ISLAMABAD:
The Federal Government has informed the Supreme Court that following recent amendments to the National Accountability Ordinance (NAO), bail issues as well as appeals in National Accountability Bureau (NAB) cases fall within the jurisdiction of the Federal Constitutional Court (FCC).
A three-member SC bench headed by Justice Muhammad Ali Mazhar, and comprising Justice Mussarat Hilali and Justice Shahid Bilal Hassan, is examining whether pending appeals in NAB cases should be transferred to the FCC and whether bail applications in such cases also fall within the jurisdiction of the Constitutional Court.
The latest amendment to the NAO designates the FCC as the second forum of appeal in NAB cases. The court is expected to resume hearing the case on Tuesday.
In a written response submitted to the apex court, Additional Attorney General Umar Aslam said all matters relating to the NAB Act, including bail issues, would now be heard by the FCC.
However, Ibad ur Rehman Lodhi, counsel for an accused in an NAB case, argued that while all appeals, including those currently pending before the SC, would be heard by the FCC, issues of bail under the NAO, 1999, should remain within the jurisdiction of the SC.
Lodhi cited the example of cases related to the Hudood Act, where appeals are heard by the Federal Sharia Court while bail applications continue to be decided by the high courts. He argued that the same principle should apply to NAB cases.
The lawyer further revealed that after the recent amendment to the NAB Act, an SC bench headed by Justice Naeem Akhtar Afghan granted bail to an accused in an NAB case.
Lodhi, who was previously a judge at the Lahore High Court, argued that the amendment was “person-specific” and should have been struck down by the courts.
The jurisdictional clash has significant implications for former Prime Minister Imran Khan, who was convicted in NAB cases. If the Islamabad High Court upholds his conviction in the Al-Qadir Trust case, he will have the right to file a second appeal before the FCC, established under the 27th Constitutional Amendment, whose judges are appointed by the executive.
The issue gained prominence after the SC Registrar’s office returned appeals filed by Imran Khan and his wife, Bushra Bibi, challenging an IHC order that refused to adjudicate their applications for suspension of sentence on merits in the ₹190 million Al-Qadir Trust case.
The Registrar found that the appropriate remedy for the IHC’s order lay with the FCC.
However, their lawyer Salman Safdar contested the objections, saying the appeals are admissible before the SC under Article 185(3) of the Constitution.
According to the petition, Section 175A(1)(a) provides that an appeal to the FCC may only be brought when expressly provided for by law.
The petition further states that Section 32A of the NAO of 1999 provides for a second appeal to the FCC only against a decision made by a high court under Section 32 of the Ordinance.
He argues that the NAO does not expressly provide for an appeal to the FCC against orders passed on applications for bail under Section 9(b) of the Ordinance read with Section 497 of the Code of Criminal Procedure (CrPC), or against orders on applications for suspension of sentence, even when such applications are filed in criminal appeals under Section 32.
“In the absence of any specific legal remedy under the NAO, 1999, the impugned order is challengeable before the SC under Article 185(3) of the Constitution,” the petition said.
However, another section of the legal world maintains that a request for suspension of sentence is a continuation of the appeal itself and that, therefore, such requests should now be filed before the FCC.
Previously, litigants aggrieved by the High Court’s decisions in NAB cases approached the SC by filing Civil Petitions for Leave to Appeal (CPLA). The lawyers note that, although called CPLA, these petitions effectively functioned as criminal appeals, particularly in cases where convictions had been upheld by higher courts.
The recent amendments have also sparked a broader debate within legal circles about why the FCC, rather than the SC, was designated as the second appellate forum in NAB cases, especially since FCC judges are government appointees. Some legal experts question whether the government intends to gradually replace the role of the Supreme Court with that of the FCC.
They also claim that the current Supreme Court, especially under the leadership of Chief Justice of Pakistan Yahya Afridi, has not made any serious effort to safeguard the jurisdiction and constitutional powers of the apex court.
Senior lawyer Faisal Siddiqi described the new second appeal mechanism as “another silent and progressive attempt to destroy the criminal jurisdiction of the Supreme Court and control the destiny of politicians through NAB proceedings.”
“I am surprised at the tragic myopia of the PPP and the PML-N. They will sooner or later be victims of this second call,” he said.
Former jurist Muhammad Waqar Rana argued that handing a second appeal in the NAB cases to the FCC was apparently ultra vires the Constitution.
“Article 185(2) states that if a high court intervenes in an acquittal, the appeal must be taken to the Supreme Court. This is unprecedented, as nowhere in the last 200 years has a second appeal been provided for in this manner, and this is also a violation of Article 25, which grants a statutory right of appeal only in certain cases,” Rana said.
Lawyer Abdul Moiz Jaferii described the amendment as “a logical step towards dismantling the structure of the judiciary first envisioned by the 26th Amendment and cemented by the 27th.”
“The NAB has been used for the past 25 years to carry out political engineering. No such arrangement would be complete without its engineering being handled by artificial courts. Although the SC is a shell of what it was and supreme in all but name, it still cannot compete with the entirely hand-picked FCC and so that is where all second-calls from the NAB must go,” he said.
Lawyer Asad Rahim Khan said the latest changes reflected a broader shift in the judiciary.
“No unity regime was possible without ensuring that dozens of accountability cases magically disappear, and no unity regime was possible without Justice Qazi Faez Isa and the de-accountability of the SC in favor of the FCC,” he said.
“It is fitting that these two threads now come together. What began with the decision passed by Qazi and his like-minded judges, approving the person-specific mutilation of the NAB Act, will now conclude with the FCC, a court with which our ruling parties are infinitely satisfied.”
Defending the amendments, Hafiz Ahsaan Ahmad Khokhar said the changes aim to harmonize NAB procedures with the Code of Criminal Procedure, 1898, particularly Sections 497, 498 and 499, which authorize courts to grant bail.
“By clarifying the powers of accountability courts and high courts to grant bail in accordance with the general framework of criminal procedure, the amendments seek to ensure a balance between effective accountability and the constitutional guarantees of liberty and due process protected under Articles 9 and 10A of the Constitution,” it said.
Attorney Waqas Ahmad argued that recent amendments and developments in FCC jurisprudence following the 27th Constitutional Amendment have effectively reduced the Supreme Court’s authority to decide questions of law.
“The result is a special situation: a high court, although subordinate, can decide questions of law, but the Supreme Court faces limitations. From the rent controller or magistrate to the Federal Constitutional Court, direct petitions can be filed through the judicial hierarchy, but the Supreme Court stands almost alone as the only forum where a direct petition cannot normally be filed,” he said.
