CHAIRMAN, NATIONAL ACCOUNTABILITY BUREAU through Prosecutor General Accountability, NAB, Islamabad Versus ADEEL AHMED

ORDER

MUHAMMAD ALI MAZHAR, J.---

1. Factual Matrix

The aforesaid Criminal Petitions for leave to appeal under Article 185 (3) of the Constitution of the Islamic Republic of Pakistan, 1973, (Constitution) were preferred in this Court prior to the 27th Constitutional Amendment. The transient features are as under:-

I) Crl. PLA No. 316 of 2018

This Criminal Petition for leave to appeal is directed against the judgment dated 18.10.2017, passed by the learned Division Bench of the Peshawar High Court, Peshawar, in Ehtesab Criminal Appeal No. 29 of 2010, whereby the appeal was allowed, the judgment dated 30.10.2010 passed by the learned Accountability Judge, Peshawar, was set aside and the respondent was acquitted. Being aggrieved by the acquittal accorded to the respondent by the High Court, the Prosecutor General, National Accountability Bureau, (NAB) Islamabad has challenged the acquittal and filed this Criminal Petition in this Court for leave to appeal.

II) Crl. PLA No. 1553 of 2025

By means of this Criminal Petition for leave to appeal, the petitioner has challenged the order dated 10.09.2025 passed by the Islamabad High Court in Criminal Miscellaneous No. 1433-B of 2025, whereby his post-arrest bail was dismissed, hence the petitioner has filed this Criminal Petition in this Court for leave to appeal.

1/2. When both aforesaid Criminal Petitions for leave to appeal were fixed in the Court on 02.04.2026, the counsel appearing for the NAB raised a plea that after amendments in the National Accountability Ordinance, 1999 (NAO) by dint of National Accountability (Amendment) Act, 2026 (Act of 2026) , this Court has no jurisdiction to proceed further and decide the aforesaid Criminal Petitions for leave to appeal and now only the Federal Constitutional Court (FCC) has jurisdiction in all NAB cases including Bail hence both aforesaid Criminal Petitions for leave to appeal may be transferred to FCC for taking cognizance and decision. On the strength of this argument, the Court issued notice to the Attorney General for Pakistan (AGP) under Order XXVII-A of Civil Procedure Code, 1908 (C.P.C.) for assistance on the question of law raised by the NAB counsel so that after providing ample opportunity of hearing to the learned counsel appearing for the petitioners in the aforesaid Criminal Petitions and the learned AGP, the jurisdictional issue may be decided in accordance with law.

2. Arguments

2/1. The learned counsel for the respondent in Crl.PLA No. 316 of 2018 argued that his client has no objection if the acquittal appeal filed by the NAB is transferred and heard by FCC keeping in view the amendments made by virtue of Act of 2026 whereby a right of second appeal is provided to be preferred directly to the FCC in terms of Section 32A of the NAO. He further argued that prior to the amendments, the right of appeal was conditional upon granting the leave by this Court but after recent amendments, the aggrieved person has been conferred a vested right of second appeal which is beneficial in nature.

2/2. The learned counsel appearing for the petitioner in Crl.PLA No. 1553 of 2025 argued that his client s bail petition is before the conviction as an under trial prisoner (UTP) , therefore this Court, despite amendment and providing second right of appeal before the FCC, may entertain and decide the bail petitions while granting leave to appeal. So far as the niceties of Section 32A inserted in the NAO are concerned, the learned counsel conceded that after conviction, Section 32A of NAO will come into play and second appeal can be filed in the FCC and not in this Court. He further argued that in cases arising out of Offence of Zina (Enforcement of Hudood) Ordinance, 1979, though the appellate Court is Federal Shariat Court (FSC) , but on rejection of bail applications by the High Court, this Court allowed bails in past. He cited Section 20 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979, whereby the provisions of the Code of Criminal Procedure, 1898 were made applicable mutatis mutandis in respect of cases under the aforesaid Ordinance. However, when we raised a query to the learned counsel that under Article 203F of the Constitution, the Supreme Court is the last appellate Court of the FSC and there is no change in appellate hierarchy, the learned counsel simply entreated that this Court should not surrender its jurisdiction and this Court can still exercise its jurisdiction as an appellate court for bail matters even though it lost its status of appellate Court in NAB matters. He also referred to one bail order passed by this Court after amendments and argued that no jurisdictional objection was raised by the NAB in that case.

2/3. The learned counsel for the NAB heavily relied upon Section 32A of NAO and argued that keeping in view the amendments and insertion of aforesaid Section, the FCC is the competent Court to hear and decide the main appeals as well as the bail matters. When we confronted him as to why the bail petition referred to by the learned counsel for the petitioner was not opposed on the jurisdictional issue, he admitted the lapses but further argued that in view of the correct legal position if the law does not give jurisdiction to the Court, that cannot be exercised even by consent of the parties.

2/4. The learned AAG argued that on promulgation of the Constitution (Twenty-Seventh Amendment) Act, 2025 and the Amendment Act of 2026, certain restructuring was made in the constitutional and statutory framework governing the appellate jurisdiction of this Court in the accountability matters. According to him if the combined effect of Article 175-F of the Constitution and Section 32A of the NAO is taken into consideration, it clearly demonstrates a flawless legislative intent to substitute the FCC as an appellate forum in accountability matters, therefore, jurisdiction previously exercised by this Court under Article 185 of the Constitution in such matters now stands vested in the FCC to the extent expressly provided by the Constitution and the amended Act. He further argued that the grant of bail either to UTP or a convicted person is ancillary and incidental to the exercise of main appellate jurisdiction and this determination depends not merely upon the express language of the constitutional and statutory provisions but also upon well-established principles governing implied and ancillary jurisdiction, therefore in view of the aforesaid amendment, only FCC can exercise the appellate jurisdiction and hear applications seeking post-arrest bail, pre-arrest bail, suspension of sentence, interim relief, transfer applications, review petitions, and miscellaneous applications pending in appeals.

3. Reasons

3/1. Heard the arguments. Whether this Court can still exercise the jurisdiction in the NAB matters as an appellate Court for bails or suspension of sentence or otherwise despite insertion of Section 32A in NAO whereby substantive remedy of second appeal with procedural change of new forum has been introduced as of right instead of first beseeching for leave to appeal from this Court. In order to address and thrash out this fundamental, paramount and overarching issue on which the entire case turns, a detailed scrutiny is required for complete resolution within the definitive framework of law. The Constitution (Twenty-Seventh Amendment) Act, 2025 established the FCC (Federal Constitutional Court) in accordance with newly inserted Article 175-F of the Constitution, whereby an appellate jurisdiction has been conferred upon the FCC in the categories of cases specifically enumerated therein and, more importantly, provides that all petitions for leave to appeal, appeals, review applications, and every other proceeding falling within the jurisdiction of the Federal Constitutional Court, whether instituted or pending before the Supreme Court prior to the commencement of the Twenty-Seventh Amendment, shall stand transferred to the FCC. The panorama of jurisdictional transformations molded in the Constitution as well as in the NAO 1999 are as under:

A. Legislative changes in the Constitution vide Constitution (Twenty-Seventh Amendment) Act, 2025

(Bifurcation of Jurisdiction)

175. Establishment and jurisdiction of court.

175. (1) There shall be a Federal Constitutional Court of Pakistan, hereinafter referred to as the Federal Constitutional Court, a Supreme Court of Pakistan hereinafter referred to as the Supreme Court, a High Court for each Province and a High Court for the Islamabad Capital Territory and such other courts as may be established by law.

