IN THE SUPREME COURT OF PAKISTAN 
(ORIGINAL/APPELLATE JURISDICTION) 
 
PRESENT: MR. JUSTICE MIAN SAQIB NISAR, HCJ 
 
 
MR. JUSTICE IJAZ UL AHSAN 
 
CONSTITUTION PETITION NO.24 OF 2012  
(Under Article 184(3) of the Constitution) 
 
AND 
 
CIVIL PETITION NO.773-P OF 2018 
(Against the judgment dated 30.10.2018 
passed 
by 
the 
Peshawar 
High 
Court, 
Peshawar in Writ Petition No.3098-P/2018) 
 
National Commission on Status of Women  
through its Chairperson, etc.                             (in Const.P. No.24/2012) 
 
Government of KP through the Secretary  
Law, Parliamentary Affairs & Human 
Rights, Peshawar & another                          (in C.P.L.A. No.773-P/2018) 
 
…Petitioner(s) 
VERSUS 
Government of Pakistan through its  
Secretary Law & Justice, etc.                             (in Const.P. No.24/2012) 
 
Ali Azam Afridi Advocate & Others                 (in C.P.L.A. No.773-P/2018) 
 
 
…Respondent(s) 
 
For the petitioner(s): 
Mrs. Khawar Mumtaz, Chairperson NCSW 
Mr. Sohail Akbar Warraich, Member NCSW 
Raja Abdul Ghafoor, AOR 
(in Const.P. No.24/2012) 
 
 
Mr. Abdul Latif Yousafzai, AG, KPK 
(in C.P. No.773-P/2018) 
 
For the respondent(s): 
Mr. Khurram Saeed, Addl.Att.G. 
Mr. Zahid Yousaf Qureshi, Addl.A.G. KPK 
Mr. Salman Talibuddin, A.G. SIndh 
Mr. Ayaz Swati, Addl. A.G. Balochistan 
Mr. Qasim Ali Chohan, Addl.A.G. Punjab 
Mr. Hamid Shahzad, Law Officer, Women 
Development Department, Punjab 
Mr. Ashiq Hussain, Deputy Director Women 
Development Sindh 
 
 
Respondent No.1 in person 
(in C.P. No.773-P/2018) 
 
Date of hearing: 
31.12.2018  
 
JUDGMENT 
 
 
MIAN SAQIB NISAR, CJ.-  
CONSTITUTION PETITION NO.24 OF 2012:- 
Const. P. No.24/2012 etc. 
- 2 - 
The genesis of the issues raised in the instant matter lies in the reality that in 
today’s day and age informal custom-driven parallel legal systems in the form 
of ‘council of elders’ or ‘kangaroo courts’ exist in the tribal areas, particularly 
in the north of the Province of Khyber Pakhtunkhwa (KPK), and in some rural 
areas of KPK, Punjab, Sindh and Balochistan. Petitioner No.1, the National 
Commission on the Status of Women1 (NCSW) along with the other petitioners 
who are members of NCSW and human rights activists have filed the present 
petition under Article 184(3) of the Constitution of the Islamic Republic of 
Pakistan, 1973 (Constitution) seeking declarations and directions from this Court 
on the legality of jirgas/panchayats etc. prevalent in Pakistan, thereby 
challenging their operation as adjudicating bodies awarding judgments, 
executing punishments and deciding family, civil, criminal and other 
disputes. Therefore the key question arising from the instant constitution 
petition is that whether, to the extent that these informal village or tribal 
gatherings act as courts in the form of jirgas/panchayats, etc. they are illegal 
under the law in place read with the international commitments made by 
Pakistan under various treaties/conventions?  
2. 
 
Learned counsel for the petitioners relied upon the cases of Mst. 
Shazia Vs. Station House Officer and others (PCrLJ 2004 Karachi 1523), 
Mst. Rahmat Bibi and another Vs. Station House Officer, Karan Sharif 
(PLD 2016 Sindh 268) and Government of Balochistan Vs. Azzizullah 
Memon (PLD 1993 SC 341) to contend that jirgas have been declared illegal 
by the Courts. Reference was also made to a research report titled “Women, 
Violence and Jirgas – Consensus and Impunity in Pakistan”2 (the Report) 
prepared by NCSW and certain recommendations were placed before this 
Court. The crux of the petitioners’ arguments is as follows:- 
i. 
The existence of these parallel bodies or kangaroo courts deprives 
the individuals involved therein of their right to enjoy their right 
                                                             
1 Established under the National Commission on the Status of Women Act, 2012 and its predecessor law, the 
National Commission on the Status of Women Ordinance, 2000. 
2 Published by the NCSW in June 2017. 
Const. P. No.24/2012 etc. 
- 3 - 
to life, liberty and justice and equal protection of the law and the 
right to be treated in accordance with the law thereby 
constituting a violation of Articles 4, 8, 9, 10-A, 14, 25, 34 and 37 
of the Constitution; 
 
ii. 
Efforts should be made by the State (under its obligations under Articles 
33 and 37 of the Constitution) and its three pillars to eliminate the 
patriarchal and inhuman practices in jirgas, panchayats and 
other similar bodies the decisions of which, as reflected in pages 
22 to 33 of the Report, are largely based on punishments wherein 
the women of the community are either traded as compensation 
or subjected to humiliating punishments for the crimes/offenses 
of their male kin thereby constituting a violation of Article 25 of 
the Constitution; 
 
iii. 
Jirgas/panchayats 
etc. 
reinforce 
unfair 
social 
norms 
by 
implementing the decisions of notable elderly men of the village or 
tribe on its socially and financially weaker members (women and the 
impoverished); such bodies convene in village gatherings to resolve 
disputes between parties where as a matter of culture and 
tradition, women are a rare sight and if involved in a dispute are 
usually being represented by their male kin which again is a 
violation of the right to due process and equality under Articles 
10-A and 25 of the Constitution; and  
 
iv. 
In light of the above mentioned widely prevalent circumstances in 
the rural and tribal areas, the internationally recognized 
principles of ‘due process of law’ and the ‘right of access to justice 
to all’ enshrined in different international treaties to which 
Pakistan is a signatory have been completely violated. 
 
The petitioners (in the constitution petition) have sought the following relief:- 
i. 
Jirga/panchayats etc., in the country ought to be declared illegal, 
unlawful, inhumane and grossly violative of the fundamental 
right to dignity;  
 
ii. 
In light of the violation of Articles 4, 8, 9, 10-A, 14, 25, 34 and 37 
of 
the 
Constitution, 
jirgas/panchayats 
etc., 
be 
declared 
unconstitutional and ultra vires for assuming the powers of 
courts;  
Const. P. No.24/2012 etc. 
- 4 - 
 
iii. 
Actions, proceedings, and orders of any jirga/panchayat etc., be 
declared as void and action be taken against those who have 
participated in such illegal activities; and 
 
iv. 
The respondents be directed to frame, amend and implement 
constitutional provisions and penal laws relating to illegal 
practices of jirga/panchayats etc. 
 
3. 
 
The learned Deputy Attorney General present in Court and the 
learned Additional Advocates General of Punjab, Balochistan, Sindh and KPK 
unanimously submitted that although efforts are being made by their 
respective Provincial Governments to eliminate any patriarchal practices 
prevailing in the Provinces, they are willing to extend any further support 
required to curb the illegal practices of honor killings, vanni, swara, karo kari, 
etc., that are not only violative of the fundamental rights of women under the 
Constitution but are also against the basic human rights guaranteed under 
the international conventions that Pakistan is signatory to in this regard, 
particularly the Convention on the Elimination of all Forms of Discrimination 
Against Women (CEDAW).3 
4. 
 
