NAB likely to file review petition against Khawaja brothers’ bail verdict

LAHORE: National Accountability Bureau is likely to go for review against verdict of two-member bench of the Supreme Court granting bails to former railways minister Kh Saad Rafique and his brother, former Punjab health minister Kh Salman Rafique, in the Paragon City corruption case. It was learnt that the NAB will file review petition today (Thursday) or soon after Eid holidays.

However, Amjad Parvez counsel of Khawaja brothers is of the view that NAB has a hopeless case for review, saying that option of review is only taken and considered when there is a legal and actual error in the judgment. Amjad said there is no legal and actual lacuna in the judgment of the apex court in Khwaja brothers bail judgment.

Amjad further said the Supreme Court has clearly stated in its judgment that observations in order are merely tentative in nature and will have no bearing on the outcome of the reference. On the other hand, the NAB has prepared a draft of review petition, copy of which is available with The News telling a different story.

The review draft starts as “the observations in the impugned judgment suffer from material irregularities of such a nature which has converted the process from being one in aid of justice to grave miscarriage of justice”.

It further stated that “It is respectfully submitted that observations in the impugned judgment have completely overlooked provisions of the applicable law, while also ignoring vital facts of the instant case”.

The NAB pointed out that “glaring omissions and patent mistakes have crept into the impugned judgment, violating the law and the Constitution”.

The NAB further added that “it is respectfully submitted that the review of the impugned judgment is warranted in the interest of justice which if not allowed, the observations made therein are of such nature which would seriously prejudice the case of the prosecution before the trial court”.

The Bureau’s prosecution stated in the draft that the honorable bench while rendering the impugned observations has embarked upon giving its own appraisement of evidence available on record and has discussed the evidence pertaining to all the allegations levelled against the accused which are pending determination before the trial court. Hence, despite mentioning in Para 93 of the impugned judgment regarding tentative nature of said observations, it would be impossible for the trial court to deviate from such uncalled for observations and would prove fatal to the case of the prosecution. The NAB stated in its draft that the observations rendered by the court vide impugned judgment are per incuriam on the face of record as they amount to assume the functions of trial court which is against the law as well as repugnant to the provisions of the Constitution. It would be impossible for the trial court to discard the reasoning given by the apex court on the facts and material on record which, as a matter of fact, has not left any room for the trial court to deviate it from it amounting to sheer miscarriage of justice.

NAB said it has already been observed by the SC in different orders that bail order must be precise and not more than four to five pages. The NAB stated in draft that the Supreme Court in its judgments had expressed disapproval of rendering lengthy judgments in matters of bail since it is only an interim matter pertaining to regulating custody of an accused during his trial and while giving the guidelines to subordinate courts, he himself also set an example as to how an order in such matters may be passed while deciding a bail petition in the case reported as PLD 2014 Supreme Court 458. However, the impugned judgment consisting of 87 long pages runs contrary to the threshold set out in aforementioned judgment, the NAB added.

The draft further stated “With the highest respect at our command, the entire impugned judgment in particular the SC observations on the statement of approver Qaiser Amin Butt are patently erroneous.

The errors in the impugned judgment are floating on the face of the record, as the same ignores judgments of the Supreme Court as well as express provisions of the law. It may graciously be noted that the provisions of Section 26 have not been construed in its true spirit and this honorable court has fallen into an error by completely failing to identify the distinction between the provision of Section 26 of NAO, 1999 and Section 164 of CRPC, 1898. Moreover, if any inconsistency exists between the two provisions, then it is to be appreciated that provision of Section 26 of NAO, 1999 contain a non-obstante clause which shall operate as an ouster to preclude the application of provisions of CRPC”.

The NAB concluded that “the observations regarding the Bureau’s conduct in the instant case as manifestation of utter disregard of law and alleged reluctance in proceeding against people on one side of the political divide or political motivation cannot withstand or borne out of the recent history of this Bureau. It is pertinent to mention that the instant inquiry was initiated when the respondent accused and his political party were sitting at the helm of affairs of the country and the Bureau is exercising powers envisaged under NAO, 1999 without any fear or favour and strictly in accordance with law while maintaining high standards of integrity and devotion irrespective of the position the accused are holding, be it the treasury member or any other. Many cases against the members of incumbent government are being dealt with strictly in accordance with command of law”.