May issue 2011
A Foregone Conclusion?
In a judgement that shocked people from many different quarters in Pakistan and abroad, the Supreme Court, on April 21, 2011, dismissed the appeals of Mukhtaran Mai in her internationally followed rape case. In a two-to-one majority decision, the three-judge bench upheld the acquittal of five of the six men accused of gang-raping Mai. Specifically, two men, Faiz Mastoi and Ramzan Pachar, who allegedly had major roles in the panchayat and thus were accused of facilitating the gang rape have been acquitted of any crime. While three other men, Allah Ditta, Ghulam Farid and Muhammad Fiaz, who were originally sentenced for raping Mai, were also acquitted. The result is that only one man, Abdul Khaliq, has been sentenced for rape. Rights activists condemned the verdict while Mukhtaran Mai’s lawyer, Aitzaz Ahsan, said, “The majority judgement is manifestly flawed and, in material particulars, is not even based on the evidence available on the record.” In the days following the judgement, rallies and protests were held in support of Mai who said she would file a review petition against the latest court decision. She has been fighting her case for nine years now. Here, Salman Akram Raja dissects the judgement.
The Supreme Court judgement in Mukhtaran Mai’s case is a painful judicial moment. It is clear from a reading of the judgement that the judges faced dilemmas that were not easily overcome. This unease is palpable throughout the text and has, since the issuance of the judgement, rippled uncomfortably through a society in which justice becomes ever more mired in delay and an unwillingness to pursue the truth. Both huge boons for all manner of oppressors — from the loan cheat to the rapist. Since at least the advent of the Qisas and Diyat Ordinance, a culture of impunity stalks the land where women can be assaulted in the name of honour with pardon arranged in advance. Why should the state assiduously investigate and vigorously prosecute when the parties can be made to settle and the courts will look the other way?
Does anyone remember little Shazia Masih, the 13-year-old Christian housemaid who was left dead by her employer at a local hospital in the Defence area of Lahore last year? The postmortem report identified 13 wounds, some inflicted with a sharp object, on her body. She was severely undernourished and suffered from blood poisoning. There was media horror for a couple of days and we were interested. The Punjab chief minister turned up with a cheque. The employers of the girl were arrested and charged. Then everyone went away. The court acquitted all for lack of occular evidence. The state did not appeal. The mother was threatened. Another mutilated body. Another closed case. The list is endless.
It was against this background of state apathy and despair for the victim that Mukhtaran’s accusation and her persistence, played out over nine years, had become an indictment of all that is wrong with the Pakistani state and society. She accused us all.
The judgement in Mukhtaran Mai’s case has served several functions. For one, it has established Mukhtaran Mai as a victim of a barbaric milieu that extends much beyond Meerwala, in District Muzaffargarh. While the majority judgement rejects Mukhtaran’s allegation of violent gang rape, it recognises her as a pawn in a voluntary exchange between her clan and the rival Mastois. For the majority, Mukhtaran was voluntarily handed over by her family on July 22, 2002, to Khaliq Mastoi for sex, to avenge the slight to Mastoi honour caused by Mukhtaran’s brother’s relationship with Khaliq’s sister. Why else would the healed wounds on her body noticed by the medical examiner eight days later be so superficial, the majority wonders? A woman raped by four young men should have resisted more and suffered graver injury. Why else would her maternal uncle have stood outside the room where the alleged outrage occurred without having assaulted the perpetrators? Why would it take the father eight days to take Mukhtaran to the police station to have an FIR registered? For the majority, the only answer is that the accusation of rape was an afterthought instigated by the local maulvi, after the Mastois had backed out of marrying Mukhtaran’s brother to the girl he was accused of having been involved with.
The majority judges find that in the opinion of her own family, Mukhtaran was a dispensable, divorced woman whose body could be used as the site for multiple negotiations, exchanges and stratagems. This is again picked up by the majority judgement when it questions the delay of eight days in the filing of the FIR: why would her family feel shame in reporting the matter to the police when Mukhtaran was after all a divorced woman, rather than a young virgin, who had allegedly been raped in the presence of hundreds?
The majority judgement frames Mukhtaran, alternately, as a peace offering and as an instrument of vindictive intrigue against the Mastois. The majority finds no evidence of Mukhtaran exercising any will of her own at any stage up to the moment of her inked thumb being pressed against an FIR constructed for her by her clan, and a thana culture that sets the terms of judicially recognisable narratives. At this point in the judgement Mukhtaran is a voiceless presence with no ability to resist penetration offered by her own father under the garb of a nikah or planned vengeance.
The narratives offered in a typical Pakistani court in all cases by either side, based of course on ‘evidence,’ present the courts with familiar categories. The typical divorced or raped woman, the typical father of the divorced or raped woman, the usual rapist and the usual co-accused. The entire exercise from the FIR onwards is based on a kernel of truth surrounded by exaggeration and plain lies on both sides. The judgements that emerge are typical judgements that seek to approximate a just outcome. Knowing that the evidence is inherently unreliable, the typical court will ask itself: should four men hang for the rape of one woman? How has the woman fared since the rape? How many of the accused have already served time in prison and for how long? Has a rough, socially acceptable justice already been done? The formal judgement is generally a typical judgement that could have been written by any of the judges that adorn the judicial system.
