With the repeal of Frontier Crimes Regulation (FCR) through the Fata Interim Governance Regulation (FIGR), 2018, the Fata Tribunal has become non-functional. The tribunal was the third and final judicial forum under the repealed law. The aggrieved persons have now started approaching the Peshawar High Court against the judicial orders of the concerned political officers.

This development has also resulted in appeals of suspected militants who were convicted by the political agents (now deputy commissioners) in offences related to waging war against the state. Most of these suspected militants were convicted under section 121 (waging war against Pakistan) and section 121-A (punishment for waging war) of Pakistan Penal Code read with section 11 of the former FCR and were sentenced to different durations of prison terms.

A few days ago a single bench of the high court comprising Justice Syed Afsar Shah suspended one such conviction of an accused Qari Muslim, a resident of Wahid Garhi area in Peshawar. The court released him on bail on condition of furnishing two sureties of Rs100,000 each. His main appeal will be heard later.

The appellant, Qari Muslim, was convicted by an assistant political agent in his capacity as judicial magistrate in Khyber Agency and was sentenced to five years rigorous imprisonment. He had challenged his conviction before the court of FCR commissioner, who maintained his conviction. As the Fata Tribunal is non-functional, therefore, he has now filed appeal before the high court.

Previously, under the FCR a convict had to file appeal against his conviction before the FCR commissioner, which was the second judicial forum, and against an order of the commissioner he had to file a revision petition before the three-member Fata Tribunal.

Before the passage of the Constitution (Twenty-fifth Amendment) Act, 2018, through which tribal areas were merged in Khyber Pakhtunkhwa, the President of Pakistan had promulgated the FIGR on May 29. Through that law the FCR was repealed and there is no mention of the Fata Tribunal in it.

Section 31 of FIGR provides that appeal against judgments of the deputy commissioner (former political agent) and the court shall be filed with the commissioner or additional commissioner authorised by the governor. Furthermore, under section 36 an appeal against order of the appellate authority shall be filed with the high court.

One common aspect of the cases of these suspected militants is that they had remained in custody of the security forces for many years and were subsequently handed over to the tribal administration of that particular tribal agency (now district). While handing them over to the administration the security forces had also given their findings about the suspects and in most of the cases they had also recommended that the suspects should be convicted as they had remained part of a militant outfit.

In past, such cases were least heard of as the entire judicial forums were functioning under the FCR and the jurisdiction of the high court was not applicable under Article 247 (now repealed) of the Constitution.

A few days ago the high court had suspended conviction and sentence of another accused, Mohammad Amin, in almost identical case and ordered his release on bail after furnishing two sureties of Rs100,000 each. That appellant had stated that he was kept in illegal detention and subsequently handed over to the tribal administration after which he was charged under section 121 and 121-A of PPC. He was also sentenced to five years imprisonment and his appeal was dismissed by the FCR commissioner.

Section 121 PPC states: “Whoever wages war against Pakistan, or attempts to wage such war, or abets the waging of such war, shall be punished with death, or imprisonment for life and shall also be liable to fine.”

Similarly, section 121-A states: “Whoever within or without Pakistan conspires to commit any of the offences punishable by Section 121, or to deprive Pakistan of the sovereignty of her territories or of any part thereof, or conspires to overawe, by means of criminal force or the show of criminal force, the Federal Government or any Provincial Government, shall be punished with imprisonment for life, or with imprisonment of either description which may extend to ten years, and shall also be liable to fine.”

Advocate Shabir Hussain Gigyani, who is appearing in several such cases, said that under Article 10-A of the Constitution a fair trial was right of every citizen, but in these cases several provisions of different laws had been violated.

He pointed out that these convictions were not based on evidences rather the findings of the security officers. He said that as there was no proper court system in Fata, the cases were referred to councils of elders under section 11 of the FCR. In certain cases even the findings of the council of elders (jirga) were not followed by the trial judge, who was an administrative officer.

Mr Gigyani pointed out that under section 196 and 196 A of the Code of Criminal Procedure prior sanction of the federal government or provincial government was required for prosecuting an accused for an offence against the State, but in these cases those provisions had not been followed.

A relative of one of the appellants told Dawn that these cases mostly belonged to the time when the militants were ruling parts of tribal areas and there was no writ of the state. In those days, he said, the families living there had no other option but to extend either financial support to the concerned militant outfit or to spare a family member to perform different day-to-day tasks of militant commanders.

He questioned that when the state absolved itself of its responsibility and had left people at the mercy of militant organisations for many years, what was the option left with the inhabitants in those areas other than to follow orders of those organisations.

Legal experts believe that as the Fata Tribunal is non-functional more such cases would be coming to the high court. They suggest that the high court may decide these appeals on basis of formulating common law points specially the aspect of provision of fair trial and admissibility of a statement attributed to the appellant by the security forces when they were in their custody.

Published in Dawn, October 8th, 2018