SC’s detailed verdict in Khawaja brothers’ case sheds light on NAB’s murky role

The Supreme Court of Pakistan Monday issued a detailed verdict in Pakistan Muslim League Nawaz (PML-N) leaders Khawaja Saad Rafique and Khawaja Salman Rafique bail pertaining to Paragon Housing Scheme case framed by National Accountability Bureau (NAB).

The verdict said that purely civil dispute of financial or commercial nature between the company and private individual, pending before the civil courts, were made the subject matter of the reference, portraying those, as cases of illegal occupation of lands.

Justice Maqbool Baqar and Justice Mazhar Alam Khan Miankhel wrote the verdict. Justice Maqbool Baqar started the his judgment with 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”

Justice Maqbool Baqir while giving reasons said that pattern of the questions put to the petitioners (Khawaja brothers), their vagueness, frivolity and irrelevance showed that the NAB had no inkling in the matter.

He said that NAB could not even build upon information and record provided by the petitioners in response to their queries, and also did not find any lacuna, fault, inaccuracy, inconsistency or inadequacy in such information. “NAB also could not raise any formidable objection regarding the conduct of the petitioners in the matter,” the verdict stated.

Mystery as to what prompted NAB into action

The judgment said: “The position that emerges from the facts and circumstances of the case narrated and the material placed before us, is that it remains a mystery as to what prompted the NAB into action in this case. It seems that except for what QAB (Qaiser Amin Butt) may have allegedly told the NAB after his arrest on 14.11.2018, there was absolutely no word or material attributing to the petitioners any control over the affairs/management of the company,” the judgment reads.

“In fact, as noted earlier, the Chairman in his order dated 05.12.2018, whilst tendering pardon to QAB, clearly acknowledged that no evidence against the petitioners was available with the NAB. Yet, the NAB embarked upon a roving inquiry against the Petitioners, as early as in March 2018, call up notice dated 20.03.2018 being the first in the series placed before us, and as noted earlier absolutely, no question was put to the Petitioners in relation to the allotment / sale of any plot/property by the company to its customers,” the judgment reads.

The judgment commented, “This country has been achieved through the enormous sacrifices and relentless struggle of our forefathers, with a will, a clear vision, and a conviction for an independent democratic state… so that people of Pakistan may prosper and attain their rightful and honoured place amongst the nations of the World and make their full contribution towards international peace and progress and happiness of humanity”.

“As discussed in detail earlier, the basis on which Chairman NAB decided to proceed in the matter remain unknown,” the verdict said.

“If the purported complaints were the basis, it is not shown as to what exactly was alleged therein, and what information and material was placed before the NAB for it to decide that the nature and conduct of the management of the company fell within the ambit of Section 9 of NAO. Secondly, there was absolutely nothing before the NAB connecting the petitioners with the company so as to hold them responsible for any misconduct, malfeasance and misfeasance of the C.P. No. 2243-L & 2986-L of 2019 56 company, and to prompt NAB to initiate an inquiry or investigation against them,” the document reads.

“Arrest of any person is a grave matter. Capricious exercise of the power to arrest has deleterious consequences, thus highlighting the need to exercise it with care, caution and sensitivity. The 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… The power of arrest should not be deployed as a tool of oppression and harassment,” court judgment said.

The judgment also quoted five judgments of Indian courts including case of Rajiv Singh v. The State of Bihar & Another (2015), Supreme Court of India in Arnesh Kumar v. State of Bihar (2014), Indian Supreme Court case in Moti Ram case, case of Siddharam Satlingappa Mhetre v. State of Maharashtra and Ors (2011) and in the case of Sanja Chandra v. Central Bureau of Investigation (AIR 2012)

The judgment concluded with a couplet of revolutionary poet Habib Jalib, ‘Zalum rhy aor aman bhi ho, Kia mumkin hay tum hi kaho.”