It took something like a hundred years for the British to extend their power from Bengal in the East to Khyber Pass in the West. The eastern provinces of India which had been for a considerable time under British administration came to be known by the designation of regulation provinces. In course of time provinces were added towards the West which were designated as non-regulation provinces. In the regulation provinces, the head of each district was known as the collector thereby emphasizing that he derived his powers from revenue laws. The head of the district, in non-regulation provinces, was designated deputy commissioner. In, his capacity as local agent of the government, the deputy commissioner was given a high degree of freedom and initiate in the interest of firm and sound administration.
The Punjab and the NWFP were treated as non-regulation provinces. Beyond the NWFP were the tribal areas where the processes of government were distinctly loose and power was largely concentrated in the hands of tribal leaders. These areas were subject to supervision by the political agent.
The NWFP and Baluchistan were the particular areas where the trial of crimes under the Criminal Procedure Code came into contact with the earlier modes operated through Council-of-Elders. A reasonable basis for the application of a measure of elasticity in dealing with crime was provided by reason of their being populated largely by people whose emancipation from their traditional modes of administration of justice was as yet incomplete. The State v. Dosso (PLD 1958 SC (Pak) 533). A further justification for elasticity was the outcome of considerations that the areas in question were sparsely populated and the population was largely nomadic The State v. Dosso (PLD 1958 SC (Pak) 533 at p. 564). When the British annexed the districts of Peshawar, Kohat, Hazara, Bannu, Dera Ghazi Kahn and Dera Ismail Khan in 1948-Abdul Rauf v. NWFP Government (PLD 1958 Pesh 73), ——they found that the western judicial system was out of accord with the Pathan sentiment. No change was, however made in the legal system and the ordinary civil and criminal laws then in force in British India (sic) ware applied to them. They continued to be so applied till 1871 when the first Frontier Crimes Regulation was introduced-Abdul Rauf v. NWFP Government (PLD 1958 Pesh 73). Among the factors that led to the introduction of Frontier Crimes Regulation (henceforth known as FCR) was the crime situation in these districts. With the exception of one or two years, murders were on increase. Not less than one murder per day, on an average, was committed in Peshwar district———— (PLD 1958 Pesh 73 at p.100).
The first regulation contained about a dozen simple rules authorizing deputy commissioner, subject to the approval of commissioner, to detain all or any member of the Frontier tribes acting in an unfriendly or hostile manner and to impose fine in certain circumstances. It empowered the government to direct the removal of any tribe residing on the immediate border to another site when expedient. It also authorized the government to delegate powers to the deputy commissioner for referring the case of person accused of murder or other offence to a Council-of-Elders convened according to the Pathan or Baluch usage———Abdul Rauf v. NWFP Government (PLD 1958 Pesh 73 at p.100).
PURELY TRIBAL JIRGA
According to this law, the character of the Council-of-Elders was to be purely tribal and whatever the offence the only sentence authorized was that of fine. Subsequently Regulation IV of 1887 was brought into operation which in character and spirit was the same as the previous Regulation with the difference that a sentence of seven years for certain offences was for the first time introduced along with the fine——–Hamesh Gul v.The Crown (PLD 1955 Pesh 1).
REGULATION OF 1887
The Regulation of 1887 declared that certain sections of it were of general application while others could be enforced only against Pathans and Baluchs and such other classes as were declared by the notification in the official Gazette to be subject thereto. In the same year a notification had been issued declaring that Pathans and Baluchs and non-European subjects ordinary resident in the district to which the Regulation applied, their dependents, servants and others jointly concerned with them in the commission of offences were subject to the provisions of this Regulation Amir Shah v.Crown (PLD 1950 Lah 221).
By the year 1900 it was realized that figures of violent crime in general and of murder in particular had maintained a steady upward tendency———Abdul Rauf v. NWFP Government (PLD 1958 Pesh 73). Another legislation to thwart this tendency was therefore proposed. The proposal resulted in the promulgation of the Regulation of 1901 which originally applied to the six districts to which the earlier regulations applied—Adam Kahn v. Emperor (A I R 1948 Lah 33). Therefore the Regulation was made applicable to the newly constituted district of Mianwali until its applicability was questioned in 1944-Amir Shah v. Crown (PLD 1950 Lah 221).
