impartial investigation which cannot be achieved unless the version of the accused is also recorded by the police during the investigation.

15. In matters of offences on the basis of documentary evidence the importance of recording the version of the accused is that of more importance as in case the execution or ownership is denied further steps have to be taken during the investigation to lay the foundation of the strength of the prosecution case. The services of the Handwriting Experts are obtained thereof.

16. An accused is also entitled to reap the legal benefit of Article 4(1) of the Constitution of the Islamic Republic of Pakistan, 1973 which cannot be suspended even during the Emergency, if imposed, having been incorporated in Part-I (Introductory) which provides that "to enjoy the protection of law and to be treated in accordance with law is the inalienable right of every citizen wherever he may and of every other person for the time being within Pakistan". Thus, without recording the version of the accused an investigation conducted by the competent person cannot be said to be fair and impartial as well as according to the prevalent law of the land. Rather the refusal in the matter on the part of the Investigating Officer is simply his recalcitrant attitude towards following the rule of law and only the autocratic view of the matter away and astray from rule of law is taken thereof. It is the right of the accused to be treated in accordance with law.

17. The recording of the version of the accused is of that-much legal necessity that in some cases on the basis of the registration of single First Information Report, after making the analysis of the divergent versions, two challans are submitted before the Court of competent jurisdiction wherein both the antagonist parties are treated as the accused and the Court has to determine about the falsehood or otherwise of respective assertions/allegations. Thus, in this way the investigation, by joining both the parties has to lay the foundation of administration of justice so that the truth emerges and stands established.

18. The presence of divergent cogent versions of the parties to a criminal case can also form the basis of the admission of the accused to bail and such a situation can arise if the fair and impartial investigation is conducted and the version of the parties are reduced into black and white during the investigation. Hence the accused cannot be denied to get recorded his version. It is not the prerogative of the Investigating Officer to travel on his own whims to deprive the accused to get recorded his version which is his Constitutional and statutory right.

19. The only irresistible view which can be expressed is that an Investigating Officer is duty bound to record the version of the accused and the accused is entitled to state orally as well as to produce the documentary evidence with respect to his version even during the investigation. No grace is shown to the accused if his version is recorded during the investigation. It is the Constitutional and statutory right of the accused to get recorded his version during the investigation and the Investigating Officer has to form and give his opinion after collecting the divergent versions of the parties keeping in view the shape of scale of justice at that stage as well.

20. For what has been said above, I accept this writ petition and direct the S.H.O. Police Station Chhanga Manga, District Kasur to hold the fair and impartial investigation and to record the version of the accused persons. No order as to costs.

H.B.T./M-954/LPetition accepted.