Conversion B to A Area of Balochistan

Rationale Behind Conversion

The legal system imposed by the Britisher in general and in Balochistan in particular was mainly intended to rule through a class of loyal notables who otherwise had social influence and status in the society and their loyalty to the British Raj was above board, thus ostensibly depicting a policy of non–interference in their centuries old system of Riwaj. In real terms the objective was to keep them away from a universal recognized judicial system and to give them a sugar-coated legal device. Keeping this objective in view the Britishers formulated FCR (Frontier Crime Regulation) and imposed it in the areas, including present Province of Balochistan. From plain reading of entire regulation, it becomes abundantly clear that the legal system was so devised as to cloth a class of notables known as “Council of Elders” with legal power to sit and decide cases alongwith the Executive Officer who had final authority to pass judgments on the recommendations so made by the council of elders. No rules regulation, the proceedings or mode of taking evidence universally known and recognized were adopted. Further more the District Magistrate etc, generally the Britishers, were empowered to over-rule the findings of such Council of Elders and to remand cases to the Second Council of Elders according to their whims and caprice. Keeping above facts in view it was considered necessary to reform the old system to bring it at par with the modern/remaining world, which should give equal opportunities to every individual for a fare justice.

Levies Force

The investigation into the cases was mostly conducted through levies which were almost a private force of tribal sardars and notables who had a direct control over it. Personal knowledge of a member of Council of Elders used to be regarded as sufficient evidence for conviction of accused persons and determinator of their property rights. The concept of collective fine on tribes or villages etc was also initiated.

Jirga System

Provisions were made enabling the Executive Authorities to refer any criminal case to Jirga particularly pertaining to Pathans and Balochs of the area. However, there was provision in the FCR that it might apply to a class or group of persons which would be notified as and when desired by the Government. The classification therefore was neither reasonable nor rational. Martial Law was imposed in the country in 1958 and the constitution 1965 was abrogated. The fundamental rights were suspended and once again the FCR was enforced till the time during 1979 it was declared repugnant and violative of Islamic injunctions. After the aforesaid law was repealed, Ordinance II 1968 generally known as Jirga Law was enforced in Balochistan. Salient features of Ordinance II of 1968 are that it provides special procedure for trial of the Scheduled Offences (PPC) as described in Section 2 (C) of the Ordinance. The most special aspect of the Ordinance is that the Court of Criminal Procedure 1898 was barred to apply to any proceedings under this Ordinance. The evidence act of 1872 was not made applicable to the proceedings conducted under this Ordinance. Where ordinance II 1968 was made applicable the area was known as 'B' area, while rest of the area was known as 'A' area.

Decision of High Court

The President Balochistan Bar Association filed constitution petition No.150 of 1987 in the High Court of Balochistan against the Government of Balochistan praying therein that appropriate direction be issued to revoke and remove from the Statue Book the ordinance-II of 1968 as being inconsistent with the Constitution. In the meanwhile 17 other petitions were also field by different petitioners, which involved the similar question of law, therefore the Hon'ble High Court of Balochistan through common judgment dated 29-08-1990 disposed of all these petitions as under:-

  “There is no concept of independent judiciary in the ordinance because right from the rank of Naib-Tahsildar who investigates into the matter upto the Member Board of Revenue, who finally adjudicates upon the revision petitions, the whole hierarchy comprises of Executive Officers. In the scheme to the Ordinance there is no room for any Judicial Magistrate and no authority whatsoever has been left to be exercised by the ordinary Courts. Thus the concept cannot be conceived in a system where all the judicial powers are judiciary as envisaged in the Objective Resolution can never be achieved through legal machinery under the Ordinance II of 1968 where the executive officer administer criminal justice and no judicial officer finds any mention anywhere in the ordinance. We, therefore, have come to the conclusion unhesitatingly that the entire provisions of the Ordinance-II of 1968 are inconsistent with Article 175(3) of the constitution and are thus void.”

Decision of Supreme Court

The Government of Balochistan against the aforesaid judgment of Balochistan High Court filed an appeal in the “Supreme Court of Pakistan”. The Hon'ble Supreme Court of Pakistan vide judgment dated 10-04-1993 dismissed the appeal, declared Ordinance-II of 1968 as void being in conflict with Article 9,25,175  and 203 of the constitution and directed the appellant to implement the valid law to hold the field.

Separation of Judiciary and Executive

The judiciary and Executive were separated through the implementation of Legal Reforms Ordinance 1996. According to this Ordinance the cases under the local and special laws wherein punishment is above three years shall be tri-able by the judicial Magistrate and Session Judges. Only Chapter 8+, 10, 13 and 14 except sections 153 and 281 of PPC and the cases under Local and Special Laws wherein punishment is three years and less, shall be tribal by the executive magistrates. Since promulgation of this Ordinance the ordinary courts of law have been empowered to proceed the cases according to the procedure universally recognized. So far as the proceedings are concerned there is no discrimination in the Province of Balochistan ir-respective of “A” and “B” area. The concept of “A” and “B” area has emerged with the implementation of discriminatory special classified law of procedure i.e. Ordinance II of 1968. Now this concept has emerged with different and contradictory way on investigation and taking of cognizance by Police in “A” area, controlled and administered by Police and Tehsildar/ Naib Tehsildar with the help of assistance of Levies Force in “B” area. In Balochistan 83 police stations were functioning under the Control of IGP Balochistan having territorial jurisdiction over 1366 Sq K.Ms. The Tehsildar/ Naib Tehsildar under the command of AC/ Deputy Commissioner functioned as SHOs of 320 Levies Thanas having territorial jurisdiction over 327843 Sq kms.

Cabinet Decision (Federal)

Keeping in view the history and prevailing Law and Order situation in Balochistan, a comprehensive case was prepared by the then Inspector General Police Dr. Shoaib Suddle and a briefing was given to the President and Prime Minister of Pakistan in the Cabinet meeting on 28th August, 2003 in Islamabad.

The Chair in presence of Cabinet was told by Dr. Shoaib Suddle that until and unless unity of Command is  maintained and the whole area of the Province is brought under the control of one law enforcing agency, the problems of Law & Order will keep on increasing. The point of IG Police was well taken and the President of Pakistan immediately directed that the divide of “B” and “A” Area should be done away with and the entire area of the Province be brought under the control of one law enforcement agency i.e. Police, as is the position in other Provinces of Pakistan.  It was further decided that the conversion be made in a phased programme spread over five years. The department was directed to prepare PC-1 on fast track basis, and an amount of Rs.5.00 Billion was committed by the Federal Government to meet with the expenses on shortage of Man Power, Logistic and for Civil Works in the Province. In compliance with the directives of the President, the then DIG HQ Riaz Ahmed was directed to prepare PC-I of the Project, who alongwith AIG Asif Saifullah Paracha and his team, prepared it in a very short period, got it approved from PDWP, CDWP, finally from ECNEC, and has implemented the Project as Project Director.

Reversion

Government of Balochistan, a year back, has reverted the Project and has restored Levies/ ‘B’ area at its original Position of 2003-04, but at the same time decided to complete the Project considering it necessary since 70% of the Project i.e. to raise the strength of Police and to provide infrastructure has already been completed and abandoning it half way will be wastage of public resources.