The Supreme Court has pushed back — carefully — against the Federal Constitutional Court’s (FCC) handling of the Imran Khan hospital case, voicing reservations over how the FCC fixed the matter before itself, even as the SC chose to defer its own proceedings for three weeks rather than force an immediate confrontation between the two courts.
What the Supreme Court Actually Said
A three-judge SC bench, headed by Justice Shahid Waheed and including Justices Naeem Akhtar Afghan and Ishtiaq Ibrahim, took up the matter on Wednesday. The judges told Attorney General Mansoor Usman Awan that what specifically bothered them was paragraph six of the FCC’s September 15 order — the part fixing the case before the FCC itself. Justice Waheed went further, observing that fixing cases requisitioned from the SC did not, in his reading, fall under clause 5 of Article 175-E of the Constitution — the very provision the FCC had invoked to claim jurisdiction.
Despite these reservations, the bench ultimately adjourned proceedings, noting that propriety demanded deferment since the Supreme Court “cannot disregard a judicial order” in the spirit of the Constitution. It’s a notable middle path: registering disagreement on the record while stopping short of an open institutional clash.
Why the Bench Called This “Unprecedented”
Attorney General Awan told the court the issue required deep analysis and deliberation. The bench agreed the situation was genuinely without precedent — this marked the first time the FCC had requisitioned case records directly from the Supreme Court, departing from the usual practice of the FCC summoning records from high courts instead.
The Four Questions the FCC Wants Answered
Justice Waheed read out the questions the FCC had framed in its own order, which underscore just how broad the FCC intends this case’s scope to be:
- Which courts have the jurisdiction and competence to enforce fundamental rights under the Constitution?
- What rights must be afforded to prisoners under the Constitution and the Pakistan Prison Rules, 1978?
- What is the scope and extent of the state’s obligations regarding prisoners’ fundamental rights?
- What consequences follow if a state functionary violates a prisoner’s fundamental rights?
Justice Waheed noted the sweeping nature of this framing himself, observing that if fundamental rights are treated as the pivotal issue, they’re technically involved in virtually every case — civil, criminal, or service-related — since the right to a fair trial under Article 10-A applies universally. The remark hinted at a concern that the FCC’s broad question-framing could, in principle, justify pulling almost any case away from the Supreme Court.
A Pointed Jurisdictional Claim From Justice Waheed
Justice Waheed made a specific point that the Supreme Court retains the ability to extend relief to prisoners under the guiding principles of the Holy Quran and Sunnah — a jurisdiction he said the FCC lacks. Attorney General Awan pushed back on this specific claim, contending that it’s actually the SC’s own Shariat Appellate Bench, not the ordinary Supreme Court bench, that holds jurisdiction to interpret questions under the Holy Quran and Sunnah — a nuance that added another layer to the jurisdictional back-and-forth.
Where the August 18 Order Stands Now
The bench clarified that its earlier August 18 direction — the order that first sent Khan to Shifa International Hospital — was made without prejudice to the parties’ intentions. When pressed, the Attorney General conceded that the August 18 order remains “in the field,” meaning still legally active, but he offered no firm assurance on how it should be interpreted going forward when the petitioner’s counsel pushed for clarity. Justice Waheed indicated the court was leaving implementation of the August 18 directions to the Attorney General for now.
A Tense Start to the Hearing
The hearing opened awkwardly: when the case was first called in a packed Courtroom No. 5, no government law officer was present at all. Additional Attorney General Rana Asadullah Khan eventually appeared and read out the FCC’s September 15 directions, after which the court retired and specifically asked for AGP Awan himself to appear — which he did roughly 35 minutes later. Separately, the SC also expressed disquiet over the absence of officials, including the Adiala jail superintendent, who had been issued contempt notices over an earlier alleged violation of directions concerning Khan’s family meetings.
“Both Institutions Have to Co-Exist”
Justice Afghan captured the bench’s overall posture directly, saying both the SC and FCC “have to co-exist,” each with its own jurisdiction — the case record could legitimately be requisitioned by the FCC, he suggested, but he still expressed reservations specifically about the case being fixed before the FCC itself. Senior counsel Barrister Syed Ali Zafar, present at the hearing, argued the case transfer “had nothing to do with jurisdiction” and that no jurisdiction was actually being taken away or conferred under Article 175-E(5).
Separately, Advocate Uzair Karamat Bhandari, representing Khan’s sister Dr Uzma Khan in her plea over alleged violations of the SC’s August 18 directive, asked the court to at minimum direct that Khan’s meetings with family members and lawyers be ensured.
What Happens Next
With the SC deferring its own proceedings for three weeks, both courts are now in an unusual holding pattern — the FCC has asserted jurisdiction and fixed the case before itself, while the Supreme Court has registered clear reservations about that move without directly overturning it. That three-week window gives both institutions room to avoid an open clash for now, but the underlying jurisdictional question Justice Waheed and Justice Afghan raised — how far Article 175-E actually extends — remains formally unresolved.
Final Thoughts
This hearing marks a genuinely significant moment in Pakistan’s post-27th Amendment judicial landscape: two of the country’s highest courts publicly working out, in real time, how their respective jurisdictions coexist. Beyond its direct impact on Imran Khan’s hospital arrangements, how this specific tension resolves over the next three weeks is likely to set an early, closely watched precedent for how far the FCC’s authority to pull cases from the Supreme Court actually extends.