The Regulation of 1901 had a provision similar to that of the original Regulation, namely that it applied to Pathans and Baluchs and to classes as were declared by notification in the gazette to be subject thereto. No fresh notification was, however, issued in accordance with previous notice, the entire Regulation continued to be applied not only to Pathans and Baluchs but also to other classes of persons ordinarily resident in those districts—-Amar Shah v. Crown (PLD 1950 221). Some of the other provisions of the F.C.R of 1901 were, however, materially different from the provisions of the repealed Regulation-Hari Singh v. Emperor (A I R 1945 Lah 65).
The Regulation of 1901 did not bring about any change in the character and nature of the Council-of-Elders. It continued to be tribal both in fact and theory. The deputy commissioner were instructed to keep lists of jirga members arranged according to trible areas. When parties belonged to different tribes mixed jirgas continued to be constituted. In 1921, the deputy commissioners and the sub-divisional officers were directed to scrutinized closely the lists of persons suitable to sit on jirgas and to eliminate all those whose local influence, standing and private character were below the slandered. In selecting members the deputy commissioner were advised to consult the trible elders and to give weight to their advice-Hamesh Gul v. The Crown (PLD 1955 Pesh 1).
The High Court of Lahore, held in 1944 that the notification issued under the Regulation of 1887 could not operate as a valid notification under the Regulation of 1901 which was consequently inapplicable to tribes other than Pathans and Baluchs—–Hari Singh v. Emperor (A IR 1945 Lah 65). This resulted in rendering—-illegal a large number of convictions—-Amir Shah v. Crown (PLD 1950 Lah 221). Another Regulation was therefore issued which declared that the Regulation of 1901 applied to all cases of persons to whom an earlier Regulation was applicable. This was followed on April 28, 1944 by the Frontier Crimes Regulation (Validation Acts, Orders and Proceedings) Ordinance 1944. It was replaced in December 1944 by an identical Act providing that all orders made, proceedings taken and acts done by the Provincial Government or by an authority subordinate to the Provincial Government in exercise of the powers derived from the provisions of the F.C.R 1901, deemed to have been validly made and done—-Amir Shah v. Crown (PLD 1950 Lah 221 at p. 223). The validity of these enactments was questioned in 1946 in the case of Alam Khan v. Emperor on the contention that the Act remedied the omission of a notification but did bring into existence a law on the lines of the Regulation which was applicable to district Mianwali—Alam Khan v. Emperor (PLD 1948 Lah 33). After this declaration the Governor of the Punjab promulgated on July 26, 1946 another Ordinance entitled ‘The Frontier Crimes (Validation of Orders, Proceedings, Sentences and Acts) Ordinance 1946. Before the Ordinance was replaced by the Act, its validity was again questioned but without success, in March 1947 in the case of Ahmad Khan v. Emperor. The High Court held that the Ordinance was within the powers of the Governor and that it could operate retrospectively. It was further held that the sentence to which the Ordinance referred had become valid—Ahmad Khan v. Emperor (A I R 1948 Lah 120).
NOT WARRANTED BY LAW
The validity of the Council-of-Elders so constituted came up for review before the Judicial Commissioner’s Court of the former North-West Frontier Province in two cases. It was held therein that the appointment of magistrates holding powers under the Criminal Procedure Code to the Council-of-Elders was not warranted by law. See Ghulam Muhammad Khan v. Crown (PLD Pesh 45) and Hamesh Gul v. Crown (PLD 1955 Pesh 1).
AMENDING ACT 1954
These decisions resulted in rendering illegal a large number of convictions. In order to legalize these convictions two Acts were enacted one is title ‘Fortier Crimes Regulation (N.W.F.P) Amendment Act XIII of 1954. By former Act all orders made proceedings untaken sentences passed and acts done were confined By the second Act the structure of the Council-of-Elders was revised and it was made a council of three more persons whether officials or otherwise convened by the Deputy Commissioner and presided over by a magistrate—-Abdul Rauf v. N.W.F.P Government (PLD 1958 Pes 73). The amending Acts were held intra vires of the Provincial Legislature and were declared good laws under Article 224 of the 1956 Constitution of Pakistan.
