PHC asks KP govt to get back judicial powers from executive magistrates

PESHAWAR: The Peshawar High Court (PHC) on Wednesday directed the Khyber Pakhtunkhwa government to withdraw the powers of judicial magistrates from the executive magistrates in Malakand Division as the step taken under Shariah Nizam-e-Adl Regulation was unconstitutional and against independence of judiciary.
A two-member bench comprising of Justice Waqar Ahmad Seth and Justice Mrs Irshad Qaiser also directed the provincial government to amend the regulation within six months for withdrawal of the judicial powers from executive magistrates in Malakand Division.
Under the Shariah Nizam-e-Adl Regulation, 2009 the erstwhile executive magistracy system was restored in Malakand Division and Kohistan district and executive magistrates were empowered to exercise the powers of judicial magistrates.
The executive magistrates were given authority to deal with those cases under the Pakistan Penal Code (PPC) that were punishable by up to three years imprisonment as well as local and special laws, cases concerning breach of peace and public nuisance, and cases pertaining to deviations of licenses and permits under relevant laws.
The court disposed of eight identical petitions challenging the empowerment of executive magistrates as judicial officers in Malakand Division and directed the Khyber Pakhtunkhwa government to withdraw the powers of judicial magistrates given to executive magistrates by amending the regulations as provisions regarding these powers in the regulation was unconstitutional and against the decision of Supreme Court.
Muhammad Yousaf Ayub, Dr Adnan Khan, Hazrat Usman Khan and others mostly lawyers from Malakand Division had challenged the empowerment of the executive magistrates as judicial magistrates under the regulation.
During the hearing of the cases, one of the petitioners Dr Adnan Khan submitted before the bench that the NWFP (now KP) governor had promulgated the Shariah Nizam-e-Adl Regulation, 2009 under which the executive magistrates were empowered to work as judicial magistrates.
He submitted that under the regulation, the deputy commissioners were delegated the powers of district magistrates and assistant commissioners were given powers of sub-divisional magistrates.
He pointed out that delegation of judicial powers to executive magistrates was against the decision of Supreme Court. He argued that Supreme Court through its decision had separated judiciary from executive and empowering the executive magistrates as judicial magistrates was against the law and Constitution.
He submitted that under Article 203 of Constitution, the sub-ordinate judiciary is required to work under the high court and the executive magistrates are working under the provincial government.
The petitioner pointed out that under Article 10-A of Constitution a fair trial of cases was obligatory but it isn’t possible in such a situation because the government officers were both the complainants and judges in these cases.