NAB’s insistence on keeping accused in jail dismissed

ISLAMABAD: Prominent politicians – Khawaja brothers – have been allowed by the Supreme Court to smell fresh air, out of prison, after 15 months’ incarceration caused by the National Accountability Bureau (NAB).

Pakistan Muslim League-Nawaz (PML-N) leaders Khawaja Saad Rafique and Khawaja Salman Rafique were among the very few senior political figures left in jail because of the cases instituted by the anti-graft watchdog while most of their colleagues, facing imprisonments, have already been given such relief by superior courts.

Now, Hamza Shahbaz and Syed Khursheed Shah, the senior Pakistan People’s Party (PPP) leader, arrested by the NAB, are the only top politicians, who are still in prison, awaiting bails. Sometime back, the Lahore High Court (LHC) granted bail to Hamza Shahbaz, apprehended nine months back, in one case while rejected his plea in the assets beyond means charge.

Khursheed Shah, detained six months ago, had been bailed out by an accountability court of Sukkur but the facility was cancelled by the Sindh High Court (SHC). Besides these politicians, noted bureaucrat Ahad Cheema, also arraigned by the anti-corruption outfit, is in jail for the last 25 months, becoming the longest serving NAB detainee, whereas his senior colleague Fawad Hassan Fawad, who retired during confinement, had been given bail after 19 months’ custody.

Among the politicians, the Khawaja brothers spent the maximum time behind bars, waiting for the bails. They had been taken into custody by the NAB after the LHC had quashed their interim bail in December, 2018. Former Prime Minister Shahid Khaqan Abbasi was granted bail by the Islamabad High Court (IHC) after seven months’ detention while Ahsan Iqbal got this facility after months’ captivity.

The PML-N got a boost and became activated after the simultaneous release of Abbasi and Ahsan Iqbal who, after that are forcefully representing the party in and out of the Parliament. They also traveled to Karachi to hold a meeting with the representatives of the Muttahidda Qaumi Movement-Pakistan (MQM-P). Deposed Prime Minister Nawaz Sharif’s daughter Maryam later visited their residences and broke her four-month long silence. The PML-N rank and file, which has been demoralised, got a clear message that the leadership is alive to the political situation.

Justice Maqbool Baqar, who headed a two-member bench, which heard the bail request of the Khawaja brothers, remarked that either the NAB has bad intention or lacks capacity. “In both cases, the matter is extremely serious; the NAB has no reason to give as to why the bail plea of the Khawajas should be dismissed.

The NAB did not allege violation in the “shamlaat” plan. If money came in the accounts of the Khawajas, what is the illegality in it? They are admitting that the money was deposited in their accounts and if there was any illegality, the NAB should show it.

The lawyer of Khawajas, caught in the Paragon Housing Society case, argued that the NAB chairman granted pardon to witness Qaisar Amin Butt twice. “After the first pardon, Butt recorded his statement before a magistrate, which was not according to the NAB chief’s wishes. After that, the NAB chairman withdrew the pardon. Again, the witness was given it. Butt wanted plea bargain that the NAB rejected. The primary objective of the NAB was to make a case against the Khawajas.”

In almost all the high-profile political cases instituted by the NAB, superior courts have accepted the bail requests of the accused, giving cogent, credible reasons, disparaging the stands taken by the NAB.

While dealing with a similar application of two senior officials of the Pakistan Telecommunication Authority (PTA), the IHC has laid down strict parameters and guidelines for the NAB in a historic judgment. One of its major highlights is that the NAB should not arrest the accused persons, who are appearing before it and cooperating in the inquiry or investigation. But still the NAB continues to make arrests at very preliminary stages.

The most recent example is the incarceration of Jang/Geo Editor-in-Chief Mir Shakil-ur-Rehman, who was taken into custody even during complaint verification, making it a first case of its kind.

The IHC verdict held that the executive power to arrest a person under the National Accountability Ordinance (NAO) cannot be exercised unnecessarily or for conducting roving inquiries. If an accused is cooperating in the inquiry or investigation and appropriate measures have been taken to ensure his attendance, then in such an eventuality restriction on constitutional rights would be an abuse of the executive power, the judgment, authored by IHC Chief Justice Athar Minallah, ruled.

It said the power to arrest under the NAO is not absolute, unfettered and its exercise is subject to the principles and law. Rights that could be affected by arresting an accused under the NAO include: the right to be presumed innocent; the right to be treated in accordance with Article 14 by recognising inviolability of dignity; the right to liberty and freedom of movement; and the right not to be treated differently. In the absence of lawful authority, to justify intrusions into constitutionally guaranteed rights, the detention or incarceration would become ‘false imprisonment’, which has evolved in the law of Tort for the protection of liberty and against abuse of executive power.

It is thus an obligation of the person directing the arrest to discharge the onus by demonstrably justifying that there were no other less restrictive means for the purposes of conducting effective inquiry or investigation. Deprivation of liberty must be exercised as an exceptional option for the purposes of inquiry or investigation in relation to white collar crimes.