ISLAMABAD:
The Supreme Court (SC) ruled Friday that it no longer has jurisdiction to hear cases under the National Accountability Bureau (NAB) Act, ruling that the Federal Constitutional Court (FCC) must hear all criminal appeals and motions pending under amendments introduced earlier this year.
The ruling is expected to affect ongoing proceedings involving Pakistani Tehreek-e-Insaf founder Imran Khan and his wife Bushra Bibi in the £190 million NAB case. They had challenged the rejection of their bail application before the SC, but the Registrar returned their petition after raising objections, stating that the proper forum was the FCC. Friday’s ruling confirms that these questions fall within the jurisdiction of the Constitutional Court.
The ruling, delivered by a three-member bench headed by Justice Muhammad Ali Mazhar, settled a jurisdictional question that emerged following amendments to the NAB Act on March 5 this year. The court held that Sections 32 and 32A of the amended Act, read with Sections 175A and 175F of the Constitution, vest appellate jurisdiction in NAB cases exclusively on the FCC.
In a detailed 30-page judgment released today, the SC ordered that all pending criminal appeals and petitions in the NAB cases be transferred to the Constitutional Court. The three-member bench, comprising Justice Muhammad Ali Mazhar, Justice Musarrat Hilali and Justice Shahid Bilal Hassan, reserved its verdict on July 16 before issuing its brief order and later releasing detailed reasons.
Read: FCC Fixes Imran’s ‘Liberation Force’ Case
The court rejected arguments that it could continue to consider bail applications while the Constitutional Court handled the main appeals, saying such an arrangement would be against the law.
“It is not possible” for bail applications to remain before the SC while substantive appeals are heard by the Constitutional Court, the judgment said, warning that dividing jurisdiction between two forums would create an illegal inconsistency.
The judiciary also emphasized that jurisdiction is determined by law rather than by the conduct of litigants or courts.
Responding to an argument based on an earlier SC bail order issued after the NAB amendments came into force, the court observed that the question of jurisdiction was not raised in this case. He said lack of objection could not confer jurisdiction where the law did not.
“Even if no objection is raised, jurisdiction is determined by law,” the judgment states.
The court further observed that the reasons behind the earlier bail order could only be explained by the court hearing the case, since the question of jurisdiction was not argued before it.
Learn more: SC examines FCC jurisdiction
The judgment distinguishes NAB cases from appeals against the Federal Sharia Court, noting that while the Constitution expressly authorizes the SC to hear appeals against decisions of the Federal Sharia Court, no such jurisdiction existed for NAB appeals following the March amendments.
The judiciary also rejected the principle according to which litigants choose the forum in which they wish to continue their proceedings.
“A legal forum cannot be created based on the preference or consent of a litigant,” the court said, adding that parties cannot engage in “forum shopping” by selecting the court they consider most favorable.
The jurisdictional clash arose during proceedings in an ongoing NAB case in which the petitioner’s lawyer, Abad ur Rehman Lodhi, argued that the SC should continue hearing the bail application. He relied on an SC bail order dated March 18, issued after the amended NAB Act came into force.
Attorney General Mansoor Usman Awan opposed the plea, arguing that appeals and requests for bail in NAB cases now fall exclusively within the jurisdiction of the FCC. He argued that a single case cannot be divided, with one aspect being heard by the SC and another by the Constitutional Court. The lawyer representing the NAB supported the federal government’s position.
