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Miscarriage of justice?

Some facts that reveal the other side of the Mukhtaran Mai story

By Salman K. Chima

In 2002, one heard of an illiterate woman of humble background deciding to press charges against Panchayat of the influential Mastoi Tribe. Gang raped to atone for her brother’s (alleged) indecency with a Mastoi girl, Mukhtaran Mai resolved to fight back.

This attracted the attention of all including the Supreme Court, which ordered the Anti-Terrorist Court to proceed on fast track. 14 men were charged — four for rape and 10 for abetment. Barely two months later, the court convicted six and handed death sentences. But it came as a shock that eight were acquitted. One expected the High Court to restore sanity.

Not so. The Lahore High Court acquitted a further five. I accessed the case record to ascertain whether our judges had gone berserk. I meant to write against the judgment. What stopped me was the realisation that the judges had not gone berserk. Public opinion was another story!

Now that the Supreme Court has upheld the acquittals, I understand those who feel betrayed. My own reaction to High Court judgment was no different. I would, however, invite all to read the full judgment and also the entire case file before expressing themselves. Let me say that I too disagree with the decision (it doesn’t go far enough), but in my view the majority has, otherwise, acted on sound basis. What is commendable is that they have not allowed public sentiments to interfere with justice. Sadly, I cannot express the same confidence about the dissenting opinion.


Not all facts are disputed.

1. There is no dispute that parties are neighbours without prior enmity. The prosecution also admits the accused have no previous criminal record.

2. Contrary to popular belief, prosecution admits the accused were financially weaker than Mai’s family. The main accused Khaliq is an illiterate tubewell mechanic. Prosecution also admits that Khaliq, his brother Allah Ditta, the latter’s family, and their mother, brothers and sisters (17 in all) occupy a three room structure. Not quite feudal lords!

3. What then caused the dispute on 22 June, 2002? The defense version is that Shakoor (Mai’s brother) was caught having illicit relations with Salma (Khaliq’s sister) and was detained by Khaliq. This provided the backdrop to events, which unfolded subsequently. Mai on the other hand testifies that Shakoor was only 11/12 years old and was sodomized by Khaliq’s brother Pannu and two others. Upon Shakoor’s refusal not to disclose the offense, he was detained in the same room as Salma, and the story regarding illicit relations was cooked up to hide the offense.

Very often, the starting point of a story tells you whether it is truthful. The Supreme Court certainly found the prosecution version ‘incomprehensible’: “In any society, much less rural or tribal, would brothers falsely scandalize their unmarried sister to save their own skin from a criminal charge of sodomy!” Nor does the FIR (registered 8 days after the event) mention Shakoor’s sodomy. Equally telling is the fact that Mai insisted (on oath) that Shakoor was 11/12 (she denied he was 15/16), whereas the doctor found him to be 15.

4. Whatever be the true cause of Shakoor’s detention, Mai states that she went to the house of the accused to seek forgiveness, accompanied only by her mother and sister-in-law. She admits no harm was threatened.

5. Shakoor was then handed to police and separate Panchayats constituted to resolve the issue. According to Mai, a proposal was made by the Gujjar (Mai’s) Panchayat that Salma’s hand be given to Shakoor and Mai’s to Khaliq.

6. Defense states the compromise was accepted and half implemented. Mai was married to Khaliq through sharai nikah performed by Maulvi Razaq (who was a member of the Gujjar Panchayat). The defense does not deny intercourse but asserts it took place in the context of the aforesaid nikah. Defense asserts that Khaliq then withdrew from Salma’s marriage to Shakoor, which is why Maulvi Razaq refused to register the nikah and Mai ultimately filed the case. In the context of rape though, even unregistered nikah is enough to dispel non-consensual intercourse.

7. The prosecution asserts the proposal was rejected — the accused insisted on ‘ziadati’ for ‘ziadati’. A fresh proposal was then made on behalf of the accused that Mai seek forgiveness for Shakoor. On assurance that he would be pardoned, Mai came to the Mastoi Panchayat. Mai testifies that Khaliq dragged her into his dera, where he, Allah Ditta, Fayyaz and Ghulam Fareed raped her, on bare floor, for an hour.

The majority found the story a bit odd again: “it is improbable if such a despicable act was to be committed by the accused there, particularly by the two real brothers together, that too in the presence of the entire family living in the same house”. Not impossible of course, but improbable! Mai testified that her father, uncle and Ghulam Nabi were also witnesses but significantly the father and Ghulam Nabi (who stated before the magistrate that he wasn’t present) stayed away from the witness box.

The case of Fayyaz is particularly disturbing — not quite for the fainthearted. The record shows that the man arrested (though named Fayyaz) had no nexus with the accused nor was a resident of the area, whereas another Fayyaz (Khaliq’s cousin and resident of the same village) absconded and could not be traced. Police, to show progress, arrested the wrong man. Mai’s own camp complained about the mistake. Even the minority judge agreed that his was a case of ‘mistaken identity’. The question is: why did Mai not correct the mistake? Was she tutored that this may spoil the case? She did admit “myself and P/Ws are with the police for the last 10 days in a house at M/Garh”. But can there be any excuse for Fayyaz’s suffering — 9 long years behind bars because somebody failed to speak up!