No objection was raised as to the maintainability of the instant 
constitutional petition under Article 184(3) of the Constitution. Even 
otherwise, it fulfils the two-fold requirement in the Article ibid in that it 
involves a question of public importance with regards to the enforcement of 
the fundamental rights under the Constitution as substantiated in various 
judgments of this Court.4 In Baz Muhammad Kakar Vs. Federation of 
Pakistan (PLD 2012 SC 923) it was held that “The Courts are obliged to exercise 
their powers and jurisdiction to secure the rights of the citizens against arbitrary violations”. 
Thus the question of maintainability stands decided.  
                                                             
3 Pakistan acceded to CEDAW on 12 March,1996 subject to the provisions of the Constitution. 
4 See Benazir Bhutto Vs. Federation of Pakistan (PLD 1988 SC 416), Al-Jehad Trust Vs. Federation of 
Pakistan (PLD 1996 SC 324), Muhammad Tahir-ul-Qadri Vs. Federation of Pakistan  (PLD 2013 SC 413), 
and Sindh High Court Bar Association Vs. Federation of Pakistan (PLD 2009 SC 879). 
Const. P. No.24/2012 etc. 
- 5 - 
5. 
 
 To answer the question involved, it is worthy to note at the very 
outset that the various terms, i.e. ‘jirga’, ‘panchayat’ and ‘faislo’, generally 
describe village or tribal gatherings, a common feature whereof is that one or 
more elderly men convene in order to settle a dispute of criminal or civil 
nature. While the terms used to refer to such gatherings may differ, to the 
extent that these act as an archaic form of informal courts that the rest of the 
world has long abandoned, they usurp the jurisdiction of ordinary courts of 
law. However it is essential to clarify that although, through the constitution 
petition, a general declaration with regards to the legality of informal courts 
such jirgas/panchayats etc. is being sought, there are certain customary and 
traditional sentiments attached to such terms and practices which do not 
necessary involve the holding of parallel courts but instead entail a gathering 
of village elders to resolve a dispute which can within the permissible limits of 
the law be settled outside of courts. Therefore, nothing in this opinion should 
be construed in a manner that any stigma or ill-feeling is attached to the term 
jirga or panchayat which may operate within the permissible limits of the law 
as outlined hereinabove to the extent of acting as arbitration, mediation, 
negotiation or reconciliation bodies/councils.  
6. 
 
Adverting to international law on the subject, it is pertinent to 
note that Pakistan is a signatory to the Universal Declaration of Human 
Rights (UDHR) since 1948, Articles 7 and 8 whereof are relevant which provide 
as under:-  
 
“7. 
All are equal before the law and are entitled without any 
discrimination to equal protection of the law. All are entitled to 
equal protection against any discrimination in violation of this 
Declaration and against any incitement to such discrimination. 
 
8. 
Everyone has the right to an effective remedy by the 
competent national tribunals for acts violating the fundamental 
rights granted to him by the constitution or by law.” 
[Emphasis supplied] 
Const. P. No.24/2012 etc. 
- 6 - 
In 2008, Pakistan became a signatory to the International Covenant on Civil 
and Political Rights (ICCPR), Articles 2 and 26 whereof provide for equal 
protection for all under the law and are reproduced below for ease of 
reference:- 
 
“Article 2 of the ICCPR: 
1. 
Each State Party to the present Covenant undertakes to 
respect and to ensure to all individuals within its territory and 
subject to its jurisdiction the rights recognized in the present 
Covenant, without distinction of any kind, such as race, colour, 
sex, language, religion, political or other opinion, national or 
social origin, property, birth or other status. 
 
2. 
Where not already provided for by existing legislative or 
other measures, each State Party to the present Covenant 
undertakes to take the necessary steps, in accordance with its 
constitutional processes and with the provisions of the present 
Covenant, to adopt such laws or other measures as may be 
necessary to give effect to the rights recognized in the present 
Covenant. 
 
3. 
Each State Party to the present Covenant undertakes: 
(a) 
To ensure that any person whose rights or freedoms as 
herein recognized are violated shall have an effective remedy, 
notwithstanding that the violation has been committed by persons 
acting in an official capacity; 
(b) 
To ensure that any person claiming such a remedy shall 
have his right thereto determined by competent judicial, 
administrative or legislative authorities, or by any other 
competent authority provided for by the legal system of the 
State, and to develop the possibilities of judicial remedy; 
(c) 
To ensure that the competent authorities shall enforce 
such remedies when granted. 
 
Article 26 of the ICCPR: 
All persons are equal before the law and are entitled without 
any discrimination to the equal protection of the law. In this 
respect, the law shall prohibit any discrimination and guarantee 
Const. P. No.24/2012 etc. 
- 7 - 
to all persons equal and effective protection against 
discrimination on any ground such as race, colour, sex, 
language, religion, political or other opinion, national or social 
origin, property, birth or other status.” 
[Emphasis supplied] 
 
From the above it is clear that the customarily negligible representation of 
women before such councils which already mirror a patriarchal and 
feudal/tribal set-up (a group of elderly men who subject financially weaker parties as well as the 
socially handicapped gender to arbitrary decisions) is a blatant violation of Article 2(1) of 
the ICCPR which enjoins upon all State Parties the duty to protect the human 
rights under the ICCPR regardless of social or national origin whereas Article 
2(3) thereof particularly emphasizes on the provision of an effective legal 
remedy. When these bodies posing as the dispensers of justice (council of 
elders/jirgas/panchayats etc.) themselves become the violators of the rights to due 
process and other human rights under the ICCPR, having no regard of the law 
as their word, wisdom and customs alone are law, Article 26 thereof stands 
completely ignored since in permitting such jirgas/panchayats etc. in some 
areas while the rest of the country is entitled to seek their legal remedies 
through the courts of law, we allow unabashed discrimination on the account 
of sex, language, religion, national or social origin, property, birth and 
financial status. Together, Articles 2 and 26 of the ICCPR and Articles 7 and 8 
of the UDHR, emphasize the importance of access to justice, which is both a 
right in itself and the means of protecting and restoring other basic human 
rights. The unchecked operation of these informal jirgas/panchayats etc. as 
courts creating their own barbaric punishments and unguided methods of 
executing sentences (as evidenced in the Report), amounts to acquiescence to 
injustice. The emphasis on the equal protection of law in these Articles 
reflects that if the State succeeds to protect the rights of only that segment of 
the society that is aware of their rights and is not victim to the chains of 
primitive culture and patriarchal tradition as opposed to affording such 
Const. P. No.24/2012 etc. 
- 8 - 
protection to the whole society, then it has failed in this duty in entirety. For 
the deprivation of one person’s rights cannot be justified by the lack of his or 
her own comprehension of those rights; it is the duty of the State to be 
conscious and vigilant of such rights on behalf of all the citizens whose rights 
it is obligated to protect under the Constitution and its international 
commitments.  
7.  
 
With 
regard 
to 
the 
discrimination 
faced 
by 
women 
in 
jirgas/panchayats etc., Article 15 of CEDAW is relevant:- 
 
“Article 15 of CEDAW: 
1. States Parties shall accord to women equality with men before 
the law.  
 
2. States Parties shall accord to women, in civil matters, a legal 
capacity identical to that of men and the same opportunities to 
exercise that capacity. In particular, they shall give women equal 
rights to conclude contracts and to administer property and shall 
treat them equally in all stages of procedure in courts and 
tribunals.” 
[Emphasis supplied] 
 
The foregoing Articles of UDHR, ICCPR and CEDAW places a responsibility on 
the State of Pakistan to ensure that all women in Pakistan have access to 
courts or tribunals, are treated equally before the law and that in civil matters 
identical legal capacity and opportunities are accorded to them as those 
accorded to men and they be treated equally in all stages of procedure in 
courts and tribunals. From the contents of the Report and the admitted 
modes of operation of the jirgas/panchayats etc. there remains no doubt as to 
the flagrant violation of Pakistan’s international commitments.  
8. 
 
