ISLAMABAD:
The Supreme Court (SC) on Friday ruled that it no longer has jurisdiction to hear cases under the National Accountability Bureau (NAB) Act, and ruled that the Federal Constitutional Court (FCC) must hear all criminal appeals and pending petitions under amendments introduced earlier this year.
The ruling is expected to affect pending cases involving Pakistan Tehreek-e-Insaf founder Imran Khan and his wife Bushra Bibi in the £190m NAB case. They had challenged the rejection of their bail petitions 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 such cases fall under the jurisdiction of the Constitutional Court.
The decision, delivered by a three-member bench headed by Justice Muhammad Ali Mazhar, settled a jurisdictional issue that arose 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 Articles 175A and 175F of the Constitution confer appellate jurisdiction in NAB cases exclusively on the FCC
In a detailed 30-page judgment delivered today, the SC directed that all pending criminal appeals and petitions in 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 judgment on July 16 before issuing its short order and subsequently releasing the detailed reasons.
Read: FCC settles Imran’s ‘power of release’ case
The court rejected arguments that it could continue hearing bail applications while the Constitutional Court heard the main appeals, saying such an arrangement would be against the law.
“It is not possible” for bail petitions to remain in the SC while substantive appeals are heard by the Constitutional Court, the judgment said, warning that splitting jurisdiction between two forums would create an illegal inconsistency.
The bench also emphasized that jurisdiction is determined by statute rather than by the conduct of litigants or courts.
Addressing an argument based on an earlier SC bail order issued after the NAB amendments came into effect, the court noted that the issue of jurisdiction had not been raised in that case. It said the absence of an objection could not confer jurisdiction where the law did not.
“Even if no objection is raised, jurisdiction is determined by law,” the judgment said.
The court further observed that the reasons behind the earlier bail order could only be explained by the trial court as the issue of jurisdiction had not been argued before it.
Read more: SC examines FCC’s jurisdiction
The judgment distinguished NAB matters from appeals to the Federal Sharia Court, noting that while the Constitution expressly empowered the SC to hear appeals against decisions of the Federal Sharia Court, no such jurisdiction existed for NAB appeals after the March amendments.
The court also rejected the principle that plaintiffs choose the forum in which they wish to litigate.
“A legal forum cannot be created based on a litigant’s preference or consent,” the court said, adding that parties cannot engage in “forum shopping” by choosing the court they deem most favorable.
The jurisdictional dispute arose during the proceedings of a pending NAB case, where the counsel for the petitioner, 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 effect.
Attorney General Mansoor Usman Awan opposed the plea, arguing that both appeals and bail applications in NAB cases now fall exclusively within the FCC’s jurisdiction. He maintained that a single case could not be divided where one aspect was dealt with by the SC and another by the Constitutional Court. Counsel representing NAB supported the federal government’s stand.
