The Supreme Court of Pakistan this week settled a jurisdictional dispute by declaring that it could not hear bail applications in pending National Accountability Bureau (NAB) appeals, and all such pending criminal appeals stood transferred to the Federal Constitutional Court (FCC).
In a 30-page judgment authored by Justice Muhammad Ali Mazhar, the court held that, under Article 175F of the Constitution read with Sections 32 and 32A of the National Accountability Ordinance (NAO), jurisdiction over pending NAB appeals and related matters now lies exclusively with the Federal Constitutional Court (FCC).
The ruling settled a jurisdictional dispute that arose in two separate cases — one filed by the NAB against an acquittal by the Peshawar High Court and another by undertrial prisoner Aamir Mahmood challenging the Islamabad High Court’s refusal to grant post-arrest bail.
The judgment directed that all pending NAB appeals, bail applications and related proceedings be transferred to the FCC.
The judgment is widely viewed as a constitutionally sound decision with far-reaching legal significance.
Here are the key legal principles underpinning the Court’s reasoning:
Upholds Constitutional Supremacy:
This judgment does not “surrender” jurisdiction; it obeys the Constitution. Article 175(2) explicitly states that no court shall have jurisdiction save as conferred by the Constitution or law.
The Court rightly refused to assume power it does not possess, setting an example of judicial restraint and constitutional fidelity.
One Case, One Forum:
The Court held that it is legally absurd for one limb of a case (the appeal) to go to the FCC while another limb (bail/Misc. Applications) remains with the Supreme Court.
This “one forum” principle prevents chaos, confusion, and contradictory decisions, ensuring justice is not fragmented.
Ancillary Jurisdiction Follows the Main Case:
Relying on the doctrine of ancillary/incidental jurisdiction, the Court correctly ruled that bail is an offshoot of the appeal. Where the principal appeal goes, the ancillary matters must follow. This is a bedrock principle of jurisprudence worldwide.
Harmonious Construction Reading the Law as a Whole:
The Court applied the doctrine of harmonious construction to read Article 175F and Section 32A together. Both provisions point to one conclusion: the FCC is the exclusive appellate forum for NAB cases, including all incidental matters.
International Doctrine of Pith and Substance:
Applying int’l doctrine of pith and substance, the Court looked beyond literal wording to find the legislature’s true intent, i.e. creating a unified appellate forum at the FCC.
A bail application does not change the dominant character of that forum.
No Forum Shopping, Law Cannot Bend to Preference:
The judgment rightly rejected the argument that litigants can choose their forum. If the law vests jurisdiction in the FCC, no party can insist on the Supreme Court out of convenience or preference. This strengthens the rule of law over whims and wishes.
Legislative Silence cannot be claimed as Jurisdiction:
The Court brilliantly held that legislative silence on “bail” in Section 32A does not preserve Supreme Court jurisdiction. Jurisdiction must be affirmatively conferred; it cannot be inferred from omission. This is a masterclass in statutory interpretation.
Protects Judicial Discipline:
By refusing to overstep its constitutional boundaries, the Court has protected judicial discipline and respected the separation of powers.
Two apex courts cannot have overlapping jurisdiction over the same case that would be a recipe for judicial anarchy.
Vested Right of Appeal Not a Discretionary Favour:
The Court distinguished between a discretionary “leave to appeal” and a substantive “right of appeal.” Since Section 32A confers a vested statutory right of second appeal to the FCC, the Supreme Court cannot intervene even for bail without destroying that right.
Strengthens Democracy and Public Trust on FCC:
This decision strengthens democratic institutions by adhering to the Constitution.
It reminds all that judges are bound by law and not by public opinion, media pressure, or populist sentiment. This is the hallmark of a mature, independent judiciary.
