Mukhtaran Mai verdict: Where the court went wrong

Published: April 24, 2011

Human rights activists are rightfully outraged that the Supreme Court's acquittal of five of the accused.

Human rights activists are rightfully outraged that the Supreme Court (SC) has upheld the acquittals of five of the accused in Muktar Mai’s case, except Abdul Khaliq. (The State v. Abdul Khaliq, Criminal Appeals No.163 to 171 and S.M. Case No.5/2005, hereinafter “Judgment”)

The case offers an opportunity to reignite the struggle and frame ethical principles that balance the right of the criminal defendant with the rights of victims of crimes.

On August 31, 2002, the Anti-terrorism Court (ATC) found the six defendants guilty of several offences under the Hudood Ordinance and the Pakistan Penal Code.  These included rape and aiding and abetting a rape. They were sentenced to imprisonment for life, a fine, six months rigorous imprisonment, given the death penalty and 30 stripes – the last two were subject to confirmation by the high court.

The Multan branch of the Lahore High Court on March 3, 2005 accepted their appeals, except that of Abdul Khaliq.

There were eight other defendants who had participated in the panchayat that ordered revenge on Mukhtaran Mai, and were charged for unlawful assembly.  All eight were acquitted by the ATC.

The criminal justice system must balance the victims’ rights with those of criminal defendants, who have a right to a fair trial, the right to competent counsel, the right to exhaust appeals, the right to cross examine the prosecution’s witnesses and be presumed innocent.

In this case the clincher for the SC was that unless there are grave and glaring errors of law and fact, a court will not disturb an acquittal even if a different conclusion could possibly be arrived on the evidence.  In principle this is a good stance.  A defendant who has been subjected to the state’s gruelling apparatus – police, detention, prosecution – and is then acquitted, is on moral high ground.  Justice Saqib Nisar calls this acquittal a doubling of the presumption of innocence (Judgment 30).

Sadly, though it isn’t about reasonable minds differing on the interpretation of the facts.  It isn’t even a technical acquittal as the court of first instance, the ATC, found them guilty.  An appellate court allowed their appeals. The Lahore High Court’s (LHC) “acquittal” was, as Aitzaz Ahsan (counsel for the complainant Mukhtaran Mai) argued, a misappraisal of evidence, speculative, arbitrary, and based on inadmissible evidence (Under the Pakistan: Code of Criminal Procedure 1898, signed statements to the police may not be used to impeach a witness. S. 162.  However, this apparently contradicts with the Qanoon-i-Shahadat, Sections 140 and 153).

Had the SC restored their convictions, they would be on solid legal ground.  But they chose not to – a choice that was political and calculated and that comes as a blow to the rights of the victims of sexual violence. In a country where rape is under reported and under prosecuted, Mukhtaran Mai endured shame and stigma, and valiantly sustained in her struggle to secure justice against rapists who were members of a socially more powerful group, the Mastois.

The SC decision, thus, seems a morally vacuous and cynical attempt to hide behind one moral principle (the rights of the accused) – while they perpetuate the status quo and allow the powerful to go unpunished.

Why I disagree with the decision of the Supreme Court

1. Doubting the role of Abdul Razzak, the imam who helped file the complaint

Justice Saqib Nisar’s decision is full of parochial opinions that have been passed as truisms.  These alone should be grounds for review of his decision.

His primary rationale in allowing the appeal and doubting the evidence is based on how he feels Abdul Razzak, an Imam, masterminded the case and coerced Mukhtaran’s family to lodge a complaint.  It is implied that the Imam had a bone to pick with one of the accused (Judgment 30).  This premise is refuted logically by the dissenting judge, Justice Nasirul Mulk who states that he was an Imam and:

“the Gujjars (Mukhtaran Mai’s tribe) were of a lower social status and… needed the intervention and support of men of some influence…” (Judgment (Dissent) 69).

This inferences made by a SC Judge (Nisar) seem misplaced – given that he probably was not present at the trial to evaluate the witnesses and hear the testimonies firsthand.

