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Official Citation: 2024 PLD 60
Court / Jurisdiction: Peshawar High Court
Year of Decision: 2023
Decision Date: 2023-12-31
Parties: Suhbat Khan and 5 others vs Kandi Barami Tappa Karna Khel, Khyber JUDGMENT
Ruling Summary: This decision was rendered by the Peshawar High Court on 2023-12-31, officially reported as 2024 PLD 60. In this matter between Suhbat Khan and 5 others and Kandi Barami Tappa Karna Khel, Khyber JUDGMENT, the court adjudicated key questions of statutory construction, procedural regularity, and legal precedent under Pakistani law.
Core Holding: The honorable bench evaluated governing statutory provisions and judicial authorities to establish the rights of the parties, delivering the binding reasoning set out below.
Case cited as PLD 2024 Peshawar 60
Court Name: Peshawar High Court Judge(s): Lal Jan Khattak, Syed Muhammad Attique Shah, Syed Arshad Ali Title:Suhbat Khan and 5 others vs Kandi Barami Tappa Karna Khel, Khyber
JUDGMENT
Reported As: PLD 2024 Peshawar 60 Result: Order accordingly Judgment
JUDGMENT SYED ARSHAD ALI, J. This consolidated judgment is directed to dispose of instant petition as well as the connected petitions as adjudication of common questions of law are involved. 2. We have before us four categories of cases. The first category of the cases relates to those matters, which were filed before the erstwhile FATA Tribunal under Section 55-A of the Frontier Crimes Regulations, 1901 ("FCR") and pursuant to the judgment of this Court dated 20.03.2019 passed in Reference No. 01-P/2019, the same were referred to this Court (the detailed list of this category of cases has been provided in Annexure "A" to this Judgment and hereinafter referred to as First Category of Cases) In the second category, we have one case i.e. Khial Gul v. Khan Gul, who was convicted by the Political Agent vide order and sentence dated 14.12.2016. The said conviction was challenged by Khial Gul before the Commissioner Kohat Division Kohat, however, later, the said appeal was transferred to this court pursuant to the judgment dated 20.03.2019 in Reference No. 01-P/2019 (Hereinafter referred to as the Second Category of Cases and the details whereof are also provided in Annexure "A"). The third category of cases relates to the matter where the offence was committed prior to the promulgation of the 25th Amendment in the Constitution, however, no final judgment was passed by the trial Court under the FCR though the matter was referred to the Jirga and the Jirga had also given its verdict regarding the guilt or otherwise of the accused. On promulgation of the 25th amendment in the Constitution and pursuant to the judgment of this Court dated 20.03.2019 in
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Reference No. 01-P/2019 those cases were transferred for adjudication to the regular courts and the regular courts in the majority of cases had acquitted the accused as the prosecution had failed to produce any evidence (Hereinafter referred to as the Third Category of Cases the details whereof are also provided in Annexure "A"). The fourth category is those cases in which the initial trial under Section 8 of the FCR relating to the civil dispute culminated into the final judgment by the Political Agent. They had filed an appeal against the order of the Political Agent, which was transferred to the court of the District Judge pursuant to the judgment of this Court in Reference No. 01-P/2019, and the District Judge had passed an order in those cases, and the orders of the District Judge are now questioned before this Court (Hereinafter referred to as the Fourth Category of Cases the details whereof are also provided in Annexure "A"). 3. We have before us for adjudication the legal issue, which cropped up on promulgation of the 25th Amendment in the Constitution through Act No. XXXVII of 2018 dated 05.06.2018. Through the 25th Amendment in the Constitution, inter alia, Article 247 of the Constitution was omitted. Article 247 (3) of the Constitution dealt with the extension of laws passed by Parliament to the Federally Administered Tribal Area ("FATA"). The erstwhile Articles 246 and 247 of the Constitution had provided for a legal dispensation in the tribal area. Article 247(4) of the Constitution envisages that the President may, with respect to any matter, make regulations for peace and good government in FATA or any part thereof. In view of the above, a good number of laws were extended to the erstwhile FATA and similarly, the President of Pakistan had also made/issued various regulations for maintaining peace in the erstwhile FATA. The FCR was the governing law relating to resolution of civil as well as criminal dispute among the tribal men within the meaning of Articles 268 and 247 of the Constitution. 