The FCR was enacted as a special law in 1871 and new provisions and offences were subsequently added in due course (PLD 1958: 7310 & Hussain 2005)11 . When the law was amended in 1887, a seven-year sentence was introduced for a particular crime whereas previously the offence had only earned a fine. The law was enforced against both Pathans and the Baloch (Alaiwah 2008).12 In the amended FCR, Pushtun tribes were allowed to govern their society according to their own laws and customs. The tribal areas were given a semi-autonomous status subject to their compliance to colonial rule. The tribal elders (maliks) were made bound to “keep the border passes open for trade and strategic purposes in return for allowances and subsidies they could distribute among their tribes. Nevertheless, the tribal areas showed some of the strongest anti-British resistance on the subcontinent during British rule” (Rakisits 2008). After the ‘Tribal Wars’ in 1897-98, when the frontier tribesmen continued to attack the British Indian Army and criminal activities were on the rise, a Close Border Policy was adopted and implemented whereby a number of tribal agencies were established (including Mianwal) under the FCR of 1901, which were enclosed by a chain of posts and cantonments where the Pakhtun tribes were allowed to govern according to their own laws and customs (PLD 1958: 73 & Rakisits 2008). Much later, in 1944, questions had arisen about its application, and in 1946, validation of the FCR was challenged in the High Court of Lahore (Alaiwah 2008).13 Application of the FCR was also effectively challenged in Mianwali district and the noxious laws were removed from the area (PLD 1950: 221).

The FCR of 1901 was declared by notification in the Gazette (PLD 1950: 221) and contained the same rules as previous FCR’s as well as additional provisions. These regulations were enforced against the Pashtuns and the Baloch.

In 1947, Pakistan allowed the tribal territories to retain the separate administrative and legal structure that was coded into the FCR. The law was not changed in an independent Pakistan (Amnesty International 2008). The new setup upheld the Pakhtoon tribal justice system based on the Jirga (council of elders) to which the head of the various Agencies (the political agent in each case) used to refer civil and criminal affairs. Based on the arguments from opponent parties, the Jirga gave a verdict about the guilt or innocence of either party. Such verdicts were based purely on tribal rewaj (custom), rather than religion (Rakisits 2008).

The Provisional Constitution Order of Pakistan 1947 had no special provisions for the tribal and special areas. However, “[I]n Chapter 2 of the Constitution of 1956, in the territorial clause on Pakistan, the Tribal Areas and Frontier Regions were mentioned along with … [KP]’. In the Constitution of 1962, higher judiciary had jurisdiction over Tribal Areas/Frontier Regions but later on an amendment was made in Article 223 (5) to erase the jurisdiction of higher judiciary over the Tribal Areas. The Constitution of 1973, for the first time, made a territorial and geographical division of the Tribal Areas by bifurcating them into Provincially Administered Tribal Areas (PATA) and Federally Administered Tribal Areas (FATA) (HRCP 2005). 14

The FCR was amended once again in 1954, but interestingly, in April 1962, when the law was extended to Shahdadkot (in district Larkana), Sukkur, Sargodha, and Shikarpur, it was withdrawn immediately (Alaiwah 2008). 15

Before 1970, FATA had no regular court procedure. In 1970, jirga (informal assembly of elders) type court procedures were initiated, but they were not well-structured. Until 1978, Assistant Political Agents could not exercise powers under the FCR but later they started wielding powers (HRCP 2005)