ISLAMABAD: The Supreme Court (SC) on Monday observed that the National Accountability Bureau (NAB) 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.

The apex court said that one-sided accountability is aimed at teaching a lesson to the opponents. “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,” says the detailed SC judgment in Paragon Housing corruption reference.

It held that arrest causes irreparable harm to a person’s reputation and standing in society, often subjecting him to hate, vitriol, and infamy. In today’s age of a robust print and electronic media, arresting an accused and levelling allegations against him gives rise to a vicious campaign of whispers and murmurs where the accused and his family are subjected to humiliation, embarrassment, and agony. In civilised societies, sentence starts after conviction and authority to arrest someone should not be used for harassment.

Click here to read the detailed judgment.

A two-member bench of the apex court comprising Justice Maqbool Baqir and Justice Mazhar Alam Khan Miankhel announced a detailed judgment in its short order of March 17, granting bail to former Minister of Railways and PML-N leader Khwaja Saad Rafique and Khwaja Salman Rafique in Paragon Housing corruption reference.

The court had allowed their appeals to surety bonds of Rs3 million each against the order passed by Lahore High Court on June 18, 2019. The Lahore High Court (LHC) had dismissed the bail applications of both the brothers and later on they were arrested by the NAB from the LHC premises in December after the high court rejected their request for an extension in their pre-arrest bail in the case.

The anti-graft body while giving grounds for their arrest had said that Khwaja Saad Rafique, in connivance with his wife Ghazala Butt, brother Salman, Qaiser Amin Butt and Nadeem Zia, started a housing project named Air Avenue. Later on, it was changed into Paragon City Limited. The record showed that it was an illegal housing society.

Justice Maqbool Baqir authored the 87-page detailed judgment and commenced with the quote of John Stuart Mill, “A state which dwarfs its men, in order that they may be more docile instruments in its hands even for beneficial purposes— will find that with small men no great thing can really be accomplished.”

The court ruled that the NAB 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.

“The NAB Ordinance from its very inception became increasingly controversial, its image has come under cloud and there is a widespread perception of it being employed as a tool for oppression and victimisation of political opponents by those in power,” says the detailed verdict.

The court noted that it is frequently alleged that the Bureau is being flagrantly used for political engineering adding that discriminatory approach of NAB also is affecting its image and has shaken the faith of the people in its credibility and impartiality. “Nonetheless, investigation is often not concluded for months and cases remain pending for years and it is because of lack of professionalism, expertise and sincerity of cause that the conviction rate in NAB cases is abysmally low,” the detailed verdict noted.

The court further noted that the NAB is certainly not serving the national interest, rather causing irretrievable harm to the country, nation and society in multiple ways. “It is in the context of such highhandedness and brazen disregard for human dignity that the Bureau has attracted ignominy and notoriety beyond our frontiers too,” says the detailed verdict.

“In a recent review, the court observed that the European Commission also highlighted NAB’s partisan conduct and urged the government to give it more autonomy so as to allow it to function independently,” the detailed verdict noted.

It held that the Commission observed that there was a serious deterioration of freedom in Pakistan, thus, raising concerns about the NAB’s role as a tool to muzzle dissent. The detailed verdict further held that it is the duty and obligation of the State to ensure that the Constitution reigns supreme and the rule of law is all pervading so as to create an environment conducive to the expression of diverse ideas.

The detailed verdict further noted that State is obliged to ensure that every citizen is treated equally and that his life, dignity, honour and property is fully secured. “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/crime complained of, but also by showing that in the given circumstances, there were no other less intrusive or restrictive means available,” says the detailed judgment.

The court held that the power of arrest should not be deployed as a tool of oppression and harassment. “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,” says the detailed judgment.

It held that arrest causes irreparable harm to a person’s reputation and standing in society, often subjecting him to hate, vitriol, and infamy. In today’s age of a robust print and electronic media, arresting an accused and levelling allegations against him gives rise to a vicious campaign of whispers and murmurs where the accused and his family are subjected to humiliation, embarrassment, and agony.

“It, thus, irrevocably jeopardizes a person’s dignity, subjecting him to physical and psychological repercussions concomitant with life in prison,” says the detailed verdict. It observed that 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. More often than not people do not differentiate between arrest before conviction and that after conviction,” it held.

Justice Baqir at the end also used a couplet of Habib Jalib;

Zulm Rahey aur Aman bhi ho

Kya Mumkin hey Tum hi kaho

“In the end, we may observe that the observations hereinabove are merely tentative in nature and shall have no bearing on the outcome of the reference,” the detailed verdict concluded.