Explanation. Unless the context otherwise requires, the words High Court wherever occurring in the Constitution shall include Islamabad High Court. ]

(2) No court shall have any jurisdiction save as is or may be conferred on it by the Constitution or by or under any law.

(3) The judiciary shall be separated progressively from the Executive within fourteen years from the commencing day.

175F. Appellate jurisdiction of the Federal Constitutional Court.

(1) The Federal Constitutional Court shall have jurisdiction to hear and determine appeals from judgments, decrees, final orders or sentences of a High Court as provided herein below

(a) where an Act of Majlis-e-Shoora (Parliament) so provides;

(b) if the High Court certifies that the case involves a substantial question of law as to the interpretation of the Constitution; or

(c) from a judgment or an order of a High Court made under Article 199 only if the Federal Constitutional Court grants leave to appeal:

Provided that no appeal shall lie against a judgment or an order of a High Court made under Article 199, in a case which relates to rent and family except guardianship and such other matters as may be determined by law.

(2) All petitions for leave to appeal, appeals or review applications, to which clause (1) apply or any other proceedings falling within the jurisdiction of the Federal Constitutional Court, filed or pending before the Supreme Court prior to commencement of the Constitution (Twenty-seventh Amendment) Act, 2025, stand transferred to the Federal Constitutional Court and shall only be heard and decided by that Court.

185. Appellate jurisdiction of the Supreme Court.

(1) Subject to this Article and Article 175F, the Supreme Court shall have jurisdiction to hear and determine appeals from judgments, decrees, final orders or sentences of a High Court.

(2) An appeal shall lie to the Supreme Court from any judgment, decree, final order or sentence of a High Court-

(a) if the High Court has on appeal reversed an order of acquittal of an accused person and sentenced him to death or to transportation for life or imprisonment for life; or, on revision, has enhanced a sentence to a sentence as aforesaid; or

(b) if the High Court has withdrawn for trial before itself any case from any court subordinate to it and has in such trial convicted the accused person and sentenced him as aforesaid; or

(c) if the High Court has imposed any punishment on any person for contempt of the High Court; or

(d) if the amount or value of the subject-matter of the dispute in the court of first instance was, and also in dispute in appeal is, not less than one million rupees or such other sum as may be specified in that behalf by Act of Majlis-e-Shoora (Parliament) and the judgment, decree or final order appealed from has varied or set aside the judgment, decree or final order of the court or tribunal immediately below; or

(e) if the judgment, decree or final order involves directly or indirectly some claim or question respecting property of the like amount or value and the judgment, decree or final order appealed from has varied or set aside the judgment, decree or final order of the court or tribunal immediately below.

(3) An appeal to the Supreme Court, from a judgment, decree, order or sentence of a High Court in case to which clause (2) does not apply shall lie only if the Supreme Court grants leave to appeal:

Provided that no appeal shall lie to the Supreme Court in cases to which clause (1) of Article 175F applies.

Fourth Schedule Federal Legislative List

55. Jurisdiction and powers of all courts, except the Federal Constitutional Court and the Supreme Court, with respect to any of the matters in this List and, to such extent as is expressly authorised by or under the Constitution, the enlargement of the jurisdiction of the Federal Constitutional Court and the Supreme Court, and the conferring thereon of supplemental powers.

[Emphasis supplied]

B. Legislative changes in consequence of the National Accountability (Amendment) Act, 2026 (Act No. XIV of 2026)

3/2. Sooner than examining the nitty-gritties of amendments incorporated by means of Act of 2026, it is imperative to first dwell into the intricacies of Section 32 of NAO which is for the ease of reference reproduced as under:-

32. Appeal and revision. (a) Any person convicted or the Prosecutor General Accountability, if so directed by the Chairman NAB, aggrieved by the final judgment and order of the Court under this Ordinance may, within thirty days of the final Judgment and order of the Court prefer and appeal to the High Court under whose jurisdiction the Court is situated:

Provided that no appeal shall lie against any interlocutory order of the Court.

(b) All Appeals against the final Judgment filed before the High Court will be heard by a Bench of not less than two judges constituted by the Chief Justice of the High Court. The provisions contained in section 426 of the Code shall apply mutatis mutandis in case of an appeal filed against order of conviction.

(c) No revision shall lie against any interlocutory order of the Court. [Emphasis applied]

3/3. The Act of 2026 was promulgated on 5th March, 2026 and though it came into force at once but it was deemed to have taken effect from the commencement of the NAO 1999. According to Section 5, subsection (b) of Section 9 was substituted as under:

"(b) A Court established under this Ordinance and the High Court having the jurisdiction in the area shall have the power to grant bail or order release of the accused under sections 439, 496, 497 and 498 of the Code.".

Pursuant to Section 6, a new Section 32A was inserted as under:-

"32A Second Appeal- Any person convicted or the Prosecutor General Accountability, if so directed by the Chairman NAB, aggrieved by the decision made by the High Court under section 32, may prefer a second appeal to the Federal Constitutional Court within a period of thirty days". [Emphasis applied]

C. The Statement of Objects and Reasons of National Accountability (Amendment) Bill, 2026 is reproduced as under:

The Statement of Objects and Reasons of National Accountability (Amendment) Bill, 2026 seeks to amend certain provisions of the National Accountability Ordinance, 1999 (XVIII of 1999) with the objective of improving procedural clarity, strengthening accountability mechanisms, and introducing additional safeguards in the appellate and administrative framework of the National Accountability Bureau (NAB). The Bill proposes amendments relating to jurisdiction, financial thresholds, tenure of the Chairman NAB, bail powers of courts, and the introduction of a second appellate forum.

2. The Bill proposes an amendment to section 4 of the Ordinance concerning the jurisdiction and functions of accountability courts. The amendment inserts the word "appeals" after the word "trials" in subsection (6), clause (a). This change clarifies that the relevant procedural provisions apply not only to trials but also to appellate proceedings, thereby ensuring broader procedural application and reducing ambiguity in the interpretation of the law.

3. The Bill further proposes an amendment to section 5, which contains definitions used in the ordinance. Under the proposed change, the monetary threshold specified in clause (o) will be adjusted annually in accordance with the inflation index published by the Pakistan Bureau of Statistics. This measure ensures that the financial limits prescribed under the law remain realistic and relevant over time and are not diminished due to inflation.

4. The Bill also amends Section 6 regarding the tenure of the Chairman NAB Currently, the Chairman serves a non-extendable term of three years and is not eligible for reappointment. The proposed amendment allows the Chairman to serve a three-year term which may be extended once for a further period of three years by the Federal Government, thereby providing administrative continuity and flexibility in leadership.

5. Furthermore, the Bill amends section 9 by substituting subsection (b) to clearly empower both accountability courts and the relevant High Courts to grant bail or order release of the accused under sections 439,496,497 and 498 of the Code of Criminal Procedure.

6. Finally, the Bill inserts a new section 32A providing for a second appeal to the Federal Constitutional Court against decisions of the High Court within thirty days, thereby strengthening judicial oversight and the right of review in accountability matters.

7. The Bill has been designed to achieve the aforesaid objects.

3/4. The aforesaid legislative transformations have need of all-encompassing reevaluation and deliberation with regard to jurisdictional competence of this Court in the matters directly related to the NAB cases arising out of NAO vis- -vis the newly instituted cases and/or pending appeals including bail petitions. The rudimentary tentacle of controversy is germane to whether despite change in the appellate forum, this Court may entertain the bail petitions independently as an appellate forum regardless of newly inserted Section 32A in NAO.

