May issue 2011

“Rape may now be virtually impossible to prove”
– Iqbal Haider, Senior Supreme Court Advocate

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. In this interview, Iqbal Haider, a Supreme Court advocate and former senator, helps clarify the basic issues in this complicated and controversial case.

Q: The dissenting judge, Honourable Mr Justice Nasir-ul-Mulk, convicted Abdul Khaliq for rape, and four other men for aiding and abetting the rape. The majority judges acquitted all, except for Abdul Khaliq. Was there enough evidence to convict the four men convicted by the sole dissenting judge? Or were the majority judges right in acquitting them?

A: These four acquitted were the ‘prime accused’ of rape and/or aiding and abetting the rape of Mukhtaran Mai, along with Abdul Khaliq. One of the main objections I have against the judgement of the majority judges is that they appear to have drawn their conclusions in favour of these prime accused, who are acquitted and released by them, on the basis of misreading and disregarding the evidence on record and guided more by their own mindset, perceptions and conjectures rather than the plausible, convincing evidence already available on the record of the case. It is pertinent to mention here that the majority judges had coined and defined in their judgement the term of “foundational facts.” Surprisingly, all the so-called “foundational facts” are in relation to ancillary issues and incidents and none of them are in relation to the actual crime of rape, or circumstance directly relating to the rape. It was on the basis of this tenable evidence that these four accused should have at least been convicted of abetting the crime as held by the reasoned judgement of the dissenting judge. I largely agree and support the observations, conclusions and the dissenting order passed by this judge.

In the judgement, there is clear mention of the lack of DNA evidence. How critical is DNA evidence in a case like this? And if DNA evidence is lacking, how can the prosecution make up for its absence and build a substantial case?

The emphasis placed by the majority judges on the absence of the DNA evidence and absence of the eyewitnesses to the gang rape of Mukhtaran Mai Sahiba is unjustified and untenable in the presence of the facts and circumstances on record. Such medical evidence while certainly helpful is merely ‘confirmatory’ in nature and is used in addition to the testimony of the victim and accounts of the witnesses. At least two of the prime accused of rape along with Abdul Khaliq forcefully dragged Mukhtaran Mai inside the house, which was shut and where Mukhtaran Mai was raped by them, according to her statement and even otherwise. If, for argument’s sake, we agree that there was no eyewitness to the gang rape, it cannot be denied that the said prime accused had collectively dragged her to the place of rape and the other prime accused had directly incited the crime. As such all prime accused had at least aided and abetted in the rape admittedly committed by Abdul Khaliq. Absence of DNA tests cannot prove that the rape was not conducted by the accused.

How is it possible that the court did not take notice of the recorded injuries to Mukhtaran Mai, saying that there was an “absence of injuries and marks on the body”?

It is indeed surprising that the majority judges did not take notice of the recorded injuries to Mukhtaran Mai and preferred to somehow conclude the “absence of any injuries or marks on the body of the victim,” and also ignored the fact on record that there were at least four, vicious, powerful young men who had dragged the victim to the place of rape. In being overpowered and outnumbered, common sense dictates that the victim would not have had a chance to put up a fight, or significantly struggle with her attackers. As such significant bodily marks, which would be expected to result from a struggle, would not be expected in the circumstances.

In their ruling, did the two majority judges state that they believed gang rape did not occur at all? Or was it an issue of clearly identifying the rapists?

Yes, it appears from the judgement of the majority judges that they did not believe that the gang rape had taken place for want of DNA evidence, which as held by settled case law is merely confirmatory and not a strict requirement. It is for this reason that they acquitted those of the prime accused who had been accused of rape. They had to convict one of the accused, Abdul Khaliq, who admitted to raping her, but had taken the false plea that he was married to her, which he could not prove. The majority judges have given many unsatisfactory and untenable reasons for not convicting all of the prime accused for at least aiding and abetting the rape, of which I am of the view there is an open and shut case.

Legally speaking, did Mukhtaran Mai’s testimony need to be corroborated to be accepted? Didn’t witnesses successfully corroborate it?

In my opinion, there were enough witnesses and circumstantial evidence on record to corroborate and prove the testimony of Mukhtaran Mai about her gang rape. At least two witnesses had come forward in this case to testify against the four accused.

Critics of the judgement, including the plaintiff’s lawyer, Aitzaz Ahsan, have said that the judges have failed to take into consideration the social backdrop to this case that was well established. Specifically, what should the judges have considered? Also, why was the panchayat not held accountable for its actions?

I agree with the point of view of Mr Aitzaz Ahsan that the majority judges did not give due consideration and regard to the helplessness and poor status of the victim and the physical, social and political clout and intimidating influence of the accused who were following the outrageous, oppressive norms and practices of the feudal tribal society with impunity. In my opinion the role of all the members of the panchayat was pivotal as they were guilty of enticing and encouraging the rape. But if the majority judges did not convict the prime accused who directly aided and abetted, then seeking justice against the panchayat is a far cry.

The court also makes issue of Mukhtaran Mai being “a grown-up lady, who is a divorcée” and that this reality should not have delayed her registration of the FIR. Can you explain this?

To regard the delay of eight days in lodging the FIR for her rape by a divorced woman as fatal to her case is also illogical and untenable in law. What sort of logic or reasoning is this that a delay in lodging an FIR by an unmarried virgin can be condoned while a delay in lodging the FIR of a divorcée is fatal to her case? The unmarried or divorced status of a raped woman is of no relevance or consequence to her sanctity and respect.

The defence talked about a “backdrop of grudge, riff or tiff” as the reason for Mukhtaran Mai to have initiated the case against the accused. Did they prove this adequately?

Plea of the defence of “backdrop of grudge, riff or tiff” was neither proved nor could have demolished the case of the victim/complainant. In this case there is a confession of rape by at least one accused and medical evidence confirming the same. Such a plea by the defence thus has no relevance and should have been dismissed by the majority judges. Being raped is enough provocation to file a suit. Further, why would a woman in our society concoct a story of gang rape against her just to get even on a mere grudge, riff or tiff?

Mukhtaran Mai has alleged that the police provided shoddy, incomplete and tampered evidence and statements to the court. Is this true, and how does the prosecution remedy this situation in the review process?

There is lot of substance in the grievances of Mukhtaran Mai Sahiba against the police and the prosecution, particularly in light of evidence that the police was under the influence of the Mastoi tribe. In the event a review is before the Honourable Supreme Court, there is sufficient evidence, besides the tampered evidence and statements, to convict the prime accused of at least aiding and abetting.

Some critics of the judgement have said this case was heard by the Lahore bench of the Supreme Court and called that move unfair. Is this true? Should the SC hearings have been held in a more neutral ground?

I do not agree or find any truth or substance in the criticism about the effect of hearing this case by the Supreme Court in any place. In my opinion, the place of hearing of a case is of no relevance.

What kind of precedent does this judgement set for the trial of rape cases, and what is the SC implying are the criteria for proving rape?

I have to state regretfully that if the judgement of the majority judges is not set aside in review, it would establish an extremely undesirable and unjust precedent. It would make the task of every rape victim to prove rape in the absence of eyewitnesses or DNA tests, which are not easily available in Pakistan, almost impossible. It may also be noted that very few rapes or gang rapes take place in the presence of eyewitnesses. It is pertinent to mention that this judgement only convicts Abdul Khaliq of rape, who himself admitted his rape, and absolves all others. A rape victim in Pakistan now knows that the apex court has increased the threshold to prove rape to such a great height that rape may be virtually impossible to prove. This weakness of the rape victim will invariably encourage the resolve of rapists.

Related posts:

A Foregone Conclusion?
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