Paragon Housing Society case: NAB's 'utter disregard for law' slammed by Supreme Court

ISLAMABAD: The Supreme Court on Monday issued its detailed verdict on a bail petition filed by PML-N leaders Khawaja Saad Rafique and Khawaja Salman Rafique in the Paragon Housing Society case, highlighting severe lapses in due process and legal procedure by the National Accountability Bureau (NAB).

In the detailed, 87-page ruling, penned by Justice Maqbool Baqar, the court highlighted the definition and purpose of bail as well as due process in criminal cases.

"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.

"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-aggrandization, 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.

Suppression of dissent destroying democracy

"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 therefor 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 bodypolitic 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 against Khawaja brothers

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?)