3/5. It is clear beyond any shadow of doubt that under Article 175 of the Constitution, no court shall have any jurisdiction save as is or may be conferred on it by the Constitution or under any law. If we look into Article 175F of the Constitution it is provided that the FCC shall have jurisdiction to hear and determine appeals from judgments, decrees, final orders or sentences of a High Court. According to clause (a), the jurisdiction is vested in if an Act of Majlis-e-Shoora (Parliament) so provides; whereas clause (b) confers the jurisdiction if the High Court certifies that the case involves a substantial question of law as to the interpretation of the Constitution and under clause (c), the FCC has jurisdiction to entertain the appeals subject to leave from a judgment or an order of a High Court made under Article 199 of the Constitution. On account of bifurcation of jurisdiction, the sub-article (2) of Article 175F is also quite significant wherein a self-executing and trigger-based provision has been assimilated for transfer of all petitions for leave to appeal, appeals or review applications falling within the jurisdiction of the FCC pending in this Court prior to 27th Constitutional Amendment.

D. Doctrine of word subject to explained

3/6. In unison, the jurisdiction of this Court (Supreme Court) has also been recharacterized/bifurcated under Article 185 of the Constitution which now activates with the prelude subject to this Article and Article 175F, the Supreme Court shall have jurisdiction to hear and determine appeals from judgments, decrees, final orders or sentences of a High Court . Except the category of cases mentioned in sub-article (2) wherein a direct right of appeal is provided, no appeal lies to this Court from a judgment, decree, order or sentence of a High Court in case to which clause (2) does not apply but it shall lie only if the this Court grants leave to appeal. Recently added proviso to the Article 185 emphasizes that no appeal shall lie to the Supreme Court in cases to which clause (1) of Article 175F applies.

3/7. The turn of phrase " subject to " employs in the legislation to set up a legal chain of command to prevent legal conflicts. It creates a straightforward exception to a general rule and communicates that right or power is not unqualified but conditional upon other prerequisites. It also deduces that the law in question is compliant to another law and administers as limiting qualifier for setting up the peripheries to avoid potential overlap or inharmoniousness. The indispensable and imperative sense of duty of the Court in interpreting a law is to find out and discover the intention of the legislature then endeavor to interpret the statute in order to promote or advance the object and purpose of the enactment. Now for all intents and purposes, the jurisdiction of this Court is subject to Article 175F of the Constitution i.e. Appellate jurisdiction of the Federal Constitutional Court and one of its conferred jurisdiction is as provided an Act of Majlis-e-Shoora (Parliament). While ratiocinating to the interpretation of phrase subject to , we also surveyed some authorities set by previous judicial precedents, which are as follows:-

1. Dada Soap Factory Limited v. Commissioner of Income Tax, Central Zone B, Karachi (1987 PTD 420) . The court held that words 'subject to' are not descriptive words but they impose conditions and obligations.

2. Islamic Republic of Pakistan v. Abdul Wali Khan (PLD 1976 SC 57) . It was held that that the expression "subject to" has also been defined as "conditional upon or dependent upon" or "exposed to (some contingent action), being under the contingency".

3. Tukur v. Governor of Gongola State [(1989) 4 N.W.L.R. (Pt. 117) 517] . The court explicitly held that where a provision begins with the phrase "subject to," it means that the provision must be read, guided, governed, and conditioned by the other sections to which it is made subject. It acts as a clear statement of legal hierarchy.

4. Southwark London Borough Council v. IBM United Kingdom Ltd [2011] EWHC 549 (TCC) . The UK High Court affirmed that "subject to" indicates a clear priority of terms. The clause introducing "subject to" yields entirely to the clause it references if any operational conflict occurs.

5. Gram Panchayat, Gorakhpur v. Khushali Dindayal Sahu (AIR 1973 MP 19) . It was held that the words "subject to rules made in this behalf" or similar words are commonly employed in enactments, where the legislature contemplates framing of rules in exercise of delegated powers that expression has to be interpreted according to the context in which it is employed... The phrase "subject to" signifies both these meanings i.e. (1) liable or exposed to: likely to have; and (2) dependent or conditional on. Each of them is appropriate in its own context.

E. Rule of interpretation

3/8. The bone of contention in the present proceedings neither relates to entreating or rendering declaration by this Court whether the amended provisions of NAO are intra vires or ultra vires nor it touches or raises any dispute of bifurcation of jurisdiction in the midst of Article 175F and Article 185 after 27th Amendment in the Constitution. Quite the reverse, in the present proceedings, only question is which Court (SC or FCC) possess the appellate jurisdiction including the grant of bail and suspension of sentence pending adjudication of appeal in the NAB cases is raised. The golden rule of statutory interpretation provides that the words used should be interpreted harmoniously and congenially in line with the intention of the legislature and all the provisions should be read in unison, for the reason that the foremost stratagem of this doctrine is to preserve the effect of the statute within the precincts of law and within the dominion of Constitution. While interpreting the Constitution, it is to be read as a whole without obliterating or annihilating the other provisions to ensure the rule of harmony. The doctrine of pith and substance places considerable emphasis on figuring out the distinct attributes of constitutional provisions, and the doctrine of purposive interpretation lays down a duty upon the Courts to interpret the statute or the Constitution keeping in mind the purposefulness for which the provision in question was legislated while adopting a result-oriented approach, rather than construing it in a restrictive or stringent sense.

3/9. It is a well settled principle that redundancy cannot be attributed to any provision of the Constitution rather in case of any conflict in two provisions, the rule of harmonious interpretation is to be followed. The Doctrine of Harmonious Construction stands as a cardinal principle, enjoying pervasive application across the diverse landscape of constitutional jurisprudence. The general rules of interpretation of the Constitution are: the words must be given full effect if they are clear and unambiguous; the Constitution must be read in its entirety; harmonic construction principles should be used; the Constitution must be interpreted liberally; the court must determine the intent of the constitution by looking beyond its literal words; when interpreting, it's acceptable to use both internal and external help and all other laws are subordinate to the Constitution whereas the guiding principles and modes of interpretation to approach and decipher literal interpretation of constitutional text. The true picture of doctrine of harmonious construction is deducible from following dictums:

1. Hamza Rasheed Khan v. Election Appellate Tribunal, Lahore and others (PLD 2024 Supreme Court 1028) . This Court held that one constitutional provision cannot, unless expressly so provided, override the other nor can one be so construed as to destroy the other but rather both are to be construed harmoniously, each sustaining the other.

2. Lahore Development Authority v. Ms. Imrana Tiwana and others (2015 SCMR 1739) . It was held that one constitutional provision cannot, unless it is so specifically provided, override another and must be harmoniously construed together.

3. Case regarding pensionary benefits of the Judges of superior courts from the date of their respective retirements, irrespective of their length of service as such judges (PLD 2013 Supreme Court 829) . The Court held that no particular provision should be so construed as to destroying the other, but each sustaining the other provision. This is the rule of harmony, rule of completeness and exhaustiveness.

4. Abdul Razzaq Khokhar v. Province of Punjab and others (1990 SCMR 183) . This Court, in this judgment, emphasized the principle of harmonious interpretation for incorporated laws. This means that when one law incorporates another, they should be read together to give consistent meaning to all relevant provisions.

