PESHAWAR: The Peshawar High Court on Wednesday declared the functioning of executive magistrates in the Provincially Administered Tribal Areas (Pata) under the Nizam-i-Adl Regulation 2009 unconstitutional and directed the government to make suitable amendments in the Regulation within six months.

A bench comprising Justice Waqar Ahmad Seth and Justice Irshad Qaiser disposed of six petitions challenging the functioning of executive magistrates in Pata comprising Malakand division along with some other provisions of the Nizam-i-Adl Regulation (NAR) 2009.

It pronounced a short order after completion of arguments by all parties.

Orders amendment to Nizam-i-Adl Regulation to end judicial powers of executive officers

The bench directed the government to make suitable amendments in the NAR to end judicial powers assigned to executive officers.

The executive magistracy, which was abolished in the entire country in 2001 by the then military government of Gen (r) Pervez Musharraf by amending the Code of Criminal Procedure (CrPC), was revived in Malakand Division under section 5 (5) and section 7 (4) of the NAR, which provided judicial powers to executive officers who were not under the administrative control of the Peshawar High Court.

The petitioners in these cases were a former district nazim, Yousaf Ayub, who had challenged the executive magistracy in his capacity as president of Local Council Association, an inhabitant of Swat Barrister Dr Adnan Khan, and four others.

Barrister Adnan appeared in person, lawyer Farhat Nawaz Lodhi represented Yousaf Ayub and Advocate Qazi Zakiuddin appeared for two other petitioners.

Khyber Pakhtunkhwa advocate general Abdul Lateef Yousafzai and additional attorney general Syed Attique Shah represented the provincial and federal governments, respectively, and contended that the NAR was in accordance with the Constitution of Pakistan. They contended that the Khyber Pakhtunkhwa governor had promulgated the regulation with the approval of the President of Pakistan under Article 247 of the Constitution.

They argued that the law was introduced in extra ordinary times when normal courts had stopped functioning there because of militancy.

The two also said the impugned system introduced in Pata was in accordance with the aspirations of the inhabitants of those areas and it had been functioning so far successfully without public complaints.

The petitioners’ lawyers said Section 5(5) of the NAR provided establishment of courts of executive magistrates.

They added that following the promulgation of the NAR in 2009 the deputy commissioners in the seven districts of Pata were assigned powers of district magistrate whereas assistant commissioners were empowered to act as sub-divisional magistrate.

The lawyers contended that neither the executive magistrates existed in any other law nor the presiding officer of court of executive magistrate came under the ambit of Qazi as defined in the Regulation.

They contended that qazis would be judicial officers under the administrative control of the Peshawar High Court.

The lawyers argued that the executive magistrate were empowered to deal with those cases under the Pakistan Penal Code which were punishable up to three years imprisonment; local and special laws; cases pertaining to breach of peace and public nuisance, and cases pertaining to deviations of licenses and permits under relevant laws.

They said the NAR had empowered the executive magistrates to perform judicial functions putting them under the administrative control of the deputy commissioner, which was against the Constitution as well as several judgments of the superior courts.

The lawyers said Article 175 (3) of the Constitution clearly stated that the judiciary should be separated from the executive within 14 years.

Barrister Adnan also pointed out that Article 10-A of the Constitution guaranteed fair trial but under the executive magistracy, the executive had been acting as complainant as well as judicial officer and in that case fair trial was not possible.

Published in Dawn, April 30th, 2015

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