An investigation normally commences once an F.I.R is lodged. It is conducted by the police and includes everything from the collection of evidence, recording of statements to the submission of the police report. If it appears to the investigating officer that there is insufficient evidence or no reasonable grounds of suspicion against the accused exist, such officer shall, if such person is in custody, release him on his executing a bond as such officer may direct, to appear, if and when required, before a Magistrate empowered to take cognizance of the offense on a police-report and to try the accused or send him for trial.

The ATA lays down a special procedure for conducting investigations of terror suspects as opposed to the general procedure provided under the Cr.P.C. However, for those matters where the special law is silent, the general law remains applicable.

Investigation pursuant to the ATA

There are multiple mechanisms for the commencement of an investigation under the ATA. The first one is pursuant to the registration of an F.I.R. The second mechanism is the transfer of a case registered by or an investigation already underway pursuant to any law. It is also relevant to note that there are also cases where the accused has been released from Police custody or is being held in judicial custody, the Police may request that the accused be taken into their custody for further investigation. This mechanism would permit further investigation into the accused’s actions.

Investigation Pursuant to an F.I.R

  • Where Section 4 and 5 of the ATA are not invoked:

Under Section 19, an investigation in all cases, other than those invoked under Sections 4 and 5, may be conducted by an authorized officer or, if the Government deems it necessary, by a Joint Investigation Team (JIT).

Where it is through an individual officer, then he may either be a police officer or an officer equivalent to or not below the rank of an Inspector. Where the investigation is through a JIT, it shall be constituted by the Government and shall have five members and will be headed by a police officer not below the rank of Superintendent of Police (SP). Other officers of the JIT may include officers from intelligence agencies, armed forces and civil armed forces equivalent to BS-18. In practice, JITs are not regularly formed, and the majority of investigations are carried out by sub-inspectors pursuant to the Cr.P.C.

Ordering the composition of a JIT in such circumstances is the sole authority of the Government. Where in Maqsood Yamin v RPO Multan, the SP had passed the order for constituting a JIT, the Lahore High Court held such orders to be illegal, as “within the meaning of S. 19… only Secretary, Home Department of a Provincial Government was authorized to pass [an] order for constituting a JIT…” In such circumstances, the investigation conducted by the JIT was also held to be without lawful authority.

  • Where Sections 4 and 5 of the ATA are invoked:

In such instances, the investigation is conducted by a JIT formed by the Government, composed of members of the armed forces or civil armed forces; intelligence agencies (as the case may be); and other law enforcement agencies including a police officer not below the rank of an inspector.

Investigation or Inquiry Transferred under the ATA

Section 19 (1A) provides that where any case has been registered under any other law or is under investigation by another authority, the case may be transferred to an investigation under the ATA through a written order of the Federal Government. Upon such transfer, the transferring authority shall supply the record of the case to the authority to whom the investigation is forthwith entrusted.

Person to be Held in Custody for Further Investigation

Under Section 19 (5) of the ATA, a person who has been released from police custody under Section 169 of the Cr.P.C or has been remanded to judicial custody may be subjected to further investigation. The ATC, after recording reasons in writing and upon good grounds shown by a Public Prosecutor, may order for a person to be placed in police custody or in the custody of the JIT, in order to conduct further investigation in a case. As per Section 19 (6) the ATC is considered to be a Magistrate for this purpose.

The Case Against Reinvestigation

In the case of Khalid Javed v. Board through DIG of Police (Investigation), the Lahore High Court held:

“Reinvestigation generally is not appreciated. Parties use influence, be it in any form, in such matters to get favorable reports and the reinvestigation is one of the major methods. Where investigation is defective or incomplete … then reinvestigation, in fact, becomes necessary; however, if earlier investigation is transparent without any fault, independent and does not suffer from any illegality or irregularity and is complete in all respects, reinvestigation should not be allowed.”

The above judicial observation though relates to reinvestigation, it also illustrates the possibility of illegalities and irregularities during investigation. Moreover, it highlights the chances of investigations being manipulated by influential persons. Such illegalities along with being fatal for terrorist prosecutions, wrongfully implicate persons who then suffer time in lockups until released by assailing the judicial authorities.

An investigation normally commences once an F.I.R is lodged. It is conducted by the police and includes everything from the collection of evidence, recording of statements to the submission of the police report.

First Information Report (FIR)

The Code of Criminal Procedure, 1898 (Cr.P.C) lays down the procedure for the criminal justice system. It provides a mechanism for, inter alia, how to carry out an arrest, investigation, and trial. Prior to terrorist prosecution, the investigation is the first step, which is carried out by the police and normally begins after the recording of a First Information Report (F.I.R) in the police station. 

An F.I.R is a document, on the basis of which, the police machinery is activated and set in motion for investigation. The purpose of an F.I.R. is to set criminal law in motion and to obtain first hand spontaneous information of an occurrence, in order to exclude the possibility of fabrication, consultation or deliberation on the part of the complainant. Spontaneity of an F.I.R. is the guarantee of truth to a great extent, and it provides a sound basis for carrying out investigation in the right direction.

