PESHAWAR: Dr Shakil Afridi, an agency surgeon deputed in Khyber Agency, was taken into custody by the law enforcement agencies in May 2011 on charges of helping the American CIA in tracking down Al Qaeda chief Osama bin Laden. For the past over three years, his case has been shuttling between different judicial forums created under the Frontier Crimes Regulation (FCR).

Presently, his revision petition has been pending before the Fata Tribunal, the third and last judicial forum under the FCR. On Oct 16, the three-member forum once again issued directives to the tribal administration of Khyber Agency to produce record of his case so as to proceed further in his petition.

For the last over a year, no progress has been taking place in this petition due to non-availability of the record. The tribunal chaired by a former bureaucrat, Sange Marjan Khan, fixed November 18 for next hearing of the petition.

Over a dozen times, the hearing has to be adjourned, but despite repeated orders the administration is reluctant to produce the concerned record.

The most interesting aspect of Dr Afridi’s case is that he was arrested for aiding the US in tracing Osama bin Laden, but had not been convicted for that offence. He was convicted in 2012 on different counts of aiding and supporting banned outfits including Bara-based Lashkar-i-Islam. Despite the hype created in media by the authorities, the charges of “spying” for the US has not been proved against Dr Afridi before any court.

The assistant political agent of Bara, Khyber Agency, had convicted him on May 23, 2012, and sentenced him to 33 years imprisonment on different counts along with fine of Rs320,000. The APA, in his capacity as additional district magistrate, had found him 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 FCR Commissioner, the appellate forum under the FCR, in March 2014, upheld his conviction but reduced his sentence to 23 years and fine to Rs220,000. Aggrieved with that judgment of the commissioner, he filed the instant petition, which has still been lingering on.

The prime evidence against Dr Afridi is an eight-page investigation report of the joint Investigation team, which claimed that he was handed over to it by the tribal administration. This claim is contrary to the reported stories that he was taken into custody by an intelligence agency.

The eight-page report, which is in Urdu language, explains his links with different banned outfits in Bara. However, important details are regarding his attachment to foreign intelligence agencies. The details given in the report about how his foreign handlers used to carry him in their vehicles are like an action/thriller movie.

It is claimed that while taking him to the meeting points in Islamabad, the handlers used to conceal him under a blanket in rear seat of the vehicle. The report also gives details about how he carried out a fake vaccination campaign in Abbottabad, which proved helpful to trace Osama bin Laden.

Ever since his arrest, his case has taken several twists and turns. The most interesting aspect of the whole episode is that the quarters concerned are shy of trying him for the offence of aiding American CIA. While the offence, if any, had taken place in Abbottabad, the authorities considered it appropriate to try him under FCR. One major reason for that deviation might be that the authorities wanted to keep him away from the regular judicial system, where he would have enjoyed several rights including that of a fair trial, production before a magistrate, counsel of his choice during trial, cross examination of witnesses deposing against him, etc.

About the charges of assisting the US, the APA, in his order, stated: “Though the JIT contains evidence of the involvement of accused in activities wherein he has been shown acting with other foreign intelligence agencies, all this evidence could not be taken into account for the lack of jurisdiction and with the recommendation that it may be produced before the relevant court for further proceedings under the law.”

The judgment of the APA was challenged on behalf of Dr Afridi by his brother Jamil Afridi before the court of FCR Commissioner, who set aside his conviction by the APA and remanded the case to the political agent. The FCR Commissioner had delivered a single-page judgment in August 2013 wherein he did not mention any specific legal ground for remanding back the case for re-trial.

The order of the commissioner was challenged 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 in March 2014 then upheld his conviction, but reduced his prison term to 23 years from 33 years.

An interesting aspect of the commissioner’s verdict was that it directed the political agent of Khyber Agency to prepare a case against the doctor over his involvement in anti-state activities in collusion with foreign intelligence agencies, for further proceedings before the competent court.

The tribal administration had also preferred to challenge that order and filed a petition before Fata Tribunal for enhancing sentence of Dr Afridi. That petition has also now been pending along with the main petition of Dr Afridi.

A former counsel of Dr Afridi, Samiullah Afridi, was also shot dead early this year in Peshawar, which shows the sensitivity attached to this case. Despite the fact that late Samiullah had withdrawn from this case, he continued to receive threats from unidentified persons and was finally gunned down.

Experts believe that while Dr Afridi has been propagated as a “US agent” his case should be referred to a regular court for proving those charges. While the said charges are present in the JIT report, those have yet to be proved before a court of law.

Published in Dawn, October 26th, 2015

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