Adverting to the Constitution, Articles 4, 8, 10-A, 25 and 175 
thereof are pertinent which read as follows:- 
 
“Article 4: 
Right of individuals to be dealt with in 
accordance with law, etc. 
Const. P. No.24/2012 etc. 
- 9 - 
(1) 
To enjoy the protection of law and to be treated in 
accordance with law is the inalienable right of every citizen, 
wherever he may be, and of every other person for the time being 
within Pakistan. 
(2) 
In particular:- 
(a) 
no action detrimental to the life, liberty, body, reputation 
or property of any person shall be taken except in accordance 
with law; 
(b) 
no person shall be prevented from or be hindered in 
doing that which is not prohibited by law; and 
(c) 
no person shall be compelled to do that which the law 
does not require him to do.” 
 
Article 8. 
Laws inconsistent with or in derogation of 
fundamental rights to be void. 
(1) 
Any law, or any custom or usage having the force of 
law, in so far as it is inconsistent with the rights conferred by 
this Chapter, shall, to the extent of such inconsistency, be 
void.” 
 
Article 10A. 
Right to fair trial: 
For the determination of his civil rights and obligations or in 
any criminal charge against him a person shall be entitled to a 
fair trial and due process.” 
 
25. 
Equality of citizens. 
(1) 
All citizens are equal before law and are entitled to 
equal protection of law. 
(2) 
There shall be no discrimination on the basis of sex. 
(3) 
Nothing in this Article shall prevent the State from 
making any special provision for the protection of women and 
children. 
 
175. 
Establishment and Jurisdiction of Courts. 
(1) 
There shall be a Supreme Court of Pakistan, a High 
Court for each Province and a High Court for the Islamabad 
Capital Territory and such other courts as may be established 
by law. 
 
 
Explanation… 
 
Const. P. No.24/2012 etc. 
- 10 -
(2) 
No court shall have any jurisdiction save as is or may be 
conferred on it by the Constitution or by or under any law. 
 
(3) 
The Judiciary shall be separated progressively from the 
Executive within fourteen years from the commencing day.” 
 [Emphasis supplied] 
 
Informal jirgas/panchayats etc. on account of having no legal validity, are 
absolutely unguided in their powers and decision making, often making 
arbitrary and unjust decisions as reflected in the Report. Article 4(1) of the 
Constitution goes further than Article 2 of the ICCPR by extending the right to 
enjoy the protection of law to every citizen regardless of where he is. 
Furthermore, persons who are not citizens are also given this right while they 
are in Pakistan. The value placed by the Constitution on the inalienability of 
this right to protection of the law for all can be gauged from the fact that this 
right is further extended to every other person for the time being within 
Pakistan. Article 4(2)(a) to (c) of the Constitution provides for the specific right 
to protection from any detrimental action with regards to life, liberty, body, 
reputation or property and ensures that no person is compelled to do 
anything or forbidden from any action unless the law specifically provides for 
the same. Another inalienable right is found in Article 10-A of the 
Constitution which states that each person be accorded a fair trial and due 
process for the determination of any civil right or violation thereof or 
determination of any criminal charge against a person. Article 25 supra 
provides for equality of both genders before the law and equal protection of 
the law. In general, honor killings for retribution of the patriarchal concept of 
honor or compelling women to be wed without their consent as a means of 
settling disputes is hit by Articles 4, 10-A and 25 read with Article 8 of the 
Constitution which enjoins that no custom in derogation of any fundamental 
right can prevail under the law.  
9. 
 
A perusal of the Report reflects substantial violations of the 
fundamental rights reproduced above; even otherwise none of the Advocates 
Const. P. No.24/2012 etc. 
- 11 -
General of the Provinces objected to the purported facts in the Report or the 
claims in the concise statement of the petitioners. While the noted 
fundamental rights guaranteed under the Constitution sufficiently embody 
the rights of equality before the law and access to courts and the right to an 
effective judicial remedy for the violation of the fundamental rights, it is clear 
from the facts and documents before us that in terms of its practical 
implementation the benefit has remained limited to mostly the urban 
population or where tribal/village culture does not have its strongholds. This 
excludes a significant percentage of women and men from the inalienable 
right of access to justice and even where the local residents do not wish to 
abandon their traditional jirga/panchayat etc. culture, it is the task of the 
executive and the legislature to ensure that the trichotomy of power is 
maintained and courts of law alone are responsible for dispensation of justice 
as per Article 175(3) supra. Even otherwise under Article 2(2) of the ICCPR, 
Pakistan is obligated to brings its laws in consonance with the ICCPR, which 
obligation is unqualified and of immediate effect as “A failure to comply with this 
obligation cannot be justified by reference to political, social, cultural or economic 
considerations within the State.”5 Thus all necessary steps must be taken by the 
State of Pakistan to ensure inter alia  the right to be treated equally by the law 
without any discrimination, regardless of the geographical location, language 
or local customs of the citizens of Pakistan.  
10. 
 
At this junction it would be worthy to note that the learned High 
Court of Sindh in Shazia Bibi’s case (supra) has fittingly pointed out the 
reasons why the operation of parallel kangaroo courts/council of elders is a 
violation of the principles of natural justice, due process and fair trial:- 
 
“37. 
 Generally speaking apart from the Supreme Court and 
High Court, there are two types  of Courts: (1) Criminal Courts 
                                                             
5 United Nations. ‘General Comment No. 31’, Human Rights Committee, CCPR/C/21/Rev.1/Add. 13 (2004) para 
14. 
 
Const. P. No.24/2012 etc. 
- 12 -
(2) Civil Courts.  The Cr.P.C. governs procedure of trial of 
Criminal Courts. Whereas the  C.P.C governs the procedure of 
trial of Civil Courts. The Courts created under any enactment of 
law are only authorized to deal with the matters mentioned 
therein and the persons to be tried. No other authority is 
empowered to decide such disputes or punish any offenders. A 
perusal of the Cr.P.C. reveals that it provides machinery for the 
punishment and prevention of offenses against sustentative 
criminal law. The object of Cr.P.C. is to ensure that an accused 
person gets a full and fair trial along with certain well-
established and well understood lines that accord with notions of 
natural justice.    
 
38. 
In Jirgas no specific procedure is followed. It is the whim 
and choice of the Jirga people to adopt any procedure even if it 
is detrimental to any party. Neither the principles of natural 
justice are followed nor well-recognized rules of evidence are 
adhered to.  They are free to pass a verdict on personal 
knowledge or hearsay. It is noticed that in Jirgas they only settle 
the disputes but do not do justice according to the law. At the 
conclusion of proceedings, the decisions are announced in the 
shape of punishment, fine or compensation. All the above acts 
are the functions of Courts of Law. No other authority or person 
has power to settle the disputes of cases except by the Courts of 
law or other authorities created under the statute and punish any 
person. The functions, which are exclusively to be performed by 
Courts of law, are being performed by the Jirgas thereby 
usurping the powers of Courts. As such the Jirgas are parallel 
Judicial System which by themselves are unlawful and illegal, 
therefore, any law do not protect them. Furthermore, no appeal 
is filed against the decisions of Jirgas are final which is also 
against the principle of natural justice.” 
[Emphasis supplied]   
 
