ISLAMABAD: The Supreme Court on Friday 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).

“This court has no jurisdiction to take cognisance in the NAB cases in terms of Article 175F (a) of the Constitution, read with Section 32 and 32-A of the National Accountability Ordinance, 1999 (NAO),” stated a 30-page judgement authored by Justice Muhammad Ali Mazhar, who headed a three-member bench that took up the matter.

The ruling also referred to arguments that the Supreme Court should not surrender its jurisdiction come what may, with the judges observing that courts could “not play to the gallery” for admiration, popularity and media commendations or for public perception, instead of adhering to the law and Constitution.

The duty of the court was to follow the law and not make decisions or assume a jurisdiction motivated by media mileage or public consumption, the bench noted.

“We are fully conscious and also sanguine that neither the court should assume the jurisdiction not vested in it by law nor it should abdicate its jurisdiction so vested under the law, rather, the jurisdiction is decided by the Constitution and the law itself. It is not a matter of surrender or conquest, but it is regulated by the law,” the judgement read.

The bench further observed that “unbridled judicial overreach, including flagrant misuse of suo motu powers as might is right in the past, unremittingly harmed the institutional image and its legitimacy and ultimately resulted in many legislative changes in the Constitution and the laws of our judicial system”.

“If a court does not possess statutory jurisdiction over a matter, it must step away without any intervention. No judge is robed, crowned or sceptered as a king to do whatever suits his whim and caprice as one-man rule,” the judgement concluded.

The ruling came on two petitions taken up by the bench headed by Justice Mazhar and comprising Justice Musarrat Hilali and Justice Shahid Bilal Hassan.

One of the pleas was filed by the NAB, challenging an acquittal by the Peshawar High Court, and another by an under-trial prisoner, Aamir Mahmood, who challenged the Islamabad High Court’s refusal of his post-arrest bail.

During the hearing, NAB argued before the court that after the insertion of Section 32-A in the NAO, the Supreme Court did not have the jurisdiction to proceed and decide the criminal petitions under consideration for leave to appeal, and now, only the FCC had the jurisdiction in all NAB cases, including bail applications.

According to Section 32-A of the NAO, any convicted person, aggrieved by a decision on their appeal against their conviction by a high court, may file a second appeal before the FCC.

But, the counsel for Mahmood, Ibadur Rehman Lodhi, argued that his client’s case was distinct as he was an under-trial prisoner whose bail rejection was not a second appeal against his conviction.

The bench hearing the arguments observed in its ruling that the insertion of Section 32-A in the NAO had become a statutory remedy with retrospective effect following the establishment of the FCC under the 27th Constitutional Amendment, which was passed by Parliament in November last year.

It noted that the FCC was established in accordance with the newly inserted Article 175-F of the Constitution under the latest amendment, the provision dealing with the appellate jurisdiction of the FCC.

“An appellate jurisdiction has been conferred upon the FCC in the categories of cases providing that all petitions for leave to appeal, appeals, review applications, and every other proceeding falling within the jurisdiction of the FCC, whether instituted or pending before the Supreme Court prior to the commencement of the amendment, will stand transferred to the FCC,” the bench declared.

It further observed that at present, the right of appeal introduced under Section 32-A of the NAO had become a “statutory remedy with retrospective effect”, and all pending civil petitions for leave to appeal would be automatically converted into direct second appeals while criminal petitions in which the leave had been granted would be heard by the new appellate forum.

Making these observations, the bench termed the new provision of second appeal in the NAO “beneficial and remedial” for the accused to a large extent following the 27th Amendment, but added that this would have no impact on cases decided and closed before the constitutional tweak.

“For all intents and purposes, a vested right of second appeal has restructured or transformed a final appellate terminus or destination of accountability cases away from the Supreme Court to FCC, while disengaging a discretionary grant of leave into an automatic right of appeal,” the ruling stated.

The judgement also recalled that the counsel for Mahmood had referred to an order of the Supreme Court to show that in the recent past, despite the amendment to the NAO, one criminal petition for leave to appeal moved for bail was entertained and decided by the court on March 18, converting the criminal petition into an appeal in which no question of jurisdiction was raised by the NAB.

“The order shows that no point of jurisdiction was raised by NAB in that case and reasons of such lapses are best known to them but here they take the hardline and objected to the jurisdiction,” the judgement said.

Noting the “lapses to raise the objection to jurisdiction”, the judgement further stated that “neither the jurisdiction is conferred on the Supreme Court on the wills or whims, nor by consent of the parties, but it is always regulated by the law”.

The Supreme Court emphasised that a statute that “merely creates or enlarges a remedy for an existing right, although retrospective, does not impair vested rights. So acts providing a new remedy, or enlarging a remedy already existing retrospectively do not, per se, impair vested rights.”

Legal observers believe that the judgement, which was earlier reserved on July 16, carries consequences for pending pleas of former prime minister Imran Khan and his wife, Bushra Bibi in the Al-Qadir Trust case.

Both of them had filed pleas in the Supreme Court, seeking the suspension of their sentences in the financial corruption case. The pleas, however, were returned by the registrar’s office, following which they filed chamber appeals against the court office’s objections.

The appeals argue that Section 32-A of the NAO provides that only a convicted person, or the accountability prosecutor general, aggrieved by a decision of the high court, may prefer a second appeal before the FCC.

The expression second appeal clearly reflects the legislative intent and leaves no ambiguity that only the final judgement or order passed by the high court in the first appeal is amenable to challenge before the FCC, the pleas contend.