Under the Cr.P.C, there are two types of offenses. Cognizable offenses, as defined under the Cr.P.C, are those alleged crimes which are of such nature that the police can arrest the accused without warrant. Furthermore, no permission is required from a Magistrate to commence investigation into an offense. In contrast, non-cognizable offenses are such where the police are not empowered to arrest without warrant and permission from the magistrate is mandatory in order for the police to start their investigation. 

The primary object of an F.I.R under Section 154 Cr.P.C is to convey information about the commission of a cognizable offense, which a Police Officer is competent to investigate as contemplated under Section 156 Cr.P.C. An F.I.R therefore sets the investigation agency in motion, in order to probe into the commission of an offense and unearth the truth.

The procedure for recording an F.I.R is provided under Section 154 of Cr.P.C, which states that the officer in charge of the police station will reduce in writing any information of cognizable offense and read it out to the complainant and have him/her sign it. The language of the section is reproduced as under:

154. Information in cognizable cases: information relating to the commission of a cognizable offense if given orally to an officer in charge of a police station, shall be reduced in writing by him or under his direction and read over to the informant; and every such information, whether given in writing or reduced to writing as aforesaid, shall be signed by the person giving it, and the substance thereof shall be entered in a book to be kept by such officer in such form as the Provincial Government may prescribe in this behalf.

Under Section 154, the police do not have discretion to cause delay in the registration of a case under the law and are bound to act accordingly. When an F.I.R is registered without delay, it can help the investigating agency in completing the process of investigation expeditiously. Therefore, it is advisable that provisions of Section 154 Cr.P.C read with Rule 24.5 (c) of the Police Rules, 1934 be adhered to strictly. There should not be any negligence in either the recording of the F.I.R or in the supply of copies to the concerned quarters, because departure from the mandatory provisions of law creates room for doubt against the truthfulness of the allegation leveled against the accused in the F.I.R.

Rule 22.45 of the Police Rules, 1934 (Police Rules) provides that all the registers that have to be maintained at each police station, with the F.I.R Register being one of them. Rule 22.46 states that no alteration in the form or method of keeping the books and no addition to their number may be made without the sanction of the Inspector-General. Rule 24.1 elaborates upon how the F.I.R should be recorded with special attention to the following matters: 

a) The source from which the information was obtained and the circumstances under which the informant ascertained the names of the offenders and witnesses. 

b) Whether the informant was an eye-witness to the offense.

Rule 24.5 of the Police Rules states that the F.I.R shall be a printed book in Form 24.5 (1) consisting of 200 pages and shall be completely filled before a new one is commenced. Cases shall bear an annual serial number in each police station for each calendar year. Every four pages of the register shall be numbered with the same number and shall be written at the same time by means of the carbon copying process. It further states that the original copy shall be preserved in the Police Station for a period of sixty years. A copy shall be given to the Superintendent of Police (SP) or other gazetted officer, nominated by him and one shall be given to the complainant unless a written report in Form 24.2 (1) has been received in which case the check receipt prescribed will be sent.

Identification Parade

Article 22 of the QSO allows for circumstantial evidence to be derived through the “identification parade”. This is an investigation tool used by the police to help identify the culprit, given there is a witness. It involves lining the suspect of a crime with individuals (dummies) that match their description. A witness is then required to identify the suspect out of the individuals. ‘The identification test is normally conducted when an accused is not previously known to the witnesses and they have his momentary glimpse. It becomes imperative to hold such test if the witnesses claim that they can identify the accused, if brought before them’. There are certain precautions and rules that need to be adhered to in such proceedings:

  • List of all the persons included in the parade should be prepared by the magistrate in charge of the test. 
  • When a witness identifies a member of the parade, the Magistrate should note in what connection he is identified, including incorrect identifications.
  • Objection or statements by the accused or witnesses to be recorded and power of magistrate to decide objections
  • It must be ensured that the accused is not exposed to the witnesses
  • No communication is allowed that would facilitate the identification of the accused before the proceedings. The identity of the accused should be concealed to ensure that the accused should is not seen by the witnesses before the identification parade.
  • It must be verified that the people including the suspect in the identification parade are handcuffed or are wearing fetters
  • The accused is produced before the magistrate with a muffled face
  • At the time of the parade the accused is to be mixed up with dummies in minimum ratio of 1-8; the dummies must be of a similar description.
  • The names, parentage, address and occupations of the dummies must be incorporated into the memo of the identification test.
  • The suspect shall be placed among other persons in the ratio of 8-9 strangers to one suspect. Each person brought should be of a similar description and should be of the same religion and social status as the suspect. Each witness shall then be brought up separately for identification purposes.
  • Each accused should have a separate identification parade.
  • The conduct of such proceedings must be in line with Art.22 of the QSO.

Evidentiary Value of Identification Parade

In Kamal Din alias Kamala vs. The State it was ruled in conjunction of Article 22 of the QSO that Identification of an accused person without reference to the role allegedly played by him during the occurrence was shorn of any evidentiary value. This was supplemented by a previous Supreme Court decision where the Court ruled: “In the identification parade, if the accused is identified without any reference to the role played by them in the incident in issue, then such a test identification parade is legally laconic and is of no evidentiary value”. 

