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Dr Shakil Afridi, then working as agency surgeon in Khyber tribal region, was apprehended in May 2011 by an intelligence agency on the suspicion of helping the American CIA in tracking down Al-Qaeda chief Osama bin Laden. If the version given by the government agencies is believed to be true, it was a fake vaccination campaign carried out by Dr Afridi in Abbottabad which helped in tracing the world’s most wanted man.

He remained disappeared for a year and on May 23, 2012 it surfaced that he was tried by an assistant political agent, in his capacity as additional district magistrate, under the Frontier Crimes Regulation (FCR) and was convicted on multiple charges. Interestingly, while citing lack of jurisdiction the APA did not convict him of the prime allegation against him of acting as an agent of American CIA and instead recommended that he may be produced before the concerned court for further proceedings.

Ever since his conviction by the APA his case continued to linger on before different forums under the FCR and his legal battle is still far from over. Since 2014 his review petition has been pending before the Fata (Federally Administered Tribal Areas) tribunal, the third and last judicial forum under FCR. For over a year the tribunal continued to seek record of Dr Afridi’s trial from the tribal administration of Khyber Agency. Though the record has been submitted a few months ago, the state prosecutor is not available now for arguing the case.

The tribunal comprising its chairman Sange Marjan Khan and members Hussainzada Khan and Atif Nazir on Dec 1 took up for hearing the petition but due to unavailability of prosecutor had to adjourn the hearing to Feb 9, 2017.

The legal battle of Dr Afridi has taken different turns during the last many years. Initially, the APA had convicted Dr Afridi on different counts for supporting banned outfits, including Bara-based Lashkar-i-Islam. He was sentenced to overall 33 years imprisonment with a fine of Rs320,000. He was found guilty of conspiring to wage war against the country, concealing existence of a plan to wage war against Pakistan and condemnation of the creation of the State. The APA had ordered that the sentences provided on different counts should run consecutively.

An appeal was filed on his behalf before the FCR Commissioner, the appellate forum under FCR. The commissioner disposed of the appeal on Aug 29, 2013 and observed 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 to weigh afresh the pro and against arguments of both the parties under the law and rewaj. However, the appellant will not be released on bail till the conclusion of the case,” the commissioner ordered.

The order of the commissioner was challenged under Section 55-A of FCR before the Fata Tribunal, which on Dec 18, 2013 remanded the case back to FCR commissioner with the direction to pronounce a clear order regarding his trial by the political agent on charges of having links with a militant organisation.

The FCR commissioner in March 15, 2014 then upheld his conviction, but reduced his prison term to 23 years from 33.

The commissioner in his judgment also directed the political agent to prepare a case against Dr Afridi over his involvement in anti-state activities in collusion with foreign intelligence agencies, for further proceedings before the competent court.

Aggrieved with the said order of FCR commissioner, revision petitions were filed both by Dr Afridi as well as by the State. While Dr Afridi has challenged the upholding of his conviction, the administration has challenged the reduction in his sentence.

The most important evidence against Dr Afridi is an investigation report of a Joint Investigation Team (JIT), which claimed that he was handed over to the team by the administration. The eight-page report, which is in Urdu, explains his links with different banned outfits in Bara. The team had concluded that he was having deep relations with banned organisations and had also provided medical support to them. It was stated that out of greed he had worked for foreign agencies and for that purpose he had also received money from them.

The JIT had alleged that Dr Afridi had held 25 meetings with personnel of a foreign agency in which he was given instructions and particular targets and while following those instructions he had provided sensitive information to foreigners. “The suspect had played primary role in the Abbottabad OBL incident of May 2011, which had resulted in defamation of Pakistan across the world.”

An important legal question raised was that when Dr Afridi was taken into custody on suspicion of carrying out a fake vaccination campaign in Abbottabad – which is a settled district of Khyber Pakhtunkhwa – then why his trial was conducted under FCR in tribal area instead of a regular court. Experts believe that perhaps the government wanted to keep Dr Afridi out of the regular judicial system as he would have enjoyed different rights, including that of a fair trial and selection of a counsel of his choice.

The sensitivity of the matter could be judged from the fact that a former counsel of Dr Afridi, Samiullah Afridi was killed by unidentified persons early last year. Another counsel, Qamar Nadeem Afridi, said that his client was at a disadvantaged position as the panel of his lawyers had not been permitted by the government to meet Dr Afridi at the Peshawar Central Prison where he had been kept after his conviction in 2012.

Published in Dawn, December 5th, 2016