It must be noted that for the majority judges in Mukhtaran’s case, even the one person, Khaliq, convicted of rape, was a rapist only because he had not been able to prove the nikah. This was a nikah that the majority believes Mukhtaran to have accepted as valid at the time. Hence her submission to intercourse, which according to the majority was voluntary, does not saddle her with the charge of consensual zina. Yet the other party to the act is considered a rapist by the majority because he alone knew that no nikah existed. The majority does not say how a gap had come to exist between Mukhtaran’s and Khaliq’s perceptions regarding the existence or otherwise of a nikah. Having rejected the allegation of violence and physical coercion, the majority judgement, in terms of its own logic could not have convicted anyone. Why then the lone conviction? Why was the majority unable to face the outcome of its own reading of the evidence?
The minority judge accepts that Mukhtaran was subjected to violent gang rape. Her own testimony is taken to be sufficient for this purpose. The healed wounds on her body, which the majority found slight, are taken to be adequate corroborative evidence. What is the extent of the struggle that a woman should have to demonstrate through injuries to her body, in order to satisfy the bench that the rapists were four in number rather than one? The majority leaves this as an unstated implied calculus, subject only to the judges’ own perception of the violence that the gang rape of an unwilling woman must generate. Of the uncle who failed to assault the perpetrators, the minority judge accepts the explanation proffered by him: he saved his life, not his honour. The father who failed to cause an FIR to be lodged for eight days was, for the minority judge, “a broken, timid man” after the incident and not the brooding instrument in the hands of the villainous local maulvi with grudges of his own against the Mastois.
The minority judgement accepts that this was a rape caused by communal deliberation rather than perverted lust. According to the allegation contained in the FIR and accepted by the minority judge, on July 22, 2002, an entire community, ordinary poor folk rather than power-drunk waderas or crazed religious fanatics, descended into the pits of bestiality to sanction and allow vengeance against a woman for no fault of hers. However, even the minority judge is unable to convict any of the accused for the actual offence of gang rape. Were there, despite his reading of the evidence, doubts lurking somewhere in his mind? Has the moral fibre of our ordinary people really collapsed to the extent that such an event could have occurred? Can the evidence really be relied on? Have the accused, including eight men acquitted by the trial court and never charged with rape, but arrested under Supreme Court orders, not undergone sufficient punishment?
According to the minority judge, while gang rape occurred, it was pitch dark in the room to which Mukhtaran was dragged to. Consequently, even though Mukhtaran’s testimony can be relied upon for identifying the persons who forced her into the room she could not have known with certainty as to who actually participated in the sexual act. Hence, apart from Khaliq who admitted to sex with Mukhtaran, albeit under cover of a nikah that is not accepted by any of the judges, the other three accused of rape by Mukhtaran have been convicted by the minority judge only of abetment up to the door of the room in which the act occurred. It is clear that the minority judge felt constrained. If he were to find all four, rather than Khaliq alone, guilty of rape he would have had to grant the death sentence to each. The law as drafted allows for no discretion once the charge of gang rape is held to have been proved. One can almost see, through the text of his judgement, the minority judge quivering. Death is a cruel, irretrievable sentence.
Where does this leave the next rape victim? Judges will continue to bring their subjective world views and sensibilities to the judgements they write. The evidence on all sides will continue to be largely false. Both these are matters that long-term judicial and police reforms must address. More women must become a part of the criminal justice system. Police forensic training must improve. In the meanwhile, the intervention on the part of those determined to bring the rapist to justice will have to be vocal, but also technically overpowering.
The majority judgement in Mukhtaran Mai’s case has placed far too much reliance on the patently false testimony of Maulvi Razzaq who had managed to plug himself into the case as Mukhtaran’s main support. This reliance has been used to discredit Mukhtaran herself. This has surely raised the bar impossibly high for the rape victim: not only must she prove the crime through her own narration of facts, but also ensure that none of the collateral facts is wrongly stated by those who appear before the court on her side. This reading of the law on rape must be protested. But more will be needed. Legal aid providers must be provided by the state, if not then by the NGOs working together, at the district level. In Mukhtaran’s case, somebody should have ensured DNA semen testing at the earliest. The death sentence for gang rape is perhaps counter-productive. Interventions will have to work at all levels. The typical narrative of rape will not be easily overcome.
Interview: Iqbal Haider Talks About the Mukhtaran Mai Verdict
The Text of the SC Decision for the Mukhtaran Mai Case
Prejudice and Stupidity on Full Display After Rape Verdict
The Rapists are Free, But so What?
Mukhtar Mai to Seek Review of Judgement
From the Archives: The Struggles of Women in Pakistan