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Where lies the burden of proof

Apr 27, 2011

The Pakistan Supreme Court ruling that set free the rape accused in the Mukhtaran Mai case has been decried by activists as a blow to the rights of victims of sexual crimes. Lawyer Abira Ashfaq deconstructs the verdict while upholding her stance for a fair fight.

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

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

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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 (LHC) on March 3, 2005 accepted their appeals, except that of Abdul Khaliq.

There were eight other defendants who had participated in the panchayat that had 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 victim’s 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 LHC’s ‘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. However, this apparently contradicts 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 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 still valiantly sustained in her struggle to secure justice against rapists who were members of a socially more powerful group, the Mastois.

The SC decision, it can be said, perpetuates the status quo and allows the powerful to go unpunished.

1. Doubting the role of Abdul Razzak, the imam who helped file the complaint: Justice Saqib Nisar’s 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 (Judgement 30). This premise is refuted logically by the dissenting judge, Justice Nasirul Mulk, who states that Razzak 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…” (Judgement (Dissent) 69).

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 an 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 one of the accused, Khalil Ahmad, married Salma on June 26, 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 the 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.” (p.37)

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 that whatever settlement the Gujjars 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 that 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” because 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.” (Judgement 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. 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 the judge’s comments seem to perpetuate the myth that male rape victims do not suffer as much as females.

Again, it is speculative to assume that all people would readily report they were raped if it would secure their release. Much 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.

The writer is a lawyer who has worked with Sahil Bachao Tehrik and Peoples Resistance, a group formed in solidarity with the lawyers movement. The thoughts expressed are personal.

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