Mukhtar Mai Case Review Petition


For background information on the Mukhtar Mai case please read this

Mukhtar Mai Case Review petition here, uploaded with permission from Mai’s lawyer Aitezaz Ahsan. Please download the petition and upload on your blogs, help spread the word. We need more people to push for a better judicial process to make sure that Mai and many other rape survivors get justice.
Will write a detailed post on the review petition as the case proceeds. Special thanks to Samad Khurram for sending the petition.

If you can’t access the PDF, you can read the petition below:

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(Review Jurisdiction)
BEFORE THE SUPREME COURT OF PAKISTAN
Cr. Review Petition No._____________/2011
IN
Criminal Appeal No.167/2005
IN
Cr.P.L.A No.114/2005
Mst. Mukhtar Mai d/o Ghulam Farid
Meerwala, Tehsil Jatoi,
Muzafarghar
————————————————-Petitioner
Versus
1. Abdul Khaliq s/o Imam Bakhsh
2. Allah Ditta s/o Imam Bakhsh
3. Muhammad Fayyaz s/o Karim Bakhsh
4. Ghulam Farid s/o Allah Bakhsh
All Residents of:
Meerwala, Tehsil Jatoi,
Muzafarghar
5. The State
————————————————Respondents
Criminal Review Petition under Article 188 of the Constitution read with Order XXVI, rule 1 of the Rules of the Supreme Court, 1980 against the Judgment of the Supreme Court passed on April 21, 2011 in Criminal Appeal No.167/2005
arising out of Criminal Petition for Leave to Appeal No.114/2005
The petitioner respectfully submits as follows:
Criminal Review Petition
:
1. That the petitioner is aggrieved of and dissatisfied with the findings of this Hon’ble Court recorded in the titled Criminal Appeal whereby the aforesaid Criminal Appeal was dismissed and the Judgment passed by the Hon’ble Lahore High Court, Multan Bench and assailed in the aforesaid Criminal Appeal, was upheld. The findings, reasons or considerations of this Hon’ble Court that led to the conclusion as stated hereinbefore, are based on an erroneous assumption of material facts and misreading of the record and without adverting to the very pertinent points of law raised and agitated before this Hon’ble Court. Those errors are manifest and apparent on the face of the record. These have resulted in grave miscarriage of justice to the petitioner, hence this Criminal Review Petition on the basis of the following facts and law.
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FACTS
:
2. That detailed facts have been summarized in the accompanying and titled Criminal Appeal. However for the purpose of the subject Review Petition, the very basic and material facts may be summarized for convenience of this Hon’ble Court, as follows:
i. On June 30, 2002, an FIR (No.405/2002) was registered at Police Station, Jatoi, Meerwala, District Muzafarghar at 08.00am at the instance of the Petitioner as Complainant for offences punishable u/§ 10 and § 11 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979; § 354A of the PPC read with sections 109 and 149 PPC and u/§ 7 of the Anti Terrorism Act, 1997 against the respondents and others for gang-rape, etc of the petitioner on June 22, 2002 in village Meerwala.
ii. That the aforesaid incident was investigated and finally a Challan was submitted in the Court of learned Anti Terrorism Court, Dera Ghazi Khan against 14 persons including the Respondents herein.
iii. That all accused persons were charged by the learned Trial Court. They pleaded ‘NOT GUILTY’ and claimed trial. The prosecution examined 17 PWs while 10 CWs and 6 DWs were also examined. The statements of the accused persons were recorded.
iv. That finally, on August 31, 2002, the learned Trial Court convicted and separately sentenced (i) Abdul Khaliq, (ii) Allah Ditta s/o Imam Bakhsh (iii) Muhammad Fayyaz, (iv) Ghulam Farid, (v) Ramzan Pachar, (vi) Faiz Mastoi alias Faiza. It acquitted the remaining accused namely (i)Muhammad Aslam, (ii) Allah Ditta s/o Jan Muhammad, (iii)Khalil Ahmed, (iv) Ghulam Hussain, (v) Hazoor Bukhsh, (vi) Rasool Bukhsh, (vii) Qasim and (viii)Nazar Hussain.
v. That the Petitioner as well as the convicted accused persons filed separate appeals (Criminal Appeals No.60/2002; 61/2002; 62/2006 and 63/2002) before the Lahore High Court, Multan Bench against the aforesaid judgment and order of the Trial Court. All the Appeals were clubbed together and on March 03, 2005, the Lahore High Court was pleased to acquit all accused persons except Abdul Khaliq, accused-convict.
vi. That the petitioner filed four criminal petitions for leave to appeal before this Hon’ble Court against the findings of the Hon’ble Lahore High Court (Cr.P.L.A
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Nos. 114/2005; 115/2005; 116/2005 and 161/2005). This Hon’ble Court was pleased to grant leave in all petitions and convert them into appeals (Criminal Appeal Nos. 167/2005; 168/2005; 168/2005 and 169/2005) on June 28, 2005.
vii. That this Hon’ble Court heard the aforesaid Appeals, having been clubbed with other appeals filed by the State as well as by Abdul Khaliq, accused and reserved the judgment. It is relevant to mention here for the purpose of the subject criminal review petition that the learned counsel for the petitioner concluded his arguments, both on merits and in rebuttal. He submitted in writing the synopsis of his arguments.
viii. The material issues high-lighted by the learned counsel of the petitioner for fair disposal of the criminal appeals included the following:
The Law
I.
• Rape amounts to ‘Grievous Bodily Harm’
Jurisdiction of Anti Terrorism Court
II. Principles governing Appeals against acquittal and 27 reasons why these apply in the present case to reverse acquittals
.
III.
• Inadmissible statements treated as statements u/§ 161
Misapplication of law and reliance on inadmissible evidence
• The law relating to previous statement in a criminal trial
IV.