8. Regardless of which version to accept, it is admitted that at about 2am the same night, the parties jointly released Shakoor from the police.

9. It is also not disputed that on June 27, 2002, Salma was married to Khalil. This is significant — prosecution admits that first deliberations to file criminal charges took place on June 28. The FIR was registered on the 30th.

Incidentally, Khalil and family are not mentioned in the FIR, but in court, Mai testified that they were present in the Panchayat without ascribing any particular role. All judges agreed: “In this group of the accused, Ghulam Hussain is the real father of Khalil Ahmad (bridegroom of Salma), Qasim, Rasool and Hazoor are his real paternal uncles, and Nazar Hussain is his maternal uncle. … It seems that they have been implicated because the complainant side felt annoyed on account of the above marriage, because till then there is a complete lull, … there is an element of vengeance in their involvement; it is not an honest implication.” Their offense may only be Khalil’s marriage to Salma!

10. Mai underwent medical examination after the FIR. The doctor noted two minor abrasions but no bruises (unusual if Mai was mercilessly raped for one hour on bare floor by four men). Even light bruises, which are easily caused, take two weeks to heal. Mai further testified that the scratches “stood cured, and were rarely visible”. The abrasions were thus very minor and hardly visible.

11. The doctor took 9 vaginal swabs. They were found “stained with semen”.

The Supreme Court judgment assessed:

Majority opinion

1. Mai’s counsel agreed: “Criteria for interference against acquittal are not the same as conviction”. Based on this and past precedents, the court concluded that scope for interference in acquittal “is most narrow (and) the courts shall be very slow in interfering … unless shown to be perverse, in gross violation of law, suffering from grave misreading of the evidence.” The court was mindful as well that “innocence of the accused must be presumed. It is the duty of the prosecution to prove its case to the hilt; “better that ten guilty persons escape than that one innocent suffer”.” Hard to disagree with any of this, short of rewriting criminal jurisprudence!

2. Regarding numerous contradictions in Mai’s testimony (compared to FIR and her earlier statement before the magistrate) the court noted: “These clearly depict improvements and inconsistencies”. Indeed, overlooking these without comment would be fraudulent!

3. On delay in FIR, the court acknowledged that in rape cases “delay of even up to a month has not been considered fatal. However, the above is not an absolute rule and delay in each case has to be explained in a plausible manner”. The court understandably found it hard to accept “that a serious incident, allegedly occurred, it was almost known to about 300 people” but nobody, not even the police, “got any clue till 30.6.2002.” It was this factor, more than the delay, which perplexed the court. That the case was instigated right after Salma’s marriage also of course weighed.

4. Considering the countless contradictions afflicting prosecution witnesses, the prosecution considered it prudent to rely heavily, if not entirely, on Mai’s testimony. The other witnesses, it was felt, may only bring her down. This is how the issue of sole testimony of a rape victim providing sufficient ground for conviction arose. The court agreed it could; however “this too is not an absolute rule” and “has to be assessed on the basis of the entire evidence whether the sole testimony of the victim should be believed.” If the rule is considered absolute “what shall be the outcome where a lady claims being raped but the medical evidence negates.” On the facts, the court was compelled to discount Mai’s testimony due to lack of injuries, inconsistent statements, an implausible story to begin with, a plausible explanation given by the defense, failure to explain why the FIR coincided with certain other material developments, among others. Difficult for me to disagree.

5. Regarding lack of injuries/marks, this “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 … sustain no marks or injury. This is not conclusive and the learned High Court has rightly held it to be unusual.” This too admits of little disagreement.

All told, the majority concluded, and not without reason, that Mai was not telling the whole truth. They also concluded that (except against Khaliq) the allegations were not proven beyond reasonable doubt. Regarding Khaliq, they concluded: “It was incumbent for the defence to prove Nikkah and being conscious of this requirement, some DWs were also examined by the defence, however the Nikkah could not be proved, the obvious result would be that he committed sexual intercourse but without a valid Nikkah.” Whether this assessment is sustainable, depends on credibility of the witness who testified “In my presence Maulvi Abdur Razzaq performed Sharai Nikah of Abdul Khaliq accused with Mst. Mukhtaran Mai. At the time of Nikah, mother of Abdul Khaliq, his four sisters, two small brothers and two brother’s wives were also present”. Not sure why his testimony has been brushed aside. I will take issue with this aspect of the majority judgment, but before that, the dissenting opinion.

