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LAHORE: The power of the National Accountability Bureau (NAB) to arrest a suspect before completion of investigation has been challenged before the Lahore High Court for being contrary to fundamental rights.

In a ‘public’ interest petition, Advocate Ghulam Yasin Bhatti pleaded through his counsel A K Dogar that sections 24 (a) and (d) of the NAB Ordinance 1999 was in violation of Article 10 (10-A) of the Constitution and needed to be struck down.

He argued that arrest of a person during investigation and trial was inconsistent with the Article 10 of the Constitution (safeguards as to arrest and detention) for two reasons – firstly, no person can remain in custody unless he was informed of the grounds of his arrest and the grounds could only be established after investigation was complete. Secondly, he argued, no investigation was constitutionally valid unless an accused had been granted the fundamental right to consult and be defended by a legal practitioner of his choice.

Therefore, the petitioner pleaded, the NAB had a constitutional obligation not to deny an accused his or her right to consult and be defended by a lawyer of his choice at the time of investigation.

The petitioner relies on a leading case from American jurisdiction titled “Escobedo vs Illinois 1964” and quotes its relevant portion that reads, “At the station, Escobedo asked to see his attorney, but the police refused. His attorney came to police station and repeatedly asked to see his client, but he was refused access. Instead, police and prosecutors questioned Escobedo for fourteen and a half hours until he made damaging statements and was found guilty of murder. Escobedo appealed, claiming that he was denied his right to counsel and the counsel should have been present during the interrogation. The judgment of Illinois Supreme Court of USA is reversed and the case remanded for proceedings not inconsistent with this opinion.”

The petitioner asked the court to declare section 24 (a) and (d) of the NAB Ordinance 1999 as ultra vires of the Constitution and the dictum laid down by the Supreme Court in case of “Khan Asfandyar Wali vs Federation of Pakistan PLD-2001.”

He further asked the court to restrain the NAB from arresting citizens under its invalid powers and order release of hundreds of accused persons who had been taken into custody by the anti-corruption watchdog.

Published in Dawn, December 18th, 2018

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