ISLAMABAD – The Khyber Pakhtunkhwa (K-P) Prosecution Department has yet to move an application in an anti-terrorism court (ATC) seeking withdrawal of the May 9 cases, one of which includes K-P Chief Minister Sohail Afridi as an accused. The Federal Constitutional Court (FCC), while hearing Radio Pakistan’s petition on March 24, passed a restraining order regarding the withdrawal of the May 9 cases. The petitioner seeks to transfer the cases from one province to another. Since March 24, the case has yet to be fixed for hearing.
A senior official in the K-P Law Department, speaking to The Express Tribune, expressed surprise that the FCC passed a restraining order when the K-P government has yet to move an application in the ATC, adding that there should first be a cause of action. “It would have been better if the FCC had heard the K-P Prosecution Department before passing the restraining order,” he added. However, the official said that whenever the FCC fixes the matter for hearing, they will raise all legal objections.
Cabinet Decision on Withdrawal
Regarding the K-P cabinet’s decision on withdrawing all May 9 cases, he stated that the cabinet only decided to withdraw “politically motivated cases” and cases lacking clear evidence against the accused. He also said there were a total of 29 terrorism-related cases in K-P, of which 23 have already been decided. Likewise, 319 cases related to the May 9 incidents were filed in ordinary courts, of which 285 have already been decided.
Transfer of Cases
On the transfer of ATA cases from one province to another, the official contended that it is the domain of the chief justice concerned to pass such an order under the law. Lawyers are also questioning the FCC passing a restraining order without first deciding the petition’s maintainability. They argue that before issuing such an order, the FCC should have heard the other side.
FCC’s Caseload
In the past, the Supreme Court was criticised for exercising public-interest jurisdiction without deciding the maintainability of petitions. After the Eid holidays, the FCC took up two petitions that could affect the interests of the PTI, particularly those of the K-P chief minister. The FCC heard a petition seeking the transfer of the May 9 case from Peshawar to Islamabad or any other province. Afridi is an accused in the case, which relates to the May 10, 2023 attack on Radio Pakistan Peshawar.
‘Release Force’ Petition
Likewise, a three-member FCC bench, led by Chief Justice Amin-ud-Din Khan, while hearing a petition filed by Islamabad-based advocate Malik Zaheer Ahmed, sought a response from Sohail Afridi within 10 days regarding the formation of PTI founder Imran Khan’s “release force.” Interestingly, there is no official notification regarding Imran Khan’s “release force.”
Pending Cases
Dozens of PTI-related cases have been transferred from the Supreme Court to the FCC. However, these cases have yet to be fixed for hearing. Despite the passage of almost one year, the FCC has yet to take up the matter relating to the implementation of a judgment that directed the federal government to take steps for appropriate legislation to grant the right of appeal to civilians tried in military courts.
Chief Justice’s Powers
The Supreme Court Practice and Procedure Act is still applicable in the Supreme Court to ensure transparency in the chief justice’s powers regarding case fixation and bench formation. On the other hand, the chief justice is the master of the roster in the FCC. The chief justice’s powers to fix cases and form benches are not regulated in the FCC.
Constitutional Interpretation by Two-Member Benches
Interestingly, two-member benches are hearing cases related to the interpretation of law and the Constitution. Earlier, political parties had raised concerns over the lack of representation from every province on benches hearing constitutional matters.
Judicial Vacancies
Despite a case pendency of 22,384, only seven judges are currently serving in the FCC. The FCC judges are also facing a “battle of perception” since they were appointed by the federal government, which is expected to be the primary litigant before the court. The challenge now confronting the judges is to demonstrate that they are not “executive-minded” and will dispense justice “without fear and favour.” Superior bars which challenged the 26th Constitutional Amendment are not interested in filing petitions against the 27th Amendment.
Analysis: A Legal and Perceptual Challenge
The FCC’s handling of the May 9 cases raises legal and perceptual questions. The fact that the FCC passed a restraining order before the K-P government had even moved an application in the ATC — and without hearing the Prosecution Department — is procedurally unusual.
The challenge for the FCC is not only legal but also perceptual. The judges were appointed by the federal government, which is often a litigant before the court. To dispel concerns of executive influence, the court must demonstrate independence, transparency, and adherence to due process.
The caseload — 22,384 pending cases with only seven judges — is unsustainable. The lack of representation from every province on constitutional benches is a concern.
As the FCC continues to hear cases transferred from the Supreme Court, its decisions will be closely watched. The May 9 cases, involving the K-P chief minister as an accused, will be a test.
