History of Jirga Laws in Khyber Pakhtunkhwa - Do Islamic Law and Jirga Laws had the same Historical Jurisprudential Approach?

Jirga, a historical legal antique has been an informal adjudication of Pakhtūns. In the present research endeavor conventional Jirga and its various facets had been critically examined from Sharī’ah perspective i.e. whether such Jirga and its procedure is based on Islamic law or not. Jarga bears a very close resemblance in terms of structure and procedure with Qad̝ā and Taḥkīm. Jirga has been simple with no binding implementation. Since 18th century and on-wards, Jirga has evolved into an informal institution of dispute resolution. The criterion for Jirga-Mārān, and Qād̝ī or Ḥākim, astonishingly, have been identical. Besides the free consent, justice dispenser (Jarga-Mār/Qād̝ī or Ḥākim) was supposed not be relative or party (himself) in the matter at all. The fuqahā, both classical and contemporary, have discussed the intermediation through Jirga. This study focuses on compliance and non-compliance of Jirga to Qad̝ā.

various suggestions, in the light of findings, indispensable for the dynamic improvement of this informal adjudication.

Methodology:
The typical methodology of qualitative research i.e. content analysis, technique has been used throughout the present work for the investigation of the issue. The contents, in terms of secondary data, have been carefully and exhaustively analyzed. Moreover, logic and reasons are being exploited in case of nonavailability of such data. Before application of such technique, the previous works Jirga's history, mechanism, structure and development found in numerous languages 11 are profoundly observed to avoid the material errors and bad citationsif any. A significant use of secondary data has been made from online books, printed books, magazine, relevant journals and appropriate websites. While doing Sharī'ah appraisal of any aspect of Jirga, the research endeavors of Muslim jurists, both classical and contemporary, have been resorted. However, work of the classical Muslim jurists is preferred more comparatively to that of contemporary Muslim juris; owing to the fact that the previous is more authentic than the latter. As the work focuses on various facets of Jirga from Sharī'ah compliance perspective, due diligence has been exerted to the possible extent to avoid biasness and partiality in argumentation.

Jurisprudential Sources for Jirga Laws in Khyber Pakhtunkhwa -A Historical Perspective:
Several thousand years ago, differences, being a natural phenomenon, had been occurred in Pukhtoons' societies. Instead of trivial nature, such conflicts even then needed to be resolved by Manżgaṛay ‫(منځګړې)‬ or Ṣālis, 12 (an impartial individual). Later on, dispute resolution through Sālis had got a new shape in the form of Jirga. . The Pukhtoon race, like other ethnic groups, tended to establish an assembly for themselves for resolving the local disputes. Sultan Mohammad Sabir had the same opinion by stating as, "One of the interesting fact about Five thousand years old Afghans' convention is they decided their matters in their way (Jirga)." 13 Pukhtoon, since that age, tried numerous systems to bring new changes to such informal way of dispute resolution. The princely states, for example, in Pukhtūn belt had established hierarchy of Mashir; Ḥākim; and Munsif as alternatives to Jirga. A regional renowned historian Sultan-i-Rome opines that in Swat (a district in Khyber Pakhtunkhwa), a judicial system was introduced by the then king. 14 This situation paved a way for the modern formal judicial system, primarily, in such areas. Nevertheless, people's still had faith in it; following its un-scripted rules sternly and wanted it, too, for their minor dispute resolution. History indicates that conflicts were either brought directly to the Jirga or it had taken, by itself, cognizance of all these. In case of conflict(s) between two individuals or tribes, the Jirga had to perform its function on two ways. The parties to the conflict, for instance, had to approach Jirga by themselves. In this case, it had to resolve the dispute; provided certain conditions were needed to be fulfilled by the conflicting parties. In the second situation, the Jirga itself went for intervention; bringing them for the resolution of dispute. The situation had more similarity with the Suo Motto 15 action where the competent court could take cognizance of an issue. 16 Moreover, in both situations the wāk (power of attorney) should be given to such members (of Jirga) before commencing the process of Jirga. 