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Deconstructing the SC’s Mukhtaran Mai verdict – II

By Abira Ashfaq

The writer is a lawyer who has worked with Sahil Bachao Tehrik and Peoples Resistance, a group formed in solidarity with the lawyers movement. She is a graduate of Dartmouth College abira.ashfaq@tribune.com.pk

4. They didn’t rape her when she came to rescue her brother: Justice Saqib Nisar casts further doubt on the prosecution’s case by saying that when Mukhtaran Mai went to inquire about her brother, the alleged rapists had the chance to rape her, but didn’t.

“If the intention of the Mastois was to take badla… Mukhtaran Mai etc 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.” (Judgement 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 trivialises how rape is used to assert power and control and is not about lust. 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 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.” (Judgement 36-37)

The dissenting opinion seems more reasoned and states, “Delay in rape cases is a universal phenomenon and can be brushed aside…” (Judgement (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 court cites 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.” (Judgement 35)

7. The 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” was missing. “The absence of injuries 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.” (Judgement 42)

In fact the dissenting judge, Justice Nasirul 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.” (Judgement (Dissent) 71)

Regardless, a rape case can be proved beyond a reasonable doubt based on testimony alone. Here, there was Mukhtaran’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 (ATC) 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 Supreme Court (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.

Human rights activists have also been ambivalent when it comes to the death penalty. The Human Rights Commission of Pakistan has published a report 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.

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 the victim’s needs with those of the defendants.

Source: The Express Tribune

Date:4/27/2011

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