Procedure of Investigation

The investigative process to be followed in terrorism cases is as provided in the Cr.P.C. It consists of the following steps: 

  1. Site inspection
  2. Ascertainment of facts and circumstances that connect with the offense under investigation.
  3. Discovery and arrest of suspected offender 
  4. Collection of evidence related to the commission of the offense which may lead to the: a. Examination of various persons including accused and recording their statements;
  5. Search of places or seizure of things considered necessary for investigation 
  6. Formation of opinion as to whether, on material collected, there is a case to place before the [court] for trial and if so taking necessary steps for the same by ling of a challan under Section 173 Cr.P.C.

Site Inspection 

As soon as the F.I.R is recorded, a police officer is supposed to immediately proceed to the crime scene and if he is not competent to conduct the investigation, then he has to ensure that the scene is preserved and the evidence is not contaminated.

A site map, or plan of the scene, is to be drawn up by the investigating officer. The procedure to be followed is laid down in Rule 25.13 of the Police Rules. It requires that two copies of the site-map be made, one to be submitted with the final report and one to be retained by the police in the police file. The site map may only be used if direct evidence is not available. This was decided in Karamat Hussain v. the State where the court held: 

“When the direct evidence is available and believed then the other evidence loses its evidentiary value as the same is only corroborative in nature. This Court has already held in a number of cases that the site-plan is not a substantive piece of evidence and in presence of direct evidence the same can be ignored.”

Where the crime is of a heinous nature, and the investigating officer considers that an accurate map is required, he is obligated to summon the patwari (draftsman) and direct him to prepare a scaled site plan in three copies. 

Site-Plan Contents

It is necessary that the whole site plan is in accordance with the Istighasa (Complaint). The IO must consider the following, according to the prevailing circumstances of the case:

  • Photograph/video the crime scene whenever possible
  • Clearly and accurately mark North and South
  • Complete an accurate sketch of the place of occurrence including the ground, building road-side, park, etc.
  • Mark the presence of each witness, including the complainant, in the plan
  • Names of each and every witness should be mentioned in the notes
  • Mark the presence of each accused person in the drawing
  • Include the name and place of presence of each accused persons in the notes
  • Mark the locations of the recovered items/material in the drawing.
  • Name and specification of items/material recovered in the notes
  • If police arrived at the crime scene, indicate from which side they arrived
  • If any of the accused absconded/fled away from the location, indicate the specific direction in which the accused person(s) made off
  • Include in the notes a description of the weather, date and time
  • Note: Officers must refresh and familiarize themselves with the crime scene details before giving evidence in the witness box

Cordoning Off

The ATA lays down a special procedure for conducting investigations of terror suspects as opposed to the general procedure provided under the Cr.P.C. However, for those matters where the special law is silent, the general law remains applicable.

Sections 21-A and 21-B of the ATA lay down the rules for cordoning off areas for the purposes of a terrorist investigation. Cordoned area is one which has been designated as described under Section 21-A. Such designation can only be made by either a police officer equivalent to or above the rank of a Deputy Superintendent of the Police (DSP), or by a member of the JIT if it is considered expedient to do so. The investigating team has wide powers to not just cordon off areas but to also order the immediate removal of a person from such an area or an area adjacent to it, or to restrict the access of pedestrians and vehicles. However, this is a mechanism rarely used by the investigators; instead crime scenes are often contaminated leading to serious defects in the collection of evidence.

Under ATA, following are the rules that govern the investigation procedure:

Relevant Section

Responsible Authority

Actions Steps

S. 21-A – ATA DSP (or an officer above this rank) or a member of JIT
  • An area is cordoned for the purposes of a terrorist investigation under this section.
  • A designation may be made only by an officer not below the rank of a [Deputy Superintendent of Police or a member of a Joint Investigation Team], if he considers it expedient for the purposes of a terrorist investigation.
  • If a designation is made orally, the officer making it shall confirm it in writing, as soon as it is reasonable.
  • The officer making a designation shall arrange for the demarcation of the cordoned area, so far as its reasonably practicable.
  • An area may be demarcated as a cordoned area for a maximum period of fourteen days, which may be extended in writing from time to time, with each extension specifying the additional period: Provided that a designation shall have no effect after 28 days beginning with the day on which it was made.
  • Where a person knows or has reasonable cause to suspect that a terrorist investigation is being conducted or is proposed to be conducted, a person commits an offence if he:
  • discloses to another, or others, anything which is likely to prejudice an investigation; or
  • interferes with material which is likely to be relevant to an investigation.
  • Whosoever commits an offence under sub-section (6) shall be liable for conviction to imprisonment for a term not less than six months and not exceeding two years, along with a fine.
  • It is a defence for a person charged with an offence under sub-section (6) to prove:
  • that he did not know and had no reasonable cause to suspect that the disclosure or interference was likely to affect a terrorist investigation; or
  • that he had reasonable excuse for the disclosure or interference.
  • For the purposes of this section:
  • a reference to conducting a terrorist investigation includes a reference to taking part in the conduct of, or assisting, a terrorist investigation; and
  • a person interferes with any material if he falsifies it, conceals it, destroys it or disposes of it, or if he causes or permits another to do any of those things.
Section 21BA Policeman in uniform [or a member of a Joint Investigation Team]
  1. order
    1. a person in a cordoned area to leave immediately;
    2. a person immediately to leave the premises that is wholly or partly in or adjacent to a cordoned area;
    3. the driver or person in charge of a vehicle in a cordoned area to move it from the area immediately; 
  2. arrange
    1. for the removal of a vehicle from the cordoned area;
    2. for the movement of a vehicle within a cordoned area
  3. prohibit/restrict
    1. access to a cordoned area by pedestrians or vehicles
  4. search
    1. any premises in a cordoned area if he suspects anyone concerned with terrorism is hiding there
  5. arrest
    1. any person he reasonable suspects to be a person concerned in terrorism: Provided that any search of a person shall be done by a Police person of the same sex; or
  6. take possession of
    1. any property in a cordoned area he reasonably suspects is likely to be used for the purposes of terrorism

