Scores of cases of suspected militants from erstwhile Federally Administered Tribal Areas have started surfacing in the Peshawar High Court as regular courts have yet to start functioning in the tribal districts.

Presently, two types of such aggrieved persons have been approaching the court; firstly, those who had been convicted by then political agents (now deputy commissioners) after they were handed over to them by the security forces, and secondly, those prisoners who were handed over to the tribal administration, but their trials have yet to commence as the administration in those areas no longer enjoys judicial powers.

Facts of most of these cases are almost identical. The aggrieved persons (suspected militants) were allegedly taken into custody many years ago by the security forces on suspicion of their association with banned outfits and kept in custody for different durations and subsequently handed over to the administration in different tribal agencies (now tribal districts).

At the time of handing over these suspects to the administration the security agencies had also recommended that they should be convicted and awarded different prison terms. In different cases, councils of elders were constituted under section 11 of the erstwhile Frontier Crimes Regulation and the said councils had found them guilty on the basis of findings of the security agencies. They were later sentenced to different prison terms.

In several other cases, the prisoners have been in legal limbo as the deputy commissioners in tribal districts no longer have any judicial powers and trials of such suspects could not be conducted as regular courts have yet to start functioning there.

The FCR was repealed through the Fata Interim Governance Regulation (FIGR) in May 2018, whereas the FIGR was also declared unconstitutional by the Peshawar High Court as well as the Supreme Court.

Under both the FCR and FIGR, the concerned commissioner was given the status of appellate court, but the commissioner is no longer having those powers. Similarly, the Fata Tribunal, the final judicial forum under the FCR having revision powers, also became non-functional after abolition of FCR.

On Feb 21, a bench of the Peshawar High Court comprising Justice Ms Mussarat Hilali and Justice Abdul Shakoor Khan granted bail to a prisoner of Mohmand tribal district who was taken into custody by the security forces in 2012 and handed over to the administration in 2017. The bench while hearing a habeas corpus petition challenging confinement of the prisoner, Abdur Rehman, ordered to set him free on condition of furnishing two sureties of Rs200,000 each.

Advocate Afrasiab Gul appeared for the petitioner and contended that his client had been suffering from tuberculosis and due to unavailability of treatment to him his health had been deteriorating. He said that the detainee had done his master’s in Theology and had also received a degree of Bachelor of Education.

The counsel stated that the detainee was in illegal detention as he had been imprisoned without any trial by the administration. He argued that the administration in Mohmand tribal district had no judicial powers and they could not conduct his trial. He said that the detainee could not be imprisoned for indefinite period without any trial.

Similarly, another bench of Justice Roohul Amin Khan and Justice Qalandar Ali Khan granted bail to 14 prisoners of Bajaur tribal district, including Naseerullah who was studying in sixth grade when he was taken into custody on April 8, 2015.

Those 14 detainees were arrested on different dates by the security forces and after remaining in custody for three to five years they were subsequently handed over to the administration. However, as the administration has no judicial powers to try them they had been imprisoned without trial. Like other cases, the security agencies had recommended different prison terms for these 14 prisoners directing the administration to award them the said sentences. The bench ordered them to submit two sureties each of Rs200,000.

Recently, the high court also suspended sentences of two former ‘missing’ persons’ who were subsequently convicted by the administration of Khyber tribal district for waging war against Pakistan by becoming members of a banned outfit. Both those petitioners named Amjid Khan and Akhter Nawaz were convicted by an assistant political agent (APA) and were sentenced to 14 years imprisonment.

Their counsel Shabir Hussain Gigyani had contended that they had remained in illegal detention for many years and were subsequently handed over the administration by the security forces.

About the petitioner Amjid Khan, he contended that the APA had conducted the trial under section 11 of the FCR and sentenced him under section 121 and 122 of Pakistan Penal Code, dealing with waging war against the country. He had stated that the APA had pronounced the order on Oct 13, 2018, and by that time the FCR had already been repealed and he had no authority to convict a person under the abolished law.

The counsel stated that his clients were not given fair trial which was guaranteed under Article 10-A of the Constitution.

In past, such cases were least heard of as the entire judicial forums were functioning under the erstwhile FCR and the jurisdiction of the high court was not applicable under Article 247 (now repealed) of the Constitution. However, after the passage of the Constitution (Twenty-Fifth Amendment) Act, 2018, the said Article 247 is no longer in the field, thus the jurisdiction of superior courts is no longer ousted to deal with cases pertaining to erstwhile Fata.

A counsel appearing in these cases believes that once regular courts start functioning in tribal districts and trials of these suspects are conducted most of them would be acquitted for lack of sufficient evidence.

He said that while it was easier to convict these suspects under FCR, it would be much difficult to achieve the same results from regular courts which strictly followed the Code of Criminal Procedure and law of evidence while conducting trials.

Published in Dawn, February 25th, 2019