ISLAMABAD: The Supreme Court on Wednesday sought a complete record of the Mukhtaran Mai rape case from the trial court while hearing the victim’s review petition. After the passage of more than three years, a three-judge bench of the apex court, headed by Justice Mian Saqib Nisar, took up Mai’s review petition against the trial court’s verdict on April 21, 2011 regarding the acquittal of the accused.
During the hearing, Barrister Aitzaz Ahsan stated that certain errors were made in the court’s judgment and he would prove it through evidence. He added that there were nine pieces of evidence, which were not taken into account by the court.
The bench, however, said that the record had been sent back to the trial court. The apex court then summoned the entire record of the case and adjourned the hearing for an indefinite period.
On April 21, 2011, a three-member bench of the Supreme Court upheld the verdict of the Lahore High Court (LHC) in Mai’s gang-rape case and acquitted five of the six accused and dismissed the petitions. On May 19, 2011, Mai filed a review petition in the apex court against the verdict.
Initially, 14 accused were nominated in the case, and eight were acquitted. The remaining six were given death sentences by the trial court. Later, the LHC acquitted five of them and converted the death sentence of one of the accused to a life term. The Supreme Court took suo motu notice while the victim and accused Abdul Khaliq also filed petitions in the apex court.
Currently, in her review petition, Mai has pleaded that the court should review and recall the judgment and grant relief as prayed in the titled criminal appeal. She has also requested the court to constitute a larger bench to hear her review petition, contending that she is aggrieved of and dissatisfied with the findings of the court.
“The findings, reasons and considerations of this court that led to the conclusion as stated herein before are based on erroneous assumptions of material facts and misreading of the record …,” the petition states. Mai contended that the judges had misapplied the principles relating to appeals against acquittal.
“What has to be understood at the outset is that in rape cases the victim’s own statement is the crucial litmus test for the outcome of the case,” she submitted. Her counsel submitted that if she is found credible and a person of good character and deeds, her testimony alone would be sufficient to sustain a conviction.
He further submitted that Hazoor Bakhsh and Ghulam Hussain, being close relatives of the petitioner-complainant, could not pass the test of independent witnesses; therefore, the recovery of the pistol from the accused should be disbelieved.
He submitted that the majority judges had upset the settled law by holding that even where a prosecution witness is not produced, his or her statement recorded under Section 164 of the CrPC could still be used and that too under Section 172 (2) of the CrPC and that inference could be drawn from it for the purposes, or under Article 129(g) of the Qanoon-e-Shahadat Order, 1984.
“The observation of majority judges that suggestions during cross-examination could be considered against the accused only if he/she had taken a statutory defence is contrary to the settled law on this point, especially when there is no ‘statutory defence’ to the offence of rape”, Aitzaz said.