Furthermore, the following guidelines apply to searches under Section 165 & 166 Cr.P.C; 21-B Anti-Terrorism Act 1997:

Guidelines to FollowRelevant regulation/ rule applicable Relevant Jurisprudence 
An officer in-charge of a police station or the police-officer making an investigation must ensure that the place being searched is in the correct jurisdiction.

The officer must record in writing the grounds of his belief.

The officer must specify in writing the place of his search.

The officer must justify the undue delay in the search

Section 165 & Section 166 of Cr.P.C; Section 21B of ATAMuhammad Bilal v. Superintendent of Police, Dera Ghazi Khan, PLD 1999 Lah 297, [8]

This section [section 165] empowers the police officer specified to make a search without warrant subject to certain safeguards. The prerequisites for a search as per this section are that:

(i) Search must be necessary for investigation

(ii) The offense must be such as the police officer is authorized to investigate, i.e. a cognizable offense.

(iii) Reasonable grounds must exist for believing that the thing required will be found in a place.

(iv) There would be undue delay in getting the things in any other way.

(v) Grounds of belief as to the necessity of search must be previously recorded by the police officer.

These conditions must be fulfilled and there should not be misuse of the power nor there should be any harassment. The perusal of the section leaves no doubt that it does not apply when search is for arrest of the accused. The search envisaged by this section is to be made for a specified thing. A person is not a thing. … where police [do] not record in writing in Roznamcha grounds for making search of the house of the accused, it was held that it was without jurisdiction and bad in law”

Ashiq Din v. The State, PLD 1968 Lah. 1425, [21]

“The Head Constable did not record in writing the grounds for making a search of the house of Ashiq din and his brothers. As such the act of the Head Constable suffered from a complete absence of jurisdiction.”

An officer-in-charge of a police station receiving a requisition to search u/s 166 of Cr.P.C, should comply without unnecessary delay and should take all necessary precautions to ensure a successful search.Police Rules 1934, s. 25.23


Measures to AvoidRelevant regulation/ rule  applicable 

Relevant Jurisprudence 

If the object in question can be obtained otherwise, the officer is not required to make the search. Section 165 of Cr.P.CMurtaza Hussain v. The State, 1996 PCr.LJ 510

“It is mandatory for an officer-in-charge of a police station who desires to make a search in any place outside his territorial jurisdiction to make a request to the officer in charge of the police stations having territorial jurisdiction to make such search. However, it further provides that in case the first Police Officer is of the view that there may be a delay caused in following the said procedure which may result in evidence being concealed or destroyed then he may cause the said search to be made by himself but he has to issue forthwith a notice for search to the officer-in-charge of the police station having territorial jurisdiction … It is essential that a Police Officer conducting a search under section 165 or 166 of the Code of Criminal Procedure should send forthwith, to the nearest Magistrate, copies of the record that he has prepared before undertaking the search and non-compliance in such cases would amount to disregard of a mandatory provision and no conviction can be based on such defective investigation.”

The officer should ensure that the precautionary measures are not avoidedPolice Rules 1934, s. 25.23

Requirement of Case Diary & Daily Diary. 

Under Section 172 Cr.P.C it is mandatory for an investigating officer to enter day to day proceedings of the investigation in a case diary/Zimni and a daily diary/roznamcha. The officer must note the time at which the information reached him; the time at which he began and closed his investigation; the place or places visited by him; and a statement of the circumstances ascertained through his investigation. 

Case diaries are required to be as brief as possible and must record only those incidents that have a bearing on the case. This diary may be used at the trial or inquiry, not as evidence in the case but to aid the Court in such inquiry or trial. The object of recording “case diaries” under this section is to enable Courts to check the method of investigation by the Police. Therefore, it is very crucial, in order to minimize potential human rights abuses and to encourage the adherence to proper law and procedure, that the case diary entries be accurate and made with diligence. 

If a police witness who has failed to keep a diary as required by Section 172, the evidence of such a police officer is open to adverse criticism and may diminish its value but it does not make that evidence inadmissible. The prosecution may use such a diary to refresh the police witness’s memory during recording of evidence, as provided under article 155 of Qanun-e-Shahadat Order, 1984.

