PESHAWAR: The Peshawar High Court on Friday fixed October 20 for the preliminary hearing of a petition filed by PTI Chairman Barrister Gohar Ali Khan challenging the imposition of emergency and governor’s rule in Khyber Pakhtunkhwa and seeking to have the move declared unconstitutional.
The federal government on October 11 imposed emergency in KP, and placed the province under governor’s rule, taking note of the “provincial government’s deliberate disengagement from the fight against terrorism”.
The move followed weeks of political tensions between the Centre and the PTI — as well as negotiations to bridge their differences — after the latter announced a long march to Islamabad to demand the release of its jailed founder, Imran Khan.
The opposition had criticised the move, vowing to raise its voice at every forum, including the judiciary.
The instant petition was filed on October 14 by the PTI chairman. He will be represented by a panel of lawyers, including Barrister Sameer Khosa, Salman Akram Raja, Ali Zaman, Sardar Haseeb Ahmad and Zainab Shahid.
The members of the bench that will hear the petition will be announced later.
In his petition, Gohar urged the PHC to declare the federal government’s decision to impose emergency and governor’s rule in KP “unconstitutional, ultra vires, coram non judice, tainted with malice in law and fact, devoid of objective material, and of no legal effect” and to set aside the proclamation.
Filed under Article 199 of the Constitution, the petition named the federation of Pakistan (through the secretaries of the Cabinet Division, law, interior, and defence ministries); the province of KP; KP Governor Faisal Karim Kundi; the KP Assembly speaker; and the secretary of the KP Home and Tribal Affairs Department as respondents.
Sohail Afridi, who is no longer functioning as the province’s chief minister following the imposition of governor’s rule, was also named as a pro forma respondent.
Gohar challenged the “constitutionality, legality and vires” of the October 11 decision, the order deploying army troops to the province, and “all consequential and derivative executive orders, notifications, and bodies” constituted as a result.
These included the establishment of the KP Advisory Council and the “arbitrary” detention and removal of Afridi as the lawful chief minister of KP, along with his provincial cabinet, which had been vested with full executive powers under Article 130 of the Constitution.
Following the imposition of emergency and governor’s rule in the province, the federal government formed an 11-member technocratic KP Advisory Council.
The council will assist Governor Kundi, who is now in charge of running the province, in exercising the functions of the KP government on behalf of the federal government.
The PHC was further requested to declare that Paragraph 2 of the proclamation — which transferred the legislative powers of the KP Assembly to Parliament in the absence of a prior resolution passed by the assembly, as required under Article 232(1) — was “void ab initio and an unconstitutional usurpation of provincial autonomy”.
The petition also urged the PHC to restrain the federation from “tabling, entertaining, or enacting any provincial legislative business concerning Khyber Pakhtunkhwa in Parliament”.
The petitioner asked the court to declare the proclamation illegal and unconstitutional and to set aside, dissolve or permanently restrain all executive orders, notifications, actions and bodies created “pursuant to or under the colour of” the proclamation.
These included the constitution of the 11-member KP Advisory Council, headed by Governor Kundi; the establishment of the Area Development Secretariat (ADS) across 12 districts of the province; and the removal of the KP advocate general and the purported appointment of a replacement.
The ADS was established to “restore law and order, safeguard the security of the citizens of Pakistan and ensure good governance and development” in Dera Ismail Khan, Tank, Lakki Marwat, Bannu, Bajaur, Mohmand, Khyber, Kurram, Orakzai, North Waziristan, South Waziristan (Upper) and South Waziristan (Lower).
The petitioner also challenged the October 11 order deploying army troops under Article 245, asking the court to declare it unconstitutional on the grounds that it could not “supplant or bypass the civilian executive and constitutional administration” of the province and could not be invoked in the absence of a lawful requisition by the provincial government headed by Afridi.
Gohar sought directives requiring the respondents, including the federal government and the KP governor, to immediately disclose, produce and place before the PHC “the entire record and so-called ‘objective material’”, including Governor Kundi’s report and the federal cabinet’s summary, on which the emergency proclamation and subsequent orders were allegedly based.
