Grave injustice is often done to hapless citizens because members of the Jirgas are not neutral and vote in favour of members of their own clans or sub clans. There are no checks and balances with the political agent being the executive head, as well as the magistrate, Sessions judge, and revenue magistrate. With most of the powers concentrated in a single office, the justice system is invariably taken for granted (Bangash 1996). The decisions of Jirgas “are obnoxious to all recognised modern principles governing the dispensation of justice”. (PLD 1954: 228) 22

One of the worst aberrations of the FCR is the collective punishment clause no. 21, which is imposed on anyone in the tribal area for a crime committed by his or her relative, spouse, or even a person from the same tribe and area (Amnesty International 2008).

Again, among the most damaging provisions in the FCR is the “seizure/confiscation of property and arrest and detention of an individual without due process, barring a person in the tribal areas from entering the settled districts”. (Rana 2009) This provision also falls under section 21 of the FCR mentioned above, which is known as ‘Collective Responsibility Clause’. Under this clause, if an offence is committed by one person, his or her whole family/tribe is made responsible for the act and can also be arrested and their properties seized. Moreover, the FCR says that arrested persons will not be permitted to contact the Government of Pakistan and nobody from Pakistan may contact or trade with these people.

In section 6 of the FCR, sentence of whipping is allowed which has been abolished in Pakistan through the Abolition of the Punishment of Whipping Act 1996.

Under section 23 of the FCR, all the members of a village are considered responsible for a murder if a dead body is found in their village. Under section 22 and 23, fines are imposed on the entire community for the crimes of a single person. In section 56, if fines are not paid by relatives, then the property of an offender is sold to realize the amount due.

Under the FCR, publishing of a newspaper, journal or any other publication is not allowed (Shinwari 2005). 23

The only positive provision in the FCR, in the view of human rights organizations, is that it does not provide for the death penalty (Amnesty International 2008: 5) whereas sentence of death penalty is awarded by the courts throughout Pakistan.

From time to time, the FCR has been challenged in the courts on the grounds that the regulations negate fundamental human rights. In most cases judgments have been passed against the FCR, and even against the provisions of the Constitution which stop High Courts and the Supreme Court from intervening in the judicial and administrative affairs of FATA. In 1975, the Supreme Court of Pakistan in the case of Chaudhry Manzoor Elahi versus Federation of Pakistan said that the High Courts are authorized to intervene in the tribal areas. In 1979, the Balochistan High Court termed many provisions of the FCR as un-Islamic.24 On 29 July 2002, the Lahore High Court termed the FCR as void law after the Balochistan High Court's judgment of 1979, and therefore, detention under the FCR was unlawful. In the same order, the Lahore High Court directed the authorities to release Qimat Gul who had been detained for more than two years without any right of defence. Qimat Gul was detained under the FCR because he protested against the illegal occupation of his land by some influential person of the area.25