17 Additionally, the parties also had to avoid any sort of allegation of biasness on Jirga-Mār (the one or more people who administer the Jirga). Unlike the formal court, once the cognizance was taken by Jirga, it did not use to institute or file that issue in the form of documents. Usually, this traditional Justice system was not in habit to follow any enacted or written law for deciding the matters, however, in view of some historians, it used to follow a Narkh (Pushtun's Customary 18 Law or Constitution), Riwaj (Custom) and Sharī'ah (Islamic Law), too. 19 Being Muslims, the latter was followed more. Narkh was an un-written stringent customary law built-in in the minds of people. The Narkh could further be understood from known Pushtu proverb, ‫د‬ ‫اوځه»‬ ٔ ‫مه‬ ‫نرخه‬ ‫د‬ ‫اوځه‬ ‫کلي‬ «"Da kali uza da Narkha ma Uza" 20 meaning thereby, "better to leave the village but not Narkh". This implies that violation of Narkh was always remained very hard like any enacted statute of a country. The Jirga law had to vary from region to region due to variation in local needs and relevancy to the situation of a specific area. 21 It happened, though some time, that a particular district had used to adopt the Narkh of another area, state, agency and province; for some prominent reasons or due to government recommendations. On other hand, both civil and penal matters, as stated earlier, they used to follow Sharī'ah; as Pushtūn's Society was more harmonious to Islam and its teachings. 22 Owing to these facts, it can be said that their main source of justice dispensation had included Custom and Islamic Law, together. The decision pronounced by Jirga was always considered as sacred to break. However, as per view of the Naveed and Neha, only twenty percent (20%) people believed in its finality. The aggrieved, either had to request to form a new Jirga or go to the formal Justice system against it. 23 Main sources of Jirga, as described earlier, were Narkh and Sharī'ah. A matter, therefore, had to be brought after the fulfilment of two steps of essence. This was followed by the matter of execution. Usually, it is being thought that in the absence of law enforcing body, the rule of law becomes a dream and merely a bookish theory. However, the case of Jirga was entirely different. According to majority of scholars, particularly, those familiar with structure and mechanism of Jirga, it had a special force, known as tribal lakhkar, for enforcing its decision. Yousufzai and Gouhar offered another opinion in this regard by stating that Jirga did not use special force for implementation like Police rather its primary source was people's excommunication with one who did not abide by the decision. They further add that penal measures, in fact, had to vary from tribes to tribe and place to place. 24  The composition of Jirga was profoundly discussed by Danish and Anwaar. In their view, if the dispute occurred between / among the parties from the same tribe, intra-tribal Jirga, namely, Malakan and Spin Giri had to be constituted. However, if it occurred between / among the parties from different tribes, then, inter-tribal Jirga was used to hold; comprising of persons from the same or from different tribeswhatever the case may be. The Jirga was deciding, in addition to the above, the religious matter between two sects i.e. a mishap or a conflict arises between Shī'ah and Sunnī Qaum (tribe), it worked effectively. 37 Sherzaman Taizi, Hassan M. Yousufzai and Ali Gouhar had devoted their work on the selection criteria of Jirga-Mārān (members of Jirga). The substantial part of these conditions, primarily, revolved around the social activities, public interactions, age, experience, and alike. To exemplify the above, the regular presence of Jirga member in social events, namely: reaching farther villages for marriage ceremonies, child birth ceremonies and condolences. Additionally, the conspicuous attendance was considered utmost important, especially to elders in Hujra (Pukhtuns' community centre) for obtaining the remarkable understanding of history and Pukhtunwali. This clearly displays that one should know, at that time, the value of numerous aspects of Pukhtunwali. The first instance was Social aspect that included Melmastiyā (hospitality), Ghayrat (braveness), Namus (self honour and dignity); Legal aspect, comprising that included arbitration, mediation, negotiation. Additionally, he should be soft spoken, humble, sympathetic, honorable, upright, honest, well off, energetic and generous in spending for people. The entire structure of Jirga, sometimes, would be different than usual, particularly, when a man of wisdom would preside. In a heinous offence, for example, a Malak would act as an arbitrator or mediator while settling the dispute may impose Pesa (fine) on the violators of interim orders. 38 The composition of Jirga also differed with the variation of culture. In some Pakistani agencies area and some Afghani regions the composition of Jirga varied from tribe to tribe 39 and towns to villages.