The daily diary/Roznamcha is intended to be a complete record of all events that take place at the police station. It should, therefore, record not only the movements and activities of all police officers, but also visits of outsiders, whether official or non-official, coming or brought to the police station for any purpose whatsoever. 

Collection of Evidence 

Investigative tools in Pakistan are not up to date with scientific developments, even though under the law evidence obtained through modern means is admissible. Generally, Article 164 of the Qanun-e-Shahadat Order, 1984 governs the admissibility of evidence collected from modern devices. In cases tried by the ATC under provisions of ATA, the “court may convict the accused on the basis of electronic or forensic evidence or such other evidence that may have become available because of modern devices or techniques.” With regard to Closed Circuit Television (CCTV) footage it has been held that pursuant to the insertion of Article 164, the evidence collected through modern devices is admissible as valid.  However, mere production of a CCTV footage as a piece of evidence in Court is not sufficient to rely upon unless it is proved to be authentic. In order to prove the genuineness of such footage, it is incumbent upon the prosecution to examine the person who prepared the footage. Furthermore, in the case regarding the terrorist attack in Dera Ghazi Khan on 15.12.2009, Article 164 was relied upon to accept the confession made by the defendant during a press conference that was saved through a CD.

Moreover, evidence is routinely tampered with. For instance, empties have to be submitted into evidence even before the recovery of the gun. However, this is not the practice. Everything is recovered and placed together in evidence thereby breaking the chain of custody of evidence or raising doubts as to the credibility of the empties being fired from the gun in the commission of the crime or later on by the police just to show recovery of empties.

Every piece of recovery has to be sealed and stamped at the crime scene and then sent to the forensics. In practice, evidence is brought to the police station and then wrongfully signed and stamped to show that the procedure was completed at the crime scene. Such practices not only contaminate the evidence, but also cause delays in investigation during the time the accused is held in custody, even if he is innocent. In the case of Mustaqeem vs. Nawab Khan, there was no documented chain of custody. The empties recovered from the crime scene were sent to the Forensic Science Laboratory after a delay of eleven days and there was no documentation of where they had been before they were dispatched. In light of this, a positive report of the Forensic Science Laboratory that connected the accused to the crime was discredited and considered inadmissible. 

Recently, in a Federal Shariat Court Judgment (2019 YLR 487), the Court ruled that recovery of all weapons including “lathi”, hatchet and double barrel gun were inadmissible because they were not the weapons of offense and also did not corroborate with eyewitness testimonies. Additionally, recovery of the double barrel gun was also inadmissible as no bullet empties were recovered. This is in line with the Supreme Court judgment from 2017 that also rendered a recovered pistol inadmissible due to the absence of evidence (such as empties) connecting it to the offenses. 

Recording of Statements of Witnesses

Section 161 Cr.P.C empowers the investigating officer to orally examine witnesses and record their statements. He is required to make a separate record of such statements and is expected to include them in the case diary maintained under Section 172. However, these are not mandatory provisions as such statements are not substantive pieces of evidence, meaning that it is up to the investigating officer if he requires witness statements to be recorded. According to Moazzam alias Moazzan v. The State, “the statements under section 161, Cr.P.C. prima facie, has no evidentiary value at bail stage.” Witness statements u/s 161 may be used in evidence to contradict a witness or to test his statement’s veracity under Article 140 of the Qanun-e-Shahadat Order.

Witness statements must be taken down promptly and verbatim. If these are missing, then it creates doubts on the veracity of these statements, thereby harming the prosecution’s case. Police usually elaborate upon witness statements that later do not corroborate with circumstantial or documentary evidence, thereby weakening the prosecution case. In Naveed Hussain v. State, the Court said that:

“Regarding the confessional statement of the convict/appellant recorded under section 21-H of ATA there is no doubt a shaky piece of evidence and much reliance has not been placed on such confessional statements by this Court and in this regard many cases have been disposed of in the light of the same. After the amendment in section 21-H of ATA whereby a proviso has been added which is reproduced as under where a legislature has made it mandatory that section 21-H of ATA shall be admissible in evidence which has to be read with amended section 6 of the ATA” (Judgment)

Amendment of section 21-H, Act XXVII of 1997. —In the said Act, in section 21-H, in the existing proviso, after the word “Provided” the word “further” shall be inserted and before the proviso amended as aforesaid the following new proviso shall be inserted, namely:–

“Provided that the confessional statement made before the District Police Officer or equivalent officer of security forces operating in aid of civil power in the military/security operational areas notified by the Government under section 4 of this Act, involving attack on the members of Armed Forces, Civil Armed Forces, Law Enforcement Agencies, Government installations, hotels or public property shall be admissible in evidence.”

Furthermore, a confessional statement can be considered a corroborative piece of evidence if it supports other pieces of evidence vital to the case. In the case of Muhammad Latif v. The State, the Court held that statements of the prosecution witnesses made during extra-judicial confession were found consistent and the accused had not been able to shake their credibility. It was said by the Court that since there was no hindrance in the chain of custody of circumstantial evidence and since the extra-judicial confession was credible, the extra-judicial confession corroborated the circumstantial evidence and consequently the plea by the accused was dismissed and the death penalty was upheld by the Supreme Court.

