Grant of bail to PSO MD: NAB’s LNG Terminal case torn apart by IHC

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Shafaqna Pakistan:National Accountability Bureau (NAB)’s much trumpeted corruption case of LNG Terminal in which three reputed men- former premier Shahid Khaqan Abbasi, ex-finance minister Miftah Ismail and PSO MD Sheikh Imranul Haq- were arrested has been torn apart by the Islamabad High Court (IHC).

Admitting the bail application of former PSO MD Sheikh Imranul Haq early this week, the IHC in its order pointed out the sheer incompetence of NAB, how the cases are made on the basis of mere “conjectures”, lack of Bureau’s capacity to probe such matters, arbitrary use of NAB law provisions, violation of fundamental rights and that standard global business practices are treated by the anti-graft body as corruption and corrupt practices.

The IHC said NAB could not point out any significant violation of the rules committed in the bidding process of LNG Terminal whereas the figures quoted by the Bureau as alleged loss to the exchequer are based on conjectures.

According to the IHC judgment there was no material evidence of corruption available against the petitioner but it was NAB’s conjecture that the Sheikh Imranul Haq appointment as PSO MD was an alleged gain for him.

However, according to a NAB official, the Bureau was mulling over challenging the grant of bail in court.

The court underlined that the standard business practices and arrangement which are industry norms internationally are being treated as corruption and corrupt practices.

The judgment said, “We have noted in several cases that the investigations are not carried out by expert fraud examiners or investigators or data mining experts. We had 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 investigation. The capacity and professional competence of investigators is inevitable to deal with matters relating to white-collar crime. 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. The case in hand appears to be a classic example of the violation of the guaranteed rights of a citizen. The investigation reports placed on the record and the written comments filed in this case speak volumes for the competence and capacity of the Bureau to investigate white collar crime.”

The IHC order said, “We are afraid that the Investigating Officer could not point out any significant violation of the Rules of 2004 committed during the bidding process which had ultimately led to execution of the contract, dated 30-04-2014. The Bureau has submitted a written report and, after careful perusal thereof, we have not been able to persuade ourselves that incarceration of the petitioner is justified. The figures relating to the alleged loss to the exchequer, as quoted in the written report, appears to be based on conjectures. No material violation of the Rules of 2004 has been mentioned. By no stretch of the imagination can the alleged role attributed to the petitioner be treated as an offence relating to corruption and corrupt practices. There is no explanation as to what authority was exercised by the petitioner which amounted to criminal act. It is alarming that correspondence and the finalization of matters relating to establishing the LNG Terminal by an employee of a private juridical person has been treated as fraudulent and dishonest actions. As noted above, the petitioner was merely an employee and there is nothing on record to even remotely suggest that he had made any financial gain. Again, as a conjecture, his appointment as Managing Director of Pakistan State Oil is alleged to have been a gain. The standard business practices and arrangement which are industry norms internationally are being treated as corruption and corrupt practices. There is nothing on record to indicate that an effort has been made during or investigation to professionally analyze the data. The Investigation Office could not point out the role of the petitioner in the award to the contract, dated 30-04-2014, not any material violation of the Rules of 2004. The Consultant which had conducted the proceedings and had evaluated the bids was appointed by USAID and its neutrality and independence has not been questioned. There is no allegation against the Consultant nor the entity had conducted the bidding proceedings. The learned Special Prosecutor and the Investigation Officer of the Bureau were not able to satisfy us that there was an element of mens rea or criminality on the part of the petitioner to justify his incarceration.”

The Bureau argued that the bail application of ex-MD PSO be rejected because the NAB law does not contain bail provision. To this the court said, “The powers to arrest provided under the Ordinance of 1999 are not unfettered nor can they be exercised mechanically and in an arbitrary manner. The ouster of the bail provisions in the Ordinance does not deprive the petitioner or any other accused of the constitutionally guaranteed fundamental rights such an inviolability of dignity and freedom of movement provided under Article 14 and 15 of the Constitution, respectively.”

The court also noted that it is implicit in Article 14 that an arbitrary arrest, depending on the facts and circumstances of the case, could amount to torturing an accused for extraneous reasons.

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