(This is the second in a three part series examining the Frontier Crimes Regulation in the context of the tribal areas of Pakistan)
Pashtunwali
It will be wise to examine closely some of the important principles within the concept of Pashtunwali. For this is closely connected to the reform of the system in the offing. It is fundamentally a honour code. It is a code, which has succeeded in curbing the strong individualism of the pathan. It enforces a rigid standard of behavior for guiding the community’s life and determines the standard of response of individuals and the tribe. It is a mixture of Islamic principles and Riwaj (tradition).
Its foremost principle is embedded in social deterrence of amazing proportions, in the concept of “badal.” It means revenge regardless of the cost or consequence. Revenge is the obligation placed on an individual or the family, which has been insulted or injured. Since the insulted also belongs to a clan and then a sub tribe, the insult thus becomes an obligation to be redeemed individually or collectively. Badal has no limits of time and space and the obligation remains till revenge is obtained (Spain:64).
The second important component of the Pakhtun honour code is “Melmastia,” or hospitality and protection offered to every guest. It goes to embarrassing proportions and there is no consideration that the hospitality will be reciprocal.
If an enemy gains entrance to his foe’s house, he can claim asylum from the host, irrespective of their previous relationship (Spain: 65). This principle has caused insurmountable problems for the tribesman and an administrative headache for the political agents. Its most recent illustration is Wana. The government had sought the surrender of foreigners, who were under the “melmastia,” of the Ahmadzai Wazirs. If the guests are surrendered, the honour code of the Wazirs would be shamed for generations to come. The same thing happens when a district absconder takes refuge with a tribesman.
As we note later, even the British had to swallow a bitter pill and could not penetrate the wall of “melmastia,” when someone committed an offence in the district and took shelter with the tribes.
The next important concept in the Pashtun honour code is “Nanawatai.” It literally means “entrance” or “coming in,” (Spain: 66). The weaker party usually employs it. When an enemy enters your home he is entitled to your protection under “melmastia.” If the person entering asks for forgiveness and atones for his actions of the past and the apology is accepted, then Badal is renounced. Nanawatai is surrender rather than sanctuary (Spain: 67).
It has been argued that Pashtunwali provides some sanity in an otherwise hostile environment of the tribes. It also provides the maximum amount of law and order. Besides Pashtunwali, there are two other sources of law for the tribesmen. The local customary law or “Riwaj,” varies from tribe to tribe. It deals with matters of inheritance, dower etc. The other source is sharia or Islamic Law. This is mainly confined to matters dealing with marriage. It may be noted that the Riwaj of inheritance does not correspond with sharia injunctions (Spain: 73).
Having failed to modify tribal behavior through punitive actions, the British accepted the supremacy of the jirga to control blood feuds and disputes about women and honour, through the Frontier Crimes Regulation (Caroe:353).
It empowered the magistrate in the frontier districts and Political Agents in agencies to have a case decided by the jirga. The jirga meant a group of tribal elders designated by the Political Agent and acceptable to both the parties who would make recommendations on a matter referred to them. It was mandated to give either a finding of guilt or innocence. In civil cases they gave their findings on an issue (Caroe: 353). The FCR provided punishments in criminal cases, which were in line with the punishments laid down in Riwaj. It was the sole law.
Until 1963, the FCR remained applicable in the districts and was used as a supplementary law in addition to the normal law. District magistrates normally applied FCR in those cases, where evidence was of poorer quality. In short it was a weapon to obtain conviction in dubious circumstances. It served neither law nor custom (Coen: 164).
Under the FCR, the presence of lawyers is not permitted. The parties have a right to address the jirga themselves. Consequently, the legal profession hates the FCR and attacks it as a black law.
Impact of the FCR
It would be over simplistic to conclude that the FCR 1872, had the same impact in the districts of the frontier as on the tribes. A penetrating analysis of the British dealing with the frontier districts through the FCR, found that the main purpose of the legislation was to create and protect the interests of a new elite of Pakhtun landowners and tribal elders, who looked to their colonial masters for protection of their interests and in return toed the line of the British (Nichols).
If the FCR is viewed with other laws like the Encumbered Estates and Court of Wards Act, it clearly indicated the intention to provide protection to the Khan. For example the lands of a bankrupt frontier Khan were put under court supervision instead of being transferred to the moneylender or other outside suppliers of credit, who was most likely to be a hindu.
It also permitted the British to dispossess a hostile Khan and the eventual restoration of property to a more pliant relative. It ensured the maintenance of loyalty of the larger elite family, while securing the economic strangulation of a recalcitrant Khan. It enhanced security of the British and at the same time evicting the rebellious from the enjoyment of landed wealth (Nichols: 183).
At the local level, the landed aristocracy of frontier districts, became more attached to British control apparatus, when it became apparent that the FCR 1872, could be used against one’s opponents by sponsoring conspiracies, if given a supportive push by an administrator against an opponent’s family. The 1880s saw this aspect best reflected in manipulation of the FCR in the rivalry between two contesting claimants for supremacy in the Hoti family of Mardan. Between Khawaja Muhammad and Shad Muhammad Khan. Once Khawaja Muhammad regained supremacy, he increased his holdings by suppressing Hindu tenants through the use of FCR – courtesy district administration (Nichols: 204-5).
Effectiveness of the FCR
Did the imposition of the Punjab Frontier Crimes Regulations 1872, bring down the crime rate in the districts? Did it help stop tribal raids and incursions into British India? Did it reduce the number of expeditions against the tribesmen? These are weighty questions indeed and demand an answer.
It has been noted that the rate of crime, increased in the Peshawar