Conducting Arrest of the accused

Section 60 of the Code of Criminal Procedure, 1898 provides that a person arrested without warrant should be produced before a Magistrate having jurisdiction without unnecessary delay. Section 61 of the Code of Criminal Procedure, 1898 curtails the powers of a police officer to detain persons arrested for more than twenty-four hours, in the absence of a special order of a Magistrate under section 167 of the Code of Criminal Procedure. 

Safeguards in relation to an arrest are laid down in Article 10 of the Constitution of Pakistan. In that sense, a formal arrest also affords significant protections. An investigating officer also has the power to postpone the arrest of the accused and investigate the commission of the offense. If a person is unlawfully arrested, remedies such as the habeas writ are available in order to safeguard the petitioner’s right to freedom.

Under Article 10 (2), an individual who is arrested and detained in custody has to be produced before a magistrate within a period of twenty-four hours of such arrest and it forbids the continued detention of an individual beyond twenty-four hours without the authority of a magistrate.

Neither the ATA nor the Cr.P.C define what an arrest is, however, a formal arrest authorizes the detention of an individual for a period of twenty-four hours in which the investigation is conducted. As per Section 46 of the Cr.P.C, the person making the arrest is to touch and confine the body of the person arrested unless there is a submission to custody by word or action.

Under the ATA, the police, armed forces and civil armed forces are empowered to arrest an individual without issuing a warrant of arrest. This power of arrest is similar to the provision contained in Section 54 Cr.P.C whereby a police officer may arrest a person without a warrant under nine grounds. 

It is important to note that under Section 54 Cr.P.C the wide powers of arrest have been limited by requiring the police to make an arrest on the basis of either ‘credible information’ or ‘reasonable suspicion’. Similarly, under Section 5 (2) (ii) of the ATA, a reasonable suspicion has to exist that a person has or is likely to commit an act or offence of terrorism. 

In the Cr.P.C ‘reasonable suspicion’ does not mean a vague surmise or inference but rather a bona fide belief on the part of the police that an offense has been committed or was about to be committed. Such belief has to be founded on some definitive averments/allegations which create the basis for suspicion of the involvement in the offense of the person to be arrested. The latter being a gross violation of the fundamental right guaranteed in the Constitution.


Under the Constitution of Pakistan as well as Section 61 of the Cr.P.C, an individual who is arrested must be produced before a Magistrate within twenty-four hours. Beyond this period, judicial authorization is required for any further deprivation of liberty of the accused as provided under Section 167 Cr.P.C

If after arrest, physical custody of the accused is required for investigation beyond the initial period of twenty-four hours, the police or other investigating agency joined in the investigation may seek the physical remand of the individual from the concerned court in the following terms under Section 21-E of the ATA: 21-E. 

21-E Remand: (1) where a person is detained for investigation, the investigating officer, within twenty-four hours of the arrest, excluding the time necessary for the journey from the place of arrest to the court, shall produce the accused before the Court, and may apply for remand of the accused to police custody, for which the maximum period allowed may be [not less fifteen days and not more than thirty days at one time]: Provided that, where an accused cannot within twenty-four hours be produced before the Court, a temporary order for police custody [or custody of any other investigating agency joined in the investigation] not exceeding twenty-four hours may be obtained from the nearest Magistrate for the purpose of producing the accused before the Court within that period. 

(2) No extension of the time of the remand of the accused in police custody [or custody of any other investigating agency joined in the investigation] shall be allowed, unless it can be shown by the Investigating Officer, to the satisfaction of the Court that further evidence may be available and the Court is satisfied that no bodily harm has been or will be caused to the accused; Provided that the total period of such remand shall not exceed [ninety] days. 

Section 21-E of the ATA works in consonance with Section 167 of the Cr.P.C which operates in a situation where investigation cannot be completed within twenty-four hours. The physical custody of the accused is required for the purposes of interrogation and to allow the police or other investigation agency to complete their investigation upon completion of which the Police Report/Challan is led under Section 173 Cr.P.C.

The second type of remand is judicial remand which operates under two sections of the Cr.P.C. Where the Court does not deem the individual’s physical custody with the police or investigating agency to be necessary for investigation, he may remand him into magisterial custody under Section 167 Cr.P.C. Any further detention after the time in which the investigation is to be completed is granted under the provisions of Section 344 of the Cr.P.C.

In order for the prosecution to obtain a judicial remand under Section 344 Cr.P.C three conditions are required to be fulfilled: 

  1. Some evidence should be adduced before the Court which should be sufficient to raise suspicion of the accused’s guilt and the Court should be sure that further evidence to strengthen the suspicion is expected to be collected; 


  1. A police report in writing of acts constituting the offense must be produced to enable the Court to take cognizance of the offense; and 


  1. If the nature of the case is such that no cognizance of the offense can be taken without previous sanction, then such sanction should be produced to enable the Court to take cognizance of the offense.