Sharī'ah Appraisal of Historical Jirga Composition in Khyber Pakhtunkhwa:
The Jirga structure, of ancient time, can be possibly found in the legal spectrum of Sharī'ah. Study shows that institution of Jirga has the closest resemblance with Qad̝ ā and Taḥkīm. An attempt has been made in the following lines to point out their similaritiesto the last possible extent. Sharī'ah, indeed, recognized the basic criteria of Jirga composition in its few dominant legal concepts i.e. Taḥkīm and Qad̝ ā. The concept of Taḥkīm, thus, could be predominantly while the analogy of Qad̝ ā could be partly extended to Jirga-Mārān (the composition of Jirga). The first similarity had arosed at the level of persons who led these three concepts, technically called Qād̝ ī, Ḥākim and Jirga-Mār. Spin Giri (white bearded or gray haired elders), for instance, were the basic criterion for the selection of Marakachian (members of Jirga). Sharī'ah, on the other hand, marked the reputation of a man vital for becoming Qādī or Ḥakam (the administrator of Taḥkīm). 40 Moreover, the pre-requisite of Jirga-Mār was his adequate knowledge of Sharī'ah; referred as 'Spin Patki' in different local literature of Jirga and other social values known as 'Narkh'. In other words, knowledge always remained a dominant factor for the chief of Jirgain terms of appointment. The Fuqahā of four schools, on the same way, had offered a great emphasis on 'Ilm (understanding of Islamic Law) for the selection of Qād̝ ī and Ḥākim. 41 In addition, a Qād̝ ī and Ḥākim could consult Aḥli-'Ilm (the people of knowledge) for the clarification of any matter in Sharī'ahraised at different levels of a case. In the view of Māwardi, a renowned jurist, Muftī (religious scholars, primarily, those had the capacity to issue verdict) could be consulted. 42 The similarity, herein, comes to the spot as the Markachiān, too, could consult Spin Patki (elder people having knowledge mostly based on experience) in any matter in front them. The view that Mufti, to the least, could be consulted is in line with common sense, and, at the same time, in line with the old principles of Jirga. Social life of Jirga-Mār; meaning thereby how he was spending his social life, always considered a matter of great importance. 43 Sharī'ah, on the other hand, proposed principles for Hakam, Qād̝ ī and Shāhid (witness). In this connection, Islamic law had exhaustively asserted, for example; that he must not be insane, idiot, unsound mind, slave, Fāsiq (habitual violator of major Islamic Laws), deaf or dumb and not penalized in Hadd-e-Qazaf. 44 Some of these factors, of course, insured his moral standing in a society. Like Taḥkīm, free consent or Tarāđi (typically called Wāk in Jirga's terminology) was always considered prerequisite for the parties to Taḥkīm (Jirga). 45 On the same way, the Jirga-Mār should not be a party in his own case, and has to be entirely impartial. 46 The same principles were elaborated by Sharī'ah for Qād̝ ī. In this regard, Ibni Nujaim stated, "There should be no Qarābah; a relationship between Qād̝ ī and a party that stops a person from becoming a witness, like, being siblings, spouses, father, son and vice versa". 47 Following the same principle, neutral people could be selected/appointed for Jirga, such as, Spin Giri. In addition, as per principles of Islamic law, Qād̝ ī must be appointed by the state -so a forceful implementation of his decision could be made. Here at this point, the difference between a Qād̝ ī and Muftī could be comprehended. Following the same, Chār-Wāk (authoritative and influential elders) were there to implement a decision of Jirga.

