ISLAMABAD: The investigation of the LNG terminal case, in which former prime minister Shahid Khaqan Abbasi and former finance minister Miftah Ismail are implicated, is "a classic example of the violation of fundamental rights", the Islamabad High Court (IHC) said on Wednesday.

In a detailed judgement issued on an application for post-arrest bail by former Pakistan State Oil (PSO) managing director Sheikh Imranul Haq, IHC Chief Justice Athar Minallah stated: “The powers to arrest provided under the National Accountability Ordinance 1999 are not unfettered nor can they be exercised mechanically and in an arbitrary manner.”

Mr Haq was arrested in connection with the LNG terminal case along with Mr Abbasi and Mr Ismail, both of whom remain in prison. Mr Ismail has now sought bail from the IHC, which has granted post-arrest bail to Mr Haq.

Justice Minallah noted: “Violation of fundamental rights guaranteed under the Constitution and the excess or abuse of jurisdiction and powers vested in the National Accountability Bureau in depriving a citizen of the valuable right of liberty in an arbitrary manner cannot be ignored…the ouster of the bail provisions in the ordinance of 1999 does not deprive the petitioner or any other accused of constitutionally guaranteed fundamental rights such as inviolability of dignity and freedom of movement provided under Article 14 and 15 of the Constitution.”

Reports filed in case speak volumes about NAB’s capacity to investigate white collar crime, court order says

Explaining clause 2 of Article 14, the court observed: “No person shall be subjected to torture for the purposes of extracting evidence. It is implicit in the said provision that an arbitrary arrest, depending on the facts and circumstances of the case, could amount to torturing an accused for extraneous reasons.”

The court also pointed out flawed investigation and lack of expertise in probing white collar crimes.

It observed: “In several cases the investigations are not carried out by expert fraud examiners or investigators or data mining experts. We have also not come across any case like one in hand where chartered accountants or trained professionals in matter relating to white collar crimes may have been associated during the inquiry or investigations.”

The capacity and professional competence of investigators is indispensable when it comes to white collar crime.

The case at hand appears to be a classic example of the violation of a citizen’s guaranteed fundamental rights, the court order said.

“The investigation reports placed on the record and the written comments filed in this case speak volumes for the competence and capacity of the bureau to investigate white collar crimes,” the detailed order said.

The court noted that there was nothing on record to indicate that an effort had been made during the course of inquiry or investigation to professionally analyse data. Moreover, the figures quoted by the investigating officer related to the alleged loss suffered by the exchequer are not supported by any of the material placed on record.

The court noted: “Arbitrary interference with the right to freedom of movement and liberty, besides amounting to abuse of statutory powers is, prima facie, a tort.”

Justice Minallah also set guidelines for the investigation, according to which: “In the first place, very strong reasons are required for depriving an accused of the right to liberty in matters relating to white collar crimes, particularly when he or she is cooperating and there is no apprehension of abscondance.”

Published in Dawn, November 28th, 2019