2. Finding that the victim complained because she could not marry the rapist

On at least two occasions, Justice Saqib Nisar expresses his suspicion that Mukhtaran Mai lodged a First Investigation Report (FIR) against the eight acquitted by the ATC on grounds that they participated in an unlawful assembly because she was slighted that the marriage arrangement whereby she would marry the rapist (Abdul Khaliq) and her brother Shakoor would marry his sister, Salma (Nasim), fell through.

He says that when Khalil married Salma on June 26th, 2002, she knew that the watta satta had failed and this annoyed her (Judgment 23). He speculates that this was their motive in filing complaints against Khalil and several members of his family as their role in the panchayat was marginal.

“[It is] rather conspicuously strange, that whole family of Khalil has been roped into the matter.  It seems that on account of this marriage the possibility of (watta satta) marriage extinguished and the complainant felt betrayed and deceived.” (P37)

To speculate that a rape victim has a desire to be married to her rapist and likening her to a scorned woman who has been rejected by an eligible groom is profoundly problematic. In fact, the more reasonable conclusion would be whatever settlement the Gujjjars may have been agreeing to was out of fear of violence from the other side, rather than an interest in marriage proposals.

3. Not believing Shakoor was raped

It appears Justice Nisar also never believed Shakoor, Mukhtaran Mai’s brother, was raped by Salma’s brother and two accomplices. The judge speculated on the prosecution’s claim that after Shakoor refused to promise that he would not tell anyone about his own rape, he was detained in the rapists’ house where Salma (his supposed paramour) also resided; he said this was “incomprehensible.”  That would be:

“Endangering and putting at stake, the virtue, the sanctity and respect of a young unmarried sister. This is absolutely not done or conceivable in our rural society, where people are very sensitive about the chastity of their womenfolk, especially young and virgin.” (Judgment 25)

At no point does he assess that this is a young boy who has just been raped, kidnapped, and falsely detained – a victim of a series of violent crimes. Instead the judge sees him as an aggressor and a threat to a girl’s chastity. Also, implicit in this statement is an acceptance, in line with patriarchal values that threats to a girl’s chastity (which could mean perhaps verbal contact with an outsider) are of paramount concern.

Justice Nisar is inserting his own concept of what is important in rural society. And to use this opinion to find Shakoor’s detention episode incredible – renders his decision unreliable and arbitrary.

The judge also finds it unbelievable that Shakoor would not report his rape out of shame.  This opinion is incompatible with current knowledge on the matter, and courts should elicit expert psychiatric testimony on this issue upon review of this SC decision.  Rape victims deal with trauma in different ways.  And Justice Nisar’s comments perpetuate the myth that male rape victims do not suffer as much as females, especially not young and chaste females, whose marriage may be at stake.

“It is strange that when Maulvi Abdul Razzak… along with the police arrived and rescued the boy, he did not apprise them that he is not the culprit, rather is a victim of sodomy; the explanation of the prosecution that it was due to shame that he refrained from the disclosure, does not go with the earlier prosecution’s version, when he had refused not to declare being sodomised and was thus confined with Salma. It is unbelievable that the boy for ‘shame’ would not tell the true story, lose the chance of liberty…  Strangely even in the police station did not reveal his sodomy to anyone.” (Judgment 26)

Again it is speculative to assume that all people would readily report they were raped if it would secure their release. This is a highly subjective matter and a lot would depend on the victim’s age, social status, the physical and mental pain they may be suffering, and the relative social standing of the perpetrators.

4. They didn’t rape her when she came to rescue her brother

Justice Nisar casts further doubt on the prosecution’s case by saying that when the alleged rapists had the chance to rape her when she went to inquire about her brother, they didn’t.

“If the intention of the Mastois was to take badla…. Mukhtaran Mai etcetera had gone to the house of Khaliq, without the company and protection of their men folk; this was a good opportunity for Khaliq or for that matter any other male of the family to settle the score, but no harm was caused to anyone.” (Judgment 25-26)

This boils down to the following- if a person is a rapist, they would just take the first opportunity to rape the victim.  It trivializes how rape is used to assert power and control – and is not about lust that any chance the rapist gets he would use it.  The opinion is unfounded and unsupported by current knowledge on rape as a crime of power and violence.

Courts are permitted to set aside acquittals if these are based on arbitrary and speculative findings.