The F.C.R of 1901 remained in force until the country was partitioned in August 1947 into Pakistan and India by the Indian Independence Act of 1947. Both these countries joined the Commonwealth as the Dominions of British Empire. Under the Indian Independence Act the law of undivided India was allowed to continue until it was changed by the Legislature of respective countries or by authorities having power in that behalf. One of the pieces of legislation that the countries inherited at the time of independence was the F.C.R III of 1901—–Mutwali v. The Crown (PLD 1951 Pesh 45).
MAGISTRATES AS JIRGA MEMBERS
In order to improve the procedure for the disposal of cases by the Council-of-Elders and to improve confidence among the people in matters of administration of justice a memorandum was issued to all deputy commissioners on February 29, 1952 directing that jirga cases under the F.C.R should be decided by tribunals of three competent magistrates to be selected by the deputy commissioner. The deputy commissioner had discretion if he found that the number of trial magistrates was inadequate to appoint tehsildars as jirga members—Abdul Rauf v. N.W.F.P Government (PLD 1958 Pes 73). Therefore the deputy commissioner nominated and appointed magistrates as members of the Council-of-Elders. Non-magistrates were also associated in a few cases-Abdul Rauf v. N.W.F.P Government (PLD 1958 Pes 73 at p. 77).
The validity of the Frontier Crimes Regulations was called in question in Dosso’s case on the contention that the provisions of the F.C.R enabling the executive authorities to refer criminal cases to a Council-of-Elders were void under Article 4 of the Constitution being repugnant to Article 5 thereof The State v. Dosso (PLD 1958 SC 533). That contention was accepted and the convictions and sentences of the petitioners were set aside. The State appealed but before the case came up for hearing in the Supreme Court martial law was proclaimed and the 1956 Constitution was abrogated. The question consequently arose of the effect of abrogation on Article 5 which had embodied the provisions relating to the Fundamental Rights of citizens. The respondents argued that Article 2 (1) of the Laws (Continuance in Force) Order 1958 provided that the Republic to be known henceforth as Pakistan should be governed as nearly as might be in accordance with the late Constitution and that Article 5 was kept alive. Hence the point for determination in Dosso;s cases was whether those of the provisions of the Frontier Crimes Regulation which had become ineffective by reason of the fact that they would come in conflict with rights mentioned in the 1956 Constitution of the Islamic Republic of Pakistan had been revived on account of the abrogation of the Constitution. The Supreme Court held that the rights did not revive—-The State v. Dosso (PLD 1958 SC 533). The F.C.R was allowed to remain valid during martial law—Abdul Nabi v. Commissioner F.C.R (PLD 1962 Quetta 1).
A directive was issued by the Government of West Pakistan on May 7, 1960 to the Deputy Commissioners with the object of discouraging references to jirga—Muhammad Akber Kahn v. The State (PLD 1962 Pesh 57). The letter contained the instructions that no case should be referred to a jirga without the prior approval of the Government and that references under section 11should be confined to murder cases and offences of an exceptionally serious character. Should a reference become necessary the Deputy Commissioner were required to forward the cases with brief notes to the Additional Advocate-General who was in turn advised to transit it to the Commissioner. Having received the opinion of the Additional Advocate-General the Commissioner was expected to give or without his assent—Muhammad Akber Kahn v. The State (PLD 1962 Pesh 57 at p.59).
AMENDMENT OF 1962
An amendment to F.C.R was brought by means of an Ordinance which was promulgated on April 19, 1962. The amendment changed the definition of the Council-of-Elders. In relation to cases relating to areas other than Quetta and Kalat and districts of Las Bela the original concept of the Council-of-Elders was revised to mean a Council of three or more persons whether official or otherwise convened by the Deputy Commissioner and presided over by a Magistrate—–Masud Ahmad v. The State (PLD 1962 Lah 878). In April 1962 the application of the F.C.R was extended to the districts of Sukkur and Sargodha. Its application to Shahdadkot (in district Larkana) and Shikarpur and Garhi Yasin (in district Sukkur) was withdrawn—-Masud Ahmad v. The State (PLD 1962 Lah 878 at p.881). The F.C.R was made applicable to persons who committed crime within an area covered by F.C.R even though they might not be resident s of the area– Masud Ahmad v. The State (PLD 1962 Lah 878 at p. 881).