To whom will they turn? By Faisal Siddiqi - Wednesday 27th April 2011

AN open letter to the chief justice of India’ by four Indian law academics, protesting against the acquittal of accused rapist by the then conservative Indian Supreme Court [Tukaram v. State of Maharashtra (1978)], contributed to the development of a judicially activist Indian judiciary which became sensitive to rape victims.
How ironic that the acquittal of accused persons in the Mukhtar Mai rape case has been delivered not by the ‘old’ Pakistani Supreme Court but by a judicially activist Pakistani Supreme Court. The majority judgment of Justice Mian Saqib Nisar and Justice Shakirullah Jan in the Mukhtar Mai rape case authored by his lordship, Justice Mian Saqib Nisar, is razor-sharp in its conclusions — no panchayat or jirga authorised the gang rape of Mukhtar Mai and even otherwise, there was no gang rape.
Therefore, he upholds the acquittal of the accused persons for non-participation in the fictitious rape decision of the panchayat and upholds the acquittal of accused persons in the fictitious gang rape.
The only consolation for Mukhtar Mai, in the majority judgment, is that the ‘sexual intercourse’ committed by Abdul Khaliq is held as rape as his nikah with Mukhtar Mai is not accepted and as a consequence, he is duly convicted for having sex (labelled rape) with his unlawful wife.
If only their lordships had held that there was insufficient evidence to convict the accused persons or held that their lordships were constrained by the fact that the investigation and prosecution was defective, the matter would have ended.
But Justice Saqib Nisar’s conclusions against Mukhtar Mai’s fictitious gang-rape jirga story is based on equally razor-sharp reasons — Mukhtar Mai’s fictitious gang-rape jirga story was a conspiracy “orchestrated” by the “mastermind” or “vanguard” or “leader”, Maulvi Abdul Razzak, supported by Mukhtar Mai, because she felt “embittered”, “betrayed”, “deceived” and “vengeful” as her sodomised brother’s proposed marriage with Salma and her proposed marriage with Abdul Khaliq did not happen. Thus, she, under the leadership of her maulvi, constructed a good old scary gang-rape jirga-oppression story with the spice of jirga, sex, violence and attempted marriage.
His lordship, Justice Saqib Nisar, reaches this conclusion and reasons by applying “common sense, ordinary prudence and logic”, as he finds too many inconsistencies and improvements in the evidence of the prosecution witnesses whose evidence, at times, is “unbelievable”, “ridiculous”, “convoluted”, “rhetorical” and “against human nature”. Although his lordship, Justice Saqib Nisar, doesn’t expressly say so, his implied conclusion is irresistible — Mukhtar Mai and her prosecution witnesses lied for selfish reasons.
Isn’t the sole testimony of the rape victim sufficient for conviction if it inspires confidence but without requiring extensive corroboration, as laid down in numerous Pakistani and Indian superior courts judgments? No, says Justice Saqib Nisar, especially when we have an “embittered” and “betrayed” Mukhtar Mai weaving her fictitious gang-rape jirga oppression story. In other words, the central finding/message of the majority judgment is to doubt the rape victim and her sobbing story about being a poor and powerless person in a feudal, violent and male chauvinistic society and instead to demand “independent/objective” evidence.
But the voice of Mukhtar Mai was at least heard by Justice Nasir-ul-Mulk in his minority dissent judgment. He believes her basic testimony — the panchayat played a role in the rape and four accused persons facilitated and assisted Abdul Khaliq in raping Mukhtar Mai. His lordship, Justice Nasir-ul-Mulk, doesn’t find enough evidence to convict the rest of the nine accused nor finds enough evidence for the charge of gang rape but his judgment of partial acquittal and doubting part of the prosecution story is not based on accusing Mukhtar Mai and Maulvi Abdul Razzak of conspiracy and false evidence but rather on the lack of sufficient evidence.
The key difference between the majority judgment of Justice Saqib Nisar and Justice Shakirullah Jan and the minority dissent judgment of Justice Nasir-ul-Mulk is that Justice Nasir-ul-Mulk believes the rape victim because the “crucial testimony in any rape case is always that of the victim” and more importantly, he analyses the so-called contradictions and so-called “unbelievable” parts of the prosecution evidence within the context of the imbalance of power between the rape victim and the accused persons, who are more powerful because of their stronger Mastoi tribe and their maleness.
In other words, Justice Nasir-ul-Mulk sympathetically listens to the rape victim and tries to understand the evidence within the unequal power context of the victim and the aggressor but without accepting everything she is saying.
What are the consequences of the above Supreme Court majority judgment? Every rape victim in Pakistan will now doubt her ability to succeed in such a judicial system because if the high-profile Mukhtar Mai can’t succeed, they don’t stand a chance. Rape victims survive on hope and courage, not evidence.
More importantly, the majority judgment of Justice Saqib Nasir has unsettled the settled law in rape jurisprudence and overturned decades of legal victories for rape victims. For now on, the evidence of the rape victim will not have central importance, the rape victim would need to get injured during rape to effectively prove rape, if the prosecution in a Third World country like Pakistan fails to perform DNA and sperm tests then the rape case goes into the gutter and the rape victim should only produce witnesses of the incident if they have the superhuman ability to give absolutely consistent and non-contradictory testimony.
What rape victims desire from our superior courts is not special treatment nor a judgment always in their favour. They only desire to be sympathetically heard by our courts, and even if the courts do not believe them, they only request that the courts should not accuse them of making up gang-rape stories. Hopefully, this is not too much to ask from a court which portrays itself as the ‘Supreme Court with a human rights face’.
The writer is a lawyer.

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