Once the accused is sent to judicial remand further detention is granted under Section 344 Cr.P.C. The court cannot grant more than two adjournments during the trial of the case and, that too, on imposition of exemplary costs. If the defense does not appear after two consecutive adjournments, the court may appoint a State Counsel. However, under Cr.P.C there is no such restriction and the case may be adjourned, if so advisable under section 344 Cr.P.C. If the accused has not been granted bail such adjournment shall not exceed fifteen days. However, there is no limit on the total period of a series of orders of remand. 

Where an accused has been released from physical custody on the basis of Section 169 of the Cr.P.C or has been remanded to judicial custody, the Court may again place him in police custody (or the custody of any other investigating agency) for the purposes of further investigation. This is contained in Section 19 (5) of the ATA and is reproduced below: 

19(5): Where, in a case triable by a [Anti-Terrorism Court], an accused has been released from police custody under section 169 of the Code, or has been remanded to judicial custody, the Special Court may, on good grounds being shown by a public Prosecutor or a Law Officer of the Government for reasons to be recorded in writing, make an order for placing him in police custody [or the custody of any other investigating agency joined in investigation] for the purpose of further investigation in the case. 

The Police Rules at Rule 25.56 (2) suggest the grounds for requesting remand: 

(2). No application for remand to police custody shall be made on the ground that an accused person is likely to confess. Grounds for such an application should be of the following nature: 

(a) That it is necessary to take the accused to a distance that he may be shown to persons likely to identify him as having been seen at or near the scene of the offense.

(b) That it is necessary to have his footprints compared with those found on or near the scene of the offense.

(c) That the accused has offered to point out stolen property or weapons or other articles connected with the case. (d) Any other good and sufficient special reason.

The Lahore High Court Rules and Orders, Vol. III, Chapter 11, Part B, para 8 provide principles for the guidance of Magistrates when granting remand and are reproduced below: 

Principles applying to remand cases

The following principles are laid down for the guidance of Magistrates in the matter of granting remands, and District Magistrates are required to see that they are carefully applied:- 

  1. Under no circumstances should an accused person be remanded to Police custody unless it is made clear that his presence is actually needed in order to serve some important and specific purpose connected with the completion of the inquiry. A general statement by the officer applying for the remand that the accused may be able to give further information should not be accepted. 
  2. When an accused person is remanded to Police custody the period of the remand should be as short as possible.
  3. In all ordinary cases in which time is required by the Police to complete the inquiry, the accused person should be detained in magisterial custody.
  4. Where the object of the remand is merely the verification of the prisoner’s statement, he should be remanded to magisterial custody. 
  5. An accused person who has made a confession before a Magistrate should be sent to the Judicial lock-up and not made over to the Police after the confession has been recorded. If the Police subsequently require the accused person for the investigation, a written application should be made giving reasons in detail why he is required and an order obtained from the Magistrate for his delivery to them for the specific purposes named in the application. If an accused person, who has been produced for the purpose of making a confession, has declined to make a confession or has made a statement which is unsatisfactory from the point of view of the prosecution he should not be remanded to Police custody.

There are two types of offenses in Pakistan with respect to grant of bail, bailable offenses and non-bailable offenses. A person accused of a bailable offense can obtain bail as a matter of right, from either the SHO or the Court. The Police in such cases should take a bail decision in bailable matters before the matter proceeds to court. In non-bailable offenses (which includes offenses under the ATA), a person may be released on bail by the court. 

With regards to bail, the Supreme Court has largely ruled in favor of granting bail for both bailable and non-bailable offenses with refusal being a matter of exception. In the instance of bailable offenses, in ABID vs. the State (2016 SCMR 907), the Court ruled that the accused was entitled to bail given that the offenses were bailable offenses and that the co-accused was granted bail for the same accusations. 

In the case Mehmood Ali Bhatti v. the State (2016 SCMR 1549) in a combination of bailable and non-bailable offenses, the petitioner was denied bail. In response the Court held that given that the offenses allegedly committed in the case were bailable and the rest did not attract the prohibitory clause contained in Section 497 (1) of the Cr.P.C the petitioner was granted relief in the form of bail. 

In the Supreme Court Criminal Petition No. 662 of 2017, the Supreme Court reiterated the rulings of previous cases such as Tariq Bashir v. The State (PLD 1995 SC 34) where citing Section 497 of the Cr.P.C. It stated that “grant of bail in such offenses (non-bailable) is a rule and refusal shall be an exception for which cogent and convincing reasons should be recorded”. In the 2017 judgment, the Court held that “grant of bail in offenses not falling within the prohibitory limb of Section 497 shall be a rule and refusal shall be an exception.”

For remand the ATC court shall be deemed to be a Magistrate. The arrested person shall be produced before the Court within twenty four hours from the time of arrest, excluding the time required for traveling. If the accused cannot be produced within twenty-four hours then temporary police custody may be ordered by a Magistrate who is available nearby. The Court cannot grant physical remand of the accused for more than fifteen days at one time. The total period of such remand shall not exceed ninety days. However, under Section 167 of Cr.P.C. total period of physical remand shall not exceed fifteen days. When ordering physical remand of the accused, Special Courts have to observe the provisions of Section 167(3) Cr.P.C and the remand order if passed without assigning any reasons would be a nullity in the eyes of law.

