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March 22, 2020

IHC’s two more landmark judgements

Peshawar

March 22, 2020

ISLAMABAD: The Islamabad High Court (IHC) has delivered another landmark judgement, holding that there is no room in the National Accountability Bureau (NAB) law to form a joint investigation team (JIT) and file an interim reference in the accountability courts against the accused.

In the meantime, IHC Chief Justice Athar Minallah has taken another momentous decision by ordering release on bail bonds of inmates of the Adiala Jail, Rawalpindi, imprisoned for minor offences; the convicts undergoing sentences for less than seven years, and the accused lodged in police stations lockups, who have not yet been shifted to prison. The direction came in view of the fear of spread of Covid-19 in jail.

Top Pakistan People’s Party (PPP) leader Syed Khurshid Shah, arrested by NAB in September last year, was the first ever senior politician against whom the anti-graft agency chairman had formed a JIT to look into the assets beyond means allegations against him. It consisted of the director general of the Multan chapter of the NAB and representatives of the Federal Board of Revenue (FBR), Securities and Exchange Commission of Pakistan (SECP) and Federal Investigation Agency (FIA).

The establishment of the JIT, which worked for over two months, was challenged by Khurshid Shah through eminent lawyer Senator Raza Rabbani before the IHC, which ruled on Thursday that the National Accountability Ordinance (NAO), 1999 doesn’t provide for creation of any such forum and only NAB’s investigation officers are authorised by the law to do this job.

NAB had constituted no JIT even against PPP supremo Asif Ali Zardari and his sister Faryal Talpur to investigate the alleged money laundering through fake bank accounts. It had relied on the findings of an FIA JIT.

The three references filed against deposed Prime Minister Nawaz Sharif and others by NAB on the direction of the Supreme Court were based on the Panama JIT. In fact, the apex court had ordered the NAB to submit these references, solely relying on the JIT report. As a result, the anti-corruption agency had not done any investigation on its own before handing over the references to the accountability courts.

Justice Aamir Farooq observed that there was also no room in the NAO for NAB to file an interim reference against the accused. What NAB has mostly done is that it submits interim references in accountability courts while carrying out fishing expeditions and roving inquiries to search for more “proof” and “evidence” against the under custody accused. Thus, the disposal of references continues to drag for an indefinite time.

Resultantly, no accountability court has ever decided a case within the thirty days’ time limit, provided in the NAO. Under the law, NAB is supposed to complete its investigation during ninety days.

In the other order, Justice Minallah directed that the deputy commissioner should nominate an officer to look after the issues relating to bail bonds, and the government should arrange such guarantees for the prisoners, who could not provide such sureties.

Barrister Jehangir Jadoon asked whether the order also applies to those arrested in the NAB cases. Justice Minallah said that provincial governments have to see this matter and the IHC has already stated that there is no need to make unnecessary arrests by NAB.

He heard the case relating to the release of 1,362 inmates of the Adiala Jail, including the under-trial prisoners, who could be sentenced to a maximum of 10 years, on bails. He remarked that the prison has the capacity to accommodate 2,174 inmates but there are at present 5,001 inmates lodged there. Why shouldn’t the under-trial prisoners be freed in view of the danger of spread of coronavirus?

The top judge said if even a single Covic-19-affected happened to be in the jail, other inmates could be hit. Then, it would be difficult to control the menace. Iran has released all the prisoners, he pointed out.

Early this month, Justice Minallah held in an authoritative judgement that the executive power to arrest a person under the 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 verdict, he ruled.

The judgement exhaustively dealt with the powers of arrest of the NAB chairman laid down parameters for exercise of this authority and spells out safeguards against excessive and arbitrary exercise of power to detain a person.

The verdict said that the power to arrest under the NAO is not absolute, unfettered and its exercise is subject to the principles and law highlighted in the order.

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.