PESHAWAR: The Khyber Pakhtunkhwa government’s decision to withdraw its appeal related to the action in aid of civil power law from the Supreme Court will not affect the fate of the matter as the federal government is the main appellant in the pending case, according to lawyers.
Senior advocate Shabbir Hussain Gigyani, whose petitions against the action in aid law were accepted by the Peshawar High Court in 2019, told media that a total of six leave to appeal petitions were filed in the Supreme Court, including four by the federal government and two by the KP government.
“Even if the KP government implements its decision to withdraw its plea against the high court’s decision from the apex court, those filed by the federal government will remain in the field,” he said.
Mr Gigyani said that no noteworthy proceedings had taken place in the matter since the high court’s judgement was suspended by the apex court in 2019.
Lawyer says Centre is main appellant in the case pending with apex court
The provincial cabinet decided, in a meeting on Nov 14, to implement a resolution unanimously passed by the provincial assembly on Sept 8, 2025, recommending that the provincial government withdraw its appeal filed against the 2019 verdict of the PHC regarding the action in aid of civil power law.
“This House recommends that the provincial government declare the implementation of the law in KP and the merged districts to be against basic rights and withdraw its appeal from the Supreme Court,” the resolution read.
Following the judgement delivered by the high court on Oct 17, 2017, two civil petitions for leave to appeal (CPLAs) were filed on behalf of the federal law and justice secretary and two others by the federal government through the interior secretary.
Similarly, the KP government had challenged the verdict through two CPLAs.
A Supreme Court bench comprising then Chief Justice Asif Saeed Khan Khosa, Justice Qazi Mohammad Amin Ahmad and Justice Aminuddin Khan (present chief justice of the Federal Constitutional Court) had suspended the high court’s decisionon Oct 24, 2019. It granted leave to appeal in those cases and directed the fixing of those petitions before a larger bench.
Since then, the matter has been pending with the apex court.
In the appeal, the government insisted that petitions before the Peshawar High Court were not maintainable asunder Section 3 of Article 245 of the Constitution, a high court couldn’t exercise any jurisdiction under Article 199 in relation to any area in which the armed forces were, for the time being, acting in aid of civil power.
A Peshawar High Court bench, consisting of then Chief Justice Waqar Ahmad Seth and Justice Musarrat Hilali (now SC judge), had accepted several petitions, including that of Mr Gigyani, declaring unconstitutional five laws, including the KP Continuation of Laws in erstwhile Pata Act, 2018, the KP Continuation of Laws in erstwhile Fata Act, 2019, the two regulations of 2011 called Action (in aid of Civil Power) Regulation for Fata and Pata, and the KP Action (in Aid of Civil Power) Ordinance, 2019.
It directed the home secretary to declare all internment centres of the province sub-jails under the law within 24 hours of receiving a copy of the judgement and asked the inspector general (prisons) to take their control in the next three days.
The IG (prisons) was told to release all internees, who were not charged in any case and a period of 90 days preventive detention for them had lapsed from the date of their arrest, and produce all those charged before the court of law duly established in the area.
Through the Constitution (Twenty-Fifth Amendment) Act, 2018, the former tribal areas were merged with Khyber Pakhtunkhwa.
While there was no constitutional protection to the existing laws in former tribal areas after merger, the KP government enacted the KP Continuation of Laws in Erstwhile Pata Act, 2018, in Dec 2018, which was assented by the governor on Jan 4, 2019, and the KP Continuation of Laws in Erstwhile Fata Act in April the same year.
Through those acts, all the laws, regulations, rules and notifications, including the Action (in aid of civil power) Regulation, 2011, applicable in former Fata and Pata, remained in force.
Advocate Gigyani first filed a petition challenging the said two acts, praying the court to declare as unconstitutional these acts as well as the internment centres established under the Action (in Aid of Civil Power) Regulation (AACPR) 2011 for Fata and Pata and to direct the government to handover all the internees to the respective courts of competent jurisdiction for their trial as per law.
During pendency of the said petition, the then provincial government of Pakistan Tehreek-i-Insaf (PTI) in a clandestine manner promulgated on Aug 5, 2019, the controversial ordinance, Action (in Aid of Civil Power) Ordinance through which the scope of the powers assigned to the government and armed forces acting in aid of civil power were extended to entire province while earlier the same were available to them in Fata and Pata.
Advocate Gigyani filed another petition, challenging the controversial ordinance.
The high court later declared all those laws unconstitutional.
“The Action (in Aid of Civil Power) Regulations were extensively used as a legal cover for arbitrary detention and enforced disappearances,” it ruled.
The PHC pointed out that the law gave sweeping powers to members of the armed forces, including the power to detain people without charge or trial on a number of vaguely defined grounds where it appears that such internment would be expedient for peace.
“Individuals may be detained for an unspecified period without any right to be brought before a court of law or to challenge the lawfulness of detention before a court,” the high court ruled.
Published in media, November 16th, 2025
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