5. Hafiz Abdul Waheed v. Mrs. Asma Jehangir and another (PLD 2004 Supreme Court 219) . The Court held that it is well-settled that the Court will lean in favour of harmonious interpretation of the statutes/various provisions and would certainly avoid an interpretation which has the potential of conflicting judgments or pitching one Constitutional Court against another.

6. LT.-Col. Nawabzada Muhammad Amir Khan v. Controller of Estate Duty, Government of Pakistan (PLD 1962 Supreme Court 335) . It was held that the duty frequently falls upon the Superior Courts to establish principles whereby effect may be given to the laws according to the intention of the legislators, and that despite ambiguity or deficiency in the language they have employed. The task is frequently complicated through ineptitude on the part of the Legislature and its legislative draftsmen in the use of words or in the thorough delineation, by the machinery of a statutory instrument, of the whole meaning and purpose of the legislation.

7. Johnson v. Moreton [(1978) 3 All. ER 37] and Stock v. Frank Jones (Tipton) Ltd. [(1978) 1 All. ER 948] . In selecting out of different interpretations the Court will adopt that which is just reasonable and sensible rather than that which is none of those things, as it may be presumed that the legislature should have used the word in that interpretation which least offends our sense of justice.

8. Commissioner of Income Tax v. Hindustan Bulk Carriers, (2003) 3 SCC 57, P. 74] . The Court laid down following principles of rule of harmonious construction: the Courts must avoid a head on clash of seemingly contradicting provisions and they must construe the contradictory provisions so as to harmonize them. ["Commissioner of Income Tax v. Hindustan Bulk Carriers", (2003) 3 SCC 57, P. 74]. AIR (2003) SC 3942; the provision of one section cannot be used to defeat the provision contained in another unless the Court, despite all its effort, is unable to find a way to reconcile their differences; when it is impossible to completely reconcile the differences in contradictory provisions, the Courts must interpret them in such as way so that effect is given to both the provisions as much as possible. Sultana Begum v. Premchand Jain--AIR 1997 SC 1006, Pages 1009, 1010]; Courts must also keep in mind that interpretation that reduces one provision to a useless number or dead is not harmonious construction and to harmonize is not to destroy any statutory provision or to render it fruitless.

9. State of Rajasthan v. Gopi Kishan Sen (AIR 1992 SC 1754) . The Court emphasized the principle of harmonious construction to uphold and give effect to all provisions without rendering any of them powerless. The Court invoked the maxim generalibus specialia derogant, where a special provision prevails over a general one on the same subject.

10. East India Hotels Ltd. v. Union of India (AIR 2001 SC 231) . An Act is to be read as a whole, the different provisions have to be harmonized and the effect to be given to all of them.

11. Bhatia International v. Bulk Trading S.A. ((2002) 4 SCC 105) . The conventional way of interpreting a statute is to seek the intention of its makers. If a statutory provision is open to more than one interpretation then the Court has to choose that interpretation which represents the true intention of the legislature . Notwithstanding the conventional principle that the duty of judges is to expound and not to legislate.

3/10. According to John Marshall, the constitution is either a superior paramount law unchangeable by ordinary means, or it is on a level with ordinary legislative acts alterable when the legislature shall please to alter it. It is emphatically the province and duty of the judicial department to say what the law is. According to Warren E. Burger, former Chief Justice of the United States, the Judges rule on the basis of law, not public opinion . Judicial populism triggers when judicial branches are much more influenced by the people and render the decisions according to the will of people which is not precisely the role of judiciary. The role of a constitutional judge is different from that of a King, who is free to exert power and pass orders of his choice over his subjects. Under the guise or semblance of populist approach, the judges cannot indulge in electing and opting public opinion and emotions for overshadowing or eroding established constitutional and legal provisions.

3/11. At this juncture, we are also fortified by the judgment in the case of Mian Irfan Bashir v. Deputy Commissioner (D.C.), Lahore (PLD 2021 Supreme Court 571) , wherein it was held that judicial overreach is transgressive as it transforms the judicial role of adjudication and interpretation of law into that of judicial legislation or judicial policy making, thus encroaching upon the other branches of the Government and disregarding the fine line of separation of powers, upon which is pillared the very construct of constitutional democracy. Such judicial leap in the dark is also known as "judicial adventurism" or "judicial imperialism." A judge is to remain within the confines of the dispute brought before him and decide the matter by remaining within the confines of the law and the Constitution. Having taken an oath to preserve, protect and defend the Constitution, a constitutional judge cannot be forgetful of the fact that he himself, is first and foremost subject to the Constitution and the law. When judges uncontrollably tread the path of judicial overreach, they lower the public image of the judiciary and weaken the public trust reposed in the judicial institution. In doing so they violate their oath and turn a blind eye to their constitutional role. Constitutional democracy leans heavily on the rule of law, supremacy of the Constitution, independence of the judiciary and separation of powers. Judges by passing orders, which are not anchored in law and do not draw their legitimacy from the Constitution, unnerve the other branches of the Government and shake the very foundations of our democracy.

E. Right of Second Appeal

3/12. There is a well-known fundamental differentiation at the heart of Right to Appeal and Civil or Criminal Petition for Leave to Appeal . The main purpose of every Petition for Leave to Appeal (civil or criminal) is to let this Court (Supreme Court) first evaluate the basic merits of the case before formally summoning the opposing party, wherein this Court embraces an out-and-out and unequivocal discretion to refuse the leave to appeal if the petitioner fails to demonstrate a patent error of law, a gross misreading of evidence, or a significant miscarriage of justice. Quite the opposite, a right of direct appeal conferred through the constitutional backing or through statutory provision is a substantive right which cannot be compressed or truncated by procedural rules but it is a vested right to move into a superior court to test the trustworthiness of decision passed by the lower fora. What is the indispensable diversity is that a right to appeal if provided in any statute or Constitution is an unqualified fundamental right which paves the way for an aggrieved person to approach the Court without requiring prior permission while in the remedy of leave to appeal, the litigant has to first convince and persuade the Court to bestow formal go-ahead by means of leave granting order before regular hearing of appeal whereas the appeal preferred under statutory or constitutional backing is directly fixed before the court for final adjudication.

3/13. It is incontrovertible that the legislative competence for enacting, amending the laws or creating any newest window of appeal rests with the legislature and not with this Court. The substantive right of second appeal has been created in the NAO for invoking aid and interposition to check errors in the original and first appellate judgment which is essentially continuation of the original proceedings for appraisal and testing the soundness of a trial court and first appellate court judgments, which is not a mere matter of procedure but it is a substantive right created by means of amendment. Now the second appeal has become an independent statutory right and if any attempt is made to impede or confine this statutory right to the detriment of technicalities, then it will tantamount to rendering this remedy ineffectual, feigned or cosmetic.

3/14. The word "appeal" itself has etymological roots in Latin, with "appellare" meaning "to address. The right of appeal existed for many millennia as a key element of due process of law. The legislature extended this right of second appeal in NAB cases as a vested right with an utmost circumspection which is in the larger public interest. For instance, if we look into the astuteness of right of Second Appeal as provided under Section 100 of the Code of Civil Procedure, 1908 (C.P.C.) , the appeal lies to the High Court from every decree passed in appeal by any Court subordinate to a High Court with the preconditions such as (a) the decision being contrary to law or to some usage having the force of law; (b) the decision having failed to determine some material issue of law or usage having the force of law; (c) a substantial error or defect in the procedure provided by this Code or by any other law for the time being in force, which may possibly have produced error or defect in the decision of the case upon the merits. Moreover, it is sine qua non said by Section 101, C.P.C. that no second appeal shall lie except on the grounds mentioned in Section 100. In contrast, if we delve into the right of Second Appeal provided under the NAO by virtue of Section 32A, it does not provide any particular conditions, prerequisites or restrictions as laid down in Section 100 of C.P.C. but the right of second appeal is unregimented and overarching right without any procedural rigors of leave before invoking the jurisdiction of FCC as second/final appellate Court against the orders and judgment of High Courts rendered in the NAB cases as a first appellate Court.