The above extract amply elaborates on the dangers of tolerating the 
functioning of these parallel courts, stating that all that the judiciary/courts 
of law stand for is at stake if bodies such as jirgas/pacnhayats etc. are 
allowed to operate/function whimsically, arbitrarily and without due regard of 
any process of determination of fact, responsibility or guilt. Not only are 
Const. P. No.24/2012 etc. 
- 13 -
principles of natural justice at bay but these jirgas etc. follow no precedent 
nor are their decisions subject to any predictability or certainty, and personal 
knowledge and hearsay become tools for determination of civil rights 
violations and criminal charges. The impending danger in allowing societal 
customs to override the law and jurisdiction of courts is unacceptable in a 
functioning democracy and as the ultimate court of dispensation of justice, 
this Court is duty-bound to eliminate them and reducing them to mere 
arbitration councils if the parties involved in a civil dispute, willingly agree to 
arbitration through the council of certain elders of the village or tribe.  
11.   
The same is the position taken against such ‘communal courts’ in 
the Indian jurisdiction. In similar less-developed regions of India, the activities 
of the informal adjudicating bodies commonly known as panchayats or khap 
panchayats which are not codified in any law, have been declared to be illegal 
where they act as courts and overstep the boundaries laid down by the law as 
held in Arumugam Servai Vs. State of Tamil Nadu [(2011) 6 SCC 405], 
where the Indian Supreme Court opined that:- 
 
12.  
We have in recent years heard of "Khap Panchayats" 
(known as "Katta Panchayats" in Tamil Nadu) which often 
decree or encourage honour killings or other atrocities in an 
institutionalised way on boys and girls of different castes and 
religion, who wish to get married or have been married, or 
interfere with the personal lives of people. We are of the opinion 
that this is wholly illegal and has to be ruthlessly stamped out. 
As already stated in Lata Singh case6, there is nothing 
honourable in honour killing or other atrocities and, in fact, it is 
nothing but barbaric and shameful murder. Other atrocities in 
respect of personal lives of people committed by brutal, feudal-
minded persons deserve harsh punishment. Only in this way 
can we stamp out such acts of barbarism and feudal mentality. 
Moreover, these acts take the law into their own hands, and 
amount to kangaroo courts, which are wholly illegal. 
[Emphasis supplied]  
                                                             
6 Lata Singh Vs. State of U.P. [(2006) 2 SCC (Cri) 478]. 
Const. P. No.24/2012 etc. 
- 14 -
Moreover, in a recent judgment reported as Shakti Vahini Vs. Union of India 
and others (AIR 2018 SC 1601) the Indian Supreme Court introduced 
preventative, remedial and punitive measures to eradicate any khap 
panchayat wherein honor killings have been ordered with regards to inter-
caste or inter-religious marriages, on the grounds that:- 
 
“39. …The violation of the constitutional rights is the fulcrum of 
the issue. The protection of rights is pivotal. Though there has 
been constant social advancement, yet the problem of honour 
killing persists in the same way as history had seen in 1750 BC 
under the Code of Hammurabi. The people involved in such 
crimes become totally oblivious of the fact that they cannot tread 
an illegal path, break the law and offer justification with some 
kind of moral philosophy of their own. They forget that the law 
of the land requires that the same should be shown implicit 
obedience and profound obeisance. The human rights of a 
daughter, brother, sister or son are not mortgaged to the so-
called or so-understood honour of the family or clan or the 
collective. The act of honour killing puts the Rule of law in a 
catastrophic crisis. 
… 
41. …If there is offence committed by one because of some penal 
law, that has to be decided as per law which is called 
determination of criminality. It does not recognize any space for 
informal institutions for delivery of justice. It is so since a polity 
governed by 'Rule of Law' only accepts determination of rights 
and violation thereof by the formal institutions set up for dealing 
with such situations. It has to be constantly borne in mind that 
Rule of law as a concept is meant to have order in a society. It 
respects human rights. Therefore, the Khap Panchayat or any 
Panchayat of any nomenclature cannot create a dent in exercise 
of the said right.  
… 
47.  
The 'Khap Panchayats' or such assembly should not take 
the law into their hands and further cannot assume the 
character of the law implementing agency, for that authority 
has not been conferred upon them under any law. Law has to 
be allowed to sustain by the law enforcement agencies. For 
Const. P. No.24/2012 etc. 
- 15 -
example, when a crime under Indian Penal Code is committed, 
an assembly of people cannot impose the punishment. They 
have no authority. They are entitled to lodge a FIR or inform 
the police. They may also facilitate so that the Accused is dealt 
with in accordance with law. But, by putting forth a stand that 
they are spreading awareness, they really can neither affect 
others' fundamental rights nor cover up their own illegal acts. 
It is simply not permissible. In fact, it has to be condemned as 
an act abhorrent to law and, therefore, it has to stop. Their 
activities are to be stopped in entirety. There is no other 
alternative. What is illegal cannot commend recognition or 
acceptance.” 
[Emphasis supplied] 
 
12. 
 
In this milieu, it is evident that in order to eradicate the menace 
of jirgas/panchayats etc. in Pakistan as well, stringent and immediate action 
needs to be taken to the extent that they assume the power to adjudicate on 
criminal or civil disputes without being guided by any law and sometimes 
even without reasoned evidence or hearing the accused. Additionally, the 
legislature and the executive should consider strict disciplinary action against 
the law enforcement officers who are found to have been negligent in 
preventing the convening or executions of decisions of jirgas/panchayats etc. 
despite having knowledge of the same. When in the name of preservation of 
tradition these jirgas/panchayats etc. assume the powers of a pillar of the 
State, i.e. the judiciary, they threaten the very foundations of the rule of law. 
What these bodies in effect preserve is the unfair social constructs in the rural 
areas where the word and the arbitrary decisions of the elites, waderas, 
chaudhries, and persons of influence are treated as law for and imposed upon 
the socially and financially weaker parties. No procedural or substantive law 
dictates the proceedings these bodies conduct or the decisions they issue and 
these so-called decision-makers themselves are not required to be well versed 
with the law. Moreover, in the absence of any legal instrument regulating 
these jirgas/panchayats etc. the execution of the sentences given by them or 
Const. P. No.24/2012 etc. 
- 16 -
the enforcement of the decisions made by them are illegal since those who 
pass these decisions trespass the jurisdiction of the legislature and judiciary 
and those who illegally execute these decisions step into the jurisdiction of the 
executive. Serious concern in this regard was also expressed by the Lahore 
High Court in Hasnain Akhtar Vs. Justice of Peace (2015 YLR 2294) 
wherein it held that:- 
 
 “…the law of the land does not countenance/approve of 
deciding criminal cases through the intercession of the 
Punchayats/Arbitration 
Councils. 
Even 
otherwise, 
it 
is 
tantamount to bypassing and short-cutting the procedure 
provided for under the law.”    
  
In another judgment of the Lahore High Court passed in Muhammad Younis 
Vs. Nazar Ahmed (2013 YLR 139) it was held that the “so-called Punchayat has 
no legal sanctity to declare anyone guilty or innocent”.  Hence, unless these 
jirgas/panchayats etc., are acting strictly in the capacity of arbitrators, 
mediators or conciliators and not as courts they must be rooted out by the 
law enforcement agencies and the executive.  
13. 
 