• Effect of suggestions during cross-examination of PWs
Misapplication of law causing mis-appreciation of evidence
• Instances of misapplication of law justifying of reversal of acquittals
The Evidence:
I.
• Misreading and non-reading of evidence (inter alia)
Instances of misreading/non-reading of evidence
• Misreading and non-reading of corroborative evidence
o Direct evidence of occurrence
o Quality of the prosecution witnesses
o Would such a witness need corroboration; ‘No’
o Conviction can be based on sole testimony:
 Witness not required to give photographic accounts
 Practice of harassing witness in the witness box
o In fact, the petitioner has been corroborated, by:
 The credible witnesses
 Medical evidence
• Proof of dragging
• Absence of injuries on victim is no proof that she was not raped
 Forensic science as to survival of sperm
 Refusal to implicate Shakoor’s Sodomisers
 Defence own suggestions
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II.
• Panchayat according to Baloch custom
Questions regarding Panchayat
• Panchayat, Akath and Arbitrators
• Why did the petitioner go to the Akath of Mastoi’s
• Why was another sister not taken
• Accused reaction to Panchayat
• Why there was no resistance by Gujjars
III.
• Dispute between Molvi Razzaq and Karam Hussain
The Defence obsession with Molvi Abdul Razzaq
• No question of false Implication
IV.
• Sperms grouping not required
Regarding the identity of the accused
• Substitution a rare phenomenon
• Nighttime identification
V.
• Pressure of Mastois
Delay in the FIR
• Threats given to the petitioner’s family
• Influence of Mastoi’s tribe
VI.
• No evidence of Shakoor-Salma intercourse
Regarding the Occurrence
• Sodomy though denied is conclusively proved
• No evidence of Shari Nikah
• Forcible intercourse proved by dragging
• Prove of intercourse: sperm
• Nudity
• Offers by Gujjars
• Demands by Mastois
VII.
• Dragging
Medical Evidence
VIII.
• Defence version itself admits criminality
The Defence
• Presence of the family women in the same house
• Why was Fareed (the petitioner’s father) not produced
• Material admissions in cross examination of PWs
o The petitioner was rendered nude
o Mastois demanded badla for badla
o Mastois had motive
o Admitting sodomy
o Crime took place but would not have been reported if Salma not married off to another
IX.
• Distance victim dragged immaterial
Regarding abduction
X.
Terror in the area
XI. Regarding § 354A of the PPC
(parading a woman nude)
XII. Regarding individual accused persons
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• Two sets of accused
• Role of each accuse and defence version
XIII.
Response to Defence Arguments
XIV.
Conclusion.
ix. That the Full Bench of this Hon’ble Court on April 21, 2011 announced its judgment and by a majority of two to one upheld the Judgment and Order of the Hon’ble Lahore High Court, Multan Bench dated March 03, 2005 and thus dismissed the Appeals of the petitioner (hereinafter referred to as “Judgment under Review”). Not all the aspects discussed above have been addressed by the Hon’ble Court.
3. That, for the purposes of the instant Review Petition, the relevant findings on the questions of facts or law in the Judgment under Review are summarized in Appendix A- hereto
4. That it is respectfully submitted that this Hon’ble Court while at drawing the conclusions or having observed as summarized in Appendix A, has presumed too many facts, and resorted to self presumed generalizations. The majority judgment is thus manifestly flawed and, in material particulars, is not even based on the actual evidence available on the record. In drawing their conclusions, the learned majority judges have disregarded cogent evidence and failed to notice actual material on the record and the facts proved thereby to the very satisfaction of the learned Trial Court. Errors therefore float on the surface of the record.
5. That, in any case, the Hon’ble Majority Judges have not considered the pleas of the petitioner in the light of the submissions made and have thus misread the record that resulted in grave errors that are apparent on the face of the record and have adversely affected the rights of the petitioner and the liabilities of the respondents. The Judgment under Review may therefore be reviewed in the very interest of justice, inter alia, on the following grounds.
GROUNDS
:
A. That, at the outset and before adverting to the actual instances of misreading of the record by the learned majority, it may be pointed out that:
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I. In the facts and circumstances of this case, and in appreciating the evidence on the record, the learned judges have misapplied the principles relating to Appeals against acquittal.
II. There are distinct rules of evidence exclusive to the offence of rape. These principles have been devised over generations of learned and compassionate judges aware of the prevalence of unreported cases, the inhibitions and impediments to the reporting of such crimes violating the personal honor of the more vulnerable gender (often targeted in revenge), the hyper-sensitivity of the situation of the victim and her family and the fact that she will, in most cases be the ONLY witness to the actual crime.
III.What has to be understood, at the outset, therefore, is that in rape cases the victim’s own statement is the crucial litmus test for the outcome of the case. If she is found as a credible person of good character and deeds, her testimony alone, without more and without the requirement of any corroboration, will be sufficient to sustain a conviction;
IV.Courts have gone through the thicket of badgering cross-examination, as the defence in such cases is bound to inflict upon the victim intended to harass her, but believed any woman who has proven credentials of integrity and honesty.
V. Most pertinently, therefore, (as elaborated in the grounds below), settled principles of law have not been applied to the facts including the crucial principles that:
(a) a rape victim is the exceptional witness believed without corroboration (although there was ample corroboration of her testimony in this case);
(b) marks of violence and resistance on the body of the rape victim are not a necessary precondition to prove rape (although in the present case actual proof of such injuries was provided by the lady doctor herself);
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c) absence of DNA and group semen test is not fatal to the prosecution in which aspect the learned Majority have failed to even discuss or distinguish the case law.
