ISLAMABAD: The controversial provision empowering the National Accountability Bureau (NAB) to detain an accused for 90 days came on the radar of the Supreme Court when on Thursday Justice Umar Ata Bandial described the clause as cruel and an injustice.

“To detain an accused for 90 days on physical remand in every reference is cruel and an injustice,” regretted Justice Bandial who summoned NAB prosecutor general Syed Asghar Haider for assistance. The case will be taken up in January next year.

Justice Bandial was heading a three-judge SC bench that had taken up 25 appeals moved by the anti-graft watchdog and clubbed together against a Feb 15, 2017 judgement of the Peshawar High Court.

The issue concerns filing of multiple references against accused by NAB. One of the appeals concerns Arshad Khan, former director general of Fata Disaster Management Authority, facing allegations of granting approval and forwarding fake and bogus claims of 161 persons, embezzling Rs59.6 million from the grants which were to be distributed as compensation among the affectees for the damage caused to their houses due to security operations in Mohmand Agency.

Justice Bandial describes accountability law provision as cruel and unjust

Section 24 (d) of the National Accountability Ordinance (NAO) empowers NAB to detain any accused in its custody for the purpose of inquiry and investigation for a period not exceeding 90 days, but the court concerned can remand the accused to custody not exceeding 15 days at a time and for every subsequent remand the court will have to record reasons in writing, the copy of which will have to be sent to the high court concerned.

Justice Bandial said NAB should not harass the accused and should exercise its authority while remaining within the four corners of the laws instead of perceived notion of abusing its authority, adding that what needed against a suspect in white-collar crimes was documentary evidence.

“The bureau should use its authorities impartially,” Justice Bandial observed and directed the parties to furnish written replies in this regard.

Justice Mazahar Akbar Naqvi wondered why NAB did not file a single reference against the accused after a thorough investigation instead of multiple references. He highlighted that in criminal cases only physical remand of 14 days could be given but 90-day remand was provided in the NAO only to allow the bureau to complete its investigation against accused.

The court was of the view that instead of implicating the accused in a number of references, NAB should furnish supplementary references.

NAB prosecutor Nasir Mehmood Moghal argued that it was very difficult to unearth evidence against the accused of white-collar crime, adding that the suspects never cooperated until arrested. He said a money laundering investigation against an important politician in London had been going on for the past two to three years.

The prosecutor contended that the trial court could charge any suspect facing multiple allegations in one trial.

Section 17(d) of the NAO allows the accountability court to frame a charge and then try the accused in one trial for any number of offences if the accused is facing more than one similar offence committed during the space of any number of years. This is not the first time as NAB was subject of serious observations by the Supreme Court at a number of times.

On July 20, Justice Maqbool Baqar, while granting bail to former railways minister and PML-N stalwart Khawaja Saad Rafique and his brother Khawaja Suleman Rafiq, had observed that though curbing loot, plunder and corruption was a noble cause, the means, process and mechanism employed should be within the parameters of the law.

The arrest of a person, the judgement had 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. The arrest of a person has to be justified 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, the judgement had 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,” the verdict had said.

Published in Dawn, December 4th, 2020