In light of the above caselaw and Pakistan’s international 
obligations and those contained in the Constitution, it is clear that the 
manner in which jirgas/panchayats etc. function, they violate the 
fundamental rights guaranteed by the Constitution in the following ways: they 
interfere with the rights of citizens to enjoy equal protection of law and to be 
treated in accordance with the law due to the fact that they admittedly apply 
their 
own 
customary/tribal/feudal 
procedures 
and 
systems 
in 
the 
proceedings before such gatherings or councils; the decisions taken by such 
jirgas/panchayats etc. on the basis of customary/feudal/tribal laws are more 
often than not detrimental to the life, liberty, body, reputation and property of 
persons which (decisions) under the Constitution cannot given effect to except 
in accordance with law; and since the decisions given by such 
jirgas/panchayats are not bound by any law there is no way to ensure that 
Const. P. No.24/2012 etc. 
- 17 -
gross violations of rights are prevented; additionally at times they also prevent 
or hinder persons from doing that which is not prohibited by law and/or 
compels them to unwillingly commit actions which the law does not oblige 
them to do (for instance, hand over to the jirga/panchayat etc., persons that have been summoned or 
sentenced by it). Furthermore, as mentioned above with respect to Pakistan’s 
international obligations, the jirgas/panchayats etc. decide the civil rights and 
obligations of, or criminal charges against a person without a fair trial and in 
violation of due process, both of which he is entitled to under Article 10-A of 
the Constitution. Moreover, Article 25 of the Constitution which is in 
consonance with the principles of equality in Articles of the UDHR, ICCPR and 
CEDAW mentioned above, is also being flouted as the persons appearing 
before these jirgas/panchayats etc. are neither treated with equality during 
the so-called trial nor are they afforded equal protection under the law and 
there is rampant discrimination on the basis of gender, and status quo. All 
these features of jirgas/panchayats etc. are also in blatant contravention of 
the established law laid down by this Court, particularly in Malik 
Muhammad Mumtaz Qadri Vs. The State (PLD 2016 SC 17) wherein it was 
held that:- 
 
“The law of the land does not permit an individual to arrogate 
unto himself the roles of a complainant, prosecutor, judge and 
executioner.” 
 
Therefore, the law prohibits any person whether as a part of a body or council 
called a jirga/panchayat etc., or individually, from becoming a community-
anointed judge or executioner on the pretext of archaic customs; the law in 
Pakistan allows this role to specific individuals who are required to have 
adequate knowledge and experience of understanding, interpretation and 
implementing the law (judges and law enforcement agents respectively). The law places 
several procedural and legal chains on a judge when adjudicating on the 
rights, liabilities and/or criminal charges on a person, and it is only after this 
Const. P. No.24/2012 etc. 
- 18 -
process of finding of facts and determination of right/liability/charge under 
the law that a judicial decision is arrived at, as provided in the judgment of 
The Province of East Pakistan, etc. Vs. MD Mehdi Ali Khan, etc. (PLD 
1959 SC 387):- 
 
“The determination of every right or liability claimed or asserted 
in a legal proceeding depends upon the ascertainment of facts and 
the application of the law to the facts so found. It is a normal 
feature of the judicial process first to discover the facts and then 
to determine what rights and liabilities follow from application of 
the law to the facts found.” 
 
Hence any determination by any other body such as jirga/panchayat etc. 
which is obviously not bound by the above legal and codal formalities is 
against the law enacted by the legislature and the law laid down by this 
Court. Finally, it is pertinent to note that these parallel adjudicating bodies in 
the form of jirgas/panchayats etc., impinge upon the principle of separation of 
powers that is a vital feature of our Constitution [Article 175(3) thereof] as per the 
cases such as District Bar Association, Rawalpindi Vs. Federation of 
Pakistan (PLD 2015 SC 401), Shiekh Riaz-ul-Haq Vs. Federation of 
Pakistan (PLC(CS) 2013 SC 1308), Reference No.01 of 2012 (PLD 2013 SC 
279); and the existence of such jirgas/panchayats etc. which operate 
according to their own concept of so-called ‘laws’ is also in direct 
contravention of sub-Articles 175(1) and (2) of the Constitution which only 
allow for those bodies to operate as courts which have so been empowered or 
given the authority to operate under the Constitution or any other law. The 
question of the constitutionality and legality of allowing jirgas/panchayats, 
etc. to infringe on the jurisdiction of courts of law in determining civil rights or 
liabilities or determining guilt or criminal charges can be answered with the 
judgments of this Court which have unambiguously held that even courts 
established under the law may not adjudicate on a matter unless the 
jurisdiction to adjudicate on the same has been categorically granted to it 
Const. P. No.24/2012 etc. 
- 19 -
under some law. In this regard, the following extract from the case of S. M. 
Waseem Ashraf Vs. Federation of Pakistan (2013 SCMR 338) is pertinent 
which reads as under:- 
 
“…it may be mentioned that according to Article 175(2) of the 
Constitution…it is unambiguously clear that a bar, and a 
prohibition has been placed that “No” Court in Pakistan shall 
exercise any jurisdiction in any matter brought before it until and 
unless, such jurisdiction has been conferred upon it by the 
Constitution itself or under any law. The word “save” appearing 
in the Sub-Article has clear connotation of the word “except” for 
the purpose of construing the above, meaning thereby that “No” 
Court shall have the jurisdiction except as has been conferred 
upon it by the Constitution and/or law. It is a settled law that any 
forum or court, which, if lacks jurisdiction adjudicates and 
decides a matter, such decision etc. shall be void and of no legal 
effect.”   
 
Obviously then, when the law has been construed to have such strictly 
prescribed jurisdictional limits for courts of law, there remains no doubt in 
our minds that bodies such as jirgas/panchayats etc. cannot be allowed to 
adjudicate on any civil or criminal matters when neither have they been 
established under the law nor do they derive the jurisdiction to hear civil and 
criminal cases under the law. In such background, it is hereby categorically 
stated that the jirgas/panchayats etc. do not operate under the Constitution 
or any other law whatsoever to the extent that they attempt to adjudicate on 
civil or criminal matters. However, as mentioned earlier, they may act as 
arbitration, mediation, negotiation or reconciliation forums between parties 
who willingly consent to the same.   
14. 
 
Before parting with this aspect of the judgment, we deem it 
expedient to point out that it is the duty of the public at large to ensure that 
all crimes are reported to the police, however, where a crime goes unreported 
then due vigilance should be shown by the concerned local police station 
which is duty-bound to ensure that they on their own accord file first 
Const. P. No.24/2012 etc. 
- 20 -
investigation reports in this regard as are filed in cases of unlicensed arms 
and ammunition and narcotics. Where any complaints are received with 
regards to danger to life, liberty or property of a person on account of the 
decisions of jirgas/panchayats etc., immediate action should be taken by the 
police by firstly substantiating the veracity of the complaint and then by 
taking stringent action against all those found to be involved in their 
convening, operation as well as those aiding in execution of their decisions. 
Police stations in areas where these jirgas/panchayats etc. are more common 
should be heavily equipped with human resource and back-up support be 
readily available in order to deal with large crowds if the need arises. 
Accordingly, protection should be provided to the complainants. Confidence of 
the public in the police and the courts must also be increased and for such 
purpose the executive should provide for complaint centres or more informal 
means of approaching them so as to ensure that no one is deterred from 
seeking aid and protection of the law. Awareness should also be inculcated in 
the residents of the villages and tribal areas where such jirgas/panchayats 
etc. are prevalent, regarding their rights under the law as well as the 
consequences they face if they are found involved in these kangaroo courts in 
any way. The print and electronic media and non-profit organizations must 
also play their part in promoting such awareness for upholding of rule of law. 
At the risk of repetition it must be clarified that it is not the term ‘panchayat’ 
or ‘jirga’ etc., which is illegal but the act of them posing as courts and 
usurping the powers of a court of law which is illegal. There is no cavil to a 
form of informal alternate dispute resolution through these bodies for civil 
disputes where all parties involved are willing participants who seek an 
amicable resolution through a settlement within the permissible limits of the 
law. In fact, the Study on Informal Justice System in Pakistan – Evaluation 
Report7 presents a comprehensive roadmap to utilize these jirgas/panchayats, 
                                                             
7 Commissioned by the Sindh Judicial Academy; Prepared by Mr. Justice Saleem Akhtar (Principal Investigator), 
Mr. Justice Mushir Alam, Mr. Muhammad Shahid Shafiq and Mr. Iqbal Ahmed Detho.  
Const. P. No.24/2012 etc. 
- 21 -
etc. as mediation, arbitration and reconciliation centres. However, where 
tribal or village gatherings are held for purposes of arbitration or mediation, 
there should be no doubt that any settlement reached by these council of 
elders as arbitrators or mediators has no legal force and can only be enforced 
through courts of law so long as it is with regards to a civil dispute and the 
parties involved are willing to be bound by it. It goes without saying that even 
in such arbitrations/mediations/reconciliation, the representation of women 
cannot be through a male-kin if their rights are involved and they must be 
allowed an opportunity of personal hearing if they so desire.  
CIVIL PETITION NO.773-P/2018:- 
15. 
 
