It is vital to look at the broad picture and the overall social setting in which the crime was committed. The ‘contradictions’ and ‘inconsistencies’ in the evidence are minor and insignificant and must be placed in the context of an inefficient and corrupt police investigative system in an illiterate and highly conservative societyIs it really a decade ago that the case of this brave woman hit the international headlines? Yes. It is said the wheels of justice grind slowly, and so it is. Last week, the penultimate sorry chapter of this sordid story was written when two of the three judges of a Supreme Court Bench upheld on appeal the 2005 verdict of the Lahore High Court (LHC). The LHC verdict itself had overturned an earlier decision of an anti-terrorism court that had found six out of 14 accused in the case guilty as charged. Effectively, that means all the accused bar one have now been officially declared as innocent of any wrongdoing.
Is this the end of the story, then? For all practical purposes, the answer is ‘yes’. It is true that a final option, in the shape of a review petition, is being availed. But as review petitions are heard by the same judges who decided the case, it is asking too much that they will change their minds. Mukhtaran Mai (MM from now on) is right to weep. Her legal battle for justice is lost. The best she and her supporters can now hope for is to continue their political and social struggle.
Perhaps readers have already inferred from what I have said so far which side of the fence I stand on this issue. They would not be wrong. I am definitely on MM’s side. But that is not to admit bias. In my defence I will say I was trained as a lawyer, have followed this case from the beginning and have read the relevant judgments before forming my opinion. Of course I know that others with whom I disagree (including most of the judges) could say much the same, with probably greater force. Remember my recent column on dissimulation? So where does that leave me?
Let us admit that, at the end of the day, it is all a matter of weighing up the evidence and the credibility of the protagonists, and that this is a fiendishly difficult legal matter even in the best of circumstances. So the possibility that I could be wrong cannot be ruled out. Let me therefore offer my reasons why I, along with many others, think there has been a serious miscarriage of justice in this case. As the average reader may not be fully conversant with the minutiae of the case, a brief recap of the bare ‘facts’ seems in order to help him make up his own mind when dealing with all the intricacies of the legal arguments.
MM’s case was that three brothers of the main accused (K) — belonging to the dominant clan (M) of the area — had sodomised her 12-year-old brother, belonging to the socially inferior clan (G). Deciding that offence was the best form of defence in covering their crime, they then locked him up in their house, accusing him of having an illicit relationship with their sister (S). The local maulvi (R) was approached by the boy’s anxious family to help resolve this issue. He proposed a watta-satta whereby S would marry the boy and in turn MM would marry K. This was turned down. Instead, it was proposed that MM should appear before a panchayat (informal court) of the dominant clan and ask for mercy in the tradition of the Baloch if the boy was to be forgiven. When she did so, K and three others, according to a pre-determined plan, dragged her into K’s house and raped her to avenge the honour of their tribe. When the media got hold of the story a few days later and a brave MM decided to go public with her ‘shame’, all hell broke loose.
A week or so later an FIR was lodged, and a medical examination of MM conducted. An enquiry report of the whole incident was also prepared by a senior police officer. Eventually, a total of 14 people were indicted on the charges of rape and of conspiring and abetting the crime. An anti-terrorism court exonerated eight of the accused, but found six guilty, awarding them the death sentence. The convicted, as well as MM and the state, appealed to the LHC. In 2005, the Multan Bench of the LHC, upheld the acquittals of the eight, and further acquitted five of the other six, and commuted the death sentence of K, the main accused, to life imprisonment. The decision of the SC bench last week was the result of the appeal filed by MM and the state against this verdict.
Shorn of all technical legal complexities (and let us admit that in a criminal trial their importance is not trivial by any means), the main reasons variously given by the honourable judges for the acquittal can be summed up as follows: (a) the eight accused set free by the original court were not nominated in the FIR; (b) while the medical examination of MM provided evidence of sexual intercourse, why was no DNA/semen test done that could have provided conclusive evidence of gang rape? (Incidentally K had admitted sexual intercourse with MM but claimed it was because he and MM had performed nikah); (c) the FIR was lodged a week after the alleged incident, with maulvi R (who had a dispute with an uncle of K) playing a prominent role in the proceedings); this delay has not been plausibly and sufficiently explained; meanwhile S had been married off to someone other than MM’s brother; could it be that the whole story had been concocted because K’s family had reneged on the watta-satta agreement?; (d) the version of the prosecution has not been proved beyond doubt.
That last point (d) is the crux of the matter. In the words of the honourable judges, “....we are not convinced MM was taken to the room as alleged by her”; “...the evidence is not confidence-inspiring...suffers from contradictions and inconsistencies ...The story is implausible, flimsy, and uncanny as set forth....And the sole testimony of MM is insufficient.”
Were these honourable judges justified in drawing these conclusions? I can do no better here than rely on the dissenting SC judgment of Justice Nasirul Mulk, wherein he quoted with approval words from an Indian case: “When an Indian woman in tradition bound society makes a complaint of rape, there is an inbuilt assurance that the charge is genuine. To insist on corroboration is to add insult to injury.”
In other words, and more broadly speaking, it is vital to look at the broad picture and the overall social setting in which the crime was committed. The ‘contradictions’ and ‘inconsistencies’ in the evidence are minor and insignificant and must be placed in the context of an inefficient and corrupt police investigative system in an illiterate and highly conservative society. The central question was: was rape committed and was it done with the sanction of the panchayat? The LHC decided there was no direct or sufficient evidence of this. But would such direct and sufficient evidence be ever forthcoming, given the setting? No. We must therefore rely heavily in such cases on the totality of the ‘circumstantial’ evidence.
Incidentally, if you are wondering why K alone was found guilty, it was because he pleaded nikah with MM but failed to prove it. And, though little importance was given to the matter in MM’s case, the charge of sodomy on MM’s brother was proved in a separate case and the accused convicted.
So let readers make up their own minds, though I know where I stand. It is certainly not with the likes of our ex-president whose opinion on the case was that some people will do anything in search for money or citizenship from a western country!
Mukhtaran Mai is a brave and honourable woman who deserved better. But then who says that life is — or was even meant to be — inherently fair?
The writer is a businessman. A selection of his columns is now available in book form. Visit munirattaullah.com
Source : http://dailytimes.com.pk/default.asp?page=2011\04\27\story_27-4-2011_pg3_2
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