SC spots bias in NAB handling of political case

Updated 21 Jul 2020

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“The bureau seems reluctant in proceeding against people on one side of the political divide," says Supreme Court verdict. — AFP/File
“The bureau seems reluctant in proceeding against people on one side of the political divide," says Supreme Court verdict. — AFP/File

• Detailed verdict assails antigraft watchdog’s conduct in dealing with Paragon housing case
• Justice Baqar says it is frequently alleged the bureau is flagrantly used for political engineering
• Judge regrets pygmies selected, nurtured, promoted and brought to power

ISLAMABAD: The Supreme Court on Monday described the National Accountability Bureau’s (NAB) conduct in dealing with the Paragon housing society corruption case as a clear manifestation of utter disregard to the law, fair play, equity and propriety.

“The present case is a classic example of trampling of fundamental rights, unlawful deprivation of freedom, and liberty and the complete disregard for human dignity as guaranteed by the Constitution,” wrote Justice Maqbool Baqar in an 87-page strongly worded detailed verdict in the Paragon City (Pvt) Ltd case.

Former railways minister and PML-N stalwart Khawaja Saad Rafique and his brother Khawaja Suleman Rafique were granted bail in the case on March 17 this year after they deposited surety bonds of Rs3 million each.

Justice Baqar had headed a two-judge bench which took up the post-arrest bail plea of the Khawaja brothers against the rejection of their bail by the Lahore High Court on June 18 last year.

In the verdict, Justice Baqar regretted that it was frequently alleged that NAB was being flagrantly used for political engineering and that the bureau’s discriminatory approach was also affecting its image and had shaken the faith of people in its credibility and impartiality.

“The bureau seems reluctant in proceeding against people on one side of the political divide even in respect of financial scams of massive proportion while those on the other side are being arrested and incarcerated for months and years without providing any sufficient cause even when the law mandates investigations to be concluded expeditiously and trial to be concluded within 30 days,” he said in the verdict.

“Nonetheless, investigation is often not concluded for months and cases remain pending for years. It is because of lack of professionalism, expertise and sincerity of cause that the conviction rate in NAB cases is abysmally low. The above is certainly not serving the national interest, rather causing irretrievable harm to the country, nation and society in multiple ways,” he regretted.

Justice Baqar observed that though curbing loot and plunder and combating corruption were a noble cause, the means, process and mechanism employed should be within the parameters of law.

The arrest of a person, the judgement explained, was a grave matter, but the capricious exercise of the power to arrest had deleterious consequences and, therefore, needed to be exercised with care, caution and sensitivity. “Arrest of a person has to be justified not only by referring to prima facie evidence and adequate actionable material sufficiently connecting the person with the offence. The power of arrest should not be deployed as a tool of oppression and harassment,” it emphasised.

“While dealing with the cases pertaining to the liberty of a person, we should not lose sight of a fundamental principle of criminal jurisprudence that a person is presumed to be innocent until proven guilty. This principle stems from a general rule that burden of proof in a criminal case is on the prosecution to establish the guilt of an accused beyond reasonable doubt because the outcome of a wrongful conviction is far worse than that of a wrongful acquittal.

“The concept of the presumption of innocence is imperative, not only to protect an accused on trial, but to secure and maintain public confidence in the fairness, impartiality, integrity and security of the criminal justice system,” the judgement said.

“There is only one fundamental right in the Constitution, which is unconditional, inviolable and cannot be circumscribed under any circumstances. This is the dignity of man and one of the grave consequences of pre-arrest confinement, is the humiliation and disgrace resulting from such arrest, for not only the accused but also his family and persons attached to him. Arrest causes irreparable harm to a person’s reputation and standing in society, often subjecting him to hate, vitriol, and infamy,” the verdict explained, adding that in today’s age of a robust print and electronic media, arresting an accused and levelling allegations against him gave rise to a vicious campaign of whispers and murmurs where the accused and his family were subjected to humiliation, embarrassment and agony.

“It, thus, irrevocably jeopardises a person’s dignity, subjecting him to physical and psychological repercussions concomitant with life in prison. Often a person in custody loses his job and is also prevented from preparing his defence. The burden of his detention frequently falls heavily on the innocent members of his family. Often people do not differentiate between arrest before conviction and that after conviction,” it said.

On the question of whether the bail should be granted to an accused, the judgement said it had to be kept in mind that the object of bail was to secure his attendance at the trial. “The object is neither punitive nor preventive. Imprisonment of a person and deprivation of his liberty cannot be described other than being a punishment,” it said.

“All civilised societies recognise the principle that punishment comes only after conviction and the presumption of innocence subsist with the accused, till he is handed down punishment after trial. It hardly needs any reiteration that the detention either pre-trial or during trial causes great hardship.

“Until we value the ideals of democracy and liberty, we shall forever remain shackled not only deprived of the rights afforded to us by the Constitution but also unable to gain our rightful place in the comity of nations. Until we create a culture of transparency, liberty, civility, and democratic values, our desire for peace and order shall continue to elude us,” Justice Baqar observed in the verdict.

“Unfortunately, even after 72 years since the creation of our country, and despite 47 years since the adoption of the Constitution, we have not been able to realise the spirit and essence of the ideals set out therein. The people of this country are frequently denied their constitutionally guaranteed rights and the principles of equality, fairness, tolerance and respect for democratic norms are flouted with impunity,” he observed.

“Dogmatism, intolerance, nepotism, cronyism, incompetence, regression, deception, false pretence, self-projection, misplaced sense of superiority, different biases and prejudices, and corruption have seeped into our society and have now inundated it. Efforts, whenever made for the supremacy of the Constitution and the rule of law, have been thwarted with full force.

“The principle of trichotomy of power and the concept of devolution have been trampled with contempt. Arrogance, self-righteousness and apathy are ruling the roost. We have come to this unfortunate pass, in most part, because of the repeated direct unconstitutional interventions, and manipulations by undemocratic forces.

Public welfare and poverty alleviation are at the lowest rung of our priorities. The wide spread suppression of dissent is another anathema to our democracy. An egalitarian order remains a distant dream,” Justice Baqar regretted.

“The object, purpose and reason behind the initiation of the purported inquiry and investigation and the arrest of the accused and keeping them incarcerated for a long period of fifteen months, prima facie, do not appear to be in consonance with or in conformity with the NAO,” the verdict regretted, adding that the basis on which the NAB chairman decided to proceed in the matter remained unknown. “If the purported complaints were the basis, it is not shown as to what exactly was alleged and what information and material were placed before NAB to decide that the conduct of the management of the company fell within the ambit of Section 9 of NAO,” it said.

Justice Baqar regretted that pygmies were selected, nurtured, promoted and brought to prominence and power, adding that people with notorious backgrounds and criminal credentials were thrust to rule “us in various capacities with predictable results. Similarly, those who caused death, destruction and mayhem in our society, were trained, financed, protected, promoted and eulogised, thus, turning them into Frankensteins”.

Meanwhile, corruption, misconduct and malpractice in governance kept growing at exponential rates and became all pervading. None of the state institutions remained free from this morass, Justice Baqar regretted.

Published in Dawn, July 21st, 2020