Procedure in Jirga and its Sharī'ah Appraisal -Historical Perspective:
A well-groomed Society, at any age of time, keeps everything in order. In Pukhtūn society, too, the institution of Jirga had an organized but simple process; functioning in almost all hamlets of the Pashtūn indigenous population. A matter of dispute was, first of all, used to place before a Jirga by two ways. Firstly, such body of Jirga, on matters of grave concerns or public nuisance, use to take action on their own, technically called Suo Moto 48 in the modern common law. Some specific terms were used in Jirga for the same i.e. "Jirga manz ta ratlal" (intervention of Jirga) or "Pa Jargi tlal" 49 (interposing as Jirga). Secondly, the parties themselves would approach and request themselves (like filing a suit in the common law); 50 precisely pronounced, "Jargi ta khabara warkawal." Hence, the Jirga might take cognizance of civil suits, for instance, disputes on lands, collective forests or other natural resources within and without Khel (community), criminal cases, such as, theft, Marg and Jūbla (murder and injuries), 51 family matters, for example, Koranay Nāchāqi (domestic altercations or violence) in which cognizance was taken by a smaller gathering called Koranay Jirga (family Jirga). 52 On the similar token, Sharī'ah accredited the initiation of an issue to a body termed as Taḥkīm. 53 The concept of Suo Moto had broadly expounded by Imām Māwardi in his known book Aḥkām ul Sulŧāniyyah. 54 Once the cognizance was being taken by Jirgamārān, summonses in its ordinary typical mode, had to be communicated orally through a process server called, 'Nāi' (a barber). Besides his traditional duties, he had to carry confidential messages including summons. At some area of Khyber Pakhtunkhwa, he was also named 'Dum' 55 (a ballad singer). In case where a party was absent due to denial of attendance, or some other reason; the Jirga holders used to order the beating of a drum -a substituted form for serving a summon. The common law in Pakistan had quite a similar process for summoning the litigants; called ordinary and substituted mode of serving. 56 The above process, followed by Jirga for calling the disputing parties, having resemblance with that of Sharī'ah, primarily, the one adopted in Umayyad dynasty's judicial system. 57 Like contemporary courts, the division on the basis of jurisdiction could be found in Jirga. As a general principle, inhabitants, living in ambit of a particular Jirga, were the subjects of personal jurisdiction of that very Jirga. The territorial jurisdiction, indeed, was the most prevalent amongst others, such as, Ulasi Jirgah (tribal Jirga); where representation from each house called upon. It had jurisdiction in intra-tribal or inter-tribal issues, affecting the collective interest of a village in a tribe (within a defined territorial area). For instance, joint ownership of lands, forests, irrigation water and springs, being civil matters, fell in the ambit of Ulasi Jirga. 58 The criminal cases were dealt on the same way. Moreover, the territorial jurisdiction of Loya Jirga (grand Jirga) was always across the Pukhtūn belt of South Asia, especially, current Khyber Pakhtunkhwa, the north western side of Pakistan. 59 Similar was the case of south eastern provinces 60 of Afghanistan. This great and grand Jirga was called, primarily, when there had a common threat to the whole race. 61 The 'subject matter jurisdiction' could also be found in the mechanism of Jirga, typically called 'Shakhsi Jirga' (Personal Jirga). This type of Jirga had to be summoned when there was a family disputeboth of civil and criminal nature. 62 It would hear matters of smaller scale within the domain of a village. 63 This approach was adopted for saving the invaluable time of court. In Sharī'ah, on the other hand, the concept of jurisdiction minutely discussed by the jurists in classical work. Imām Rūyānī, the prominent Shāfi'ī, jurist said in this connection, " ‫لو‬ ‫ال‬ ‫يقلده‬ ‫أن‬ ‫وهو‬ ‫يصح،‬ ‫اخلاص‬ ‫النظر‬ ‫قلده‬ ‫أو‬ ‫املناكح،...‬ ‫دون‬ ‫املدينات‬ ‫يف‬ ‫نظر‬ ٍ ‫نصاب‬ ‫يف‬ 64 ‫خص"‬ ‫مبا‬ ‫وخيتص‬ ‫فيجوز‬ ‫املال‬ ‫من‬ ‫مقدر‬ Meaning thereby; "It is all right to assign a special jurisdiction to Qāḏī, that is, jurisdiction in civil matters and not family matters….or giving him monetary jurisdiction to a specified amount." He elucidated further that conferring a particular jurisdiction to a Qāḏī was acceptable in Islamic law. The accusation or 'alleged claim' of a Pariq (party) was not given worth until the Mukhālip (adverse party) had been given ample time to defend. 