By Staff Reporter
ISLAMABAD: The Supreme Court of Pakistan on Wednesday voiced open unease at an attempt by the country’s newly empowered Federal Constitutional Court (FCC) to take over proceedings concerning the hospital transfer of jailed former prime minister Imran Khan, but chose to defer its own hearing for three weeks rather than confront the tribunal head-on, saying it could not disregard another court’s directive.
The dispute centres on an order issued by the FCC on Tuesday, in which the constitutional court directed its office to requisition the relevant case files from the Supreme Court and fix them for hearing before itself, invoking Article 175-E of the Constitution. The FCC’s move came in response to a petition from three inmates at Adiala jail, who are seeking hospital treatment and privileges similar to those the Supreme Court granted Khan in an order on 18 August.
That order, still not fully implemented, had directed jail authorities to move Khan to Shifa International Hospital for assessment and treatment, and allowed his sister, Dr Uzma Khan, and his former health adviser, Dr Faisal Sultan, to be involved in his care. The government instead took him to the Pakistan Institute of Medical Sciences, citing security concerns — a decision that prompted Dr Khan to file a contempt petition against the authorities.
A three-judge Supreme Court bench, led by Justice Shahid Waheed and sitting alongside Justices Naeem Akhtar Afghan and Ishtiaq Ibrahim, took up the matter in a packed Courtroom No 5 on Wednesday. What troubled the judges, they made clear, was not the FCC’s request for case records — a power they accepted it holds under the Constitution — but its stated intention to then fix and hear those same cases itself.
“The word ‘fix cases’ in the Federal Constitutional Court’s order is bothering us,” Justice Waheed told the court, reading from paragraph six of Tuesday’s ruling. He added that fixing cases requisitioned from the Supreme Court did not, in his reading, fall within the powers granted to the FCC under clause five of Article 175-E — the provision inserted into the Constitution by the 27th Amendment, which allows the constitutional court to call for the record of any case and to rule on matters involving major questions of constitutional law.
The hearing began without any government law officer present. When the bench asked for Attorney General Mansoor Usman Awan, it was instead Additional Attorney General Rana Asadullah Khan who rose, reading out the FCC’s Tuesday order requisitioning the records. The judges withdrew briefly and insisted Awan himself appear. He did so roughly 35 minutes later, at which point Justice Waheed asked directly whether the FCC’s order was binding on the Supreme Court at all.
Awan told the bench that the FCC had acted under Article 175-E(5), and that the 27th Amendment had “clearly spelt out” the separate jurisdictions of the two institutions — though he stopped short of resolving the judges’ central question. Justice Waheed responded that the court was simply trying to understand the intention behind the FCC’s order, and stressed that the questions being raised should not be read as adversarial. “We believe in mutual respect between the judiciary,” he said.
Justice Waheed went on to read out the four questions the FCC had framed for itself in Tuesday’s order: which courts have jurisdiction to enforce fundamental rights under the Constitution; what rights prisoners are entitled to under the Constitution and the Pakistan Prison Rules 1978; the scope of the state’s obligations toward prisoners’ fundamental rights; and what consequences should follow if a state functionary violates those rights.
The Supreme Court judge was unconvinced these questions demanded a separate forum. “Fundamental rights are involved in every case,” he said, noting that the right to a fair trial under Article 10-A applied as much to criminal matters as to civil or service disputes. He added that the Supreme Court retained a jurisdiction the FCC does not hold — to extend relief to prisoners under the guiding principles of the Quran and Sunnah — a claim Awan disputed, arguing that authority in fact sat with the Supreme Court’s own Shariat Appellate Bench.
Justice Afghan, for his part, framed the standoff in more conciliatory terms. “Both institutions have to co-exist, and both have jurisdiction of their own,” he said, accepting that the case record could properly be requisitioned while still questioning the propriety of the cases then being fixed before the FCC.
Barrister Syed Ali Zafar, appearing in court, argued that the transfer of the case files “had nothing to do with jurisdiction” and that Article 175-E(5) neither removed nor conferred jurisdiction in the way the FCC’s order implied.
Awan ultimately asked for three weeks to assist the bench further, telling the judges that the question of where the FCC could requisition records from — and what followed once it did — required deeper deliberation. The bench agreed, but was explicit about why: not because it accepted the FCC’s position, but because the Supreme Court, in the judges’ words, “cannot disregard a judicial order” and propriety therefore demanded deferment. The court added, pointedly, that its own 18 August order remained in force and had been issued without prejudice to any party.
Separately, the bench raised pointed questions over compliance with that August order. No jail or government officials — including the superintendent of Adiala jail, who faces contempt notices over Khan’s family meetings — were present in court. Justice Waheed said there appeared to be “some misunderstanding” and asked directly whether Khan had been permitted to meet his family and speak to his children. He raised the possibility of issuing warrants for the jail superintendent.
Awan asked that officials be given one further opportunity to appear, suggesting they may not have expected the case to be called on Wednesday. The bench noted that the government’s own review petition had argued treatment could not be provided at a private hospital — even as the Supreme Court’s order permitting exactly that remained operative and unaltered.
Advocate Uzair Karamat Bhandari, representing Dr Uzma Khan, asked the court at minimum to issue fresh directions guaranteeing family and legal visits, telling the bench only one of Khan’s sisters had so far been able to see him. PTI secretary-general and lawyer Salman Akram Raja, also present, argued that neither Khan’s appeal nor the contempt petitions required any constitutional interpretation at all, and that the former prime minister had still not been moved to Shifa Hospital despite the Supreme Court’s order.
The court said it would take the matter up again once it had received the Attorney General’s further assistance, and adjourned proceedings for three weeks.
Khan, 73, has been in custody since August 2023 on convictions he and his party describe as politically motivated, following his removal as prime minister in a no-confidence vote in April 2022. He has since faced a series of legal cases, including allegations relating to state gifts and an unlawful marriage case.
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