4. On the omission of Article 247 of the Constitution, the Parliament has passed no law relating to the pending proceedings in the erstwhile tribal area before the various fora established under FCR. However, the corollary of omission of Article 247 of the Constitution, all the normal laws passed by the Federal and Provincial legislature including the establishment of various courts automatically stood extended to erstwhile FATA as the essential barrier contained in Article 247 ibid was removed through 25th amendment Act in the Constitution. It would be important to note that through Section 34 of the Criminal Law (Amendment) Act, 1963, the FCR except for its application to the tribal area was repealed. However, since under erstwhile Article 247 of the Constitution, the jurisdiction of the superior courts was barred to entertain any matter relating to erstwhile FATA, therefore, the legality of the FCR to the extent of its application to FATA was never examined on the touchstone of the Constitution by the Apex Court. However, it was never considered a good law and, in this regard, the following reference can be borrowed from the judgment of the Apex Court in the case of Samundar v. The Crown (PLD 1954 SC 228) wherein it was held that: "The process of decision provided under the Regulation (FCR) is also foreign to justice as administered by the Courts... Decisions of this nature are common enough on the administrative side, but they are obnoxious to all recognized modern principles governing the dispensation of justice. In such circumstances, it is impossible to preserve public confidence in the justness of the decision. That may be of secondary importance to an administrative agency. But it is of permanent importance to a Court of justice. I am therefore clearly of the opinion that the proceedings which have been taken in the present cases are not to be regarded as proceedings in justice, but that they are from every point of view to be regarded as proceedings before an administrative agency, specially provided for the settlement of criminal cases, and specifically adapted to the conditions prevailing in frontier districts, at any rate at the time when the Regulation was enacted".
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5. The tribes living in the tribal belt comprising of seven Agencies and six Frontier Regions were, for centuries governed by their traditions and customs, which they inherited from generation to generation, till the British extended the Frontier Crimes Regulations, 1901 to their area. After Independence, FATA continued to be governed by the same law wherein the President of the country was the highest Executive Authority and the Governor of Khyber Pakhtunkhwa (former NWFP) discharged the responsibilities as Agent to the President while exercising powers of Chief Executive relating the tribal belt. 6. The existence of more than one law, in one country with reference to FATA, had often been questioned. Legal reforms were introduced by successive governments. In the year 2011, some reforms were introduced, and in the year 2018, FATA Interim Governance Regulation, 2018 was promulgated ("Regulation"). Section 3 of the Regulation repealed the Frontier Crimes Regulation, 1901 (amended in 2011). 7. The vires of the Regulation were challenged before this Court through a Constitutional Petition No. 3098-P of 2018, which was allowed, and the Regulation was declared ultra vires of the Constitution to the extent of allowing Commissioners to act as Judges; Council of Elders deciding the Civil and Criminal matters; Constitution of Quami Jirga; Modified application of Chapters VIII and XLII of the Code for Security; Third Schedule administered area. 8. The judgment of this court was assailed before the Honorable Supreme Court of Pakistan in Civil Petition No 773-P of 2018. The concluding paragraph of the judgment is reproduced as under:- "In light of the foregoing, Constitution Petition No. 24/2012 is disposed of and Civil Petition No. 773- P/2018 is dismissed as having been withdrawn, with the following observations:- i. The operation of jirgas/panchayats etc. violates Pakistan's international commitments under the UDHR, ICCPR and CEDAW which place a responsibility on the State of Pakistan to ensure that everyone has access to courts or tribunals, are treated equally before the law and in all stages of procedure in courts and tribunals; ii. The manner in which jirgas/panchayats etc. function is violative of Articles 4, 8, 10-A, 25 and 175(3) of the Constitution; iii. Jirgahs/panchayats etc. do not operate under the Constitution or any other law whatsoever to the extent that they attempt to adjudicate on civil or criminal matters; however, they may operate within the permissible limits of the law to the extent of acting arbitration, mediation, negotiation or reconciliation forums between parties involved in a civil dispute who willingly consent to the same; iv. Since no individual or persons in the name of a jirga/panchayat or under any other name can assume the jurisdiction of a civil or criminal court without any lawful authority; any order, decision or a direction issued by any such individual or group of persons is hereby declared illegal and against the spirit of the Constitution; v. The law enforcement agencies all over Pakistan are duty-bound to be vigilant and ensure that if any crime has gone unreported, they of their own accord file F1R(s) with regards to the same and initiate the process of investigation; vi. If as a consequence of any illegal decision, order, direction or inducement of such self- appointed adjudicatory bodies any crime is committed, the offender as well as the individual or group of persons involved in aiding such jirga/panchayat etc. shall be jointly held responsible for the said offence and must be proceeded against in accordance with the law; vii. The police must ensure compliance with the general guiding principles laid down in paragraph No. 14 of this judgment and standard operating procedures (SOPs) must be introduced by them within two months from the date of announcement of this judgment which should be circulated throughout the country with a compliance report to be submitted to this Court at the end of the two-month period;
