PESHAWAR: The Peshawar High Court has ordered Khyber Pakhtunkhwa government to notify two defunct judicial forums under the repealed Frontier Crimes Regulation (FCR) including Federally Administered Tribal Areas (Fata) Tribunal and commissioner FCR for hearing cases originated under the regulation before its abolition.

The court directed the government to reconstitute the defunct three-member Fata Tribunal for hearing cases, including the case of Dr Shakil Afridi, pending with it when it became non-functional in 2018.

A full bench consisting of Justice Lal Jan Khattak, Justice Syed M Attique Shah and Justice Syed Arshad Ali directed that the tribunal would also hear other cases, which would arise out of appeals pending with the commissioner FCR.

The bench ruled that notwithstanding the repealing of the FCR and omission of Article 247 of the Constitution, under which former tribal areas were assigned special status, the legal proceedings started under FCR would continue through the legal dispensation provided under it except the proceedings of a jirga/council of elders in the same mode and manner as provided under the repealed FCR.

The bench made the decision while disposing of around 110 cases of different nature, which had originated under FCR before its repealing in May 2018 and had subsequently reached the high court.

The bench has released a 22-page detailed judgment in these cases, which were heard few weeks ago. It has issued directives about different categories of cases, related to former FCR.

Full bench also directs reconstitution of Fata Tribunal to hear pending cases including that of Dr Shakil Afridi

The court also ordered that a criminal appeal, which was pending before the commissioner FCR in Kohat division, should also be transferred to the commissioner Kohat division for adjudication under FCR and in that regard the provincial government should also notify the office of the commissioner under the relevant provision of FCR.

About 90 state appeals, which were filed against acquittal of accused persons by the regular courts in cases initiated under FCR, the court ordered that those should be placed before the respective benches for determination on merit.

It was ordered that that if deemed necessary, the respective bench might refer a case to the district public prosecutor of the respective merged district, who will thoroughly examine the record and might refer the case for reinvestigation to the relevant police station with direction to probe the matter and thereafter submit a complete challan (charge sheet) before the competent court of law under section 173 of Code of Criminal Procedure.

Similarly, about the cases related to civil disputes, which did not culminate into final judgment under FCR and were pending before the relevant political agent and subsequently transferred to regular courts, the bench ruled that those should remain pending with the respective court.

However, the bench set aside the judgments/decrees passed by the district judge/additional district judge in that category of cases and ordered that the appeals, which were transferred to the said courts, would be sent back to the relevant forum (commissioner FCR) for adjudication under FCR.

The matter was referred to the full-bench after different legal complications emerged in cases of criminal and civil natures originated under the repealed FCR.

There were four categories of cases before the high court. The first category related to those matters, which were filed before the defunct Fata tribunal under section 55-A of FCR and subsequently referred to the high court.

That category also included the plea of Dr Shakil Afridi against his conviction by an assistant political agent in 2012 and upholding the conviction by the then commissioner FCR in 2014. A state appeal for enhancing sentence of Dr Shakil, who was arrested on charges of helping American CIA to track down Osama bin Laden, was also in that category.

In the second category there was a single appeal of Khial Gul, who was convicted by the political agent and was sentenced in 2016. The conviction was challenged by him before the commissioner FCR and the appeal was then transferred to the high court.

The most important was third category of cases, related to the matter where the offence was committed prior to the repealing of FCR and enactment of 25th Amendment but no final judgment was passed by the trial court (PA/APA) under FCR though the matter was referred to the jirga and it had also given its verdict regarding the guilt or otherwise of the accused.

Those cases were transferred to regular courts. The courts in majority of cases acquitted the accused as the prosecution failed to produce any evidence.

The fourth category was of those cases in which the initial trial under Section 8 of FCR relating to civil dispute culminated into the final judgment by the political agent and the aggrieved persons filed appeal before the commissioner FCR and later on the same were transferred to the court of the district judge pursuant to an earlier judgment of the high court in a reference related to cases of erstwhile Fata.

“No doubt after 25th Amendment in the Constitution, the Frontier Crimes Regulation, 1901, stands repealed, however, despite the repeal of law even in absence of re-enactment the subject of repealed law, it is trite that the pending actions before any legal forum would continue under the repealed law,” the bench ruled.

Referring to different judgments of the superior courts, the bench ruled that it was quite clear that trial or criminal cases had to be in accordance with the rules of procedure in force at the commencement of the trial and the same procedure had to be followed.

The court observed that the basic principle of law was when a statute was repealed, everything stood obliterated except the pending proceedings.

It merits a mention that under the judicial hierarchy provided in the repealed FCR, the political agents/assistant political agents were conducting trials; appeals against their judgments had to be filed before commissioner FCR; and the three-member Fata Tribunal was the last forum where orders of the commissioner could be challenged.

However, before the passage of the Constitution (Twenty-fifth Amendment) Act, through which tribal areas were merged into Khyber Pakhtunkhwa, the President of Pakistan had promulgated Fata Interim Governance Regulation (FIGR) and FCR was repealed through it in May 2018.

While FIGR continued to provide judicial powers to executive officers including deputy commissioners, assistant commissioners and commissioners, Fata Tribunal became non-functional as nothing was mentioned about it. FIGR instead provided that appeal against the decisions of the commissioner should be filed with the high court.

However, FIGR was declared unconstitutional by Supreme Court of Pakistan in January 2019. The apex court had given six months to the KP government for developing infrastructure and to take steps for uniform system of courts of ordinary jurisdiction in the province.

Published in Dawn, March 6th, 2023