It was held in the case of Rashid v. The State that remand is not to be granted mechanically without application of mind, rather it is to be granted only in case of a real necessity and also that the period of such remand is to be granted with due regard to reasonable requirements. In this case, the Trial Court was mistaken in understanding that while exercising its powers under Section 21-E of the ATA it was not required to give reasons for the order granting physical remand. This interpretation was completely in violation of the provision of Section 21-E (3) of ATA whereby the ATC is to operate as a Magistrate Court.

The landmark judgment of Ghulam Sarwar v. The State consolidates some of the legal principles relating to remand under the general law and lays down fifteen principles aimed at regulating the grant of remand. Some of these principles are reproduced below: 

  • During the first 15 days, the Magistrate may authorize the detention of the accused in judicial custody liberally but shall not authorize the detention in the custody of the police except on strong and exceptional grounds and that too, for the shortest possible period; 
  • The Magistrate shall record reasons for the grant of remand. 
  • Before granting remand, the Magistrate shall assure that evidence sufficient to raise suspicion that the accused has committed the offense has been collected by the police and that further evidence will be obtained after the remand is granted. 
  • The Magistrate shall not grant remand /adjournment in the absence of the accused. 
  • The Magistrate should avoid giving remand /adjournment at his residence. 
  • The Magistrate shall record objections which may be raised by an accused person and shall give reasons for the rejection of the same.
  • The Magistrate shall examine the police file before deciding the question of remand.
  • If no investigation was conducted after having obtained remand, the Magistrate shall refuse to grant further remand /adjournment.
  • The Magistrate shall not allow remand/ adjournment after 2 months (which is a reasonable time) of the arrest of the accused unless it is unavoidable.
  • The Magistrate shall not grant remand mechanically for the sake of cooperation with the prosecution/ police.
  • Despite this formal recognition by the High Court, there have been instances where people have been deprived of their right to liberty without the law being followed and Courts have been liberal in applying Section 21-E of the ATA and granting physical remand.
  • The ATA, because of its frequent application of remand and long period of detention, raises certain concerns and faces certain challenges.

Police Report Under Section 19 of ATA

In respect of the police report, the investigating authority has an important role to play that is delineated below as follows:

The Role of the Investigating Authority 

In light of section 25.57 of Police Rules 1934, upon the completion of an investigation, the officer compiling the report may add that:

  • The accused be charged, as there exists sufficient evidence to implicate him, thereby requiring the submission of a ‘challan’ or charge sheet;
  • The F.I.R against the accused be canceled where a case is found to be false or unfit for prosecution, thereby submitting a ‘cancellation report’; or
  • The accused has not been found or traced by the police, thereby submitting a ‘report of untraced’.

Under Section 19 of the ATA, a challan may be final or interim.

Interim Report

The second proviso to Section 19(1) provides for the submission of an interim report where the investigation is not completed in 30 days from the lodging of an F.I.R.

In this case, within 3 days after the expiration of 30 days the investigating officer or the JIT must forward to the ATC an interim report through the Public Prosecutor, signed by the investigating officer of the police. The interim report shall state the result of the investigation that has been conducted till that point.

The ATC is empowered to commence trial on the basis of this interim report, and if it decides to not do so, to then record reasons for such a decision.

Final Challan

After the police is done with the investigation, and if the ascertained facts corroborate that there is a case to place before the [court] for trial, then the Police ought to take the necessary steps for the same by fling of a challan under Section 173 Cr.P.C. In Lal Khan v. SHO, the alleged victim of an abduction had informed the police that the claimed abduction had not occurred. The police went ahead with the investigation and filed the challan before the magistrate, who then charge sheeted the accused. The High Court then laid down the aforementioned rule and stated that, ‘the arbitrary and mechanical exercise of jurisdiction and authority by the prosecution and the learned trial court also contributed towards the miseries of the accused and the alleged abductee’

An investigation report under the Section 19 of the ATA is to be submitted within 30 working days, meaning thereby that the investigating officer / JIT shall have 30 working days to complete their investigation. This differs from the Cr.P.C wherein 14 days are provided for the completion of an investigation. This report is signed and submitted to the ATC directly by the investigating officer, while under the Cr.P.C, a police report is forwarded to the Magistrate through the public prosecutor. For cases of investigation pursuant to Sections 4 and 5 of the ATA, the police report shall be signed and forwarded by the police member of the JIT. Final reports and incomplete reports recommending initiation of trial are sent in Form 25.56(1). This is called the challan form.

The basic elements of a challan submitted under Section 173 Cr.P.C are as follows: 

  1. Description of the offense;
  2. Production of the accused (in the trial court); and
  3. The evidence to prove the offense.

An investigation is thus incomplete where the accused is not within custody of the investigating officer to be produced in front of the trial court. Moreover, the only provision under which a challan may be submitted is Section 173 of the Cr.P.C, even for an investigation under Section 19 of ATA. The Courts are not empowered to order the submission of a challan under any other provision of law.