ISLAMABAD: The Federal Constitutional Court (FCC) on Thursday restrained the Peshawar High Court (PHC) from hearing cases related to the preventive detention of PTI workers and activists under the Maintenance of Public Order Ordinance (MPO) following the imposition of emergency and governor’s rule in Khyber Pakhtunkhwa.
The directive was issued by a two-judge bench, headed by Chief Justice Aminuddin Khan and including Justice Aamer Farooq.
The bench took up a set of petitions challenging interim bail of the detainees, granted by the PHC against surety bonds of Rs100,000 each. The PHC had issued the interim orders in the absence of any report by the provincial government explaining reasons and circumstances that led to the detention of PTI activists and also directed that they should not be arrested pending the cases related to their detentions before the high court.
The PHC will next hear the case on Nov 12.
More than 60 appeals challenging the PHC’s interim orders have been fixed before the FCC. The pleas were moved by the KP Home and Tribal Affairs Department additional chief secretary.
The FCC restrained the high court from proceeding further on the cases and decided to issue notices to the parties with a direction that they may also file their pleas before the superior court.
KP Advocate General Sanaullah Khan, who pleaded the case before FCC on behalf of the provincial government, told Dawn that the PHC’s orders had been challenged under Article 245 of the Constitution, which provides for calling in armed forces in aid of civil forces.
He cited clause 3 of the provision, arguing that a high court could not “directly entertain a case under Article 199 of the Constitution since it cannot exercise its jurisdiction in relation to any area in which the armed forces are acting in aid of the civil power”.
Clause 3 of Article 245 states: “A high court shall not exercise jurisdiction under Article 199 in relation to any area in which the armed forces of Pakistan are, for the time being, acting in aid of civil power.”
When the KP advocate general presented this argument before the high court, Justice Farooq observed that a high court received several cases under Article 199 on a daily basis.
“Does this mean the high court should not hear such cases?” he questioned.
The advocate general replied that matters such as tenancy disputes could be taken up as the high court was approached for these cases after the matter was referred to appropriate competent forums.
Former Additional Advocate General Shah Faisal Ilyas, who was representing one of the parties, raised an objection during the proceedings and requested for the court to hear the parties before issuing any injunctive order, asserting that the objections raised by the provincial government against the high court’s order were untenable.
CJ Khan then directed the counsel to furnish his formal objections after going through the order of the FCC’s order first and stated that the court was issuing notices to the respondents.
More to follow
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