DEATH might be inevitable, but must it be preceded by a life that is brutish? Unfortunately, the answer is in the affirmative in the case of the poor and of women in this country. For them life can be short, cruel and end in a violent manner.
Fakhra Younus’s life and death capture the spirit of our disfigured state and society and provide a valuable insight into a male-chauvinistic, class-oppressive, socially insensitive and criminally negligent criminal justice system.
From the legal point of view, the story of Fakhra Younus, the victim of an acid attack, is nothing less than a Punjabi thriller movie. The Fakhra Younus legal drama involves a brutal incident of domestic attempted murder, a powerful political male, a leading lawyer, a hapless state, devious witnesses who happened to be her relatives and a judge granting instant, complete ‘justice’ to the powerful male but showing cruel indifference towards Fakhra Younus.
Scene 1: The incident: Fakhra Younus is estranged from her husband Malik Bilal Mustafa Khar. Fakhra moves into her sister’s home in Karachi. On May 14, 2000, Bilal Khar, along with an unknown accomplice, comes to her sister’s place and [allegedly] throws acid on Fakhra and her brother-in-law, Irfan Malik, and runs away. The pictures of Fakhra bear some testimony to her burnt body and soul.
Scene 2: Police case: Out of this tragedy, some hope emerges. FIR No.33/2000 is registered against Bilal Khar. Unlike cases of violence against women, this is a unique case because there are five eyewitnesses who identify Bilal Khar as the accused. Apparently, these witnesses are reliable because they are all related to Fakhra i.e. they are her sister, her sister’s husband, her sister’s mother-in-law and her sister’s husband’s brother.
Scene 3: The absconder and court: With such overwhelming evidence, Bilal Khar absconds/disappears for nearly two and half years. After nearly two years, the court proceedings begin in his absence and evidence of the four eyewitnesses mentioned above is recorded by the court.
The evidence is overwhelming — they all know Bilal Khar, they all saw him come and leave the place of crime and two of them saw him throw the acid. No wonder, Bilal Khar is absconding because this is an open and shut case against him. But more importantly, the witnesses inform the court that they are receiving threats from Bilal Khar.
Scene 4: The accused and his ‘legal’ strategy: After a long absconding period indicating his guilt and with overwhelming evidence against him, he is finally arrested on Nov 1, 2002 from his father’s land of Muzaffargarh.
But there is a method to his arrest as amazingly he is granted bail by the court within five months of his arrest. Is this a brilliant legal strategy, or a legal and family tragedy?
The reasons for the bail (i.e. being freed during the court trial) are that the four star witnesses, all related to Fakhra, dramatically change their testimony. The turnabout is amazing — they do not recognise Bilal Khar; the Bilal Khar in court is different from the person who threw the acid and apparently, there is another Bilal Khar, who they describe as of small structure with smallpox marks on his face. Even by Pakistani legal standards, this is unbelievable.
Scene 5: Pakistani injustice: On Dec 16, 2003, in the Session Case No.63 of 2002 (‘Fakhra Younus case’), evidence of a number of witnesses (including the victim’s who is in Italy) is yet to be recorded but the date will go down as a justice lottery day for Bilal Khar and his legal strategy.
First, the judge records the evidence of two formal police witnesses.
Second, suddenly an application for quashing/terminating the criminal case is moved by Bilal Khar’s lawyer.
Third, even the prosecutor is prepared to argue on this quashment application.
Fourth, the arguments of both parties are heard on this application.
Fifth, a six-page judgment acquitting and freeing Bilal Khar is pronounced by the judge instantly. Let me again emphasise: all this happens in one hearing in one day — Dec 16, 2003.
Can any powerful male now complain about the justice system in Pakistan after such a remarkable judicial performance?
What do we learn from Fakhra’s case?
Firstly, the criminal justice system has broken down. It is especially unable to provide justice to the most vulnerable e.g. the poor, the females and minorities. It is a criminal justice system which is overwhelmed by a culture of male chauvinism among lawyers, the lower-court judges and court staff and by the culture of money i.e. expensive lawyers and miscellaneous expenses.
Secondly, there is no accountability within the criminal justice system if the women suffering violence fail to get justice. In Fakhra’s case, the state did not even appeal against the decision to acquit Bilal Khar. The trial court judge did not even care as to who this mysterious new Bilal Khar with his smallpox marks was, or why the witnesses dramatically changed their statements especially when it is on the record that they had earlier said they were threatened.
Thirdly, it is in this context of the breakdown of the criminal justice system that suo motu interventions (especially in cases of violence against women) of the chief justice of Pakistan and other judges, like Justice Jawad S. Khawaja who is at present looking into a case involving the disappearance of a girl, are critical.
These direct interventions play a dual role i.e. they raise awareness about these issues and send a message to the police and district judiciary that the Supreme Court is monitoring these issues.
Despite the inexhaustible generosity of the Italians, Fakhra could not be saved. And surely, even if the Italians wanted to, they could not save all the Fakhras among us. So let us open our criminally silent lives to the many more Fakhras crying out for justice because ultimately, laws and systems don’t oppress, people oppress especially by their criminal silence and indifference.
The writer is a lawyer.