3/15. The plain reading of Section 32 of NAO construes that any convicted person in NAB case by the final judgment and order of the Court under the Ordinance may, within thirty days of the final Judgment and order of the Court prefer an appeal to the High Court and the provisions contained in Section 426 of the Code shall apply mutatis mutandis in case of an appeal filed against order of conviction. No revision shall lie against any interlocutory order of the Court. Now as per latest amendment, the NAB Court and the High Court both have the powers to grant bail or order release of the accused under Sections 439, 496, 497 and 498 of the Code while the newly added Section 32A has provided a right of second appeal only against the decision made by the High Court under Section 32 and not through any independent means.

3/16. If we look into the fine points of Section 32A, it provides right of appeal against the decision of the High Court as broad spectrum remedy which does not confine to right of appeal only against the conviction or acquittal but includes the remedy of applying for bail by the under trial prisoner if rejected by the Trial Court and/or High Court or approaching for the cancellation of bail if accorded by the High Court if it deems fit by the prosecution and it also includes the allowance or rejection of application vice versa filed under Section 426 Cr.P.C for suspension of sentence during pendency of appeal before High Court. Now the NAB Court and the High Court both have been conferred powers to grant bail or order release of the accused under sections 439, 496, 497 and 498 of Cr.P.C while earlier, the bails were being applied in the High Court under Article 199 of the Constitution under the writ jurisdiction. The word decision used in Section 32A includes judgments and orders both which has been explained in different law lexicons in the following terms:

1. Bryan A. Garner, ed., Black's Law Dictionary, 12th ed. (St. Paul, MN: Thomson Reuters, 2024), 511.)

Decision: A judicial or agency determination after consideration of the facts and the law; esp., a ruling, order, or judgment pronounced by a court when considering or disposing of a case.

2. Black's Law Dictionary 32 (6th Edition) 1990

Decision: A determination arrived at after consideration of facts and in legal context law. A popular rather than technical or legal word; a comprehensive terms having no fixed legal meaning. It may be employed as referring to ministerial acts as well as to those that are judicial or of a judicial character.

3. Corpus Juris Secundum Volume 4 at pages 252 to 254

Decision: Except where it is otherwise provided by statute, an order, judgment, or decree must possess the essential characteristics of finality in order that an appeal may lie therefrom. What is a final judgment, with respect to review, has been said to be a question for the Courts rather than the legislature .. Ordinarily, a judgment, order, or decree which determines the merits of the controversy, or the rights of the parties, and leaves nothing for future determination or consideration, is final and appealable, and it is not final or appealable unless it does these things. The test of finality of a judgment or decree to support an appeal is not whether the cause remains in fieri awaiting further proceedings in such Court to entitle the parties to their acquired rights, but whether such judgment or decree ascertains and declares such rights embracing the substantial merits of the controversy and material issues litigated or necessarily involved in the litigation; the test has also been held to be whether the judicial labor is at an end.

4. Stroud's Judicial Dictionary (Third Edition)

Decision: A popular and not a technical word, and means little more than a concluded opinion. It does not, by itself, amount to a judgment or order.

5. Words and Phrases" (Permanent Edition, Volume 11-A))

Decision: Means to determine; to form definite opinion; or come to conclusion. It is a final determination arrived at after consideration, an opinion formed, or a course of action decided upon. Means an act of deciding or settling a dispute or question by giving a judgment; the act of making up one's mind; a judgment or conclusion reached or given; a determination.

F. Grant of bail is ancillary and incidental to main case

3/17. Mr. Ibad-ur-Rehman Lodhi, learned counsel for the bail petitioner in Cr.P.1553/25 candidly argued that after insertion of Section 32A, no doubt appeal may be preferred by a convict before FCC even for suspension of sentence but this Court has jurisdiction to grant bail to the UTP in case his bail is rejected by the High Courts but he could not controvert the legal question that in case we entertain the bail petition then unless we convert the criminal petition into appeal, we cannot grant the bail and if the law does not give any appellate jurisdiction then how we can convert the petition into an appeal. Can we assume suo motu appellate jurisdiction? No answer was furnished to this question.

3/18. At this juncture, we cannot lose sight of Doctrine of Ancillary Proceedings and Doctrine of Incidental Proceedings. In civil matters if injunctive relief is granted or declined and or any other interlocutory application is dismissed or allowed, the aggrieved person approaches the Appellate or Revisional Court as provided under C.P.C. It is never heard of that any other Court which is neither Appellate Court nor Revisional Court can entertain any ancillary or incidental application. Even in the civil appeals, the appellate court may pass injunctive order or suspend the operation of impugned judgment/decree and order which is always regarded as ancillary to its main jurisdiction.

3/19. Likewise, a court's power to grant bail is unswervingly knotted with constitutional or statutory appellate jurisdiction. If the constitution or a special law transmits all appellate authority to another Court or tribunal then the Court having no jurisdiction, neither can intervene nor can entertain the bail petitions. Before entertaining or granting bail, the Court must have a legal hook and eye. Now the amendments in NAB laws unambiguously disrobe and divest this Court of its appellate status hence it cannot pass any interim orders including bail. According to the foundational jurisdictional principles, it would be quite strange assumption of powers that for the purposes of bail only, this Court has jurisdiction while against the main case either holding the conviction or according acquittal by the High Court, the second appeal shall be heard by FCC.

3/20. The bail order is also thought-out unreservedly ancillary and incidental to the main criminal case as a transitory collateral proceeding calculated to administer the liberty and regulate the custody of the accused till his question of guilt or innocence is decided during the trial or even for suspension of sentence of a convict during pending adjudication of his appeal before the first appellate Court. The eventual rationale of an incidental order is to maintain an equitable sense of balance until a final decision is reached.

3/21. A person who is granted bail is reckoned to be in custodia legis , meaning thereby in the custody of the law whereby a person submits to the physical control, authority, and jurisdiction of the court. When he is released on bail, his physical custody by the police or prison is replaced by the legal custody of the court and his sureties become responsible for ensuring his appearance in the Court but such person remains under the continuous power and jurisdiction of the court. In our opinion we are mindful that when the legislature under the NAO, which is a special law, has created a remedy of second appeal, it explicitly bars the jurisdiction of other courts even for bail. Even in the routine matters, as rightly held by this Court in the case of Muhammad Nawaz v. State (PLD 2021 Supreme Court 809) , (prior to insertion of Article 175F of the Constitution and 32A in NAO when this Court was appellate Court subject to granting leave even in NAB Cases) that power of the High Court and the Court of Session, under section 498, Cr.P.C., to grant post arrest bail is thus co-extensive and concurrent with that of the trial court under section 497, Cr.P.C., while the power to grant pre-arrest bail under the said Section is exclusive to them. The appellate jurisdiction of this Court, under Article 185(3), in bail matters is quite distinct from the original jurisdiction of the High Court and Court of Session under section 498, Cr.P.C. The essential criterion of appellate jurisdiction is that it examines and if required corrects the errors, if any, of a lower forum. That being the nature of appellate jurisdiction, this Court examines the legality of the orders passed by the High Court in bail matters and corrects those orders in appellate jurisdiction under Article 185 (3) of the Constitution only when it finds that the High Court has exercised the discretion in granting or declining bail arbitrarily, perversely or contrary to the settled principles of law.