B. That without prejudice to the generality of the foregoing, the learned majority has misread the cogent evidence on the record leading it to draw conclusions that are not warranted and to apply inapplicable principles of law to come by such conclusions. In particular and most notably regarding:
I. Injuries and Marks on the body of the Petitioner
:
a. The learned majority, while noting the rule that a conviction could be based on the sole testimony of the victim, has found it inappropriate to convict in this case on the basis of a complete misreading of the record. Crucially, in an observation critical to the entire judgment, they misread the evidence in the extreme when they noted (in para 28) that there was an “absence of injuries or marks of violence” on her person.
b. The above assumption is a clear misreading (in fact ‘non-reading’) of the record. In fact this assumption is patently contrary to the record and goes to the root of the case.
c. The majority judges have failed to read the fact that the Lady Doctor (PW.2) who undertook the medical examination of the petitioner, had herself deposed in court and proved her earlier report of rape. In the court she deposed to the integrity of her report certifying injuries on the petitioner’s body. She found healed injuries on the person of the victim and opined that she had been subjected to rape. How could the learned majority then finds no evidence of injuries on her body? This fact alone cries out for review.
d. The submissions of the learned counsel in this behalf are substantiated by the findings in the minority view on the same Bench hearing the same arguments in this behalf are quite different and rational.
e. While a view contrary to the “opinion” of the medical expert can, in very rare and exceptional cases, be formed by the Court, it is not possible for the Court (trial or in appeal) to refuse to read the facts given in a
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particular medical examination. The observations of the medical examiner cannot be ignored or modified to match the Court’s own subjective opinion.
f. In other words, when the medical examiner says that there were marks of injuries (albeit healed, an observation which matches the time-lapse of eight days between the crime and the medical examination), the Court cannot conclude that there was an “absence of injuries and marks on the body of the prosecutrix”. This, indeed, was one of the most telling circumstances in the case in which regard the learned majority has completely misread the record.
g. Since the FIR had been lodged, admittedly, after a delay of 8 days (on the justification of which, further submissions will be made below), the wounds had healed by the time the Police obtained the victim’s medical examination. The victim/complainant’s case was thus in exact consonance with the medical evidence and the process of nature, even though surface and superficial bruises and lacerations may have actually healed and disappeared by then. The injuries, that have gone unnoticed by the learned majority, were very much there and are duly proved on the record.
h. Therefore in this very behalf the minority opinion of Mr. Justice Nasir-ul-Mulk contains the more apt observation that:
“Her testimony supported by the healed bruises on her body was sufficient to prove the charge of rape.” (Please refer to Para.29, of the Judgment under Review)
i. Injuries on the person of the victim (the petitioner) completely corroborated the petitioner requiring no further proof (although more evidence of the gang-rape is, of course, available on the record).
j. It may, even otherwise, be pointed out that never have the superior courts insisted that injuries on the rape victim are crucial to the truth of the charge. The observations, precedent judgments, in fact, are that there are circumstances in which, the assault being inevitable, the victim just surrenders. Such submission does not negative rape or make it any less a crime. Moreover, where a victim is raped at a gun point, or by the
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physical overpowering of four young men, and rape becomes inevitable, marks and injuries lose significance. A victim is likely to surrender and go limp and lifeless, rather than resisting. In this case, additionally, Abdul Khaliq was armed with a pistol.
k. Even those outside would avoid resistance knowing that one of the accused has a pistol in his hand, apprehending he may use it on their woman inside. The father and uncle are double hostages: captives of the 200 plus Mastois outside the room, and fearful of the killing of their daughter/niece in the power of the four strong rapists, including one armed with a pistol inside. A state of helplessness naturally pervades. How could the majority then wonder as to why they were not more aggressive once the petitioner had been taken inside the room? The reason is obvious.
Please refer to some of the case law as mentioned hereinbelow:
• 2008SCMR1602 (Mst. Yasmin Butt Vs Majid Baig)
• 2002SCMR1009 (Shehzad Vs The State);
• 1999SCMR1102 (Mehboob Ahmed Vs The State)
• 1975SCMR69 (Haji Ahmed Vs The State)
l. It is sad that, proceeding from the misreading of the record regarding the injuries on her body, the learned majority were pleased to denude her of credibility despite a unique and unparalleled degree of integrity shown by a poor and vulnerable village maiden out in the patriarchal heartland of a backward area.
II. Credibility of the Petitioner (complainant)
:
a. Without prejudice to the foregoing, there is a long line of precedents holding that a rape victim does not require any corroboration if she is otherwise proved credit-worthy. In this, behalf too, the learned majority misread the record in denying credibility to the Petitioner.
b. Thus the dismissive attitude of the learned majority about the credibility of the victim/Petitioner is also to be derived from its failure to read the record qua the physical condition of her person. By not adverting to the proven injuries on her body, the majority chose not to believe her and thereby even denied her credibility (despite a great strength of character
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admittedly demonstrated by her), by observing as, inter alia, summarized in Para.11 (f) of Appendix A.
c. The respondents (accused), in their defence, made a distinct effort to assert that the petitioner’s credibility was questionable because she had put up a ‘show’ to inveigle large sums of money and official patronage. The respondents had cross-examined the petitioner with specific questions in this behalf. They then produced the Bank Manager also in an attempt to prove that she had been appropriating larger funds to her personal use. The questions were duly negatived when the Bank Manager (DW1), appearing on behalf of the accused themselves, admitted that the monies in question had been transferred from her account to a Trust Account for building the school. The issue was therefore aptly relevant and cogent. Which other woman of her lowly station in life would refuse such temptation?
d. By not adverting to the evidence in this regard the learned majority has clearly misread the evidence and drawn a conclusion that is not warranted by the record.
