The apex court has raised questions about the arrest of accused persons by the country’s prime accountability watchdog – the National Accountability Bureau (NAB) – after their indictment.
A three-judge bench led by Justice Umar Ata Bandial on Monday took up a pre-arrest bail application of a person allegedly involved – along with a dozen other accused – in illegal allotment and lease of 22,155 acres state land that caused a loss of more than Rs6billion to the exchequer.
The petitioner through his counsel Shah Khawar approached the apex court after the Sindh High Court (SHC) rejected his pre-arrest bail petition. During the hearing, Shah Khawar referred to an order of former chief justice Asif Saeed Khosa.
Justice Khosa had granted pre-arrest bail to an accused in a NAB case on the grounds that the accountability watchdog had completed its investigation and filed its final reference in against him in an accountability court which had also indicted the accused.
“My client has also been indicted and therefore he should be granted pre-arrest bail,” he said.
The bench asked the NAB prosecutor as to what is the point of arresting an accused if NAB has completed its investigation against him and if an accountability court has indicted him.
Justice Munib Akhtar, a member of the bench, asked: “Whether NAB is trying to arrest him because it has the power to arrest. Is this not malice in law?” Justice Bandial asked the counsels for parties to assist the court on this point. The bench later granted interim bail to the accused person.
The superior judiciary has been expressing serious concern over misuse by NAB chairman of the power to arrest. Senior lawyers have also urged the superior courts to interpret the provision the National Accountability Ordinance (NAO) 1999 which empowers NAB chairman to issue arrest warrants.
In November 2018, a division bench led by Justice Sheikh Azmat Saeed questioned NAB decision-making regarding arrest of accused persons, asking why the graft-buster had not evolved a uniform policy.
In January this year, a three-judge bench led by Justice Mushir Alam also questioned NAB arrest policy.
In March, the Islamabad High Court (IHC) while examining Section 24 of the NAO feared that abuse of the power of arrest by NAB may be adversely impacting the governance system and economy.
“It can cause irreversible damage to the reputation of a person. The social stigma attached with being arrested for an offence under the Ordinance of 1999 can have devastating implications and massive human impact, not only for that person but for the latter's family members as well.
“The publicity given to the arrest of an accused through press releases issued by the bureau and any irresponsible reporting in the print or electronic media could ruin lives [particularly] of those who at the end of a fair trial are declared innocent," said a 56-page order authored by Chief Justice Athar Minallah.
The IHC interpreted Section 24-d of the NAO which empowers NAB chairman to issue arrest warrant of an accused and noted that presenting suspects as though they are guilty exacerbates the humiliation suffered because of the arrest.
“Such treatment and interference with liberty definitely amounts to infringement of the inherent dignity of a human and thus is a serious violation of inviolability of dignity guaranteed under Article 14 of the Constitution,” said the judgment.
The IHC said a suspect cannot be exposed to humiliation unnecessarily as a result of exercising powers excessively or arbitrarily. It said Sub Article 2 of Article 14 is a constitutional assurance to every person not to be subjected to torture for the purposes of extracting evidence.
“This is most relevant in the context of the expansive powers vested in the bureau and its chairman under the ordinance of 1999, particularly its distinct features relating to the acceptance of plea bargain or the power to allow an accused to become a witness against others,” it said.
The court noted that the power to arrest under the NAO 1999 should be exercised justly, fairly, equitably and subject to the principles.
"Across the board accountability in a transparent manner and free from discrimination and arbitrary exercise of powers is inevitable to meet the challenges faced due to the menace of corruption.
“Last but not the least is professional training, qualification and expertise of the investigators and prosecutors to deal with white-collar crimes. Investigators of the bureau definitely have to be experts and trained professionals to deal with white-collar crimes,” said the order.
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