ISLAMABAD - The Islamabad High Court (IHC) has termed “absolute” powers of Chairman National Accountability Bureau (NAB) to issue arrest warrants as contrary to the fundamental human rights.

A single bench of IHC comprising Chief Justice Athar Minallah made this observed in a detailed judgment issued by the IHC division bench on the bail petitions of former Pakistan Telecommunication Authority (PTA) Director General Abdul Samad and director Amjad Mustafa Malik in a case pertaining to the auction of fourth generation of broadband cellular network technology (4G).

Justice Athar termed the ‘absolute’ and ‘unchecked’ exercise of powers by the NAB Chairman to issue arrest warrants contrary to the fundamental rights guaranteed under the Constitution and set certain guidelines to ensure judicious use of such powers.

The IHC bench comprising Justice Athar and Justice Miangul Hassan Aurangzeb had earlier granted pre-arrest bail to the former PTA officials through a short order.

In the detailed order, the court also highlighted loopholes in the investigation by the ‘poorly’ trained officers who lacked proper skills to probe white-collar crimes.

The verdict noted: “The power to arrest is to be exercised fairly, justly, equitably and without discrimination. There must be sufficient incriminating material to justify arresting an accused. The ‘incriminating material’ must be of the nature which, prima facie, indicates involvement of the accused in the commission of the offences under the Ordinance of 1999. The material brought on record should, prima facie, show existence of criminal intent or motive, mens rea, element of conscious knowledge and participation with the object of obtaining illegal gain or benefit.”

It added that otherwise the arrest of an accused would be “an abuse of the power to arrest vested under the Ordinance of 1999.”

The judgment maintained, “Mere allegations of misuse of authority would not justify depriving an accused of liberty because an irregularity or wrong decision sans criminal intent, mens rea and illegal gain or benefit does not attract the offences.

The power of arrest under the Ordinance of 1999 cannot be exercised in an indiscriminate, reckless or wanton manner, because there are conflicting fundamental rights guaranteed under the Constitution which cannot be ignored.”

It elaborated that the NAB power to order the arrest of an accused during inquiry or investigation can have deleterious effects, not only for the latter but also for their family members.

The petitioners seeking bail had also questioned the NAB chairman’s powers to issue arrest warrants, requesting judicial review of the executive power whereby it was intended to deprive them of the right to liberty.

According to the anti-graft watchdog, NAB chairman on receipt of a source report ordered an investigation on Oct 16, 2018 though an inquiry had not been conducted before authorizing the investigation.

The investigation pertained to the approval granted in favour of M/S Warid Telecom on Dec 4, 2014 to use 4G/LTE (1800 MHz) on its already acquired spectrum. It is alleged that by allowing the cellular company to use 4G/LTE technology on its acquired existing spectrum, the former PTA officials had extended an illegal benefit causing a purported loss of US$516 million.

The court perused the deregulation policy for the telecommunication sector that was approved by the federal cabinet on Jan 10, 2004, after the approval of mobile cellular policy on Jan 1, 2004.

In its verdict, the IHC observed that NAB ordinance was enacted with the object and purpose of providing effective measures for detection, investigation, prosecution and speedy disposal of cases involving corruption, corrupt practices, misappropriation of property, kickbacks, commissions and for matters connected and ancillary or incidental thereto.

Citing various precedents, the IHC observed that because of excessive and indiscriminate use of power of arrests courts were inundated with petitions seeking bail against the arrest warrants issued by the NAB.

It added, “The jurisdiction under Article 199 of the Constitution, 1973 are therefore to be exercised to prevent miscarriage of justice and abuse of NAO, 1999.”

The bench pointed out that the “power to arrest an accused cannot be exercised mechanically and deprivation of liberty or intrusions into fundamental rights guaranteed by the constitution are required to be adequately and demonstrably justified”.

It observed that instead of depriving a person of liberty, appropriate measures are required to be taken such as placing the name of the accused on the Exit Control List, prescribing a schedule for appearance, securing the entire record at the first instance, most of which is official etc.

Suggesting the guideline, the IHC in its order said that the executive power to arrest a person under the NAO cannot be exercised unnecessarily or for conducting roving inquiries.

According to the verdict, if an accused is cooperating in the inquiry or investigation and appropriate measures have been taken to ensure the latter’s attendance, then in such an eventuality restrictions on constitutional rights will be an abuse of the executive power.

The court observed that white-collar crimes are committed by skilled professionals, most of whom are experts in covering up and erasing the traces when the crime is committed. It, therefore, poses enormous challenges for the investigators. The detection and investigation of offences dealt with under the Ordinance of 1999 requires highly trained professionals having expertise in forensic accounting, money laundering, data mining and data analysis etc.

It added that if the investigator of a white-collar crime is unable to conduct effective inquiry and investigation without arresting an accused, it raises serious questions regarding competence and professionalism. This important aspect cannot be ignored because of the massive human impact involving physical and psychological damage and the social stigma caused due to arrest of a person on allegations of corruption and corrupt practices.

The IHC order observed that the NAB chairman and investigators are vested with expansive powers under the NAO without any “oversight by an independent body”.

The nature and expansiveness of executive powers vested in individuals inevitably “raises the threshold of judicial review” because constitutionally guaranteed rights are at stake.

The court in its order said that the executive powers of arrest under the NAB ordinance are required to be exercised justly, fairly, equitably and subject to the principles and law.

The verdict noted, “We expect that the federal government and the Majlis-e-Shoora (Parliament) will consider to take appropriate measures in order to ensure that the accountability process is made effective, transparent and fair and that the Bureau is equipped and strengthened to meet the challenges and achieve the object for which it has been established.”