e. With such evidence on the record, with this line of argument having been the basis of the defence itself, it was not possible for the learned majority to conclude that these were “trivial factors”. This amounts to trivializing the very grievous and traumatic experience of rape. Need one be reminded of the cynical suggestion made by the former head of the regime, General Musharaf (when questioned about the petitioner’s very case) that Pakistani women fake rape cases to obtain Canadian visas? The majority judgment is based on similar assumptions.
f. What greater credibility was required in the circumstances? Rarely have rape victims been of such high credit-worthiness and moral caliber. After all, for a rustic village woman, in the heartland of patriarchal tribalism, not to be lured by the personal gain offered to her in millions, and utilizing all receipts instead for the uplift of the girls as poorly stationed as her, is not a common instance. It is, in no event, trivial.
g. Likewise the very attack on her credibility based on the financial help and the nationwide (even world-wide) renown she received is unkind
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and wholly contrary to the facts. It amounts to a speculation not based on any evidence on the record and drawn from assumptions contrary thereto. After all:
 How could she have known, when she (a rustic backward village maiden) went to the Police to report her ordeal, that she would receive such recognition and support?
 Could she have planned and schemed to fake an allegation of gang-rape on that date with the Machiavellian design to obtain funds and fame?
 How could she fake such a diabolical design to extract funds and fame when she was only complaining of the tragedy inflicted upon her?
 After all, the defence admits intense media and administrative interest. Why has no one, not even the national and international media, been able to smell a rat and conclude that the whole episode was fake and the allegations of convening of a Panchayat and gang-rape is bogus and false?
 How come no visitor or media reporter, national or foreign, scanning the area, has falsified her story? Even the Press Report relied upon by the defence itself proves the tragic episode.
 Should victims of rape stop reporting crimes in the fear that they may achieve renown and recognition of some sort or the other?
h. Her credibility is more established by the fact that, despite obvious motive to the effect, she did not nominate the three men provenly accused of violently sodomising her young brother. They were not implicated in the gang-rape by her because they were actually not part of that crime. Had she acted out of spite or motive, she would have nominated them first and foremost. But by not implicating these three men, against whom there was obvious animus in her mind and that of her family, she carried a ‘ring of truth’ in her statement. There was no room for any other contrary interpretation of the record.
i. By implying that the two incidents (of sodomy and gang-rape) had deliberately been kept apart and the convictions of the sodomizers (in the separate case) had served her purpose, the learned majority has grievously misconceived the facts and misread the record. How could
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she have known, on the date of the FIR, on 30.06.2002, that the three assailants of her young brother would actually be convicted; in latter years they were indeed convicted on February 16, 2004 by the learned Trial Court and the conviction was upheld by Federal Shariat Court on March 31, 2006? How could she have known the outcome in 2002? The very assumption militates against the record and is based on sweeping generalization. It is unwarranted in the light of the proven and admitted facts.
j. What the court is called upon to do is to decide whether the victim is a credible person. If found credible and trustworthy, her credibility and trust cannot be shaken by mere badgering cross-examination; in fact, it is the duty of the Court to protect the victims from such a cross-examination.
k. The majority judgment also ignores the fact that in ‘rape’ cases the rule of the thumb with respect to evidence itself is not as stringent as in ordinary criminal cases, given the trauma of re-visiting the abnormal and traumatic event which is further compounded in a society such as ours steeped with cruel practices that have the cloak of custom and misconceived religious dogma. Every survivor deals with the assault in a way that addresses her particular situation with no two victims exhibiting the same symptoms as far as emotional shock, disbelief, fear, embarrassment, misplaced guilt, shame and depression are concerned. The courts thus abstain from nit-picking and objecting to every word if the victim is personally credible as the Complainant, in this case, undoubtedly is.
l. The majority judgment is a rare departure from the plethora of case-law and sets a precedent which is against the record, whereby no rape/gang rape victim will ever have the courage to fight against such heinous crimes with her voice being lost in a society adamant on reinforcing the notion that a woman does not have a voice at all.
m. Even otherwise a victim in a rape case is never expected to give photographic evidence of the occurrence, nor can be allowed by the Court to be subjected to badgering cross-examination:
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n. The learned majority ought also have noticed (as was pointed out in submissions and as the minority judgment notes) that the PWs, especially the petitioner was subjected to badgering and tedious cross-examination, spread over 70 long pages in fine print during which the petitioner also broke down and wept (p. 178). It is precisely for this reason that victims are inhibited in reporting cases of sexual assault. The learned majority also ignored the cogent precedents placed before it that assert that the courts should not place a premium on prolonged and badgering cross-examination. The learned majority ought to have followed the salutary principles as, inter alia, referred to in the following cases:
• PLD1967SC167, (Muhammad Shafi vs. The State), at p.173
• PLD 1995SC578, (Sher Muhammad Vs. The State) at p.587
• 1996SCMR3 (Mudassar Vs. State) at p. 14
o. To sum up; in the present case, to find the petitioner lacking of trust and unreliable, amounted to a misreading of the record and an error apparent on its face because:
i. It is proven on the record that she has refused to appropriate to her own use the millions that have been offered to her;
ii. This is proved by the defence evidence (through the testimony of the bank-manager, DW 1, who deposed that she had transferred the receipts from her personal account to the School account) and by the cross-examination itself (where she is proved to have returned the Rs. 5 million cheque delivered by Federal Minister Atia Inayatullah;
iii. Such probity and propriety is rare among people, what to say in a woman who had not seen a hundred rupee note till then;
iv. Her schools, today, number almost 1,500 of the most backward students, boys and girls, (including a large proportion of Mastoi girls) with free books, free uniforms and free pick and drop. These are changing the face of the social landscape of Meerwala and its environs.
