As debate on mainstreaming of the Federally Administered Tribal Areas was going on, the Ministry of States and Frontier Regions (Safron) silently notified in Feb 2017 the extension of the Federal Investigation Agency (FIA) Act of 1974 to certain areas on Pak-Afghan border at Torkham.

Interesting situation emerged as mainstream media had presumed as if regular courts and Police Act had been extended to Fata. Even on social media experts have been making comments about the outcome of this notification.

The law was extended with certain amendments and the government has now empowered the federal Levies force to exercise the powers of FIA in the said areas in relation to eight laws mentioned in the schedule of

the FIA Act. These laws include The Foreigners Act 1946, Passport Act 1974, Emigration Ordinance 1979, Exit from Pakistan (Control) Ordinance 1981, Prevention and Control of Human Trafficking Ordinance 2002, Nadra Ordinance 2002, Electricity Act 1910 and Anti-Money Laundering Act 2010.

This notification has further enhanced the powers of the officials of tribal administration of Khyber Agency, including the political agent, and the concerned assistant political agent, who have already been serving as administrative and judicial officers in the agency.

According to the notification, an SRO (Statutory Regulatory Order) was issued which states that under Article 247 (3) of the Constitution of Pakistan the President of Pakistan has directed that the FIA Act 1974 (VIII of 1975) as amended from time to time and in force in Pakistan, shall apply to the area of Torkham Khyber Agency bounded by village Bacha Mena, Torkham Gate, Shamshad Hill top watershed and Ayub FC Picket Kablo Mena in the Fata, subject to the modification.

Through the SRO certain changes have also been made in the said eight laws. Those amendments mostly relate to exercising judicial powers by the courts set up under the Frontier Crimes Regulation (FCR), which are presided over by the political agent and assistant political agent, while dealing with offences under these laws.

While the schedule of the FIA Act is having 28 offences regarding which the Agency was having jurisdiction, in the present SRO the government has omitted 20 of the laws in the said schedule and left the eight laws, wherein now the federal Levies force will be having jurisdiction to deal within the specified area.

Under Section 5 (2) of the FIA Act, a member of the FIA not below the rank of a sub-inspect may exercise any of the powers of an officer-in-charge of a police station in any area in which he is for the time being and he shall be deemed as officer-in-charge of a police station discharging his functions. However, in the present SRO the government has amended that section and instead of a sub-inspector of FIA a naib tehsildar (Passport) at Torkham is empowered to exercise those powers of officer-in-charge of a police station.

Moreover, while the director general of FIA was empowered to exercise powers in relation to the agency such of the powers of an inspector general of police under the Police Act, 1861, as prescribed by rules, now amendment has been made in Section 4 (2) under which the director general of the agency in relation to Torkham would exercise powers that of the commandant of the federal Levies force under the Federal Levies Force Regulation, 2012.

Under the said regulation the political agent of the agency is the commandant of the Levies force.

Another important amendment made in the FIA Act, in relation to Torkham border, and the eight other laws, is that instead of the Peshawar High Court, the Fata Tribunal, constituted under Section 55A of FCR will act as appellate court against the decisions of the trial court.

The powers of a sessions judge have now been assigned to the political agent, Khyber Agency, under the Anti- Money Laundering Act, 2010 and the Emigration Ordinance 1979. Though the FIA Act was not applicable to Fata in past, it has been having a symbolic presence near Torkham since 2004.

In 2015, the Supreme Court had also taken notice of the issue of non-extension of these laws to Khyber Agency in a Criminal Review titled Azhar Iqbal versus Abid Hussain and had discussed the matters related to smuggling and human trafficking between Pakistan and Afghanistan through Torkham and Chaman borders.

The then Chief Justice Jawwad S. Khwaja was heading a three-member bench and had passed several directives.

In a report submitted to the court by a commission in this regard, it was mentioned that Torkham border was a lucrative spot for different officials as daily around 15,000 to 30,000 had been crossing it.

An additional advocate general, Umer Farooq Adam, who was also member of the commission, had stated that the FIA staff was having only symbolic presence with 26 personnel.

He had stated that undocumented economy generated through Torkham border, which also included money laundering, was reported to be between Rs5 and Rs6 billion a month.

During those hearings the court had expressed astonishment over the non- extension of important laws to the Torkham border, including the FIA Act, Foreigners Act, Passport Act, Emigration Ordinance, etc.

“Instead of tinkering with the system the federal government should implement the proposed reforms and merge Fata with Khyber Pakhtunkhwa,” said Noor Alam Khan, an advocate of the Supreme Court. He said that from time to time issues relating to non-extension of different laws to tribal areas had been surfacing in the superior courts as under the Constitution the laws enacted by the parliament were not applicable there unless the President of Pakistan so directed.

He questioned that while the FIA functioned under the ministry of interior and the tribal administration under the Safron ministry, how the matter would be reconciled in relation to extension of FIA Act to Torkham.

Published in Dawn, September 25th, 2017