THE verdict given by Frontier Crimes Regulation (FCR) Commissioner in the case of Dr Shakil Afridi exposed shortcomings in the judicial system enforced in Federally Administered Tribal Areas (Fata) for the last over a century.

Peshawar Commissioner Sahibzada Mohammad Anees, who has been delegated powers of FCR commissioner under section 48 of the Regulation, on Aug 29 set aside conviction of Dr Shakil and sent the case back to Khyber Agency political agent for re-trial.

Dr Shakil, a former agency surgeon, was arrested in May 2011 on suspicion of helping the American CIA to track down Osama bin Laden through a fake hepatitis vaccination campaign in Abbottabad.

However, he was not convicted for that offence and instead was found guilty by an assistant political agent in his capacity as additional district magistrate on May 23, 2012, of having links with militants, especially those belonging to Bara-based proscribed organisation, Lashkar-i-Islam.

The APA sentenced him to prison terms on different counts totalling 33 years imprisonment.

Section 50 of FCR provides that the appellate authority, which is the commissioner, should decide an appeal within 60 days. However, in the instant case the commissioner took around 15 months just to remand the case back without touching its merit.

Interestingly, the FCR commissioner has delivered a single-page judgment wherein he did not mention any specific legal ground for remanding back the case for re-trial. The only reason he has given in the verdict for remanding the case back is: “I am of the view that such a serious nature case should have been tried by the political agent himself under proper law and rewaj so as to ensure absence of iota of any doubt regarding merit and transparency. Therefore, the subject case is remanded back to political agent/session judge Khyber Agency in order to weigh afresh the pro and against arguments of both the parties under law and rewaj.”

The commissioner ruled that the appellant would not be released on bail till the final conclusion of the case.

The Code of Criminal Procedure (CrPC) 1898, which is the procedural law for criminal cases, was extended to tribal areas by the then British governor general through a notification on Sept 3, 1939.

However, its provisions have rarely been followed and the procedural law is FCR 1901 under which in civil and criminal cases council of elders has been constituted and on the basis of its findings the political agent or the APA passes the order.

Interestingly, the administrative officers in an agency have been supervising administration, prosecution and judicial system. In such circumstances there could be no hope of a fair trial in the tribal areas.

Section 11 of FCR is the most important section in criminal cases. It provides whenever an offense of which the PA is competent to take cognisance is committed, the case shall be registered and the accused shall be produced before the APA within 24 hours of the arrest. The PA shall refer the case to the council of elders for finding of guilt or innocence of the suspect and the council after holding necessary inquiry and hearing the parties and witnesses, submit its findings to the PA.

On receipt of the findings of the council, the PA may pass an order in accordance with the findings of the majority of the council or remand the case to the council for further inquiry and findings.

Through the Constitution (Eighteenth Amendment) Act 2010, Article 10-A was incorporated in the Constitution of Pakistan which states: “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.” This provision can be implemented in rest of the country, however, the inhabitants of Fata are not fortunate enough to even think of a fair trial.

The Qanoon-i-Shahadat Order 1984, which is the law of the evidence in rest of the country, has so far not been extended to Fata.

Similarly, the provisions of CrPC related to recording statement of a witness in a criminal case have also not been followed. Section 164 of CrPC empowers a magistrate to record confessional statement of a suspect or a witness in a case.

The accused person has the right to cross-examine a witness appearing against him in a court of law, but in Fata there is no concept of cross-examination of prosecution witnesses.

The appellate forum also consists of the commissioner, who is an administrative officer and not a judicial one. Similarly, a decision of the commissioner can be challenged before a three-member Fata Tribunal through a revision petition.

However, presently, two of the members of the tribunal are retired government servants and the third one is a lawyer. Thus, this tribunal also can’t be called a judicial forum independent of the influence of the executive.

“Apparently, there is no use of sending back the case to the PA as he is part and parcel of the same oppressive system and can’t make an independent decision,” said Advocate Samiullah Afridi, the lead counsel of Dr Shakil Afridi.

He said that the PA had to reconstitute council of elders and it would have to give fresh findings on the charges levelled against Dr Shakil. The counsel alleged that in the earlier trial his client was convicted in a single day.

“Article 275 of the Constitution provides that the judiciary should be separated from the executive, but that provision has not been implemented in Fata where executive officers have been performing as judicial officers,” said Noor Alam Khan, an advocate of the Supreme Court.

He said that unless the jurisdiction of superior courts including the Supreme Court and Peshawar High Court had not been extended to tribal areas fundamental rights provided in the constitution could not be enforced.