This petition has been filed by the Government of KPK challenging 
the impugned judgment dated 30.10.2018 passed by the learned Peshawar 
High Court declaring the FATA Interim Governance Regulation 2018 (FATA 
Interim Regulation) as ultra vires to the “extent of allowing the Commissioners to act as 
Judges; Council of Elders deciding Civil and Criminal matters; Constitution of Qaumi Jirga; 
Modified applications of Chapters VIII and XLII of the Code of Security; Third Schedule; 
administered area, and after one month from the date of judgment, any decision of Civil or 
Criminal nature would be void ab inito”. The substance of the respondents’ (writ 
petitioners) claim also partly echoes the same concerns regarding the issue of 
parallel courts and thus they and the petitioners in the constitution petition 
claim that the Council of Elders constituted under the FATA Interim 
Regulation and Qaumi Jirgas recognized therein create in the tribal areas of 
Pakistan an entirely different structure for adjudication with regards to civil 
disputes and criminal cases, which act parallel to courts within the territories 
of Pakistan and should be declared as unconstitutional and unlawful; that all 
civil and criminal matters within the territories of Pakistan, in light of Article 
175 of the Constitution which requires the separation of judiciary and 
executive, be adjudicated upon by the judiciary alone and any other formal or 
informal, legal or illegal bodies that pose as or attempt to act as courts in 
Const. P. No.24/2012 etc. 
- 22 -
such regard be declared illegal and against the spirit of the Constitution and 
the relevant authorities be directed to ensure the elimination for the same. 
16. 
 
At the very outset of the hearing the learned Advocate General for 
KPK states under instructions that there is no cavil to the unconstitutionality 
of the provisions of the FATA Interim Regulation and he does not wish to 
press the petition provided that a reasonable time of six months is granted to 
the Government of KPK to develop the required infrastructure, facilities and 
ancillary superstructure for courts of law in the area previously referred to as 
the Federally Administered Tribal Areas (FATA). The learned Deputy Attorney 
General, present in Court pursuant to the notice issued, conceded to the 
above statement of the Advocate General, KPK. Be that as it may, in view of 
the important question of law involved, this Court deems it expedient to make 
certain observations in this regard.  
17. 
 
The FATA Interim Regulation was promulgated by the former 
President Mr. Mamnoon Hussain on 29.05.2018 after which on 30.05.2018, 
Article 247(7) of the Constitution was omitted vide the Constitution (25th 
Amendment) Act, 2018 (25th Amendment) and through an amendment in sub-
Article (c) and the insertion of sub-Article (d) to Article 246 thereof, the areas 
defined as FATA as per Article 246(c) of the Constitution were merged with the 
Province of KPK. According to the preamble of the FATA Interim Regulation, it 
is intended to be an interim system of administration of justice, maintenance 
of peace and good governance in FATA however, after the inclusion of FATA in 
the Province of KPK through the 25th Amendment after two days of the 
issuance of the Regulation, we are now faced with a situation where these 
newly added areas to the Province of KPK despite being part of the Province 
are subject to an entirely different mode of dispensation of justice from the 
rest of the Province making a prima facie case for discrimination in violation of 
Article 25 of the Constitution which guarantees equality of all persons before 
the law as well as Article 4 which guarantees the right to enjoy the protection 
of law and to be treated in accordance with the law as well as the principles 
Const. P. No.24/2012 etc. 
- 23 -
laid down in the judgment of Government of Balochistan Vs. Azizullah 
Memon and others (PLD 1993 SC 341) as elaborated hereafter. 
18. 
 
According to the respondents (writ petitioners), in many ways, the so-
called interim dispute settlement system in the FATA Interim Regulation is a 
continuation of the obsolete means of settlement of disputes under the 
Frontier Crimes Regulation, 1901 (FCR). Prior to the omission of Article 247(7)8 
of the Constitution the jurisdiction of this Court and High Courts was 
expressly excluded with regards to any matter in relation to the Tribal Areas 
which included FATA as is evident from the language of the said 
constitutional provision:- 
 
“Article 247: Administration of Tribal Areas.  
(7) 
Neither the Supreme Court nor a High Court shall 
exercise any jurisdiction under the Constitution in relation to a 
Tribal Area, unless  Majlis-e-Shoora (Parliament) by law 
otherwise provides: 
 
Provided that nothing in this clause shall affect the 
jurisdiction which the Supreme Court or a High Court exercised 
in relation to a Tribal Area immediately before the commencing 
day.” 
[Emphasis supplied] 
 
Therefore, in deference to the above constitutional provision, no legislative 
instrument with regards to FATA including the FCR was ever examined on the 
touchstone of the Constitution by any superior court even though this Court 
had at several occasions expressed its opinion with regards to the lack of 
access to justice in the FATA area prominent amongst which are the 
observations of Justice A. R. Cornelius in Samundar Vs. The Crown (PLD 
1954 SC 228) wherein he held that:-  
 
“The process of decision provided under the Regulation [FCR] 
is 
also 
foreign 
to 
justice 
as 
administered 
by 
the 
                                                             
8 Which in substance is the same as Article 104(1) of the Constitution of 1956 and pari materia to Article 223(5) 
the Constitution of 1962. 
Const. P. No.24/2012 etc. 
- 24 -
Courts…Decisions of this nature are common enough on the 
administrative side, but they are obnoxious to all recognized 
modern principles governing the dispensation of justice. In such 
circumstances, it is impossible to preserve public confidence in 
the justness of the decision. That may be of secondary 
importance to an administrative agency, but it is of permanent 
importance to a Court of justice… 
… 
I am therefore clearly of the opinion that the proceedings which 
have been taken in the present cases are not to be regarded as 
proceedings in justice, but that they are from every point of view 
to be regarded as proceedings before an administrative agency, 
specially provided for the settlement of criminal cases, and 
specifically adapted to the conditions prevailing in frontier 
districts, at any rate at the time when the Regulation was 
enacted.” 
[Emphasis supplied] 
 
The same opinion was held by Justice Abdul Rashid (the then Chief Justice of 
Pakistan) in Samundar’s case (supra) in the following words:- 
 
“It is to be noticed that under Section 11 of the Regulation [the 
FCR] a particular official namely, the Deputy Commissioner is 
authorized to refer a case to the Council of Elders so that it may 
after making enquiries, such as may be necessary, submit its 
findings to the Deputy Commissioner, who thereupon, if he 
accepts the finding of guilt can convict and pass a proper sentence 
(Section 12) subject to revision by the Commissioner (Section 50): 
It is evident that an order of the above nature cannot be  
regarded as having been made judicially by a court of law.”  
[Emphasis supplied] 
 
Thus as early as 1954 this Court was of the opinion that proceedings under 
the FCR were in no manner regarded as proceedings by a court of law or 
proceedings in justice, but were merely administrative proceedings having no 
similitude to the modern principles of dispensation of justice. The 
observations of Justice Cornelius in particular reflect that this Court was 
aware of the consequences that such a system would have on public 
Const. P. No.24/2012 etc. 
- 25 -
confidence in the justice system and expressed his fear in this regard, 
nevertheless the constitutional bar to judicial review of the provisions of FCR 
under Article 247(7) of the Constitution prevented this Court from holding 
such legislation to be against the fundamental rights of the FATA people 
having no or at best limited access to any judicial remedy. The same opinion 
has been expressed more recently in a judgment of the learned Peshawar High 
Court in the case of Abdul Bari and 2 others Vs. Director Livestock (PLD 
2014 Peshawar 132) wherein it was held that:-  
 
