Federal Constitutional Court bars Peshawar High Court from hearing PTI workers’ MPO detention cases

ISLAMABAD: The Federal Constitutional Court on Thursday barred the Peshawar High Court from hearing MPO detention cases involving Pakistan Tehreek-e-Insaf workers, freezing a fast-moving legal fight over the emergency in Khyber Pakhtunkhwa. A two-judge bench issued the order on petitions filed by the provincial government, and also sought a report from the advocate general within seven days.

The bench’s order
A two-judge bench comprising Chief Justice Aminuddin Khan and Justice Aamer Farooq ruled that proceedings instituted before the Peshawar High Court under Article 199 on or after October 12, 2026 “shall, in terms of clause (4) of Article 245, remain suspended”. The court noted that the armed forces had been called in aid of civil power across the province under an October 11 order issued under Article 245, followed the next day by an office memorandum from the Ministry of Defence.

The relief the high court had granted
Soon after the emergency was proclaimed and governor’s rule imposed in the province, the Peshawar High Court had granted interim bail to several detained PTI activists against surety bonds of Rs100,000 each. The high court passed those interim orders without a report from the provincial government explaining the reasons and circumstances behind the detentions, and it had also sought replies from the governor and the speaker on the imposition of governor’s rule.

The province’s argument
Advocate General Khyber Pakhtunkhwa Sanaullah Khan argued that the high court had disregarded the express provisions of Article 245 by entertaining petitions after troops were deployed under the provision on October 12. Under clause (3) of Article 245, he submitted, the high court could not exercise jurisdiction under Article 199 in areas where the armed forces were acting in aid of civil power. He added that the high court had granted final relief at the interim stage, which was impermissible, and that its orders had rendered the MPO redundant.

Arguments during the hearing
During the hearing, Justice Aamer Farooq asked whether the high court would stop hearing the Article 199 petitions that came before it every day. Counsel for the respondents, former additional advocate general Shah Faisal Ilyas, objected that the court should have heard the respondents before issuing a stay order. The chief justice directed him to read the order and file his objections accordingly.

Report sought in seven days
The court directed the advocate general to file a report within seven days identifying the areas of the province where the armed forces were no longer required to act in aid of civil power, saying it might consider modifying its order after examining the report. Notices were issued to the respondents, and to the Attorney General for Pakistan as well, since the matter raised important questions relating to the interpretation of the Constitution.

More than 60 appeals before the court
More than 60 appeals filed by the Additional Chief Secretary, Home and Tribal Affairs Department, Khyber Pakhtunkhwa, against various interim orders of the high court have been fixed before the FCC. Through those orders, the high court had directed that the PTI activists should not be arrested while their cases remained pending.

The Afridi matter
The arrest of the province’s non-functional chief minister, Sohail Afridi, under Section 3 of the MPO is also pending before the Peshawar High Court. His brother moved the court on October 13, and on Tuesday the high court said a larger bench should be constituted to hear petitions about the whereabouts of Afridi, provincial assembly Speaker Babar Saleem Swati and MNA Junaid Akbar.

PTI reaction
PTI leader Asad Qaiser called the order “extremely regrettable”, saying the constitutional court had barred the high court from hearing the cases of “innocent” workers arrested under the MPO.

Background
The emergency and governor’s rule were imposed in Khyber Pakhtunkhwa on October 11, ending the PTI-led provincial government and transferring its powers to Governor Faisal Karim Kundi. The cases before the Peshawar High Court had been fixed for hearing on November 12, and now stand suspended.