PESHAWAR, Feb 6: The Peshawar High Court on Wednesday directed the federal government to file written reply to a petition challenging several provisions of the Frontier Crimes Regulation (FCR) and terming it inconsistent with the fundamental rights guaranteed under the Constitution.
A bench comprising Chief Justice Dost Mohammad Khan and Justice Irshad Qaiser directed deputy attorney general Mohammad Iqbal Mohmand to submit the reply within 15 days.
The bench observed that in case it accepted the petition, it would have severe implications and impact for the government and therefore, it was necessary for federal government to furnish its reply.
The petition is filed by a Khyber Agency resident, Ghufran Kukikhel, who was convicted by the political agent on Nov 23, 2011, of drug trafficking.
His conviction was made on the basis of the inquiry conducted by a jirga of elders constituted under FCR.
He was handed down 10 years rigorous imprisonment and Rs100,000 fine.
The petitioner was charged under the Prohibition (Enforcement of Hadd) Order, 1979 read with FCR whereas he claimed that in presence of Control of Narcotics Substance Act, 1997, he could not be tried under the former laws.
Noor Alam Khan, lawyer for the petitioner, said several of the FCR provisions were in conflict with the Constitution and against several judgments of the superior courts.
He said his client had also challenged the judicial powers of the political agent for being in conflict with Article 175 of the Constitution.
The lawyer said the FCR sections mostly related to powers of district magistrate, additional district magistrate, council of elders and trials were also questioned.
The petitioner has asked whether he being a resident of Khyber Agency is not a citizen of Pakistan, whether he is not entitled to fundamental rights mentioned in the Constitution, whether he is alien having no rights, and whether Article 175 (3) of the Constitution does not provide that judiciary should be separated from the executive but why this article of the Constitution is applicable in Fata.
He also asked whether in administration of criminal justice, the burden of proof does not lie on the prosecution, whereas under FCR, the burden of proof is on the shoulders of the accused, whether an executive authority can perform the functions of judicial authority, especially when it has no knowledge of law and court, and whether the provision of CNSA hasn’t overriding effect not withstanding anything contained in any other law for the time being in force.