• Bench observes FCC order gives rise to legal questions; seeks AGP’s assistance if order is binding for SC
• Fixing of SC cases before FCC not mentioned in 27th Amendment, Justice Waheed observes
• AGP terms issue ‘unprecedented’

ISLAMABAD: Though dismayed by the Federal Constitutional Court’s (FCC) requisition and fixation of all pending matters concerning the health of PTI founder Imran Khan before it, the Supreme Court on Wednesday opted for a cautious approach.

Headed by Justice Shahid Waheed, a three-member Supreme Court bench, which resumed proceedings concerning the health issues of the incarcerated ex-PM, adjourned its hearing for three weeks to avoid a “situation inconsistent with the proper functioning of two apex judicial institutions of the country and to preserve the spirit of judicial comity”.

On Tuesday, the FCC ordered the court’s office to requisition the relevant cases from the SC and fix them before the bench under Article 175-E of the Constitution. The directive was issued on a plea by three Adiala jail inmates seeking relief similar to that provided to Imran Khan by the SC in an August 18 interim order.

Also consisting of Justice Naeem Akhtar Afghan and Justice Ishtiaq Ibrahim, the bench told Attorney General for Pakistan (AGP) Mansoor Usman Awan that they were concerned about the fixation of all pending cases before the FCC bench, as stated in the Sept 15 order. Justice Waheed observed that fixing the Supreme Court’s cases before the FCC seemed not to fall under clause 5 of Article 175-E of the Constitution.

Article 175-E (5), which was inserted in the Constitution through the 27th Amendment, empowers the FCC to summon the record of any case and authorises it to decide matters involving major questions of constitutional law.

For his part, the AGP said the issue required deep analysis and deliberations for being unprecedented, as it was the first time the FCC had requisitioned records from the SC, unlike the usual practice of seeking records from the high courts. The SC also stated that its Aug 18 directive to shift Imran Khan to Shifa International Hospital was made without prejudice to the rights and contentions of the parties.

In its order, the SC stated that the FCC order gave rise to the questions of considerable constitutional and legal significance, including questions concerning the interpretation and application of the Constitution, the relevant provisions of law and, where necessary, the applicable principles of Islamic law.

Without entering into those questions at this stage, the court considers it appropriate, in the first instance, to seek the assistance of the AGP regarding the proper course to be adopted in these proceedings and, in particular, the extent, if any, to which FCC orders bear upon the proceedings before the SC, the bench observed.

“This course is considered appropriate so as to avoid any situation that may be inconsistent with the proper functioning of the two apex judicial institutions of the country and, at the same time, to preserve the spirit of judicial comity,” the SC order added. The law officer sought three weeks to consider the matter and prepare his submissions so as to render effective assistance to SC, the order said.

The SC observed that the present cases reached it through two distinct streams of law: under the Code of Criminal Procedure 1898 and the Contempt of Court Ordinance 2003. The jurisdiction to examine the questions arising in these proceedings and to determine the merits of the respective positions advanced by the parties exclusively vests in this court, the bench added.

On a query, the AGP conceded that the SC’s Aug 18 order was in the field but made no assurance when the petitioner’s counsel insisted on its implementation.

Earlier, Justice Waheed told the petitioners that the court was leaving the implementation of the Aug 18 directions to AGP, who earlier was not present in the courtroom when the hearing began. Any other law officer was also not present in courtroom no.5, which was otherwise packed to the capacity.

Subsequently, the court asked for AGP. But it was Additional Attorney General Rana Asadullah Khan who first appeared before the court and read out the FCC’s Sept 15 directives for requisitioning the case record from the SC to the FCC. The court then retired momentarily, directing that AGP Awan appear before it. After almost 35 minutes, when the AGP reached the courtroom, the bench wondered whether the Sept 15 FCC order was binding.

The AGP explained that the FCC had issued the directions by invoking Article 175 E (5) of the Constitution, adding that the respective jurisdictions in which the two judicial institutions operate had been clearly spelt out under the 27th Amendment.

Justice Waheed also read out the questions framed by the FCC in its Tuesday order, observing that if fundamental rights were the pivotal point, then fundamental rights were involved in all cases. He said the requirement for a fair trial under Article 10-A applied to every case.

Justice Waheed also said the SC could extend any relief to the prisoners under the guiding principles of the Holy Quran and Sunnah – a jurisdiction which the FCC lacked. AGP Awan, however, contended that the SC’s Shariat Appellate Bench had the jurisdiction to interpret questions in the light of the Holy Quran and Sunnah.

Published in Dawn, September 17th, 2026