v. Had she the inclination to falsely implicate uninvolved people in the gang-rape, she would have certainly implicated the three sodomizers of her young brother (Shakoor). She did not. The fact that she did not implicate
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them, in the report (FIR) of her gang-rape, imparts a ring of truth to her testimony;
vi. And to clinch the issue of credibility, marks of injuries were found on her back and buttocks (which have completely escaped the attention of the learned majority);
vii. In which other case will such a credit-worthy witness be found? And if such conclusions are allowed to remain the law, then they will
• Further inhibit the reporting of crimes against women;
• Further inhibit civil society activists from supporting the victim in the fear that such support will be misconstrued by Courts of law;
viii. Even otherwise, and apart from her own persona, it is highly dangerous to suspect, as a general rule, the sole testimony of a rape victim. After all, in most cases the victim is the only witness of the rape.
ix. In any case, the petitioner is best described in the words of Atticus Finch (Chapter 11) from Harper Lee’s ‘To Kill A Mocking Bird’: ‘I wanted you to see what real courage is, instead of getting the idea that courage is a man with a gun in his hand. It’s when you know you’re licked before you begin but you begin anyway and you see it through no matter what. You rarely win, but sometimes you do.’
III.Delay in lodging the FIR
:
a. In actual fact there is ample evidence on the record justifying the delay in lodging the FIR. This fact has been properly and accurately observed in the minority judgment. [Attention is invited to Paras.8-12 of the minority judgment at pp.62-65]. It was rightly observed “thus, in my view the delay of eight days in reporting the incident to the police by the complainant in the aforementioned circumstances will not be fatal to the prosecution case”.
b. The fact is that if there is one offence in the reporting of which the courts have never considered delay as being fatal to the Police, it is rape. In every other offence (homicide, robbery, theft, fraud), delay in filing a report is considered as time spent in deliberation and fabrication of the story. Delay in a rape case is considered a natural response of the victim
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and her family, particularly in the South Asian context, as women (virgins or otherwise, because the learned majority draws this distinction) and their families are afraid of a social stigma and ostracism. They are also afraid of being exploited by male policemen and cross-examiners with no sympathy for the victim and actually attributing her lasciviousness and immorality deserving of the assault, or motives to falsely implicate.
c. Far greater delay in rape cases has been ignored by the superior courts in Pakistan and India as women are hesitant and afraid of further harassment. A plethora of precedents and case law, which has not been followed in the majority judgment, testifies to this attitude of the Courts in condoning delay in rape cases.
d. In some cases delay of several weeks, even months, has not been found fatal to the prosecution. In one case the crime was reported after the victim began to show visible signs of pregnancy but the Supreme Court of Pakistan was not impressed by the defence argument based on delay as rape cases are indeed an exception to the principle.
Attention is invited to the case law referred to at pages. 25-27 of the written synopsis submitted by the learned counsel for the petitioner.
IV.
Assumption that a rape victim would marry her assailant:
The judgment of the learned majority is based on several inferences and assumptions that are not borne out of, or are contrary to, the record; on social comment consisting of sweeping generalizations in conflict with the ground realities of gender relations; and on speculative notions of social conditions that a court is not the best judge of.
Thus, for instance the inference drawn by the learned majority judges that the very FIR had been registered and its contents crafted because Khaliq had refused to marry the complainant and he had married off his sister to one Khalil on June 26, 2002 (Para.18 and Para.23 of the Judgment under Review) is not warranted though it is treated as crucial to the appreciation of the record by the learned judges.
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It cannot be speculated that a rape victim has a desire to be married to her rapist and to liken her to the Shakespearean ‘woman scorned’. This assumption that a rape victim accuses because she has been rejected by an eligible groom who has forcibly violated her, is highly problematic. Instead of this speculation a more reasonable conclusion would be whatever settlement the Gujjars may have been agreeing to was out of fear of violence from the other side; rather than an interest in a proposal of marriage between the rapist and his victim.
V.
Assumption that women have a say in patriarchal society:
The observations of the learned majority in Para-19(a) and Para-22 show that it is oblivious to the pathetic state of women in the male dominated patriarchal and tribal context in the rural, even urban areas of the country. First, the learned majority assumes the presence of other members of the family of the accused in the house at the time of the incident itself and then also assumes that women in such a society have an effective say.
In this behalf it may be noted that:-
i. The typical incidence of Karokari in such areas comprises the killing of one’s rival and one’s own sister, preferably an unmarried sister, at separate places, then putting the dead bodies in the same room, even on the same cot (charpai) and then going to the Police to report the double homicide as a case of grave, sudden and uncontrollable provocation, both deceased allegedly having been found ‘in corpus delicto’. Women are thus used as tools, indeed unwilling weapons, to extract vendetta or to assert the ascendancy of the male gender. They have no voice and say, not even a right of life in the eyes of their male relatives.
ii. The incident complained of was thus eminently consistent with such traditions of karo kari under male dominated patriarchal tribalism that make victims of their suppressed and voiceless women to pursue vendetta and criminal intent.
iii. In fact women in such societies (even in more advanced and educated circles) are conditioned to be complicit in abuse, even
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their own abuse. After all (in another famous incident), what persuaded even an educated and urbanised lady doctor to kill her own daughter in the daring, dramatic and tragic killing of Samia Sarwar (daughter) in the office of her Advocate Miss Hina Jillani? She facilitated the murder in her presence even as her husband (Samia’s father) waited downstairs for the deed to be done. Besides being helpless and voiceless these women, even educated women in this environment of self-righteous patriarchal rage, become the tools of the passions, anger, ferocity, vengeance or criminality of their men. It is the petitioner that is a shining exception.
