THE conviction of Dr Shakil Afridi by the assistant political agent of Bara, Khyber Agency, has given birth to several questions and also exposed lacunas in the controversial judicial system in vogue in the Federally Administered Tribal Areas (Fata).

In a blatant manner the APA while sentencing Dr Afridi after conclusion of a so-called trial under the Frontier Crimes Regulation (FCR) not only violated provisions of the FCR but also showed disregard to several judgments of the Peshawar High Court. Under the law the APA could not sentence a convict to more then 14 years imprisonment in any offence, whereas in the instant case he sentenced the convict to a total of 33 years prison term.

Just like Raymond Davis case when the Qisas and Diyat provisions of Pakistan Penal Code had caught international attention, the conviction of Dr Afridi has brought the colonial era law of FCR into focus and the enormous powers enjoyed by the administration in tribal areas are now under debate.

While the tribal administration has yet to release the order and complete details about the arrest and conviction of Dr Afridi, who was accused of assisting the American CIA in tracking down Osama bin Laden, so far the only information provided by the administration is that a council of elders was constituted under section 11 of the FCR and in the light of the findings of the council the APA convicted and sentenced the accused on four counts.

The officials claimed that Dr Afridi was sentenced to 10 years imprisonment each under sections 121 A (conspiracy to wage war against country or depriving Pakistan of its sovereignty), section 123 (concealing existence of a plan to wage war against Pakistan), and 123 A (condemnation of the creation of the state, and advocacy of abolition of its sovereignty) of PPC, whereas he was sentenced to additional three years under section 124 (assaulting president, governor, etc, with intention to compel or restrain the exercise of any lawful power) of PPC.

He was also fined to the tune of Rs320,000.

The controversial aspect of the issue is that the APA ordered that the four sentences would run consecutively and not concurrently, thus the total prison term of the convict is 33 years, which is contrary to the powers of the APA. Furthermore, different circles have also questioned the jurisdiction of the APA in the instant case as the alleged occurrence of conducting a fake vaccination drive for acquiring the DNA samples of Osama bin Laden’s family had taken place in Abbottabad, which is a settled district of Khyber Pakhtunkhwa province.

“There is no concept of fair trial under the FCR as the political agent is the administrative officer as well as judicial,” said Advocate Samiullah Afridi, secretary general of Fata Lawyers Forum. He added that the provision of the council of elders in the FCR was of no use as mostly the members of the council were hand in gloves with the administration and they used to toe its line.Section 12 of the FCR, after it was amended by the president in Aug 2011, provides that when a political agent of the district coordination officer, as the case may be, convicts a person he may pass sentence of imprisonment or fine or both for the offence provided that the sentence shall not exceed 14 years.

Previously, under the un-amended section 12 of the FCR the deputy commissioner (political agent) was empowered to sentence a convict for a term which may extend to seven years and subject to confirmation by the commissioner could also sentence a person to a prison term of more then seven years but not exceeding 14 years.

The power of the APA of awarding sentences to convicts was decided by the PHC in a writ petition on May 22. Despite a constitutional bar on the superior courts in exercising jurisdiction in Fata under Article 247, the high court assumed jurisdiction there observing that under the Constitution the tribal areas are part of Pakistan and this court could not sit as idle spectator and leave the people at the mercy of political agent.

A two-member bench of the high court headed by Chief Justice Dost Mohammad Khan ruled: “Constitution being an organic law is not to be interpreted in a piecemeal manner but all provisions contained therein have to be taken jointly particularly in cases when there are un-condonable violation of human rights or authority vested in political agent is grossly abused.”

The court accepted a writ petition filed by one Sahibzada, a resident of Khyber Agency, challenging the sentence awarded to him by the assistant political agent of Bara tehsil on May 18, 2003, in a kidnapping case. He was sentenced on two counts to seven years imprisonment and it was ordered that the sentences should run consecutively. The petition claimed that under the un-amended section 12 of the FCR and section 35 of the Code of Criminal procedure Code the APA was not empowered to sentence him to more than seven years in prison.

Similarly, in another case in Jan 2010, the PHC had accepted a writ petition of one Khairullah Khan, who was convicted and sentenced on four counts to a total of 44 years imprisonment. The court had ruled that the APA had no powers to convict the petitioner to more than 14 years in prison. As in that case the petitioner had already spent 18 years in prison, therefore, the court ordered to set him free.

Legal experts believe that Dr Afridi has now two options -- either to file an appeal under section 48 of the FCR before the commissioner with in one month of the pronouncement of his conviction or to file a constitutional petition before the superior courts challenging his entire trial on several grounds including depriving him of the right to fair trial.

“Through the 18th Constitutional Amendment Article 10A was inserted into the Constitution which guarantees that in any criminal charge against a person he shall be entitled to a fair trail and due process,” said Advocate Noor Alam Khan, a member of the Supreme Court Bar Association’s executive council.

He said that when the offence had taken place in Abbottabad it would have been appropriate to refer his case to a regular court instead of tribal areas. However, he compared the case of Dr Afridi to that of Dr Aafia Siddiqui, stating that in that case while the alleged crime had taken place in Afghanistan Dr Aafia was taken to US for trial and was convicted and sentenced by a court to around 86 years imprisonment.

He added that the sentence to Dr Aafia was much harsher as compared to that of Dr Afridi.