ISLAMABAD, April 21: To the consternation of rights activists, the Supreme Court rejected on Thursday, by a majority of two to one, appeals of Mukhtar Mai against acquittal of her tormentors who had raped her almost nine years ago and for enhancement of their sentence.
Only Abdul Khaliq, one of the 14 accused in the case, will remain in prison to serve life sentence.
A three-judge bench comprising Justice Mian Shakirullah Jan, Justice Nasir-ul-Mulk and Justice Mian Saqib Nisar also discharged the March 14, 2005, suo motu notice under which the March 3, 2005, verdict of the Multan bench of Lahore High Court had been suspended.
The high court had reversed a trial court’s judgment on the basis of “insufficient evidence and faulty police investigations”.
In its detailed judgment, the Supreme Court ordered that all accused who were arrested because of its July 28, 2005, directives be released forthwith, but ruled that Abdul Khaliq be released only after completing his sentence. The bench had taken up the appeals against the order of Multan bench of the Lahore High Court commuting the sentence of the accused (Abdul Khaliq) and acquitting the abettors involved in gang-raping Mukhtar Mai on June 22, 2002, on the orders of a punchayat (village council) convened by the influential Mastoi tribe in the village of Meerwala in southern Punjab.
The incident was widely condemned in the country and abroad.
In a dissenting note, Justice Nasir-ul-Mulk partially accepted the appeals of Mukhtar Mai to an extent when he set aside the high court’s verdict of acquitting the accused – Allah Ditta, Ghulam Fareed, Faiz Mastoi and Muhammad Ramzan Pachar.
“They are convicted under Section 10(3) of Offence of Zina (Enforcement of Hadood) Ordinance, 1979, read with Section 19 of the Ordinance and Section 109 PPC for abetment of ‘zina-bil-jabr’ (rape) and under Section 7(c) of the Anti-Terrorism Act, 1997, and on each count sentenced to imprisonment for 10 years. The sentence shall run concurrently,” Justice Mulk observed.
In August 2002, the ATC sentenced six men to death – four for raping Mukhtar Mai and two for being part of the jirga. The remaining eight were released.
Later the LHC’s Multan bench on separate appeals acquitted five of them and converted the death sentence of Abdul Khaliq to life imprisonment.
The punchayat had been called to seek punishment for Shakoor, then 12-year-old brother of Mukhtar Mai. It suggested that Shakoor should marry the girl with whom he was accused of having an affair and Mukhtar Mai be married to a man of the Mastoi tribe. But the Mastois rejected it and insisted that the offence of adultery should be settled with adultery.
Mukhtar Mai was called by the council to apologise for the conduct of her brother who had already been sodomised by the Mastois. She was allegedly dragged to a nearby hut and raped by four men.
“It is quite normal that crimes of rape are not reported promptly,” Justice Mulk observed while taking note of registration of the FIR after a delay of eight days and said that the devastating effect of rape on the victim and her family itself furnished explanation for delay in such reporting.
“There is another compelling reason that discourages the rape victim to prosecute the accused. She is deterred by the embarrassment and humiliation she will 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,” he said. The dissenting note said:
“She will further have to bear the agony of narrating the story in an open court in the presence of men and face searching and harassing questions from the cross-examiner. The rape victim relives the trauma every time she narrates the incident.
“Rape victims in our society, particularly from rural areas, are not free agents. To bring the rapist to justice, they invariably require permission and approval of their men-folk. This fact is amply demonstrated in this case when prosecution witness Maulvi Abdul Razzaq, a local prayer leader, claimed that when he learnt about the incident, he approached the father of the complainant, Ghulam Fareed. It was only after he managed to persuade the father that the complainant was taken to lodge the report.
“The complainant party was under a continuous threat from the accused not to disclose the incident. The threat was real in view of the social disparity between the two parties. Without the moral support of Maulvi Abdul Razzaq and the publicity given to the incident, perhaps, it may never have seen light of the day.
“However despite such odds, the complainant, an illiterate woman of rural humble background, mustered tremendous courage to stand up against powerful influential culprits to bring them to justice.”
About the case of Abdul Khaliq, Justice Saqib Nisar noted in the majority judgment that the high court had distinguished the case primarily for the reasons that he had remotely admitted the adultery but failed to prove the defence of ‘Nikkah’ (wedlock) he had claimed.
Justice Nisar declined to accept the allegations of abduction as made out by the prosecution and said the court was not convinced that the victim was taken to the room as had been alleged by her.