5. They didn’t file the FIR right away and this shows they are lying

Counsel for Mukhtaran, Mr Aitzaz Ahsan, argued that there was a good reason for the delay in filing the FIR and negative inferences cannot be drawn against the prosecution on this account. However, Justice Saqib Nisar stated:

“The delay in each case has to be explained in a plausible manner and should  be assessed by the court on its own merits; in a case of an unmarried virgin victim of a young age, whose future may get stigmatised, if such a disclosure is made, time is taken by the family to ponder over the matter that situation cannot be held at par with a grownup lady, who is a divorcee for the last many years; the element of delaying the matter to avoid badnami may also be not relevant in this case because the incident according to the prosecution’s own stance was known to a large number of people and there was no point in keeping it a secret from everyone.”  (Judgment 36-37)

It is shocking to suggest that an older, divorced woman would hesitate less in reporting that she has been raped because presumably she has little to lose. The dissenting opinion seems more reasoned and states

“Delay in rape cases is a universal phenomenon and can be brushed aside…” (Judgment (Dissent) 62)

He further says that in fact, given the social disparities between the Mastois and the victim’s family, such delay was completely understandable. They were under fear of reprisal.

“A victim is deterred by the embarrassment and humiliation she would have  to suffer in narrating the incident to strangers, more so, to the police recording the FIR, followed by probes during investigation into matters personal to her…”

6. Doubting her testimony on her state of undress after the incident

The other obviously outrageous discussion in the judgment is about her state of undress and the constant use of the term “nudity” rather than the more neutral, culturally sensitive, less sensational term “state of undress” or “partial undress.”  The court cites to the inconsistency in her statements as to whether her shalwar was given to her in the room or thrown at her – without any contemplation on the context – that this is someone who has just been a victim of the most heinous crime – a gang rape.

“About the nudity aspect and the clothes and how allegedly those were thrown, the learned high court has pointed out the inconsistencies in the statements of the witnesses and has again arrived at a factual conclusion, which to our mind does not suffer from any factual or legal vice.” (Judgment 35)

7. Court finds she was not injured and there is no corroboration

The court also found that this case cannot be built on her testimony alone without corroboration and DNA tests even though Counsel for Mukhtaran gave ample legal support for how a victim’s testimony alone is sufficient for a rape conviction.  It was found that medical evidence “in the required quality” is missing.

“The absence of injures and marks on the body of a prosecutrix should not be the only factor to disbelieve her version in an ordinary rape case, but where a woman has been forcibly raped for full one hour, by four young individuals on the bare floor, it is not expected that she would not struggle and in the course would sustain no marks or injury.” (Judgment 42)

In fact the dissenting judge, Justice Nasir-ul-Mulk, states quite the opposite:

“When medically examined eight days after the incident, the doctor found healed bruises on the complainant’s buttocks and back. The locale of the bruises indicates physical struggle by the complainant and there healed condition coincide roughly with the timing of the incident.” (Judgment (Dissent) 71)

Regardless, a rape case can be proved beyond a reasonable doubt based on testimony alone.  Here there was Mukhtar’s testimony, corroborated by medical evidence, and witnesses.  What more do you need?

8. The Catch 22: Ensuring convictions, opposing degrading punishments

Dubiously, this case was tried in the Anti-terrorism court that offers speedy trials and not “fair” ones.  In about two months, the court had tried and convicted six of the defendants.  On appeal before the SC, both sides did not contest the jurisdiction of the ATC and it was thus a non issue even for the SC despite the fact that there were questions about whether the incident created “terror” as defined by the law.

Reminiscent of the infamous Diplock courts in the UK, set up to try certain scheduled offences (namely of the IRA) without the safeguards of the jury system, these ATCs are suspect.  According to the Human Rights Commission of Pakistan (HRCP), ATCs are also more prone to giving death sentences.

It may not be too late to demand a new trial in a civil court! It may have secured an easy conviction – but perhaps ruined the case on appeal.

Human rights activists have also been ambivalent when it comes to the death penalty. HRCP has published a report on the death penalty in Pakistan that claims that the death penalty in Pakistan is applied unfairly and indiscriminately and there are gross miscarriages of justice (“Slow March to the Gallows.”) Regardless of the heinousness of the crime, practically no criminal justice system can ever ensure that the death penalty will be applied uniformly and consistently in all cases.  Its application is necessarily prejudicial to people of low socio-economic backgrounds.