Dissenting opinion

1. The dissenting judge hinges his assessments on the assumption that the accused were ‘powerful influential culprits’ and that there was ‘social disparity between the two parties’. This is all too apparent from his opinion: “In order to appreciate the prosecution evidence in its proper perspective, one has to keep in mind the disparity in social status of the complainant and the accused party and the influence of the latter. The accused belonged to the influential Mastoi Tribe and the complainant to a humble family of Gujjars.”

The assumption is entirely false — negated by the prosecution’s own testimony! Worse, the judge resorts to circular arguments to prove the point: “The very act of bringing the complainant to the Panchayat of the Mastoies to seek forgiveness for her brother but instead subjected to rape while her near and dear ones stood by helpless, demonstrates the power of Mastoies as against the complainant.”

2. The learned judge continues on the fantasy trail: “Faiz Mastoi was the sarbrah (head) of the Mastoi Tribe. In that capacity he headed the Panchayat … The record further shows that due to influence of the Mastoi Tribe, without the intervention of its head (sarbrah) Faiz Mastoi, the police did not dare release Abdul Shakoor when he was detained by Abdul Khaliq in his house. It was on account of this clout that the police had refused to register the case of sodomy committed upon Abdul Shakoor.” None of these conclusions seem supported by record.

Faiz Mastoi’s case is different though — the prosecution concedes he played (an apparently) conciliatory role. Mai alleges he was acting ‘siyasi/duniavi taur’, but this, as the majority observed, was her perception. Even the dissenting judge does not disagree, but states: “His statement of forgiveness may have been his personal view but he felt bound by the decision of the Panchayat and allowed its implementation when despite being in a position of influence did not intervene when Abdul Khaliq took the complainant to his house.” The learned judge provides no basis for the conclusion that Faiz felt bound by the Panchayat, or that he was in position of influence or that he did not intervene, when the FIR as well as Mai’s testimony note that he intervened when Khaliq held her hand.

3. Regarding medical evidence, the judge inexplicably observes: “The doctor found healed bruises on the complainant’s buttocks and back. The locale of the bruises indicates physical struggle by the complainant and their healed condition coincide roughly with the timing of the incident.” One, the doctor did not note bruises, but minor abrasions (hardly visible according to Mai). Two, it remains a mystery how the learned judge concluded that the injury (whatever its nature) coincided with the incident. His conclusion that “Her testimony supported by the healed bruises on her body was sufficient to prove the charge of rape” is hardly sustainable.

4. The learned judge then writes: “If the plea of nikah is accepted, the complainant would still be the lawful wedded wife of Abdul Khaliq… One wonders why would she bring a charge of rape against her husband.” One is at a loss for words!

The dissenting judge could not accept Mai’s testimony. He acquitted 3 of the 4 alleged rapists (2 were convicted by him but on lesser charge of assisting). Even he did not find Mai trustworthy.

My own assessment

The fact that Mai showed no signs of violence; that even according to the prosecution the alleged offense was not publicised (not even the police found out); that Salma was married on 27 June and only a day later, it was first contemplated to file the case, in which ultimately all of Khaliq’s family was implicated, are among the many factors that simply do not sit well with Mai’s version. But absolutely conclusive is the fact that vaginal swabs were stained with semen.

Semen comprises (1) seminal plasma and (2) sperms. Seminal fluids do not normally last more than 48 hours in the vagina (Criminalistics, Dr. Richard Saferstein) and positive identification relies on spermatozoa, which can normally be found in the woman’s body for a period of 72 hours. However, the outer limit is widely considered to be 7 days.

‘Sexual Assault: examination of the victim’ (Cybulska, B and Foster, G Medicine 33:9, 2005):’Sperm survive in the vagina for up to 7 days’; ‘After 7 days, no forensic evidence can be recovered from the victim. There may be resolving injuries, which can be documented.’

‘A National Protocol for Sexual Assault Medical Forensic Examinations’ by the US Department of Justice: “72 hours after a sexual assault has been considered a guideline to use as an outside limit for obtaining evidence for the evidence collection kit. Some jurisdictions have extended their standard cutoff time to 5 days or 1 week.”

Considering that swabs were taken 8 days later, they could not have tested positive — unless intercourse took place in the last 72 hours (or even going by the absolute ‘outside limit’, within 7 days). In other words, vaginal swabs could ONLY have tested positive, if one accepts the defense version. This may require sifting of the ‘grain from the chaff’, however in light of this compelling medical evidence, there is little reason to disbelieve the defense version. The prosecution story defies medical science!

So where do I disagree with the majority decision? Khaliq too should have been acquitted.

One last point; assuming (though I cannot be persuaded) that Mai is telling the truth, the fact is that six men have been behind bars for nearly nine years, and eight others since the Supreme Court entertained appeals in June 2005. Their families have been destroyed. Has Mai not received enough justice yet? I shudder to think of the possibility, the record is so resonant with it, that they are all, or some at least, in fact totally innocent! How do we deliver justice in that case? Do ponder.

The writer is a Lahore-based barrister.

Source: The News


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