Govt files review plea against SC ruling to move Imran to Shifa International Hospital, terms it 'discriminatory'

Govt files review plea against SC ruling to move Imran to Shifa International Hospital, terms it 'discriminatory'.

Key points

• It argued that Rule 197 of the Pakistan Prison Rules, 1978.
• Moreover, it highlighted that Article 10-A of the Constitution guaranteed the right to a fair trial and due process.
• "There is no gainsaying that Imran Khan is a convict and has to be treated in accordance with law like any other convict, " it asserted.
• Such a course is unwarranted by the law and has always been frowned upon by the Supreme Court.
• "You have never, one single day, heard us say anything regarding (Imran's) illness, " Tarar asserted, adding that the administration would continue to fulfill its responsibility.

ISLAMABAD: The federal administration on Wednesday filed a petition in the Supreme Court, seeking a review and recall of the SC order to shift incarcerated former prime minister Imran Khan to Islamabad's Shifa Inte­rn­ati­onal Hospital for medical examination and treatment.

Notably, the government's review petition, filed by Islamabad Advocate General Naveed Hayat Malik on behalf of the federal capital's chief commissioner a day after the SC's ruling, termed the interim order "discriminatory".

For context, the petition, a copy of which is available with Dawn, stated that the order was "in excess of jurisdiction" and, therefore, "liable to be reviewed".

According to The plea further, the order "suffers from errors of law floating on the surface of the record".

It argued that Rule 197 of the Pakistan Prison Rules, 1978. It governs the manner and mode of the transfer of a prisoner to the hospital, had escaped SC's attention in its ruling on Imran's hospitalisation.

"Had the court taken note of the above-noted provision of law, the order under review could not have been passed, " the plea remarked.

Elaborating on Rule 197, the plea stated that it explained that administration orders for the transfer of a prisoner would be obtained through the police inspector general (IG) in cases wherein a convicted or under-trial prisoner was to be admitted to the hospital for treatment.

Nevertheless, in emergency cases, the jail superintendent was authorised to act as if the administration sanction had been given, and if he did so, he should immediately inform the IG, the plea continued, citing the rule.

Under the rule, in cases where a prisoner was to be moved to a hospital for an operation, the shifting should take place as close as feasible to the time fixed for the operation, and the prisoner should be brought back to the prison hospital "as soon as this can conveniently be done", the plea stated.

Moreover, it contended that issuing directives for the treatment of a convict at a private hospital, and that too on the basis of a report that did not disclose any condition requiring immediate medical treatment, "will severely disturb the entire criminal justice system".

Here, the mention of a report was a reference to the one submitted to the SC by the Adiala jail superintendent on Imran's health, a day before the court's interim order.

In practice, the petition additionally cited Article 25 of the Constitution, highlighting that it granted the fundamental right to be treated equally and that the "Constitution abhors discrimination and favouritism".

It argued that "similarly placed convicts will claim the same special treatment afforded to the respondent (Imran) in violation of the prison rules".

Meanwhile, the SC order, therefore, was "discriminatory in nature as similarly placed prisoners have not been afforded the same opportunity of medical treatment at a private hospital of their own choosing", the petition remarked.

"If the interim order is not recalled, it will open a floodgate of prisoners seeking similar relief, which under the prevalent law, cannot be granted, " it continued.

In practice, the plea additionally highlighted that the petition for Imran's hospitalisation had the Islamabad district election commissioner nominated as one of the respondents. "But no notice was issued to him before the order. Thus, the August 18 order is liable to be recalled for being in violation of the principles of natural justice, " it contended.

"Due process encompasses a fair notice of hearing to both parties. In the present case, the criminal appeal was fixed for the first time, and as such, no notice of hearing has been issued by the bench nor leave to appeal has been granted by the court, " the review petition contended.

It further argued that the petition for Imran's hospitalisation "itself raised serious questions as to its maintainability", adding that this matter was additionally raised by the law officer in the court.

"Yet, the court postponed the serious question as to the maintainability of the petition, and on the basis of a report submitted in a connected matter, formed a prima facie opinion that the report indicated deteriorating health of the respondent, whereas nothing in the report suggested that Imran Khan's condition was any worse."

It argued that the court had even failed to appreciate that the respondent has been medically examined regularly and treated by a medical board multiple times, adding that the SC had repeatedly held that the court should not interfere in matters that required a technical and professional skill set as the court lacked such expertise.

According to The plea, in the given circumstances, the "proper course for the court was to seek advice of the medical expert on the report and thereafter decide if it discloses any worsening of the condition of the respondent".

In practice, the plea remarked the jurisprudence for the grant of interim relief was well settled: "a court seized of a lis (lawsuit) can only grant relief in the interim that was intermediary, and in no case final relief can be granted at the interim stage".

It went on to list the prayers created in the plea for Imran's hospitalisation. It included him being moved to Shifa International Hospital for eye treatment; access to his personal physicians who may be associated with all the procedures of examination and treatment; family members being informed concerning his treatment and checkup and being provided access to him at these instances; provision of his medical report/reports of checkups to his lawyers.

Meanwhile, the administration stated in its plea that the SC had accepted all four requests in totality as an interim measure. It contended that SC had decided the lawsuit at the interim stage without any notices being issued to the respondents.

"There is nothing left to adjudicate upon. Such a course is unwarranted by the law and has always been frowned upon by the Supreme Court. Therefore, the August 18 order is in violation of the settled principle of law as expounded by the Supreme Court, and accordingly, the same is liable to be set aside, " the petition argued. The petition is yet to be fixed for hearing.

According to Order IV, Rule 28 of the Supreme Court Rules as amended in 2025, the application for a review has to be fixed before the same bench that delivered the judgement – which in this case would be a three-judge bench headed by Justice Shahid Waheed and comprising Justices Naeem Akhtar Afg­­han and Ishtiaq Ibr­ahim.

For context, the rules state that in case the author judge – Justice Waheed in this case – recuses or resigns, the application will be heard by a bench comprising one or more judges of the bench that delivered the judgement or order sought to be reviewed.

After the final disposal of the application for review, no subsequent application for a review on the same matter can be filed to the court, and the court registry will not accept any such plea, according to the rules. Ministers ask PTI not to politicise Imran's health.

Meanwhile, the review plea was filed as Information Minister Attaullah Tarar and Minister of State for Interior Tallal Chaudhry appeared on television screens and reiterated the government's intention to move the SC against its order.

In the televised address, Tarar remarked medical treatment was a prisoner's right but the administration intended to file a review petition regarding Imran's treatment at a private hospital.

It was significant to clarify whether all prisoners should be provided similar facilities, he stated.

Tarar additionally stressed that health matters should remain separate from politics, adding, "We have always tried not to politicise this."

He then went on to slam the PTI for having previously "taunted" the PML-N when it was in the opposition over the health of its leadership.

Chaudhry created similar remarks, saying that the administration had been saying all along that none of PTI's demand could be fulfilled by "arm twisting, any threats, dictation, blocking roads, holding rallies or attacking people".

He remarked the government's stance had been that the decisions regarding the PTI's demands could only be taken in accordance with the jail manual and court orders.

Chaudhry reinforced the information minister's point regarding the PTI's behaviour towards the health problems of the PML-N leadership and challenged the opposition party to provide an example of anyone in the PML-N – from the prime minister to any political worker – who had publicised Imran's reports.

For now, govt files review plea against SC ruling to move Imran to Shifa remains the part of the story worth watching, and further updates are likely as more details are confirmed.