Judgement on post-arrest bail of ex-PSO MD: Depriving citizen of fundamental right of liberty cannot be ignored: IHC

Islamabad High Court (IHC) has held that powers to arrest under National Accountability Ordinance (NAO), 1999, are neither unfettered nor can be exercised mechanically and in an arbitrary manner.

"Violation of the fundamental rights, guaranteed under the Constitution, and the excess or abuse of jurisdiction and powers vested in the Bureau in depriving a citizen of the valuable right of liberty in an arbitrary manner cannot be ignored."

The IHC gave these finding in a detailed judgement on post-arrest bail of former managing director Pakistan State Oil (PSO) Sheikh Imranul Haq. He (Haq) was arrested in connection with the LNG terminal case along with former prime minister Shahid Khaqan Abbasi and former finance minister Miftah Ismail.

The ouster of the bail provisions in the Ordinance 1999 does not deprive the petitioner or any other accused of the constitutionally guaranteed fundamental rights such as inviolability of dignity and freedom of movement provided under Articles 14 and 15 of Constitution, respectively.

The court noted that sub-article (2) of Article 14 explicitly provides that no person shall be subjected to torture for the purpose of extracting evidence. "It is implicit in the said provision that an arbitrary arrest, depending on the facts and circumstances of the case, could amount to torturing an accused for extraneous reasons," said the judgment.

The court observed that in several cases the investigations are not carried out by expert fraud examiners or investigators or data mining experts. "We have also not come across any case like the one in hand where chartered accountants or trained professionals in matters relating to white collar crime may have been associated during the inquiry or investigations."

The object for which the Ordinance of 1999 was enacted can only be achieved if the alleged crime is investigated by professionals who are trained as experts in white-collar crime. It is noted that arbitrary interference with the right to freedom of movement and liberty, besides amounting to abuse of statutory power is, prima facie, a tort.

In the first place, very strong reasons are required for depriving an accused of the right to liberty in matter relating to white-collar crimes, particularly when he or she is cooperating and there is no apprehension of abscondance.

It further observed that the case against the petitioner is entirely dependent upon documentary evidence which is, admittedly, in the possession of the prosecution and obviously there is no possibility for the petitioner to tamper with the same. In such circumstances, keeping the petitioner incarcerated would be tantamount to punishing him despite the fact that a person is presumed to be innocent until proven guilty.

The petitioner was allowed bail subject to furnishing bail bonds in sum of Rs1,000,00 with one or more sureties in the like amount to the satisfaction of the trial court.

The IHC noted that the facts and circumstances of case give rise to extraordinary circumstances and thus, allowing him to suffer the rigors of incarceration would amount to violation of his fundamental rights, besides being punished without sufficient incriminating material against him.