iv. That even otherwise there is no evidence, nor even a suggestion by the defence that the ladies of the house of Allah Ditta accused were present in it at the time of the gang-rape. As observe in the minority judgment:-
“This argument fails in the absence of any evidence, or even suggestion by the defence, that Allah Ditta’s family was present in the house at the time of the occurrence”. (Para 23, p.76 of the Judgment under Review)
The above is the correct reading of the same record. Hence the learned majority has obviously misread the record and drawn untenable and generalized assumptions therefrom.
v. That while arriving at the aforesaid erroneous conclusions, the learned majority judges have passed sweeping statements about the rural social backdrop in the heartland of southern Punjab of which they had no direct experience. This is a patriarchal tribal backdrop which has been misunderstood by the learned judges in the majority. These assumptions have told upon the conclusions that have been drawn by them. But the backdrop has been better appreciated by Mr. Justice Nasir-ul-Mulk in the minority judgment. That was the context of the crime. The decision of the majority needs to be reviewed and recalled.
vi. In raising speculative questions, the learned majority has also failed to note the repeated observations of the apex court itself on the sorry and terrible lot of females in our rural areas. Their status is no better than cattle and farm animals. Often the latter are treated even
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better and with greater care. The following judgments on the point had been referred to during the hearing in support of the contention that in coming to a conclusion the Hon’ble Court ought to keep in mind this social back-drop, as enunciated therein, in mind and not to speculate otherwise.
• PLD 1990 SC 1, 26, 27 (Ghulam Ali Vs. Mst. Ghulam Sarwar Naqvi)
• PLD 1990 SC 99, 115 [SAB] Qazalbash Waqf vs. Chief Land Commissioner, Punjab)
• 1990 SCMR 895, 898 [SAB] Mst. Zubeida vs. The State
• 1999 SCMR 1102 (Mehboob Ahmad vs. The State)
• Vijay Vs MP, (Crim. Appeal No. 660 of 2008 decided on July 27, 2010 , Village and rustic woman, judicial notice taken;
VI.
Having thus observed the issue of gender relations in our society from an exclusively male perspective, the learned judges in the majority then proceed to make other erroneous assumptions apparent on the face of the record. About an earlier interaction between the accused and the complainant the majority judgment observed that it was unlikely that, if Khaliq and others wanted revenge for the (unproven) Shakoor-Salma liaison, they would not have taken the earlier opportunity to assault the petitioner when she came outside their house without her “menfolk” to obtain the release of her brother from the Mastoi captivity. (Please refer to Para (d)(ii) of the Appendix A).
Failure to differentiate between simple revenge and tribal BADLA:
It is submitted that the observation runs counter to the facts on record and is based on an assumption that is not tenable because:
• It has to be understood in the social context of patriarchal tribalism that what the accused wanted, through the process of the Panchayat, was not revenge simpliciter. They wanted to establish the social and tribal dominance of the patriarch and the tribe, more specifically that of the Mastoi tribe and of Faiz Mastoi.
• It is to reassert and reaffirm such dominance that the tribal custom of BADLA is enacted.
• There was no point of the accused having taken “revenge” at that time. What they wanted was “TRIBAL BADLA” through the Panchayat to establish tribal and gender dominance. Not mere
19
private retaliation. The inference drawn is thus contrary to the facts of the case.
• The prosecution case is consistent and in fact proves thus the Mastoi needed to hold a panchayat involving the other acquitted accused.
VII.
Another irrelevant inference drawn by the learned majority is in its critical observation (in Para.23, at pp.36-37):
Differentiating between virgin and non-virgin rape victims:
“—in a case of an unmarried virgin victim of a young age, whose future may get stigmatized, if such a disclosure is made, if some time is taken by the family to ponder over the matter that situation cannot be held at par with a grownup lady, who is a divorcee for the last many years—.”
It is submitted, with respect, that such an observation by the learned majority distinguishing between a virgin and a non-virgin rape victim:
i. Is too sweeping an assumption and amounts to an affront to all rape victims and the judgment merits review on this score alone.
ii. What the observation really implies is that there ought to be a difference in the standard of proof of rape between that of a divorcee and the rape of a virgin.
iii. This inference seems to be based on the medieval assumption that women are chattel (property) of men who then rate virgins as a higher, more valuable possession than non-virgin women. Women cannot be treated as chattel in this day and age.
iv. Taken to its logical result, this would make a disturbing distinction prescribing, for lawmen and courts, a standard that would make them cynical of the report of rape made by any woman who is married or has been divorced, in other words who is not a ‘virgin’.
v. Would this standard also not make so-called ‘sex workers’ more vulnerable to rape? After all, they too have fundamental rights and protection against violence and physical harm.
20
vi. Surely this is a test that the Apex Court cannot prescribe and allow to be applied. It will be seen by many as a sweeping generalization carrying within it wide-ranging implications of gender bias. In this respect also the majority judgment cries out for review.
VIII. Observations about sodomy with Abdul Shakoor:
:
a. In Para-19 the learned majority refers to the earlier incident on 22-06-02 in the sugarcane field as “some obscure happening”. This speculation is unwarranted and a misreading (as well as non-reading) of the record. After all the prosecution evidence had left nothing to speculation or doubt on the matter because the sodomy with Shakoor by Khaliq’s brother Jamil and his two companions was established on the record through:-
i. The testimony of Dr. Fazal Hussain (PW.17), who had physically examined Shakoor, the victim of sodomy and certified that he had been violated;
ii. The actual prosecution and conviction of Jamil and his companions for that crime vide a judgment dated February 16, 2004 passed by Sessions Judge, Muzafarghar; and
iii. The dismissal of the appeal filed by the accused person before the Federal Sheriat Court being Cr.Appeal No.93-L/2004;
b. The incident of sodomy of Shakoor by Jamil Mastooi, brother of Khaliq accused, thus stands adequately proved and could not be disbelieved as, inter alia, the judgement of the Hon’ble Federal Shariat Court has reached finality.