Given that we are amongst the worst violators when it comes to administration of the death penalty, it is ironic that Justice Saqib Nisar would quote a Chinese saying glibly that it “is better that a thousand guilty men go free than one innocent man be executed” in order to acquit Mukhtar’s violators. (Judgment 22)

As activists and human rights lawyers, we are in a catch-22 – pushing for a rape conviction when inevitably under the Hudood Ordinance, it would carry a death sentence.  Many common law countries carry a maximum life sentence for such crimes, and sentences between two years to life should be sufficient.  Also, hard labour in jail and corporal punishment may seem just in a superficial and dramatic kind of way, but these are inconsistent with a society trying to align itself with principles of human rights.

Allowing the appeals of five of the rapists in such a high profile and uncontroverted rape case does not bode well for the future of criminal justice administration in Pakistan and thoroughly delegitimises the higher judiciary. As concerned citizens, we should all be very worried – and should demand a reversal of this decision based on legitimate legal arguments – and balancing victims’ needs with those of defendants.

Abira Ashfaq

Abira Ashfaq

A law teacher in Karachi who works with human rights organisations. She tweets @oil_is_opium.

The views expressed by the writer and the reader comments do not necessarily reflect the views and policies of The Express Tribune.

  • Caitlin

    excellent analysis – thank you.
    have to add i found the tone of the judgement to often border on flippant.
    what a travesty!Recommend

  • parvez

    Interesting reading and very comprehensive.Recommend

  • http://karachikhatmal.blogspot.com karachikhatmal

    Excellent piece.

    Interestingly, the general opinion on this case amongst the [insert identity marker] has been that the supreme court can’t ultimately be faulted because it was following procedures etc. In a sense, first absolving the individual of the blame and allowing the institution to absorb it, and then arguing for the sake of institutional stability to claim that there wasn’t much the SC could do.

    It is disturbing to imagine how a decision in a landmark case – one being used to frame narratives about a host of issues in this country – the verdict chose to repeatedly take flight to conjecture and metaphor.

    This post is a great example of why blogs matter.Recommend

  • http://www.facebook.com/#!/pages/Jahanzaib-Haque/149352001744540?ref=ts Jahanzaib Haque

    Excellent breakdown of the case. Thanks.

    Recommend

  • BushraS

    Thank you for this analysis. Puts a lot of things in perspective. Recommend

  • http://ayesha5.wordpress.com Ayesha

    That’s how I read and understood the judgement. However, I didn’t expect the Supreme Court to discuss the questions of fact extensively. My understanding is that questions of fact are determined by the lower court and the higher courts only deal with the legal issues and doctrines.

    The other interesting thing was when the majority quoted that the onus to prove lies on prosecutor and quoted Blackstone as well as the U.S. legal system. In Pakistan, however, it is for accused to prove that s/he is innocent. Do you think that was a dicta? Or can it be used as precedent in the future cases?

    To avoid the catch 22 situation, the rape offender (especially the one involved in gang rape) should be imprisoned for life (more than 14 years that are actually 7 years if you count day & night) – and may be profiled if that’s possible or else the HRCP will have to shun the anti-death penalty support. Recommend

  • Pakistani

    Excellent article! I agree and unfortunately disagree with you as well.

    I agree that the consequences of this judgment on our society as a whole would not be great and people who are indulged in these kind of activities will in fact use this judgment and believe that their actions will escape any severe consequences.

    I disagree because you can not blame the judiciary for not giving a judgment which did not meet your level of expectations.Judiciary I feel had its limitations and were forced to make decisions on whatever material was presented in front of them. They had to make the decision by staying in the ambit of law. But I feel the judgment should have also included recommendations addressed to the government seeking an change in the way which investigation and recording of evidence is carried out in our country.
    I also feel, the Atizaz Ahsan, whenever he files a review application in front of the SC, he should request for a larger bench to hear the case so as to encourage more opinions.

    I also disagree further on three levels:

    Firstly, if a case is appealed in the SC it can only be on the basis of law and not on facts. So as far as the judges were concerned they only had to insure that on the given set of facts, which includes all the evidences recorded at the trial level, law was properly applied.

