ISLAMABAD: Over a week after rejecting the pre-arrest bail plea of former president Asif Ali Zardari and his sister Faryal Talpur, the Islamabad High Court (IHC) on Tuesday issued a detailed order observing that the suspects had failed to prove mala fide intention of the anti-graft watchdog for their arrest.

In the detailed order, a division bench of the IHC comprising Justice Aamer Farooq and Justice Mohsin Akhtar Kayani observed that the accused in the fake accounts case could not be given relief of the pre-arrest bail. They could not prove that their arrest by the National Accountability Bureau (NAB) was intended to humiliate them, the bench observed.

“Grant of pre-arrest bail is an extraordinary remedy in criminal jurisdiction; it is diversion of usual course of law, arrest in cognisable cases; a protection to the innocent being hounded on trumped-up charges through abuse of process of law, therefore, a petitioner seeking judicial protection is required to reasonably demonstrate that intended arrest is calculated to humiliate him with taints of mala fide; it is not a substitute for post-arrest bail in every run of the mill criminal case as it seriously hampers the course of investigation,” the detailed order stated.

“In the instant cases, the Joint Investigation Team, constituted under the order of the Supreme Court…[which] submitted its report in the form of final (synthesis) report pointing out money laundering and use of fake and forged accounts to inject illegitimate money derived from kickbacks, corruption, corrupt practices, fraud and other such means into the system and utilisation of the same. The Supreme Court of Pakistan vide order dated January 7, 2019 directed the authorities including the NAB to investigate and inquire into the scam and initiate appropriate proceedings,” it added.

According to the verdict, NAB claimed that their custody was required for investigation as money trail was linked with the suspects. “In such facts and circumstances, no mala fide or ulterior motives can be attributed to the respondent [NAB] which is the core principle for grant or refusal of the bail before arrest,” the IHC bench explained.

Rejecting the argument that the NAB chairman could not issue arrest warrants after commencement of trial proceedings, the IHC judgement pointed out that the NAB chairman could issue warrants of arrest even after the filing of reference under Section 24(a) read with Section 24(c) of the National Accountability Ordinance.

The court observed white-collar crimes were “not easy to detect and trace and cannot be equated with other general offences; in such like cases, the accused persons are to be confronted with the documents and inquired about the same repeatedly in order to build up the chain. For the said purpose, the NAB authorities require custody of the petitioners.”

Advancing arguments before the bench, lead counsel for Mr Zardari and his sister, Farooq H. Naek, had earlier stated that the NAB chairman had no lawful authority to execute warrants of arrest after filing of the reference.

The FIR was registered on July 6, 2018 by the Federal Investigation Agency (FIA), State Bank Circle, Karachi, under sections 419, 420, 468, 471, 109 of Pakistan Penal Code read with Section 5(2) of the Prevention of Corruption Act, 1947, read with sections 3&4 of the Anti-Money Laundering Act, 2010. It alleged that huge amount of money was being laundered through fake and forged bank accounts by depositing the money and withdrawal of the same.

The companies and persons involved in the forged accounts were named in the FIR and it was alleged that total scam was worth Rs4.145 billion.

Arguing before the court, Advocate Naek contended that neither the petitioners were nominated in the FIR nor their names surfaced in the interim challan. Hence, he said, they were not responsible in any way.

The counsel argued that the money deposited was legitimate and his clients had nothing to do with the allegation of money laundering.

However, NAB’s additional prosecutor Jahanzeb Khan Bharwana argued that the petitions were not maintainable in light of the recent pronouncements by the Supreme Court.

Mr Bharwana further argued that the scam was worth Rs4.4 billion and its impact was still being investigated by the anti-graft watchdog on the SC direction. The accused persons had layered the money by depositing, withdrawing and transferring the same money repeatedly to conceal the true identity, he said, adding that their custody was required in order to unearth the same.

Published in Dawn, June 19th, 2019