View from the courtroom: Future of Dr Shakil Afridi depends on PHC now

Published June 3, 2019
“Under its jurisdiction, PHC is fully empowered either to acquit a convict while hearing his revision petition." — DawnNewsTV/File
“Under its jurisdiction, PHC is fully empowered either to acquit a convict while hearing his revision petition." — DawnNewsTV/File

The fate of Dr Shakil Afridi, who has been in detention since 2011 after taken into custody for helping American CIA in tracking down Al Qaeda’s Osama bin Laden, now depends on Peshawar High Court as his revision petition pending with the defunct Fata Tribunal has been shifted to the high court recently.

Dr Shakil Afridi, a former agency surgeon of Khyber Agency (now Khyber tribal district), has been engaged in a legal battle since his conviction by an assistant political agent (APA) of Bara tehsil in May 2012. Presently, he has been undergoing 23 years prison term on multiple charges of anti-state activities including extending support to militant outfits.

Since 2014, his revision petition had remained pending before Fata Tribunal, the third and final judicial forum constituted under the now repealed Frontier Crimes Regulation, without any noteworthy progress.

“As all the cases pending before Fata Tribunal have been transferred to the Peshawar High Court, therefore, the petition of Dr Shakil Afridi has also been shifted there and will now be heard by a bench of the high court,” said Dr Shakil’s counsel Qamar Nadeem.

He said that the legal team and family members of Dr Shakil Afridi had been pinning a lot of hopes on the high court as unlike the forums under the FCR, the judges of the high court had strictly been looking into available evidence on record while deciding a case.

The counsel said that after the vacations of Eidul Fitr, he would receive date from the court for hearing the petition. He said that he had twice tried to hold a meeting with Dr Afridi, who is imprisoned at Sahiwal Prison, but the prison administration did not permit his meeting, which was an injustice to his client. “How I am going to represent him when I can’t even meet him,” he questioned.

In May last year, FCR was repealed through Fata Interim Governance Regulation (FIGR) and there was no mention of Fata Tribunal in the new law due to which it became dysfunctional.

Through the Constitution (Twenty-Fifth Amendment) Act, 2018, the tribal areas were merged into Khyber Pakhtunkhwa and different status of Fata ended. Since then Peshawar High Court took several steps for starting regular judicial system in the merged tribal districts.

On March 8, 2019, an important meeting was held at the high court chaired by its registrar Khawaja Wajihud Din and attended by some senior judicial officers serving against different posts. The meeting outlined several suggestions related to cases pending before different forums functioning under the repealed FCR. It was suggested that the cases pending before Fata Tribunal as criminal revisions should be placed before the high court for appropriate orders.

A report of the Joint Investigation team (JIT), on the basis of which Dr Afridi was convicted, claims that he had supervised a fake vaccination campaign in Abbottabad that resulted in tracing Osama bin Laden.

On May 23, 2012, it was made public that Dr Afridi was tried by an assistant political agent/ additional district magistrate Bara on multiple counts under the mechanism given in section 11 of FCR.

The trial court convicted him on four counts including sedition, waging war against Pakistan, concealing design to wage war against Pakistan and condemnation of the creation of Pakistan. On three counts, he was sentenced to 10 years imprisonment, whereas on the fourth count he was sentenced to three years.

The trial court directed that his sentences should run consecutively so he had to undergo 33 years imprisonment. He was also fined collectively Rs320,000.

The trial court did not convict Dr Afridi over the charges of helping CIA claiming that it lacked jurisdiction and recommended that he may be produced before the relevant court for further proceedings.

Following his conviction, he was shifted to Peshawar jail and had been kept in solitary confinement with no one except some close family members allowed to meet him.

Initially, an appeal was filed before the FCR commissioner, the appellate forum under the FCR, which on August 29, 2013, disposed of the appeal with the observation 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/sessions judge Khyber Agency in order to weigh afresh the pro and against arguments of both the parties under law and Rewaj. However, the appellant will not be released on bail till the final conclusion of the case,” the commissioner ordered.

The order of the commissioner was challenged under section 55-A of FCR before Fata Tribunal, which on December 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 on March 15, 2014, again heard his appeal and upheld his conviction. However, the commissioner set aside his conviction under section 123-A (condemnation of creation of state of Pakistan) of Pakistan Penal Code (PPC), as that provision was not in the schedule of offences under FCR. His sentence was thus reduced to 23 years imprisonment with fine of Rs220,000.

The commissioner in his judgment also directed the political agent of Khyber Agency 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.

Dr Afridi challenged the order of the commissioner by filing the instant revision petition before the erstwhile Fata Tribunal.

The administration of Khyber Agency had also filed a revision petition with the tribunal against the reduction of his sentence, which will also now be heard by the high court.

“Under its legal jurisdiction, the high court is fully empowered either to acquit a convict while hearing his revision petition or to enhance his sentence over a petition filed by the state,” said Advocate Shabir Hussain Gigyani, an expert on criminal law.

He said that after the merger of Fata into Khyber Pakhtunkhwa, the previous forums functioning under the repealed FCR and FIGR became non-functional and the cases pending there would be heard by regular courts including the high court.

Published in Dawn, June 3rd, 2019

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