    Secondly, all the three judges have admitted that there was rape but due to lack of evidence and in particular medical evidence, it was not “proved beyond a reasonable doubt” that there was gang rape. The dissenting judge has punished the others for aiding and abetting rape but not for gang rape.

    Thirdly, in order to prove rape even in Hudood cases, you at least have to have four upright Muslims who have actually seen the happening of the event. The stricter the punishment the higher is the standard of proof.Recommend

  • Umair J

    This is really the best piece I have read on the issue! I am sharing to Facebook.Recommend

  • Abira

    Thanks for all the comments and feedback. And to further build on the debate.

    Ayesha: BRD burden on proof on prosecution and presumed innocent in Pakistan as well.

    Pakistani: On review appellate courts do indeed consider points of law only, that is my understanding — but from all the cited cases, this was re viewable as a mixed law/fact question (i.e., an reappraisal of the evidence (facts) to see if it met a legal threshold (law), rather than a simply reevaluation that could easily lead to a different conclusion.)

    Also, I am not blaming the judiciary, I am disagreeing with them – its allowed. :) Also, remember, our goal should be to make rape prosecutions easier, not harder by raising the evidential requirements to an impossible standard. Witness testimony according to all the cases cited by Aitzaz should be enough. However, to be fair to the accuse, they would still have to prove BRD.

    Babar Sattar has written a piece and says :”the Supreme Court had taken suo moto notice of the Mukhtaran Mai case and through an order passed on June 28, 2005, suspended the High Court judgment and instructed that all accused in the case (including those acquitted even by the initial trial court) be arrested and kept in jail as under-trial prisoners not to be released on bail. It has now ruled that except one, all others are innocent. If they are indeed innocent, who will account for the six-year jail term they have already served?”

    If Aitzaz Ahsan files a petition for review and in the event it is successful and the six acquitted by the LHC for gang rape are re-sentenced, then they should get credit for six years. Under the U.K. sentencing guidelines if there is more than one offender in a rape case, they get an average of anywhere between 6 to 11 years in prison. I would think such a sentence range would be fair in this case as well.

    If however, the petition for review fails and they are “legally” innocent – then remember the case against them was neither frivolously nor maliciously filed – and given the strong evidence against all six (mainly prosecutions’s witnesses) – perhaps it was not such a travesty of justice that they were denied bail until this April 2011 SC decision and served six years- esp. since the trial court HAD convicted them.

    However, the 8 who were acquitted by the ATC are a more complicated matter. They were members of the panchayat, and may have played varying roles in the panchayat, which as Sattar points out, even the minority Justice found that its role in “endorsing” the rape was not proved. If it were proved, certainly a person who stood silently should not be punished the same way as someone who actively participated in a decision to rape.

    At this point, perhaps, the focus of appeal should not be to get those 8 convicted. If however, there is strong evidence against them that was not available before (or something else compelling), then there should be a call for a new trial before a regular trial court.Recommend

  • mussarat Hussain

    Where the court went wrong in “Zulfikar Ali Bhutto’s Case” or where courts are going wrong in Shaheed Benazir Bhutto’s case or what they did in Akbar Bugti’s case?

    Although Mukhtaraan Mai is a poor and a very small fry but has shaken foundations of “Feudal” lords in poverty and un-employment riddled society of Pakistan where “Judiciary” went deaf and dumb and “blind-folded”.

    Mussarat Recommend

  • Haffiz Uddin

    Excellent, excellent, excellent. It is so important for layman to have the opportunity to understand the legal analysis (or lack thereof) behind this landmark case. It is indeed a real travesty – even so, understand the law behind such cases is imperative because it is faulty, archaic, and discriminatory.