65 This rule was, however, not followed in stricto sensu. Most of the issues had to be resolved on the spot; giving defendant a shorter period to ponder. In some critical matters or in heinous crimes, contrary to this, defendants were given enough opportunity for arguing the issue -varying from a day to a week but not more than a fortnight. Giving opportunity to the defendant, on the other hand, was also recognized by Sharī'ah. In this regard a familiar statement could be found in the literature of Islamic law i.e., " ُ ‫ْم‬ ‫ال‬ ‫,"إنَّ‬ 66 meaning thereby, 'the plaintiff has claimed against you what do you say in this connection?' The word 'Taqūlu' is 'Fe'li Mudāri' (a tense in Arabic language, used both for present and future); had a reflection of the same. Owing to this fact, a Qāḏī, under Islamic law, was not allowed to decide a case until he had listened to the defendant properly. After giving due opportunity to both Pariq (parties), primarily, to the defendant for defense, he was either proven guilty or he used to confess. Such confession was used as evidence by the Jirga against him. Eventually, the penalty was inflicted upon him by Jirgamārān due to such confession. 67 Retraction from admission, or confession, however, was exceptionally rare occurrence due to number of reasons. Firstly, the resoluteness of Pukhtūns on truthfulness was embedded in their society. A famous Maŧal (proverb) offered the same idea, i.e. ‫د‬ ‫ھم‬ ‫سر‬ ‫پہ‬ ‫دار‬ ‫وايه‬ ‫رښتيا‬ meaning thereby, "even on gallows speak the truth". 68 Secondly, their social life was very much dependent on each other as they lived in closely knitted society under the norms of Pukhtunwali. 69 Retraction from confession, on the other hand, had minutely discussed by the Muslim jurists, predominantly, by the Hanafis. A prevalent legal maxim, in this school, i.e. 70 ‫بإقراره"‬ ‫مؤاخذ‬ ‫,"المرء‬ explained the same. 71 Conventional law, too, had the same maxim i.e., "habemus optimum-testem, confidante reum". Retraction in Fiqh, in contrast to Jirga, had a very elaborative nature. In this regard Imām Qārāfi, the eminent Māliki jurist, stated, "Resiling from Iqrār (confession or admission) is against Islamic legal system". 72 Shams-ul-Ai'immah, Imām Sarakhsi, had the same opinion. 73 The only exception to this rule was Jārimul Hudūd (fixed punishment cases), where retraction would help accused in mitigating the punishment from Hudūd penalties to Ta'żīr-crimes for which Islamic law does not provide fixed penalties.
Yousufzai and Gohar elaborated, while writing about the standard procedure followed by the Jirga, that burden of proof was always on a person who alleged the fact. He had to produce the witnesses who was supposed to swear, or took an oath on his wife 74 (of dissolution of marriage) to tell the truth before Jirga. If the plaintiff failed in presenting any kind of evidence, the defendant would swear by the Holy Qurān to clear himself. 75 This process, astonishingly, of hearing was, predominantly, identical to that of Sharī'ah, plainly explicated by Ibni Qudāma in a Hadīth-cum-legal maxim, ‫,"و‬meaning thereby, "Evidence is upon claimant and denier is to swear". 76 There were other procedural similarities, apart from the above mentioned, between Jirga and Sharīah. Spin Giri (Jirgamārān), being local, could witness the offences and infringements on daily basis in their locality. They, however, could not decide on the basis of their own knowledge. 77 Conversely, in Sharī'ah, Qāďī could decide on the basis of his knowledgethough with some exceptions. 78 Moreover, the time for disposal of a case was premeditated in Jirga system; nevertheless, offences of civil nature should be disposed off in shortest possible extent. Moreover, family suit and crimes were supposed to be swiftly reported to the concerned authority. 79 Sharī'ah, of course, had an accommodation for the concept of Taqādum (limitation) in its legal spectrum, primarily, in civil cases; starting from two years to thirty six years. Family matters, however, were not hit by Taqādum (limitation); owing to their peculiar and special nature. In Qisās (a heinous crime), fifteen years were recommended. Nonetheless, such period could be varied at the discretion of Sultān (head of state). 80 In case of Jirga, contrary to this, the limitation period was not that much considered and, therefore, an issue could be raised before it at any time. The enforcement of Jirga would take place through special tribal Lakhkar (forces), called Arbakyān 81 but later on, in Colonial structure, it was known as 'Khāsadār' in this belt (this area now consists of FATA and Baluchistan belt). 82 In Islamic law, comparatively to Jirga, offered an effective implementation mechanism through Ǭađā. 83

Implications of the Current Research:
This study highlights, with solid reason, the possible alternate of the formal judicial system of Pakistan in the form of indigenous Jirga. The tremendous history, in terms of its fructuousness for the people, this institution can still have an exceptional positive impact for the resolution of disputes at local level. However, such informal mechanism can also be introduced at institutional levelthough through substantive legislation.