3/22. The connotation and significance of the word ancillary , incidental and ancillary Jurisdiction have been thoroughly explained in following law dictionaries.

1. Black's Law Dictionary, (Fifth Edition at page 79)

Ancillary jurisdiction: Power of Court to adjudicate and determine matters incidental to the exercise of its primary jurisdiction of an action.

Under 'ancillary jurisdiction doctrine' federal district Court acquires jurisdiction of case or controversy as an entirety and may, as incident to disposition of matter properly before it, possess jurisdiction to decide other matters raised by case, though district Court could not have taken cognizance of them if they had been independently presented. Ortman v. Stanray Corporation CA III 371 p.2d 154,

157. 'Ancillary jurisdiction' of Federal Court generally involves either proceedings which are concerned with pleadings, processes, records or judgments of Court in principal case or proceedings which affect property already in Court's custody. Cooperative Transit Co. v. West Penn. Electric Co. C.C.A.W. Va., 132 F.2d 720, 723."

There are many cases, where statute has not conferred jurisdiction on ancillary or collateral matters, but the Courts while exercising actual jurisdiction, had been determining these facts. In this behalf, N.S. Bindra in the Interpretation of Statutes Seventh Edition, 1984, p.229, has defined "Court's jurisdiction to determine the jurisdictional fact", as follows:-

Court's jurisdiction to determine jurisdictional facts. It is well settled that a Tribunal can investigate into the facts relating to the exercise of its jurisdiction when that jurisdictional fact itself is in dispute. Where a Tribunal is invested with jurisdiction to determine a particular question, it is competent to determine the existence of the facts collateral to the actual matter which the Tribunal has to try. This power to decide collateral facts is the foundation for the exercise of its jurisdiction.

2. Bryan A Garner (ed), Black's Law Dictionary (12th edn, Thomson Reuters 2024) page 108, 908 and 1015)

Ancillary: Supplementary; subordinate, ancillary claims.

Incidental: Subordinate to something of greater importance; having a minor role.

Ancillary jurisdiction: A court's jurisdiction to adjudicate claims and proceedings related to a claim that is properly before the court . The concept of ancillary jurisdiction has now been codified, along with the concept of pendent jurisdiction, in the supplemental-jurisdiction statute. 28 USCA 1367. See supplemental jurisdiction. Cf. pendent jurisdiction.

3. Words and Phrases: (Permanent Edition, vol 3 and vol 20A (West Publishing Co, St Paul, Minn) sv 'Ancillary' [560, 100]

Ancillary: means subordinate to, sub-servient to, auxiliary to, in aid of, that which is principal and primary. Ruther-ford v. Pennsylvania Greyhound Lines, D.C. Ohio, 7 F.R.D. 245, 249. Incidental: may be used in the sense of being casual, a fortuitous happening, by chance, collateral or secondary.

Incidental means accidental, or happening as an occasional event. The word incident means apt to occur. Incidental is something that is only adjunct to something else.

3/23. The doctrine of ancillary and incidental powers of Courts and Tribunals have been meticulously discussed time and again in various judicial precedents. Some of them are cited as follows:

1. Sindh Employees' Social Security Institution versus Adamjee Cotton Mills Ltd. (PLD 1975 Supreme Court 32) . It was held that the power to grant interim relief by suspending wholly or partially, the operation of the order appealed against is reasonably incidental or ancillary to the main appellate jurisdiction. It would be wrong to regard the exercise of this incidental or ancillary power as enlargement of the appellate jurisdiction of the Court.

2. Commissioner of Khairpur Division v. Ali Sher Sarki (PLD 1971 SC 242) . The question that arose for decision was, whether the Commissioner, in the absence of an express provision in that behalf, could suspend the operation of the impugned order during the pendency of the appeal before him. The Court held that the power of the Divisional Commissioner to grant interim relief during the pendency of the main appeal before him was "ancillary" to the main appellate jurisdiction expressly conferred under section 18.

3. ITO v. M.K. Mohammed Kunhi (AIR 1969 SC 430) . The Court quoted Maxwell on Interpretation of Statutes, Eleventh Edition contains a statement at p. 350 that where an Act confers a jurisdiction, it impliedly also grants the power of doing all such acts, or employing such means, as are essentially necessary to its execution. The Court also held that the Appellate Tribunal must be held to have the power to grant stay as incidental or ancillary to its appellate jurisdiction.

4. Muhammad Yaqub Ali v. State (PLD 1985 Lahore 48) , The Court held that it is correct that the trial of scheduled offences under the Ordinance is within the exclusive jurisdiction of the Special Court but the High Court being the appellate Court will have all incidental and ancillary powers to deal with the said cases under the Code within the limits provided by subsection (1) of section 10 of the Ordinance. Thus, the power of the High Court to grant bail in a pending case under section 497, Cr.P.C. has not been taken away by any provision of this Ordinance. The High Court being the appellate authority, will have jurisdiction in all incidental and ancillary matters during pendency of the trial before the Special Court as well.

5. Inayatullah Ansari v. The State (PLD 2014 Sindh 95) . It was held by one of us in the High Court that under Clause (b) of Section 9 of National Accountability Ordinance, 1999. It is provided that notwithstanding anything contained in sections 426, 491, 497, 498, 561-A or any other provision of the code, or any other law for the time being in force no Court shall have jurisdiction to grant bail to any person accused of any offence under this Ordinance and all offences under this Ordinance shall be non-bailable. It is pertinent to point out that before the word "Court" the words "including the High Court" were inserted on 3.2.2000 and subsequently the same words including the High Court" were omitted by the Ordinance of XXXV of 2001 on 10-8-2001. Even otherwise, the grant of bail and or suspension of sentence during pending adjudication of appeal is an ancillary or incidental power of the appellate court and this court being an appellate court while hearing the appeal under the NAB Ordinance, can exercise the powers under section 426 Cr.P.C. read with section 561-A Cr.P.C. and suspend the sentence and enlarge the appellant on bail keeping in view the facts and circumstances of case.

6. Davis v. State of Kerala (MANU/KE/0218/1993) and Bulk India Transport Co. v. Commissioner of Income Tax and others (MANU/UP/0003/2004) , the Court held that the conferral of appellate jurisdiction inherently implies the power to exercise all necessary interlocutory or ancillary powers to make that jurisdiction effective. This includes granting interim relief, such as a stay or bail, even if not explicitly enumerated in the statute, unless expressly restricted. The rationale is that without such ancillary powers, the main appellate function could be rendered nugatory or illusory. The Supreme Court's pronouncement in I.T. Officer v. Mohd. Kunhi (AIR 1969 SC 430), cited in several High Court judgments, forms the bedrock of this principle.

7. Muhammad Ismail v. The State (LEX/SKPK/0009/1973) , State v. Habib Jalib (LEX/HWPK/0005/1967) , State of Andhra Pradesh through I.G. National Investigation Agency v. Md. Hussain (MANU/SC/0930/2013) and Mammunhi Thalangadi Mahamood v. State of Kerala (MANU/KE/1217/2013) . Where a special law creates an exclusive forum and procedure, it can impliedly or explicitly bar the jurisdiction of other courts, even for bail.