c. Therefore Abdul Shakoor’s sodomy could not be trivialized as “some obscure incident when it stood established and further confirmed the prosecution’s version of the events to be correct.
d. Hence the conclusion that ‘there is no direct and accurate evidence’ of it, is another misreading and non-appraisal of the evidence by the learned majority and amounts to a failure and error apparent on the face of the record. As already submitted, and in actual fact, the sodomy was clearly established in the record through the expert medical examination
21
testified by PW.17 (Fazal Hussain, the Doctor) as well as by the conviction of the accused for that offence which the Mr. Justice Nasir-ul-Mulk, in his minority judgment correctly accepts.
e. What has indeed not been proved, on the record, was the alleged liaison between the very young Shakoor (brother of the complainant Mukhtar Mai) and Salma (sister of Abdul Khaliq accused). That liaison was said to have motivated the Mastoi clan into an outrage provoking them, admittedly, to lock up Shakoor and Salma together in Abdul Khaliq’s house.
f. The point is that if the Salma-Shakoor liaison in the sugar-cane field is not proved (as admittedly it is not), and Shakoor’s sodomy there by Jamil (Khaliq’s brother) and others, is proved (as it admittedly is through the medical testimony and the judicial verdict in the sodomy case), then it is evident that the complainant’s version is proven that the Mastois locked up the victim of their crime (Shakoor) with their sister, Salma to hide, or divert attention from, the sodomy crime. The remaining facts follow in logical sequence. The observation of the majority that it was an “obscure” incident is hence contrary to the record and amounts to its misreading.
g. Based on this erroneous conclusion, the learned majority, then proceeds to a further untenable inference:
“The explanation of the prosecution that it was due to shame that he refrained from the disclosure, does not go with the earlier prosecution’s version, when he had refused not to declare being sodomized and was thus confined with Salma….…Strangely even in the police station did not reveal his sodomy to any one”.
h. It may be respectfully submitted that besides being contrary to facts established on the record, the above inference is also speculative, at best, and incompatible with the tendency of young lads (and equally that of women) not readily to reveal incidents of sodomy (and equally of rape) to which they have been subjected. There is indeed a sense of shame and humiliation that only a forcibly sodomised young boy may feel. It is well known that often such young men (and boys) never reveal such assaults or abuse, (even frequent assaults), all their living days.
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i. The mindset of a violated young man is indeed likely to be of even greater sensitivity than that of a young woman raped. A victim of rape is expected to report the crime, albeit with much hesitation and diffidence. She can be ostracized and treated as pariah. Delay is understandably condoned in her case. A victim of sodomy in our society, on the other hand, falls in the estimation of his peers for a lifetime. He is thereafter not considered “man enough” for the rest of his life. He is a butt of jokes. There is a natural inclination on such a victim’s part not to make this tragedy public. On what basis, what record and on what material could the learned majority therefore speculate otherwise?
IX. About Molvi Abdul Razzaq, PW-11
:
a. The learned majority has concluded that the entire prosecution story had been drawn out to the requirements of Moulvi Abdul Razzaq (PW-11). This conclusion is contrary to the record but is based, inter alia, on the following observations in the judgement:
“Maulvi Abdul Razzaq was a very important person to the complainant party. (Para 19(c));
“……. now he became proactive and in utter exuberance, he again approached Ghulam Fareed on 29.6.2002, but this time with the power of media, as the ‘pressmen’ were with him; even then, it is not spelt out from the prosecution evidence. (Para 19 (f));
“Likewise, Ghulam Fareed too is an unimportant character in the scenario, he is not a close relative of Abdul Khaliq and even is not shown to have any influence in the Baradari, but obviously is the son-in-law of Karam Hussain, with whom Maulvi Abdul Razzaq was in litigation and had to give up some land;(para 19(h));
b. The above observation provides a primary rationale for allowing the appeal and doubting the evidence on behalf of the prosecution. It seems that the learned majority feels that Abdul Razaque-PW11, an Imam, master-minded the case and cajoled the petitioner’s family to lodge the complaint. It is implied that PW-11 had a bone to pick with one of the accused.
c. In this behalf, it is submitted that the opinion expressed in the minority judgment is in consonance of the record because had Razzaq, PW-11 motivated the complaint, his own stated adversary, Karam Hussain would surely have been nominated as an accused in the FIR. Why was Karam Hussain, with whom Razzaq had had a civil dispute, not
23
included in the list of the accused persons if Razzaq mastermined the initiation, the content and the course of a false criminal prosecution?
d. This is crucial and the minority judgment thus is clearly based on the record and not on speculation in so far as Mr. Justice Narir-ul-Mulk observes about the same Abdur Razzaq, PW11:-
“The witness is not, in any way, related to the complainant party. It is hard to believe that the complainant or her father would, in order to please Maulvi Abdul Razzaq, make out a false case of rape against the accused and face and endure its serious repercussions. The High Court had misconstrued the role of this witness, which in my opinion was positive and well intentioned, rather than mala-fide. His civil litigation with Karam Hussain, father-in-law of the accused Ghulam Fareed would not render him un-credible. Had he been ill motivated on that account he would have implicated Karam Hussain, or member of his immediate family, rather than son-in-law. No ill will of this witness against the other accused has been shown by the defence.” (Para 13, at p.66 of the Judgment under Review)
X.