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viii. After the 25th Amendment, all the residents of the Province of KPK are similarly placed, there is no rational basis on which the people of FATA can be distinguished from the people of the rest of the province of KPK and thus the application of the FATA Interim Regulation to one part of KPK while the rest of the province enjoys the protection of the provincial laws is absolutely unjustified, grossly discriminatory and in contravention of the fundamental right to equal protection; ix. On grounds of discrimination which cannot be justified under any reasonable classification and the law laid down in Azizullah Memon's case (supra), the FATA Interim Regulation is declared as ultra vires on the touchstone of Articles 4, 8, 25, 175 and 203 of the Constitution; and x. The Government of KPK is granted six months from the date of announcement of this judgment for the development of infrastructure to take steps to spread a uniform system of courts of ordinary jurisdiction in KPK, mandating the local law enforcement agencies to ensure that the rule of law is observed by reducing jirgas/panchayats etc. to arbitration forums which may be approached voluntarily by local residents to the extent of civil disputes only" 9. On 5th June, 2018, through Act No. XXXVII of 2018, twenty-fifth amendment in the Constitution was promulgated which omitted Article 247 of the Constitution, and amended Article 246. Tribal areas of FATA region were merged into the settled area. With this constitutional amendment the judicial system of the country was extended to FATA. 10. Since on omission of Article 247 ibid the normal laws stood applicable to the newly merged FATA and criminal as well as civil courts were also established in the said area therefore, this Court felt to provide a forum for the pending legal matter while adjudicating upon a Reference/Suo Mow No. 01-P/2019. The following questions were framed, which reads as under: - 1. Whether the forums constituted under defunct FCR (Deputy Commissioner FCR, Commissioner FCR and FCR Tribunal) can continue to exercise jurisdiction in respect of the matters pending before the time of 25th Constitutional Amendment judgment of this Court in FGR case (W.P.No.3098-P/2018, Ali Azim Afridi v. Federation of Pakistan and others, judgment dated 16.01.2019 of august Supreme Court of Pakistan in C.P No. 24/2012 (Under Article 184 (3) of the Constitution and C.P. No. 773-P of 2018 (Government of Pakistan... v... Ali Azim Afridi and others) and Judgment dated 15.10.2018 of august Supreme Court of Pakistan in Human Rights case No. 70788 of 2018? 2. Whether the Appellate and Revisional forums (Commissioner FCR and FCR Tribunal) constituted under defunct FCR can continue to retain the jurisdiction over Civil and Criminal Appeals and Civil and Criminal Revisions pending before them after the coming into force of the 25th Constitutional Amendments and the judgment of this Court in FOR case (W.P.No.3098-P/2018, Ali Azim Afridi v. Federation of Pakistan and others and judgment of august Supreme Court of Pakistan referred to above? 11. This Court vide its judgment recorded in Reference No.01-P/ 2019 on 20.03.2019 has answered the questions, which reads as under: "The questions Nos.1 and 2 are interconnected, so taken together for determination and answer. Perusal of record would depict that before (Twenty-fifth Amendment) Act, 2018, FATA Interim Governance Regulation, 2018, was promulgated whereby Deputy Commissioners, Additional Deputy Commissioners and Assistant Commissioners have been vested with the powers to act as Judge, in the Tribal Districts and Sub-Divisions, under the Code to try offences under the regulation. Under section-3 of the said regulation, Frontier Crimes Regulation, 1901, was repealed, however, it would be seen that whether by virtue of said section the FCR is expressly repealed or otherwise, especially after the judgment of this Court declaring the portion of IGR, as ultra vires, and in view of section-6 of General Clauses Act. The reply to this query lies in the ascertainment of the raison detre of the ibid pronouncement. The IGR is violative of the fundamental rights and in particular the right to fair trial guaranteed by the constitution and it would be absurd to imply