G. Choice of Forum

3/24. While rebutting the arguments of learned Attorney General, the learned counsel for the bail petitioner repeated that this Court still has the jurisdiction and very anxiously pleaded "argumentum ad misericordiam" that this Court should not surrender its jurisdiction come what may. The Courts cannot play to the gallery for gaining admiration and popularity for media commendations or public perception rather than sticking to the law and the Constitution. The duty of Court is to follow the law and not make decisions or assume the jurisdiction motivated by media mileage or public consumption. 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. According to Article 175 of the Constitution, no court shall have any jurisdiction save as is or may be conferred on it by the Constitution or under any law. The exercise of jurisdiction is a fundamental regime of judicial discipline and the rule of law which does not allow to cross the boundaries of jurisdiction mandated by the Constitution and the law. Any such attempt amounts to an overreach or usurpation of jurisdiction without statutory or Constitutional backing. The question of jurisdiction goes to the root of the case and if any Court passes any judgment or order without jurisdiction it is not only null and void but also hit by the doctrine of coram non judice. The jurisdiction of every Court is delineated and established to adhere to and pass legal orders. Transgressing or overriding the boundary of its jurisdiction and authority annuls and invalidates the judgments and orders. According to the Constitution, the jurisdiction of the FCC and the SC do not override or overlap with each other, as both operate in separate spheres.

3/25. Neither any choice of forum can be allowed to opt in terms of express provision of second appeal nor can any case of forum inconvenience be pleaded while preferring the appeal with leave rather than direct and vested right of appeal. Two streams of parallel jurisdiction arising out of one and the same jurisdiction is not permitted in any law and is also against the judicial comity and discipline. It is not possible that the bail petitions should be entertained and decided by this Court, while in the same case the appeal should be heard by FCC which is beyond the scope and rigors of law. If a law does not provide an avenue of appeal to this Court then the petitioner cannot invent this remedy on personal preference or consent. The law disfavors forum shopping and cases without jurisdiction cannot be heard by this court on the preference and choices of litigants.

3/26. The unbridled jurisdiction cannot be assumed on the whims or caprice of litigants. The words of Benjamin Cardozo, quoted in Law Terms and Phrases by Mokal are as under:

"The Judge, even when he is free, is still not wholly free. He is not to innovate at pleasure. He is not a knight errant roaming at will in pursuit of his own ideal of beauty or of goodness. He is to draw his inspiration from consecrated principles. He is not to yield to spasmodic sentiment, to vague and unregulated benevolence. He is to exercise a discretion informed by tradition, methodized by analogy, disciplined by system, and subordinated to the primordial necessity of order in all the social life. (The Nature of Judicial Process--Yale University Press, 1921)."

As remarked in 1. Bovu, Law Dictionary, Rawles III Revision, Page 685, quoted in Judicial Discretion, National College of the State Judiciary, Redo Nevada, page 14, it should always be remembered that in no case the discretion of a Judge should be the law of tyrants". (PLD 1992 Karachi 213).

3/27. The unbridled judicial overreach including flagrant misuse of suo motu powers as might is right in 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.

H. Reference of Hudood Ordinance

3/28. The learned counsel for the bail petitioner also quoted Section 20 of Offence of Zina (Enforcement of Hudood) Ordinance, 1979, wherein it is provided that provisions of the Criminal Procedure, 1898 shall apply mutatis mutandis in respect of cases under this Ordinance and an offence punishable under this Ordinance shall be triable by a Court of Session and not by a Magistrate authorised under Section 30 of the said Code and an appeal from an order of the Court of Sessions shall lie to the Federal Shariat Court. The purpose of quoting this section was to put emphasis that High Courts in such cases can grant the bail.

3/29. This aspect was taken into consideration by the FSC itself in the case of Mian Abdur Razzaq Aamir and others v. Federal Government of Islamic Republic of Pakistan (PLD 2011 Federal Shariat Court 1) . The FSC very eloquently held that the order granting or refusing bail was, as per practice after 1980, challenged before the High Courts. The Court referred to the case of Muhammad Rafiq and others v. State (PLD 1980 Lahore 708 at page 718) wherein the extent of jurisdiction of the High Court under Section 498, Cr.P.C. in matters relating to Hudood offence was discussed. The FSC observed that the learned single Judge of the High Court had essentially relied upon the erstwhile text of Article 203-DD of the Constitution as on 8th September 1980 i.e., the date of announcement of the said High Court single judge judgment when the jurisdiction of FSC was delineated as "The Court shall have such other jurisdiction as may be conferred on it by or under any law." This very Article was, however, substantially amended with effect from 22nd March 1982 by virtue of Constitution (Second Amendment) Presidential Order No.5 of 1982, whereby the above-mentioned original text of Article 203-DD was retained as clause three in the amended Article 203-DD. So the Court held that on account of the said constitutional amendment of a later date, the above precedent lost its relevance as from 22nd March, 1982. The FSC in the same judgment also referred to the bar contained under Article 203-G of the constitution that no court or tribunal including the Supreme Court and a High Court, shall entertain any proceedings or exercise any power or jurisdiction in respect of any matter within the powers or jurisdiction of the court". Finally, the Court held that the matter of bail is related with the offence. Bail is applied for by an accused only when an offence is alleged to have been committed. If an offence is covered by Hudood, the trial takes place under the law relating to Hudood. The appeal or revision in such proceedings is therefore within the cognizance of Shariat Court. The order on an application for grant or refusal of bail by trial court in all categories of offences within the ambit of Hudood is covered by the term proceedings, as employed in Article 203 DD and within the scope of the term "any case", "any criminal court" and "under any law", can be impugned only before the FSC (Federal Shariat Court) which has the exclusive jurisdiction in all sorts of matters related with enforcement of Hudood. The aforesaid judgment was concluded with the directions that no other court, including a High Court, will, in future, entertain proceedings relating to bail in offences covered by the term Hudood. Though the aforesaid judgment was challenged in this Court vide Shariat Appeals Nos. 1 to 6 of 2011 but in our view, the judgment of FSC is based on amended shape of Article 203DD which conferred some more powers to FSC by the Constitution framers. Even though against the judgments of FSC, the Supreme Court is still an Appellate Court in terms of Article 203F of the Constitution with the provision of Shariat Appellate Bench so for all practical purposes, this Court is vested with appellate jurisdiction against the judgments of FSC but not in the NAB cases by virtue of amendments which conferred the jurisdiction to FCC only.

I. Past and Closed Transaction

3/30. In the note authored by one of us in the case of Raja Amer Khan and another v. The Federation of Pakistan and others (PLD 2025 SC 869) , the legal maxim nova constitutio futuris formam imponere debet, non praeteritis was referred to which means a new law has to be prospective and not retrospective in its operation. Every statute which takes hold of or prejudices vested rights assimilated under existing laws, or contrives a new obligation or enforces a new duty, or characterizes a new disability in respect of transactions already past and closed is presumed to have no retrospective effect. In Justice G.P. Singh s Principles of Statutory Interpretation (7th ed.), at page 372 to 373, a statement of the House of Lords in the case of L office Cherifien des Phosphates v. Yamashita Shinnihon Steamship Co. Ltd is quoted in which it was observed that the question of fairness will have to be answered by taking into account various factors, viz., value of the rights which the statute affects; extent to which that value is diminished or extinguished by the suggested retrospective effect of the statute; unfairness of adversely affecting the rights; clarity of the language used by the Parliament and the circumstances in which the legislation was created. In the case of People v. Dillard (298 N.Y.S. 296, 302, 252 Ap. Div.125) the Court held that it is chiefly where the enactment would prejudicially affect vested rights, or the legal character of past transactions that the rule in question applies. Every statute, it has been said, which takes away or impairs vested rights acquired under existing laws, or creates a new obligation, or imposes a new duty, or attaches a new disability in respect of transactions or considerations already past, must be presumed, out of respect to the Legislature, to be intended not to have a retrospective operation. According to the Corpus Juris Secundum, Vol. 16 (Constitutional Law), at pages 1251-1252, a statute which 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.