Social Implications:
The back-bone for the stability in a society is, indeed, reliance and trust of people on their Justice system. It may be a blessing in disguise when the judicial system is under a heavy burden of pending cases, and an alternate comes to rescue it in the shape of Jirga. According to latest report of Law and owing to this fact, comparatively, more acceptable and convenient for Pukhtūns. In order to guarantee the effectual practice of Jirga, the Jirgamārān should not only be the Spin-Girī or 'Ulemas (those who understand Sharī'ah) of the society, but should also be acquainted with contemporary principles of justice and statutes. Having all these benefits, the importance of Jirga cannot be denied at any levelboth academic and institutional. Institutional Implications: The factual fruits of Jirga, of course, can only be obtained if its decisions are given binding nature by the legislature as formal adjudication. The police, on local level, should discourage the lodging of First Information Report (FIR) or complaint; advising the parties for opting Jirga Civil Judges, of all levels, should persuade the claimants not to file suits and refer their matters to Jirga. The decision of Jirga, later on, may be endorsed by respective court. Moreover, the Jirga's decision may be implemented as a sub form of Alternate Dispute Resolution and Arbitrationby one way or another. It, nonetheless, can also be implemented in the form of 'Negotiation', 'Mediation' or 'conciliation'. While enforcing its decision, the concepts of Sharī'ah, for instance, Ṫahkīm, Ṡulaḥ and Qāḋā should also be taken into account. It would help in rebuilding the trust of people. Additionally, it would minimize and cut down the long pending suits. Moreover, this would shave out hatred, burst out from filing frivolous and vexatious suits against each-other.

Conclusion:
Jirga is an ancient, prominent and non-formal judicial institution in Pukhtūns; resolving disputes of all nature -from ordinary civil trifles to state level crimes, amicably. This research endeavor has to investigate, at the first instance, the structure, procedure and development of Jirga from historical perspective, in comparison to Sharī'ah's typical concept of Ṫahkīm and Qāḋā. History elaborates that when a smaller group of Pukhtūns has grown larger, immense need of such institution has been felt. The main purpose of Jirga is, therefore, to systematically institute the matter in dispute; select visionary Spin-Girī, having knowledge of Narkh or Pakhtunwali. Moreover, Spin-Patki are also selected, having knowledge of Sharī'aha divine legal mechanism for solving the disputes. The prior consent of the parties is always deemed an indispensable factor before putting an issue to Jirga for resolution. The Prīkra (can be rightly called here award) is then executed, primarily, through Arbakyān; otherwise, through excommunication (social boycott). The party refuses to accept Jirga's decision, is sometimes banished through militia (Arbakyān) and is declared as Kabarjan (the arrogant). 85 The Jirga, historically, is very brief and simple in terms of its mechanism and structure, particularly, at its earlier stage i; comprising of two persons. Later on, it has gained power in many respects at 18 th century. The number of members, for instance, has been increased and named as Loya Jirga then. According to historian, Ahmad Shah Durrani has been selected as head of all Jirgas in the typical regime Pukhtūns. At 20 th century some drastic changes have appeared in its structure, however, the composition of Jirgamārān remained odd in number at all the time.