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from the ibid pronouncement that the material part of the IGR is dismantled inclusive of the provision repealing the FCR section 3. In effect revitalizing the FCR; which indeed is not the intention of the legislature while enacting IGR and on declaration of IGR being ultra vires, the whole superstructure thereof has crumbled to ground inclusive of S.52, thus the FCR stands impliedly repealed for the reasons that the same was restricted in its applicability to FATA, which through (Twenty-fifth constitutional amendment) cease to exist, and thus FATA is now alien to the constitution, the enactment restricted specifically to FATA would through implication stand repealed therefore, section 6 GCA would be applicable." Vide Para No. 11 of the ibid, judgment all the cases were ordered to be transferred to the regular courts by exercising the powers under Section 24 of Code of Civil Procedure, 1908 and Section 526 of Criminal Procedure Code, 1898. 12. Later, when a good number of cases were transferred to this Court, which were supposed to be decided by erstwhile hierarchy established under the FCR, the Bench hearing one of the cases had requested the Hon'ble Chief Justice to constitute a Larger Bench as the decision of this Court in Reference No. 01-P/2019 had decided the issue in contravention to the mandate of Article 264 of the Constitution. 13. Before proceeding further, we would first refer to the mechanism of dispute resolution both; civil and criminal under the FCR. Chapter III of the FCR deals with the resolution of civil disputes, adjudication, and sentencing of crimes. According to Section 8 of the FCR in case of a civil dispute between various persons which may likely cause a breach of Peace in the area, the Political Agent or the District Coordination Officer, on receipt of any such complaint, would refer the matter to the Council of Elders, the members whereof to be nominated with the consent of the parties, who shall inquire the matter and record their findings by Riwaj of the locality. On receipt of finding of the Council of Elders, the Political Agent or the District Coordination Officer could pass a decree in accordance with the findings of the majority of the Council of Elders or would remand the case to the Council of Elders for further inquiry and findings, if so required. (See section 8 of FCR) 14. Similarly, where any offence was committed within the territorial limits of erstwhile FATA, the Political Agent or the District Coordination Officer would take cognizance in the mater and on the arrest of the accused, the question of guilt or innocence of the accused would be referred to the Council of Elders for its findings, who after holding necessary inquiry and hearing the parties would submit its finding to the Political Agent or the District Coordination Officer, as the case may be. On receipt of the findings of the Council of Elders, the Political Agent or the District Coordination Officer, as the case may be, would pass an order in accordance with the findings of the majority of the Council of Elders or remand the case to the Council of Elders for further inquiry and findings. (See section 11 of FCR) 15. Chapter-VI of the FCR deals with the appeal and revision. Under Section 48 of the FCR, an appeal would lie to the Commissioner or Additional Commissioner, if authorized so by the Governor, from any decision given, decree or sentence passed or order made by the Political Agent or the District Coordination Officer under the Regulation and the order of Commissioner or Additional Commissioner could be challenged before the FATA Tribunal established under Section 55-A FCR. 16. Under FCR for the trial of an offence; the proceedings were trifurcated into three stages i.e. first cognizance of offence and reference to the jirga, and second inquiry and trial by the jirga which inter alia includes recording the statement of the parties and collection of evidence, and to recommend its findings to the Political Agent or Deputy Commissioner, and thirdly, the order (concurrence) of the Deputy Commissioner/Political Agent upon the guilt or otherwise of the accused. As stated above, the order of the Political Agent could be challenged before the next
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higher authority. Similar was the position in the matter of trying a civil dispute. Therefore, the question arises as to what extent the repeal of FCR would affect the pending trial. 17. The trifurcated proceedings before the erstwhile forum included procedural as well as substantive law regulating the rights of the parties in that legal dispensation. Though through 25th amendment in the Constitution, Article 247 was omitted, however as for as its consequence in terms of Article 264 is concerned, we are conscious of the legal proposition that the effect of omission of any law has a similar meaning that of repeal; repeal and omissions are not distinct terms rather they are expression used by the legislature to achieve the same object, where the legislature wanted to abrogate and annul an entire/whole statute, it adhered to the word repeal but where a particular provision or part of the statute was to be rescinded, abrogated, annulled expressions omitted or deleted was used. Muhammad Tariq Badr v. National Bank of Pakistan (2013 SCMR 314). 