48. 
Under the FCR, citizens are deprived of the right to 
appeal, right to legal representation and the right to present 
reasoned evidence. Besides collective punishment is provided in 
clause 21 of FCR, which is imposed on anyone in the tribal 
areas for a crime committed by him or her relative, spouse, or 
even any other person from the same tribe and area. The 
political agent or his deputy, the assistant political agent, enjoys 
unbridled powers both executive and judicial. There is no 
regulatory mechanism to check misuse of power by the political 
agent which often results in serious human rights violations. 
The suspects are tried by a tribal jirga or Council which 
submits its recommendations regarding conviction or acquittal 
to the political agent. The political agent makes a decision 
regarding conviction or acquittal and is not bound by the 
jirga's recommendations. The orders of the political agent 
cannot be challenged before the higher courts. In effect, there is 
virtually no separation of the judiciary from the executive in 
the FATA. 
[Emphasis supplied] 
 
It is evident from the foregoing judgments that the means of dispute 
resolution under the FCR was already recognized as redundant and there was 
an increasing need to drastically change the same in order to bring it in 
consonance with the ordinary courts of law which is in contravention of the 
principle of separation of powers (enshrined in Article 175 of the Constitution and in the 
general scheme of the Constitution) and any anticipated legislative change was 
Const. P. No.24/2012 etc. 
- 26 -
expected to remove these anomalies. However, no substantial legislative 
change in this regard was seen even in the FATA Interim Regulation until the 
25th Amendment wherein FATA was made part of the Province of KPK and 
Article 247(7) of the Constitution was omitted.         
19. 
 
One immediate consequence of the omission of Article 247(7) ibdi 
apart from the merger of FATA with the Province of KPK is that Azizullah 
Memon’s case (supra) becomes squarely applicable to the discriminatory 
treatment being faced by residents of FATA in terms of access to justice, 
wherein a similar legal instrument, namely the Criminal Law (Special 
Provisions) Ordinance, 1968 (Ordinance of 1968) was declared to be void by this 
Court in the noted judgment, holding it to be in conflict with Articles 4, 8, 9, 
25, 175 and 203 of the Constitution in the following words:- 
 
“In cases of violation of fundamental rights the superior Courts 
are empowered to issue direction to the Federal Government or 
the Provincial Government to bring the law in conformity with 
fundamental rights and/or enforce law and issue notification in 
that regard. The State as defined in Article-87 is bound to 
discharge its Constitutional obligations. In case of failure even 
the legislature and executive can be directed to initiate 
legislative measures to bring law in conformity with the 
fundamental rights.” 
 
It was held that in light of the precedent laid down by this Court, there is 
unanimity in the view that class legislation is forbidden and whereas 
reasonable classification for purposes of legislation is permissible, such 
classification must be founded on intelligible differentia and there should be a 
nexus between the classification and the objects of the legal instrument 
holding that persons or things similarly situated cannot be distinguished or 
discriminated while making or applying the law. The relevant paragraph reads 
as under:- 
 
Const. P. No.24/2012 etc. 
- 27 -
“…Thus, where the statutory functionary acts mala fide or in a 
partial, unjust, oppressive or discriminatory manner, his action 
can be challenged for violation of equality clause of the 
Constitution. In F.B. Ali's case PLD 1975 SC 506 the challenge 
to amendments in Pakistan Army Act and Ordinance IV of 1967 
was made inter alia as violative of equality clause of 1962 
Constitution. This Court repelled it on the basis of principles laid 
down in Waris Meah's case and observed that in this case if the 
Foreign Exchange Regulation Act had set up a Tribunal of 
exclusive jurisdiction, with a procedure different from the Code 
of Criminal Procedure, the challenge would not have succeeded 
as the offenders under the Foreign Exchange Regulation could 
validly and reasonably be considered a different class from the 
offenders under the ordinary law. Fauji Foundation's  case PLD 
1983 SC 457 ruled that legislation in regard to an individual can 
be made provided it is not discriminatory. In IA. Sherwani's case 
1991 SCMR 1041 after considering the judgments in F.B. Ali's 
case PLD 1975 SC 506, Abdul Wali Khan's case PLD 1976 SC 
57, Aziz Begum's case PLD 1990 SC 899,-Shirin Munir and 
others v. Government of Punjab PLD 1990 SC 295 and several 
judgments of the Supreme Court of India, the following 
principles were deduced- 
i. 
that equal protection of law does not envisage that every 
citizen is to be treated alike in all circumstances, but it 
contemplates that persons similarly situated or similarly 
placed are to be treated alike; 
ii. 
that reasonable classification is permissible but it must 
be founded on reasonable distinction or reasonable 
basis;  
iii. 
that different laws can validly be enacted for different 
sexes, persons in different age group, persons having 
different financial standings, and persons accused of 
heinous crimes; 
iv. 
that no standard of universal application to test 
reasonableness of a classification can be laid down as 
what may be reasonable classification in a particular 
set of circumstances, may be unreasonable in the other 
set of circumstances; 
v. 
that a law applying to one person or one class of 
persons may be constitutionally valid if there is 
Const. P. No.24/2012 etc. 
- 28 -
sufficient basis or reason for it, but a classification 
which is arbitrary and is not founded on any rational 
basis is no classification as to warrant its exclusion 
from the mischief of Article 25; 
vi. 
that equal protection of law means that all persons 
equally placed be treated alike both in privileges 
conferred and liabilities imposed; 
vii. 
that in order to make a classification reasonable, it 
should be based--- 
a) 
on an intelligible differentia which distinguishes 
persons or things that are grouped together from those 
who have been left out; 
b) 
that the differentia must have rational nexus to the 
object sought to be achieved by such classification."  
 
[Emphasis Supplied]  
 
It is manifest from the above principles that classification is only permissible 
under the law where the same has been made on a rational and reasonable 
basis and although no singular standard of reasonableness can be deduced 
for such classification, it must be such that can be justified on an intelligible 
differentia identifying why the classification/distinction has been made and 
there must be a rational nexus to the object sought to be achieved by the 
classification. After the 25th Amendment, all the residents of the Province of 
KPK are similarly placed, there is no rational basis on which the people of 
FATA can be distinguished from the people of the rest of the province of KPK 
and thus the application of the FATA Interim Regulation to one part of KPK 
while the rest of the province enjoys the protection of the provincial laws is 
absolutely unjustified, grossly discriminatory and in contravention of the 
fundamental right to equal protection. Whether they be residents of FATA on 
one hand or of Peshawar or Mardan, etc. on the other, they cannot be 
discriminated against and any classification between them despite being 
residents of the same province, with no obvious or reasonably deducible 
distinction between them, will be arbitrary and against the recognized 
principles of natural justice and the rule of law. Thus, with the merger of 
Const. P. No.24/2012 etc. 
- 29 -
FATA in the Province of KPK, by applying the ratio of Azizullah Memon’s case 
(supra), it becomes expedient to ensure that all the residents of the Province of 
KPK (including the people of the erstwhile FATA) do not face any discrimination of the 
basis of their residential location and are accorded equal protection of the law, 
and their right to fair trial, access to courts and due process are secured. 
Nevertheless, it may be pointed out that as admitted in paragraph No.16 of 
Azizullah Memon’s case (supra), courts of law had already been established in 
every district of Balochistan and in this background it was more practical to 
expect a uniform system of administration of justice in the entire Province. In 
contrast, in courts of law are yet to be established in the erstwhile FATA for 
which both infrastructure and human resource needs to be developed and for 
this a certain time-frame may be required, as has already been requested for 
by the Government of KPK. However, the practical difficulties in enforcing the 
fundamental rights guaranteed under the Constitution cannot serve as 
enough reason to deprive the people of the erstwhile FATA from benefiting 
from such rights. At best, a reasonable time may be granted to the 
Government of KPK to ensure that courts of law are available in all parts of 
erstwhile FATA and that the laws applicable to the rest of KPK are made 
equally applicable to them.   
20. 
 
