ISLAMABAD: Arrest of ousted prime minister Nawaz Sharif, his children and Finance Minister Ishaq Dar after filing of references against them by the National Accountability Bureau (NAB) is unlikely because of a loophole in the National Accountability Ordinance (NAO) which governs NAB and accountability courts.

A NAB spokesperson told Dawn on Tuesday that “in compliance with the directions of the Supreme Court’s judgement of July 28, NAB will file the reference in the accountability courts before the deadline”.

He did not comment on the possibility of the arrest of Mr Sharif and others, but said that the bureau “had complied with the apex court’s direction in letter and spirit regarding filing of these references”.

The deadline of filing of references would end on Sept 8. The apex court had ordered the bureau to prepare the references against Nawaz Sharif, his sons Hussain Nawaz and Hassan Nawaz, daughter Maryam Nawaz, son-in-law retired Captain Mohammad Safdar and Ishaq Dar in six weeks.

Loophole in NAO gives discretionary powers to NAB chairman to issue arrest warrants

According to Section 24 (a) of the NAO, the chairman has the unfettered powers to issue arrest warrants for an accused during an inquiry or investigation and even during trial proceedings.

It says: “The Chairman NAB shall have the power, at any stage of the [inquiry or] investigation under this Ordinance, to direct that the accused, if not already arrested, shall be arrested.”

Section 24, which exclusively deals with the subject “Arrest” further states in Sub Section (c): “The provision of sub-section (a) shall also apply to cases, which have already been referred to the Court.”

The apex court has directed NAB to file references against the ousted prime minister, his children and the finance minister in six weeks.

The cases to be filed against the Sharif family include those related to Avenfield properties, Azizia Steel Company, Hill Metal Company and foreign companies owned by Mr Sharif’s children. The bureau would file a reference against Mr Dar for possessing assets beyond his known sources of income.

According to legal experts, crimes covered by anti-corruption and special laws envisaging three-year imprisonment are non-bailable offences.

For non-bailable offences, the accused could obtain a pre-arrest bail from the trial court and in case the accused could not get the bail, he may be taken into custody.

Since the NAO gave all the power to the NAB chairman, the issuance of arrest warrants was the sole discretion of the chairman in the corruption cases, the legal experts said. As the law was introduced by a military dictator, this ‘loophole’ was deliberately integrated to benefit certain persons, they added.

Amjad Iqbal Qureshi, a senior lawyer who is well versed with the accountability law, said that the NAB chairman had exercised his power and issued a number of arrest warrants even in minor cases which made the law discriminatory.

According to Mr Qureshi, the accused might enjoy liberty during the inquiry, investigation and even after filing of references if the NAB chairman did not issue arrest warrants.

Published in Dawn, September 6th, 2017