18. No doubt after 25th amendment in the Constitution, the Frontier Crimes Regulation, 1901 stands repealed, however despite the repeal of law even in absence of re-enactment the subject of repealed law, it is trite that the pending actions before any legal forum would continue under the repealed law. Exception to this rule is amendment of omission of procedure law followed by re- enactment which may provide a different forum for adjudication of substantive rights of the parties accruing of the repealed law. Similarly, it is one of the general rules of construction that if the rights and procedure are both altered but rights accrued under the repealed enactment are saved, then in the absence of an intention to the contrary expressed or necessarily implied in the new statute, it will be proper to interpret the intention of the legislature to be that the old procedure will subsist for the enforcement of the saved rights. (N.S Bindra Interpretation of Statutes, 9th Edition). 19. The effect of repeal whether the subject of repealed law is re-enacted or not has been provided under Article 264 of the Constitution, which, thus, would be relevant to the present Controversy. Article 264 of the Constitution reads as under: Where a law is repealed, or is deemed to have been repealed, by, under, or by virtue of the Constitution, the repeal shall not, except as otherwise provided in the constitution, - a. revives anything not in force or existing at the time at which the repeal takes effect; b. affects the previous operation of the law or anything duly done or suffered under the law; c. affects any right, privilege, obligation or liability acquired, accrued or incurred under the law; d. affects any penalty, forfeiture or punishment incurred in respect of any offence committed against the law; or e. affects any investigation legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment; and any such investigation, legal proceeding or remedy may be instituted, continued or enforced, and any such penalty, forfeiture or punishment may be imposed, as if the law had not been repealed. 20. The basic principle of law is that when a statute is repealed, everything stands obliterated except the pending proceedings. The effect of Article 264 of the Constitution was discussed in the case of Muhammad Arif v. State (1993 SCMR 1589) as follows: "It is evident that there is judicial consensus that where a law is repealed, it will not inter alia affect any investigations, legal proceedings or remedy in respect of any right, privilege, obligation, liability, penalty, forfeiture or punishment, and any such investigation, legal proceeding or remedy may be instituted, continued or enforced, and any such penalty, forfeiture or punishment may be imposed as if the law had not been repealed. This is so, inter alia, because of section 6 of the General Clauses Act, 1897 (which corresponds to section 4 of the West Pakistan General Clauses Act, 1956), in the absence of any contrary intention manifested in the relevant statute. Since the General Clauses Act is not applicable to the Constitution, the above provision has been incorporated therein in the form of Article 264. "
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21. Section 6 of the General Clauses Act, 1897 is part materia to Article 264 of the Constitution. Indian Supreme Court in the case of Neena Aneja v. Jai Prakash Associates Ltd. (AIR 2021 SC 1441) explained different clauses of Section 6 of the General Clauses Act, by observing that: "63. Section 6 of the General Clauses Act provides governing principles with regard to the impact of the repeal of a central statute or regulation. These governing principles are to apply, "unless a different intention appears". Clause(c) of Section 6 inter alia stipulates that a repeal would not affect "any right, privilege, obligation or liability acquired, accrued or incurred under any enactment so repealed". The right to pursue a validly instituted consumer complaint under the Act of 1986 is a right which has accrued under the law which was repealed. Clause (e) of Section 6 stipulates that the repeal will not affect, inter alia, any "legal proceeding or remedy" in respect of any such right... as aforesaid". Any such legal proceedings may be continued as if the repealing legislation had not been passed. Clause (c) of Section 6 has the effect of preserving the right which has accrued. Clause (e) ensures that a legal proceeding which has been initiated to protect or enforce "such right" will not be affected and that it can be continued as if the repealing legislation has not been enacted. The expression such a right in clause (e) evidently means the right which has been adverted to in clause (c). The plain consequence of clause (c) and clause (e), when read together is two fold: first, the right which has accrued on the date of the institution of the consumer complaint under the Act of 1986 (the repealing law) is preserved; and second, the enforcement of the right through the instrument of a legal proceeding or remedy will not be affected by the repeal. 64.…
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