Detailed judgement in Khawaja brothers case is a charge sheet against NAB
NAB case against Khawaja brothers worst example of human disgrace says SC
Supreme
Court of Pakistan on Monday said that the National Accountability Bureau (NAB)
failed to prove the control of Khawaja Saad Rafique and Khawaja Salman Rafique
on Paragon City.
In its
written 87-pages judgment in Paragon City corruption case against Khawaja Saad
Rafique and Khawaja Salman Rafique, the apex court stated that there were
discrepancies between the reference and the investigation report.
The Supreme
Court lambasted the National Accountability Bureau (NAB) in its detailed
verdict issued Monday on a bail petition filed by PML-N leaders Khawaja Saad
Rafique and Khawaja Salman Rafique in the Paragon Housing Society case.
In the
detailed, 87-page ruling, penned by Justice Maqbool Baqar, the court
highlighted severe lapses in the NAB's due process and legal procedure, the
definition and purpose of bail, and due processes in criminal cases.
The apex
court had granted bail to the PML-N leaders in March after they approached it
against a Lahore High Court decision rejecting their bail applications.
"In
bail applications, generally, it has been laid down from the earliest times
that the object of bail is to secure the appearance of the accused person at
trail by reasonable amount of bail. The object of bail is neither punitive nor
preventative. Deprivation of liberty must be considered a punishment, unless it
can be required to ensure that an accused person will stand his trial when
called upon.
"The courts
owe more than verbal respect to the principle that punishment begins after
conviction, and that every man is deemed to be innocent until duly tried and
duly found guilty. From the earliest times, it was appreciated that detention
in custody pending completion of trial could be a cause of great hardship.
"From
time to time, necessity demands that some un-convicted persons should be held
in custody pending trial to secure their attendance at the trial but in such
cases, ‘necessity’ is the operative test.
"In
this country, it would be quite contrary to the concept of personal liberty
enshrined in the Constitution that any person should be punished in respect of
any matter, upon which, he has not been convicted or that in any circumstances,
he should be deprived of his liberty upon only the belief that he will tamper
with the witnesses if left at liberty, save in the most extraordinary
circumstances.
"Apart
from the question of prevention being the object of a refusal of bail, one must
not lose sight of the fact that any imprisonment before conviction has a
substantial punitive content and it would be improper for any Court to refuse
bail as a mark of disapproval of former conduct whether the accused has been
convicted for it or not or to refuse bail to an unconvicted person for the
purpose of giving him a taste of imprisonment as a lesson," the ruling
read.
Justice
Baqar further underlined that "all civilized 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," the judgement added.
Constitutional
rights being trampled upon
According to the judge, it was unfortunate that "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 realize the spirit and essence of the ideals set out therein"."To the contrary, we have even failed to adhere to some of its most basic commands and prescriptions. The people of this country are frequently denied their constitutionally guaranteed rights. Principles of equality, fairness, tolerance and respect for democratic norms are flouted with impunity."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.
Suppression
of dissent destroying democracy
"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."Lust of power, desire to capture, and rule, and pursuit of self-aggrandizing, have resulted in violation of the prescribed jurisdictional limits and ceding of political space in governance."Aggravating this is the denial of grass root representation of the people in the local government, which again is against our constitutional ethos, and violates the true essence and spirit of democracy. 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," the judge wrote in his verdict.Justice Baqar went on to say that the present case was "a classic example of trampling fundamental rights, unlawful deprivation of freedom, and liberty and the complete disregard for human dignity as guaranteed by the Constitution".
'NAB has
utter disregard for law, fair play'
The top judge slammed Pakistan's anti-graft watchdog, the National Accountability Bureau (NAB), over various actions and processes, saying its "conduct throughout this case is a clear manifestation of their utter disregard for law, fair play, equity and propriety"."Indeed, curbing loot, plunder and combating corruption is a noble cause. Nonetheless, the means, process and mechanism employed therefore should be within the parameters as prescribed and mandated by the law and not in derogation thereof.
"As per
the preamble of the National Accountability Ordinance, 1999 (“NAO”) the bureau
has been set up to eradicate corruption and corrupt practices and hold
accountable all those persons, accused of such practices and matters ancillary
thereto," the ruling added further.
It explained what the laws led to as opposed to what they were enacted for. "Rather than doing any good to the country or our body politic and cleansing the fountainheads of governance, these laws and the manner in which they were enforced, caused further degeneration and created chaos, since the same were framed and applied with an oblique motive of arm twisting and pressurizing political opponents into submission, subjugation and compliance, or remove them from the electoral scene at least temporarily," it read."These laws were successfully employed as tools to change political loyalties, for splintering and fracturing political parties."Pygmies were selected, nurtured, promoted, and brought to prominence and power. 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 eulogized, 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 whichsoever remained free from this morass," the SC ruling stated.
NAB
failed to make a case
Conclusively,
it underlined: "In any event. despite having all the required information
and details, NAB has failed to place before us any material to show, or to
otherwise persuade us to believe that the exchange was unfair and/or that the
petitioners have through the said transaction illegally enriched themselves at
the cost of the company.
"In any
view of the matter, since the transaction was between private
individuals/entities, who were free agents, and has/had no bearing on any
public or governmental interest, no exception to the same could have possibly
been taken by NAB," it said.
"The
whole episode lays bare the prosecution’s conduct and is a clear manifestation
of their scant regard for the mandate of the law and the principles of
fairness, equity and propriety," it added.
Towards the end,
the Supreme Court judge quoted Pakistan's revolutionary poet Habib Jalib:
ظلم
رہے اور امن بھی ہو"
"کیا ممکن ہے تم ہی کہو
(Pray, tell:
Can there be peace when injustice persists?)
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