PESHAWAR, Aug 30: The Peshawar High Court has ordered the release of two jirga members charged with being involved in a case of Swara, declaring that the law banning the practice of giving away girls to rival families to resolve disputes cannot be applied to the Malakand division.

Justice Mohammad Raza Khan quashed the FIR lodged against 19 people at the Dir police station on June 27, observing that under terms of Article 247 of the Constitution the relevant law had not been extended to the Malakand division, situated in the Provincially Administered Tribal Areas.

“Since Article 247 of the Constitution provides for a special mechanism for the extension of laws to the tribal areas, therefore, unless a specific law is extended through a regulation issued in terms of Article 247 of the Constitution a law cannot be extended to any part of the tribal territory,” the bench ruled in its order pronounced on Aug 27.

Through the concerned act, parliament incorporated section 310-A in the Pakistan Penal Code in January 2005, under which the giving away of girls to settle disputes was declared an offence punishable by up to 10 years in prison.

But under Article 247 of the Constitution a law is not applicable to Pata unless the governor issues a specific order with the president’s approval.

The jirga in Upper Dir’s Athhan area had decided a year ago to wed a seven-year-old daughter of Mr Shazullah to a six-year-old son of Mr Naseebzada to resolve a dispute emerging after a daughter of the latter had eloped with a son of the former.

The nikah was performed but the ‘rukhsati’ has not taken place yet. After about an year, Mr Shazullah filed an application in the court of the district judge when the rival family started threatening him to hand over her daughter to them.

The judge ordered police to register an FIR against the 19 people under section 310-A of the PPC.

Following registration of the FIR, police arrested jirga members Khanullah Jan and Bacha Rehman.

Their bail petition was dismissed by a subordinate court in Upper Dir after which they filed the petition in the high court.

Their counsel Atlas Khan had argued before the court on Aug 24 that the law banning the practice of Swara had not been extended to Pata. Therefore, the petitioners’ arrest was illegal.

When the bench took up for hearing the petition on Aug 27, additional advocate-general Saeed Khan conceded that the law concerned — Criminal Law (Amendment) Act (Act No 1 of 2005) — had not been extended to Pata.

The bench ruled: “Since the additional advocate-general has conceded that the said statute has so far not been extended to Malakand Division, therefore, registration of case vide FIR NO 204 dated June 27, 2007, of PS Dir under section 310-A PPC was illegal. Thus, instead of releasing the petitioner on bail, the said FIR is quashed and consequently the petitioners shall be released forthwith if they are not required in any other case.”

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