He also sought directives for the immediate release of Afridi and members of the KP cabinet and assembly from “unlawful executive or preventive detention”.
The petition further urged the court to direct the respondents to immediately produce Afridi before the PHC and restrain the state from placing him or any cabinet members in preventive detention or transferring them outside the court’s jurisdiction.
The petition claimed that, by unilaterally bypassing the elected provincial assembly over an alleged question of internal disturbance, the impugned proclamation violated “the federal structure guaranteed under Article 1, the principles of democracy and provincial autonomy enshrined in the Objectives Resolution (Article 2A), and the legislative domain of the province recognised by Article 142 of the Constitution”.
On these grounds, the proclamation was “ultra vires the proviso to Article 232(1) read with Article 1, 2A, and 142 of the Constitution” and liable to be set aside, it added.
Gohar further contended that the proclamation made no mention of any “grave emergency” arising from a war or other external aggression, as required by the text of Article 232(1) — nor would such an assertion be supported by facts. He maintained that neither the country nor KP faced a grave emergency from any ongoing war or external aggression, nor was there any known risk or threat of such.
The petition further contended that the reliance on “internal disturbances” in the province needed to be assessed against a demonstrable and objective criterion, which was “entirely absent” from the impugned proclamation.
“Despite an unfortunately high number of incidents of terrorist violence in Balochistan, no state of emergency has been declared or even contemplated,” the petition stated.
“This clearly demonstrates that the terrorism and security pretext in Khyber Pakhtunkhwa is nothing but a colourable device, deployed in sheer violation of Article 25.”
The petition alleged that this pretext had been used solely because the KP government was formed by the opposition and its demands regarding PTI founder Imran Khan were unacceptable to the federal government.
It added that the federal government’s claim was also belied by the fact that even at the height of terrorism between 2007 and 2015, “no emergency was ever imposed anywhere inside Pakistan”.
Gohar also argued that the invocation of Article 234 was “without lawful authority, tainted with malice in law, and devoid of jurisdictional basis”.
NDM petition
Another petition challenging the imposition of emergency, filed by National Democratic Movement (NDM) central and provincial presidents Mohsin Dawar and Bushra Gohar, respectively, has also been fixed for hearing on October 20.
The joint petition stated that the proclamation of emergency and governor’s rule was “purely and patently against the mandate of people of Khyber Pakhtunkhwa, hence, liable to be set at naught”.
The petitioners prayed that the court declare the proclamation issued by the president of Pakistan on October 11, 2026, to be without legal effect and jurisdiction.
They also requested the court to set aside the directions, appointments and actions taken, as well as omissions made, pursuant to the proclamation, to ensure constitutional conformity.
They further sought interim relief, asking the court to suspend the operation of the impugned presidential proclamation until the final disposal of the writ petition.
The petitioners stated that the president of Pakistan was under a solemn constitutional duty, under Article 42 of the Constitution read with the Third Schedule, to preserve, protect and defend the Constitution and not allow personal interests to influence official conduct or decisions.
They claimed that the KP governor, acting with mala fide intent and without jurisdiction, submitted a tailor-made report to the president of Pakistan. They alleged that, without taking into account the constitutional guidelines explicitly set out in Articles 232 and 234 of the Constitution of Pakistan, 1973, the respondents issued the impugned proclamation on October 11, 2026.
The petitioners contended that the KP government and its executive had never reported the respondent emergency call/whistle blow regarding the security concern, which was beyond the control of the government; hence, the action and issuance of the proclamation solely and exclusively by the president was against the norms and contours of democracy and provincial autonomy.
They added that the issuance of the proclamation was the outcome of mala fide, and patently without jurisdiction and had no constitutional backing.
They further contended that Article 232 of the Constitution had delineated a specific procedure and limitations for declaring and proclamation of emergency in the province, which had not been followed by the respondents; hence, the action and orders of “Proclamation of Emergency” in the province of KP were unconstitutional and unlawful.