    The only (if any) hope in this verdict and other similar verdicts is that enough activists and lawyers will be encouraged to petition for changes in the law. Also to Justice Nisar. I am so tired of reading his opinions and views on the cases he judges, and hats off to the dissenting judge you quoted.Recommend

  • IZ

    Thanks for the analysis and the link to the judgement.Recommend

  • http://na deep

    This article is so much better than the general angst ridden articles about the need for justice for Mukhtaran Mail. thank you for the hard facts. Recommend

  • Sane Voice

    Great Work Done by Abira!!!Recommend

  • Atika Rehman

    A much needed comprehensive breakdown of an 80 page judgement. Abira, why did the panel have 3 judges? Is it possible for the review petition to have maybe 5 or 7?Recommend

  • Fifi Haroon

    This is by far the most detailed and balanced analysis of the supreme cour’ts verdict. I found the article because Mosharaff Zaidi suggested it on Twitter, even though a few days ago he had written an article on the same subject with a different viewpoint (it is great when established journalists are open to fresh opinions).
    Abira, I haven’t read any of your blogs earlier but the clarity of your thinking will make me come back to read whenever you write more. I have had so much pent up anger about the Supreme Court’s decision but until now it was an emotional response. Now I feel I’ve been armed. Thank you.
    J Haque – your blogs section triumphs again!Recommend

  • Im Hussain

    We as a people are incapable of providing justice. It requires rationality, empathy and a desire to do the right thing.
    We all know what our justice system is about. The Judges are corrupt and give decisions to benefit the highest bidder. How can we expect them to do anything right.
    This institution is the primary reason why we are in our current predicament. Recommend

  • Desi Lawyer

    @Abira: Surely you mean burden of proof? rookie mistake :)Recommend

  • Advocate Siddiqui

    Please read the judgment which is on supreme court’s website.Which says that no seamen and DNA test was conducted to ascertain gang rape. Also the judgement says that the mark of violence were not visible and witnesses accounts were contradictory . I personally think the person who made the medical report is one of the many persons responsible for making a weak case and court were bound by law.Recommend

  • rida

    @ Advocate Siddiqui: Don’t trust an advocate who can’t spell/ Sorry.Recommend

  • Haffiz Uddin

    Rida,

    There is no need for your surface criticism here. Advocate Siddiqui may not have presented his suggestion in the best of terms, however, he did make a good point. His comment lends evidence towards the systemic discrimination prevalent on all levels in our society – which, undeniably, contributed towards the verdict. Recommend

  • Usman Arshad

    Well,that’s very abominable situation not only for judiciary but also for public.Mukhtaran Mai is a poor woman and she spent her life in poverty.It is really difficult for the poor to file even a FIR.
    On the other hand,look at the power and influence of Mastois,even SC can do nothig against them.This shows how biased our judges are.Shame on our Supreme Court.
    I belong to south Punjab and I know Mastois well.They committed this rape attempt even in front of Public of Meerawala showing they can do this with their women.
    Now all the accused are free and I have lot of apprehensions that what is going to happen with the poor people of Meerawala.Recommend

  • Sohail Anwer

    @Author,Abira Ashfaq

    Miss Ashfaq, please get a few fracts staright.
    1-The SC rightfully acquitted the accused person(s), because statements under Sec 342 and 340(2) of compliannat and Maulvi Razaaq where incoherent and non cogent.
    2-Just because, the accused threatened to sodomize mukhtara’s brother, that gives him motive to rape her?
    3-The principle laid down in Sonham Singh case(AIR 2001 SC 155) was adhered to, and that principle enunciated that rape victims statement to the police, exact identity of assailants, circumstances of commission of offense and lack of alibi from accused must be cogent and coorobarative
    4-Maulvi Razaq registered the FIR and publicized teh matter with mal intent, as per learned High court(multan bench)
    5-The prosecution did not entirely prove that the members of teh Jirga abeeted rape (U/S 109 PPC)
    6-The FIR had at least 6 gross errors of fact and law
    7-As per FIR and trial transcripts, Mukhtara Mai’s tribe is more powerful than accused person’s tribe, and yet they could not protect her? How
    8-The prosecution failed to establish a pattrn of the defendant’s culpabilty
    9-The exculpatory evidence outweighted the inculpatory evidence in this case
    10-If the defendants were accquited of 354-A PPC by trial court, tha blows apart 55% of the complainant’s story to shreds.
    Thus all these points create reasonable doubt, and the accused is always entitled to the benefit of the doubt and that is what the SC rightfully applied. I would love to hear counter arguments from the author real soon!!!!! Recommend