On grounds of discrimination which cannot be justified under any 
reasonable classification and the law laid down in Azizullah Memon’s case 
(supra), we hereby hold that the FATA Interim Regulation as a whole is declared 
as ultra vires on the touchstone of Articles 4, 8, 25, 175 and 203  of the 
Constitution. The omission of Article 247(7) from the Constitution through the 
25th Amendment is indeed a constitutional victory, however, this long-awaited 
change in the Constitution needs to immediately be reflected in the legal 
instruments governing the administration of justice in the erstwhile FATA. In 
recognizing the handicaps of adaptability of the local residents of FATA it 
must also be acknowledged that neither has the legislature nor the executive 
made any efforts to increase awareness or acceptability of courts of law in 
Const. P. No.24/2012 etc. 
- 30 -
FATA for the past seventy years when the lack of adequate judicial remedies 
had been pointed out by the judiciary as far back as 1954. If even today, the 
legislature and the executive fall shy of their duty to provide these people with 
the same system of administration of justice as in place in the rest of the 
country then as guardians of the fundamental rights of the citizens of 
Pakistan, this Court must step in and direct that adequate measures be taken 
on ground level to ensure that not only are courts of law put in place, but the 
faith, trust and belief of these people is built up with regards to these courts 
and enough awareness is spread so that they approach the doors of justice as 
frequently and as confidently as any other resident of KPK. As aptly held in 
this context by this Court in Azizullah Memon’s case (supra):- 
 
“The law should have real nexus with the object. It is not 
sufficient to decorate the act by making provisions which may 
seemingly look like complying with the demands of justice as 
required by the Constitution but the effective and operative 
provision may in application be violative of these provisions.” 
 
Quoting the words of wisdom of the then Chief Justice of the Balochistan 
High Court, Justice S. A. Rahman who, when faced with a similar situation of 
having to strike down a similar law on the touchstone of the fundamental 
rights guaranteed under the Constitution in Malik Toti Khan etc. Vs. 
District Magistrate Sibi and Ziarat (PLD 1957 Quetta 1), held that:- 
 
“I recognize that this decision may cause difficulties to the 
administration in Balochistan area where I understand that a 
sufficient number of judicial tribunals does not exist nor is 
adequate machinery for police investigation of criminal cases in 
existence. Such considerations, however, would be irrelevant 
when we are adjudicating on the effects of fundamental rights 
guaranteed by the Constitution. The remedy lies obviously with 
the legislature or with the executive authorities who can make 
good the deficiencies of the administration. The argument of 
inconvenience, cannot be allowed to override the Constitutional 
Const. P. No.24/2012 etc. 
- 31 -
provisions guaranteeing fundamental rights to all citizens of 
Pakistan.” 
 
We are sanguine that the argument of inconvenience will not be adopted by 
the legislature or executive in enforcing the fundamental rights of the people 
of FATA and realizing their right to access to justice thereby reinforcing 
equality before the law for all. Since time has been sought by the Province of 
KPK for development of infrastructure, six months are granted from the date 
of announcement of this judgment. The Federal and Provincial Governments 
are directed to take steps to spread a uniform system of courts of ordinary 
jurisdiction in KPK, mandating the local law enforcement agencies to ensure 
that the rule of law is observed by reducing jirgas/panchayats etc. to 
arbitration forums which may be approached voluntarily by local residents to 
the extent of civil disputes only.  
CONCLUSION:-9 
21. 
 
In light of the foregoing, Constitution Petition No.24/2012 is 
disposed of and Civil Petition No.773-P/2018 is dismissed as having been 
withdrawn, with the following observations:- 
i. 
The operation of jirgas/panchayats etc. violates Pakistan’s 
international commitments under the UDHR, ICCPR and CEDAW 
which place a responsibility on the State of Pakistan to ensure 
that everyone has access to courts or tribunals, are treated 
equally before the law and in all stages of procedure in courts and 
tribunals;  
 
ii. 
The manner in which jirgas/panchayats etc. function is violative 
of Articles 4, 8, 10-A, 25 and 175(3) of the Constitution; 
 
iii. 
Jirgahs/panchayats etc. do not operate under the Constitution or 
any other law whatsoever to the extent that they attempt to 
adjudicate on civil or criminal matters; however, they may operate 
within the permissible limits of the law to the extent of acting as 
arbitration, mediation, negotiation or reconciliation forums 
                                                             
9 Of both petitions. 
Const. P. No.24/2012 etc. 
- 32 -
between parties involved in a civil dispute who willingly consent 
to the same; 
 
iv. 
Since no individual or persons in the name of a jirga/panchayat 
or under any other name can assume the jurisdiction of a civil or 
criminal court without any lawful authority; any order, decision 
or a direction issued by any such individual or group of persons 
is hereby declared illegal and against the spirit of the 
Constitution; 
 
v. 
The law enforcement agencies all over Pakistan are duty-bound to 
be vigilant and ensure that if any crime has gone unreported, 
they of their own accord file FIR(s) with regards to the same and 
initiate the process of investigation; 
 
vi. 
If as a consequence of any illegal decision, order, direction or 
inducement of such self-appointed adjudicatory bodies any crime 
is committed, the offender as well as the individual or group of 
persons involved in aiding such jirga/panchayat etc. shall be 
jointly held responsible for the said offence and must be 
proceeded against in accordance with the law; 
 
vii. 
The police must ensure compliance with the general guiding 
principles laid down in paragraph No.14 of this judgment and 
standard operating procedures (SOPs) must be introduced by them 
within two months from the date of announcement of this 
judgment which should be circulated throughout the country 
with a compliance report to be submitted to this Court at the end 
of the two-month period; 
 
viii. 
After the 25th Amendment, all the residents of the Province of 
KPK are similarly placed, there is no rational basis on which the 
people of FATA can be distinguished from the people of the rest of 
the province of KPK and thus the application of the FATA Interim 
Regulation to one part of KPK while the rest of the province 
enjoys the protection of the provincial laws is absolutely 
unjustified, grossly discriminatory and in contravention of the 
fundamental right to equal protection; 
 
ix. 
On grounds of discrimination which cannot be justified under 
any reasonable classification and the law laid down in Azizullah 
Const. P. No.24/2012 etc. 
- 33 -
Memon’s case (supra), the FATA Interim Regulation is declared as 
ultra vires on the touchstone of Articles 4, 8, 25, 175 and 203  of 
the Constitution; and 
 
x. 
The Government of KPK is granted six months from the date of 
announcement of this judgment for the development of 
infrastructure to take steps to spread a uniform system of courts 
of ordinary jurisdiction in KPK, mandating the local law 
enforcement agencies to ensure that the rule of law is observed 
by reducing jirgas/panchayats etc. to arbitration forums which 
may be approached voluntarily by local residents to the extent of 
civil disputes only.  
 
 
 
 
CHIEF JUSTICE 
 
 
 
 
 
 
 
 
 
 
Announced in open Court 
on 16.1.2019 at Islamabad 
Approved for Reporting  
Waqas Naseer/* 
 
 
 
 
 
 
 
 
 
 
 
 
 
JUDGE 
 
 
 
JUDGE 
 