3/31. At present the right of appeal introduced under Section 32A of the NAB Ordinance has become a statutory remedy with retrospective effect which will have the effect on all pending civil petitions for leave to appeal with an automatic conversion into direct second appeals as well as the criminal petitions in which leave has been granted which will be heard by the new appellate forum. By all means, a beneficial and remedial provision affording an additional stratum and vein in the form of second appeal in its holistic substratum serves the interest of the accused to a large extent on account of effective date of Amendment Act, 2026 which will of course no impact on past and closed/decided cases. 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 this Court to FCC, while disengaging a discretionary grant of leave into an automatic right of appeal which commands that all pending criminal petitions for leave to appeal; criminal petitions already converted into appeals, against conviction or acquittal and all other pending criminal petitions for leave to appeal instituted for challenging the orders of the High Court either for refusing the bail or against the grant of bail to UTPs or for suspension of sentence or against the suspension of sentences must be transmitted to their final destination. The learned counsel for the bail petitioner also referred to an order of this Court to demonstrate that in the recent past despite amendment in NAO, notified on 05.03.2026, one Criminal Petition for leave to appeal moved for bail was entertained and decided by this Court on 18.03.2026 while 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 the jurisdiction. However we are mindful that on their own lapses to raise the objection to jurisdiction, neither the jurisdiction confers to this Court on the wills or whims nor by consent of the parties but it is always regulated by the law.

Conclusion

3/32. In the wake of the above discussion, we reach a finale that this Court has no jurisdiction to take cognizance in the NAB cases in terms of Article 175F (a) of the Constitution read with Section 32 and 32A of National Accountability Ordinance, 1999. As a consequence thereof, all criminal petitions for leave to appeal and criminal appeals in which leave has been granted and pending in this Court arising out of National Accountability Ordinance, 1999 stand transferred by fiction of law to the Federal Constitutional Court.

Sd/-

I have contributed my concurring note

MUSARRAT HILALI, J.---I have had the privilege of going through the judgment authored by Hon'ble Justice Muhammad Ali Mazhar, however, I state my additional reasons through this concurring note on the point of jurisdiction in post-conviction bail matters. This petition raises an important question concerning the constitutional distribution of judicial authority following establishment of the Federal Constitutional Court. The petitioner, whose appeal under section 32A of the National Accountability Ordinance, 1999 (the NAO ) is pending before the Federal Constitutional Court by virtue of section 32A of the NAO, has nevertheless invoked the jurisdiction of this Court by filing a petition seeking post-conviction bail.

2. The issue is whether the silence of section 32A regarding the bail, permits this Court to continue exercising jurisdiction over such ancillary matter not withstanding that the principal appeal now lies before another constitutional court. The answer, in my view, must be in the negative. Article 175(2) of the Constitution embodies a fundamental limitation upon judicial power. It says that no court shall have any jurisdiction save as is or may be conferred on it by the Constitution or by or under any law .

3. This provision rejects any notion of inherent jurisdiction in constitutional courts beyond that affirmatively conferred by the Constitution or Statute. Jurisdiction is not a matter of convenience or historical practice; it is a matter of constitutional allocation. The Supreme Court, therefore, cannot retain jurisdiction merely because a Statute is silent as silence is not an independent source of judicial power. The establishment of the Federal Constitutional Court under Article 175F of the Constitution reflects a deliberate constitutional choice to redistribute specified appellate jurisdiction. When the Constitution creates a new constitutional forum and the legislature transfers a class of appeals to that forum through section 32A of the NAO, the transfer must be understood as complete and effective. Constitutional interpretation must avoid fragmenting jurisdiction between two apex constitutional courts over the same lis.

4. As observed by Justice John Marshall (the Chief Justice of United States) in the case titled McCulloch v. Maryland (1819) , we must never forget that it is a constitution we are expounding . This observation is equally applicable to constitutional adjudication in Pakistan. Article 175 of the Constitution establishes the judicial structure. Its significance lies not merely in constituting courts but defining constitutional boundaries. As mentioned in the preceding para, Article 175(2) embodies one of the most fundamental constitutional principles; jurisdiction cannot be assumed. Neither can it arise by implication, nor it can survive just because the Legislature remained silent. Unless the jurisdiction is affirmatively conferred, the Court cannot exercise it. Section 32A identifies the forum competent to hear that appeals. It is true that section 32A does not expressly refer to bail and other interlocutory matters, the petitioner s submission that this silence preserves the jurisdiction of this Court is unsustainable as jurisdiction to determine post-conviction bail is not independent but incidental to appellate jurisdiction.

5. The law has long recognised that the grant of jurisdiction over the principal matter ordinarily carries with it such incidental powers necessary to render the principal jurisdiction effective. The constitutional and statutory scheme admit of no fragmented exercise of jurisdiction. Once section 32A vests the appellate jurisdiction in the Federal Constitutional Court, the maxim quando lex aliquid concedit concedere videtur et id sine quo res ipsa esse non potest applies with full force for grant of principal jurisdiction necessarily includes the grant of all incidental powers essential to render that jurisdiction complete and effective.

6. Learned counsel for the petitioner further argues that because the legislature did not expressly mention bail in section 32A, jurisdiction remains with the Supreme Court. This submission overlooks settled principles of statutory interpretation. Courts are not at liberty to create a casus omissus. As stated in the case of Padma Sundara Rao v. State of Tamil Nadu (2002) 3 SCC 533 , a casus omissus cannot be supplied by the Court except in the case of clear necessity.

7. Similarly, Maxwell on the interpretation of statutes states the court cannot fill gaps left by the legislature . If the legislature had intended to preserve jurisdiction in the Supreme Court over post-conviction bail, it could easily have said so. The Court cannot insert such words into the statute.

8. Furthermore, sections 32 and 32A cannot be read in isolation from Articles 175, 175(2) and 175F. A harmonious construction requires that the Court hearing the appeal should regulate all matters incidental to that appeal and the jurisdiction of constitutional courts should not overlap unless the Constitution or the Statute expressly so provides. Besides, the jurisdiction between two apex constitutional courts cannot be inferred, it must be expressly conferred. Article 175(2) requires affirmative conferment of jurisdiction, not inference from legislative silence. The absence of an express prohibition is not equivalent to the presence of jurisdiction.

9. For the foregoing reasons, it is held that bail petitions arising in proceedings in which appellate jurisdiction stands vested in the Federal Constitutional Court under section 32A of the NAO are not maintainable before this Court. Such petitions lie before the Federal Constitutional Court, which by implication, possesses all ancillary and incidental powers necessary for the effective exercise of its appellate jurisdiction.

MH/C-6/SC Order accordingly.

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