Law: Frontier Crimes Regulation (III of 1901)

Section: 1(4) (S), 11, 12, 14, IS, 16, 17, 19, 40, 41

  Frontier Crimes Regulation (III of 1901),   Ss. 1 (4) (S), 11, 12, 14, IS, 16, 17, 19, 40 & 41-Provisions enabling the executive authorities to refer any criminal case to Jirga-Repugnant to Art. S and void under Art. 4 of Constitution of Pakistan.   Subsection (4) of section 1 of the Frontier Crimes Regulation, read with section 11 of the Regulation singles out Pathans and Baluchs, primarily, for action under the relevant provisions of the Regulation which may also be applied by a Notification to a group of persons who may be specified as a class in a Notification issued by the Provincial Government. However, such a class need not be a well -defined class as normally understood because of the Explana tion appended to subsections (4) and (5) of section 1. The executive Government may choose to describe any group of persons mentioned in the notification as a class. Therefore, it cannot be held that the classification mentioned in the Regulation for application of the relevant provisions is a rational or reasonable one. It is based principally on racial or tribal considerations, and to the extent that there is provision for other classes being added to the Pathans or Baluchs for attracting the provisions of the Regulation, the classification may be wholly arbitrary and capricious at the sweet will of the executive. These provisions are, therefore, ex facie discriminatory and do not rest on any classification such as could take the enactment out of the mischief of Article 5 of the Constitution.   Not only is there no reasonable classification of persons whose cases may be referred to a Jirga but also the fact that the executive authorities have been given an unfettered discretion in the choice of persons belonging even to Baluch or Pathan tribes as to whether heir cases should go to a regular Court of law or to a Jirga. This discrimination may be exercised in respect of any one or more of a group of accused being tried jointly in a regular Court of law. There is no guiding principle prescribed by which the discretion of the executive authorities as regards the choice of forum is to be regulated. These provisions of the Regulation,…