PHC hears first petition against decision of tribal authorities

PESHAWAR: The Peshawar High Court (PHC) has started assuming its constitutional jurisdiction in a writ petition against decisions by the political administration in Fata under the Frontier Crimes Regulation (FCR) after the merger with Khyber Pakhtunkhwa province.

In a first case related to the tribal areas after the merger, a division bench comprising Justice Qaiser Rashid Khan and Justice Nasir Mehfooz sought reply from the political authorities within 14 days in a case related to allocation of land to a company for storage of explosives near a residential area and girls' school at Darra Adamkhel. The bench not only restrained the Shamal Mining Company from work till the next order, but also issued a notice to the respondents including assistant political agent, chief inspector explosives of Pakistan and the chief executive of the company.

During the course of hearing, the respondents' counsel Tariq Afridi submitted that the high court had no jurisdiction to hear the writ petition as the relevant forums including FCR commissioner and Fata Tribunal are still working there. He argued that the high court could assume jurisdiction after the courts under FCR become dysfunctional. He said the courts under FCR would exist during the transition period after merger of Fata with KP.

Justice Qaiser Rashid observed that after Fata's merger with KP, the high court should use its constitutional jurisdiction in the appeals against decisions passed under the FCR by the political authorities. Asad Nabi, a lawyer for the petitioner Akram Khan, a resident of Darra Adamkhel tribal territory located in Frontier Region (FR) Kohat, submitted that the political authorities without his consent and permission illegally granted his land to the company for establishment of magazine explosives business to store and test explosives. Besides, he argued, the life of the inhabitants residing nearby as well as students of the girls' primary school would be at stake due to the explosives storage in the area. He termed it against the fundamental rights of the petitioner involved in the instant matter.

Three days ago another bench of the PHC adjourned the case without proceeding after difference of opinion of the two judges on the jurisdiction of the high court in the case related to Fata after merger with KP. In the two-member bench, Justice Musarrat Hilali wanted using the high court's constitutional jurisdiction in the case related to Fata, while the second judge Justice Ikramullah Khan abstained from using jurisdiction at the moment. The legal status of Fata Tribunal, the final judicial forum, is hanging in the balance as under the repealed Frontier Crimes Regulation (FCR), the government has failed to provide protection to it in the Fata Interim Governance Regulation, 2018.

On the other hand, the tenure of the Fata Tribunal's members ended on May 22 and the next day, a notification was issued by the Fata Secretariat stating that the Khyber Pakhtunkhwa governor has granted extension in the service period of the existing management of the tribunal for six months. The three-member tribunal comprises Sang-i-Marjan Khan as chairman and Hussainzada Khan and Mohammad Atif Nazir as members. The Fata Interim Governance Regulation, 2018, was promulgated by the President of Pakistan and notified on May 28. After its promulgation, the FCR 1901 stood repealed.