In the wake of merger of Federally Administered Tribal Areas with Khyber Pakhtunkhwa after the passage of Constitution (Twenty-Fifth Amendment) Act, 2018, last year, confusion persists about cases of scores of suspected militants charged with raising arms and waging war against the State.

After regular courts started functioning in the tribal districts in March, cases pending before different forums functioning under the now repealed Frontier Crimes Regulation (FCR) were transferred to these courts having jurisdiction.

However, confusion has emerged over the fate of scores of alleged militants who have been charged under section 121 (waging war against state), 121A (conspiracy to wage war) and section 122 (raising arms against state) of Pakistan Penal Code and section 11 of FCR.

While there is no mention of any provision of the Anti-Terrorism Act, 1997, in these cases the relevant judicial officers now await any directive from the Peshawar High Court whether to transfer these cases to the anti-terrorism courts or the normal courts shall continue hearing these cases.

In several of the cases, wherein suspects have been behind bars, bail petitions have been filed before the regular courts set up in the tribal districts seeking their release on bail as mostly in these cases there was no evidence on record except reports of Joint Investigation Teams (JITs), which claimed that they belonged to a proscribed organisation and were waging war against the state.

In most of the cases the suspects were allegedly taken into custody by security forces and had remained missing for different durations. Subsequently, they were handed over to administrations in different tribal agencies and were charged under section 121, 121-A and 122 of PPC.

In several of the cases the concerned administrative officer in his capacity as judicial officer under the FCR had convicted the concerned suspects and sentenced them to different prison terms.

In past, the administrative officers, including political agents and assistant political agents, were assigned judicial powers in erstwhile Fata under FCR. The FCR was abolished through the Fata Interim Governance Regulation (FIGR) 2018, in May 2018, but even under the new regulation judicial powers were assigned to administrative officers.

However, after the passage of Constitution (Twenty-Fifth Amendment) Act, 2018, the PHC declared as unconstitutional several provisions of FIGR through which judicial powers were assigned to executive officers and council of elders.

The high court in its judgment on Oct 30, 2018, declared the notification dated 29th May, 2018, whereby FIGR 2018, was promulgated, as ultra vires of the Constitution, to the extent of allowing the Commissioners to act as Judges; Council of Elders deciding Civil and Criminal matters; Constitution of Qaumi Jirga; etc. The high court had given a month time to the provincial government declaring that any decision of civil or criminal nature would be void after that date.

Subsequently, the Supreme Court on Jan 16 while upholding the PHC’s verdict gave six months time to the government for introduction of regular judicial system in former Fata.

The PHC on Feb 25 posted 28 judicial officers of the district judiciary, including seven district and sessions judges, 14 additional district and sessions judges and seven senior civil judges, in the seven tribal districts. These judges started functioning on March 11.

A meeting of Secretariat District Judiciary chaired by PHC Registrar Khwaja Wajihuddin and attended by senior judicial officers on March 8 took several decisions regarding distribution of cases, appeals and revisions pending before three non-existent forums under the FCR, including deputy commissioner (political agent/ assistant political agent), commissioner FCR and FCR Tribunal among the ordinary courts (civil and criminal) established under the Civil Courts Ordinance, 1962, the Code of Criminal Procedure and other special and local laws.

About criminal cases, it was decided in the meeting that those cases pending before the deputy commissioners of erstwhile Fata under FCR stood transferred to the concerned sessions divisions and the same should be distributed among the courts of judicial magistrates and sessions judges/ additional sessions judges in the light of relevant sections of CrPC.

After some objections were raised through an application by the office of Khyber Pakhtunkhwa Advocate General on the said decisions, another meeting of the Secretariat District Judiciary took some decisions on March 13.

“As regards anti-terrorism cases pending before any forum under FCR, the same shall stand transferred to the anti-terrorism court of the concerned region adjacent to the newly-merged district,” the meeting decides.

Later, another meeting was held on March 19 which formulated four questions for the determination of the high court as a reference. One of the questions as whether the forums constituted under the defunct FCR (deputy commissioner FCR, commissioner FCR and FCR Tribunal) could continue to exercise jurisdiction in respect of matters pending before it after the passage of 25th Constitution Amendment, judgment of the PHC of Oct 30 and judgment of the Supreme Court.

A bench of Chief Justice Waqar Ahmad Seth and Justice Mohammad Ibrahim Khan decided the said reference on March 20. The bench ruled that the forum under the defunct FCR could no longer exercise jurisdiction. About criminal cases, the court ruled that all pending cases in trial court stood transferred to the respective court i.e. judicial magistrate or sessions judge. It was added that where the appeals are pending against conviction of four years and above, the same would be filed before the high court.

When the issue of the cases of suspected militants emerged, an application was filed last month before the high court by Advocate Shabir Hussain Gigyani who has been representing suspects in over a dozen cases before different courts in tribal districts.

The counsel states that in the light of the findings of the high court in the said reference scores of detained persons had approached the sessions courts in tribal districts, but the same had not been decided on the ground of jurisdiction whether the same fall under the jurisdiction of ATC or that of ordinary courts.

He has urged the high court to issue directives to the ordinary courts in the tribal districts to entertain and decide the cases registered under sections 121, 121-A and 122 of PPC by making necessary clarification in the judgment of March 20, 2019, passed in the said reference.

“As these alleged offences under sections 121, 121-A and 122 of PPC do not come under section 6 of Anti-Terrorism Act nor punishable under section 7 of the ATA, therefore, ordinary courts have the jurisdiction to decide these cases,” Mr Gigyani told Dawn.

Published in Dawn, May 6th, 2019