FCC restrains PHC from hearing cases related to detention of PTI workers

ISLAMABAD: The Federal Constitutional Court barred the Peshawar High Court (PHC) from hearing cases related to the preventive detention of workers and activists of the Pakistan Tehreek-e-Insaf (PTI)under the Maintenance of Public Order Ordinance (MPO), 1960.

A two-member bench, headed by Chief Justice Amin-ud-Din Khan and comprising Justice Aamir Farooq, on Thursday suspended the PHC order regarding the release of PTI workers on bail.

The FCC order said: “Since the Armed Forces have been called to act in aid of civil power in the entire Province of Khyber Pakhtunkhwa pursuant to the order dated 11.10.2026 issued under Article 245 and office memorandum of the Ministry of Defence dated 12.10.2026, the proceedings before the PHC instituted under Article 199 on or after 12.10.2026 shall, in terms of clause (4) of Article 245, remain suspended.”

Several people were placed in preventive detention under the Maintenance of Public Order Ordinance, 1960 (MPO) for maintenance of public peace and order. The detention orders issued under Section 3 of the MPO were assailed before the Peshawar High Court. The High Court, relying on its earlier judgment titled “Aftab Alam and another vs. Secretary Home and Tribal Affairs, Government of KPK, Peshawar and others” (PLD 2024 Peshawar 112), released them at the limine stage.

Khyber Pakhtunkhwa (KP) provincial government, through the Additional Chief Secretary, KP, had assailed the PHC order before the FCC.

The bench issued notices to the respondents. It also issued notice to the Attorney General for Pakistan under Order XXVIIA of the Code of Civil Procedure, 1908, since important questions involving interpretation of the Constitution are involved.

The Advocate General KPK was asked to furnish a report, within seven days, regarding the areas in KP where the Armed Forces are no longer required to act in aid of civil power. The Court said that it will consider modifying this order in terms of clause (4) of Article 245 after examining the report.

The Court noted that prima facie, clause (3) of Article 245 is not an ouster clause in the nature as it appears elsewhere in the Constitution, such as Article 236(2), where despite an ouster, the courts have examined the constitutionality of any Proclamation issued under Part X of the Constitution.

The Court noted: “Clause (3) of Article 245 refers to a particular situation which is emergent but temporary in nature. Thus, the bar on exercising jurisdiction also lasts for so long as the Armed Forces are acting in aid of civil power.”

President Asif Ali Zardari, on 11th October 2026, issued a Proclamation under Articles 232 and 234 of the Constitution; thereafter, the federal government assumed control of the Khyber Pakhtunkhwa province through the Governor. Following the Proclamation, the federal government authorized the deployment of the Pakistan Army in aid of civil power for the safety of life, security of person and property of citizens as well as security of government installations in the KP vide order dated 11.10.2026 issued under Article 245 of the Constitution.

Pursuant to the said orders, the Ministry of Interior requisitioned troops of the Armed Forces vide office memorandum dated 12.10.2026. The Ministry of Defence deployed troops in the KP to act in aid of civil power across the province.

Advocate General KP submitted that the High Court has disregarded the express command of Article 245 while entertaining the petitions after the deployment of troops under Article 245 on 12.10.2026. He contended that pursuant to clause (3) of Article 245, the High Court cannot exercise jurisdiction under Article 199 in relation to an area in which the Armed Forces are acting in aid of civil power.

The AG KP further argued that the High Court has rendered a valid legislation, i.e., MPO, redundant, which in its essence provides only for preventive detention for a very specific purpose to maintain public order and tranquility. He finally submitted that the High Court has granted final relief at the interim stage, which is otherwise not permissible.

The bench observed that the points raised need serious consideration.

It said that the earlier judgment of the Peshawar High Court in Aftab Alam’s Case, relying on which the impugned orders have been passed, requires careful examination to ascertain whether the view adopted by the High Court on Article 245 of the Constitution is constitutionally correct.

The Court, therefore, issued notices to the respondents and the Attorney General, and adjourned the hearing for an indefinite period.

Copyright Business Recorder, 2026