About Terror in the area and threats:
a That likewise, the learned majority judgment also shows a disregard of the cogent and independent evidence on the record that proved that the assailant party was dominant in the area and had effectively terrorized the entire populace. The learned majority has, by simply not adverting to this evidence, therefore, concluded contrary to the record, that:
Para 23: “We are also not convinced if any threats were flung to the complainant side as has been alleged and to us it seems to be an abortive attempt to cover up the delay, otherwise there is no substantial cogent proof that after the incident, in between the 8 days anyone from the accused side threatened and/or harassed the complainant or her family; likewise the reason of fear is also self-assumed”.
b. The learned majority could only come to the conclusion that fear was “self-assumed” by a complete failure to advert to the cogent evidence on the record, including the evidence of CWs and PWs. The failure to advert to that evidence is yet another example of misreading (in fact non-reading) of material evidence.
c. That the majority judgment has ignored the impact of the terror in the area while holding that ‘extending of threats were nothing more than rhetoric’
24
(Para.19, at p.73 of the Judgment under Review) despite the fact that it has been admittedly held that the case had satisfied the four corners of the Anti Terrorism Act, 1997, something on which even the accused did not take issue with the petitioner, even in appeal.
d. Besides the fact that the specific and grave threats were noticed by Mr. Justice Nasir-ul-Mulk, the learned dissenting judge, the majority judgment has failed to take into consideration and advert to the testimony of independent CWs which clearly evidence the sheer terror prevailing in the area as a result of the events. These threats and the fear pervading the entire area (fully testified by such CWs as the Tehsil Nazim and the local councilor) established that these were no mere ‘rhetoric’.
e. These CWs belonged neither to either the prosecution or the defence. In fact by ignoring them altogether, the majority judgment deems the impact of terror as insignificant and without reference to the totality of facts evident on the record. The conclusions drawn as a consequence cannot be sustained. The reason for fear was thus not “self assumed”.
f. Furthermore, there was express evidence of threats through the words of:
• PW-13, Sabir Hussain:
o At p.134 (1st
o At p.136 (9 line): due to threats hurled, no body accepted the challenge of ghairat especially when the Panchayat men who had called Mst. Mukhtar Mai and had not observed ghairat.
th
o At p.136 (11 line from the top): the accused hurled threats that if any body followed them, would be dealt with (Hashar Kardingay)
th
o At p.150 (5 line from the bottom): Abdul Khaliq hurled threats that if the matter was reported, he would be murdered and dealt with.
th
line from the bottom), no body disclosed about the occurrence with Mst. Mukhtar Mai upto June 30, 2002, volunteers due to fear.
• PW-14: Mai, complainant:
o At p.161 (12th
o At p.168 (5 line from the top), threats were hurled incase I had not gone to seek pardon. Threats included killing.
th
o At p.170 (5 line from bottom), volunteers they hurled abuses and that incase we went ahead would be killed.
th
o P.174 (9 line from top), I stated before the police that due to pressure of the complainant party requiring compromise my maternal uncle had taken me there.
th
line from top) volunteers they had been hurling threats.
25
g. The minority judgment is thus more apt and actually based on the evidence on the record insofar as it observes at Para.11, p.64 of the Judgment under Review:
“The complainant party was under continues threat from the accused not to disclosed the incident. The threat was real in view of the social disparity between the two parties, as will be discussed latter. Without the moral support of Molvi Abdul Razzaq and the publicity given to the incident, perhaps, it may never have seen light of the day”.
h. The judgment of the learned majority is thus erroneous and against the facts on the record. As such it needs to be reviewed.
XI. About DNA and Sperm Grouping
:
a. The learned majority has prescribed a test which, applied to all pending cases (and pending appeals) in which, on account of there having been no earlier strict requirement, the Police have failed to obtain DNA or Sperm Grouping tests, the outcome will be against the victim. All rapists must be freed at once.
b. The fact is that for the present no such invariable rule is provided nor are all districts, particularly the rural ones, equipped for such tests.
c. Moreover, if this were an invariable requirement it could be stulted by substitution, in transmission to distant laboratories, a fact not easily done with weapons of other more tangible items.
d. This is the more so since as recently as 2010 in PLD2010SC47 (Shakeel Vs The State), this Hon’ble Court has held that the sperm grouping test is not a sine qua non for conviction on the charge of zina bil jabr. With that legal proposition in the field, how can the court now suddenly provide for this as an invariable requirement to cases in which investigation has been completed, even trials concluded, without any of the above tests?
XII. The matter of abduction
:
It is submitted with respect the findings of the majority judgment on this aspect are absolutely non-speaking. In any case, the finding is self-contradictory since on the one hand it assumes there is no abduction YET it admits ‘distance’ that the prosecutrix was ‘taken’, albeit not to the room, being immaterial (which itself is a misreading of the evidence).
Once it is accepted that a woman was ‘taken’ (and the distance is rightly deemed irrelevant), a conclusion of innocence cannot be arrived at.
26
XIII.The charge regarding ‘Nudity’
:
It is submitted with respect that the learned majority has completely ignored the record on the issue of ‘Nudity’. The following is the material evidence (not considered by this Hon’ble Court) on the issue in question vital to the charge u/s 354-A PPC:
PW-12: (Altaf Hussain)
o At p. 132(4th
PW-13 (Sabir Hussain) line): She was turned our after about an hour. Muhammad Fayyaz accused threw clothes at her.
o At p. 136(13th
o At p.150(1 from bottom): Ghulam Fareed got hold of the clothes and put on the same to Mukhtar Mai;
st
PW-14 (Mukhtar Mai) two lines), after putting on clothes we proceeded to our house;
o At p.160 (13th
o At p.175(2 line): my father, Ghulam Fareed and Ghulam Nabi and Haji Altaf were present there and saw me in nude condition;
nd para. 4th
o At p. 179(11 line), came out of the room in nude condition;
th
o At p.180 (7 line from bottom): my shirt was pulled and torned;
th
o At p.186 (last 3 lines): I was turned me out in quite naked condition. line from the bottom): I came out in nude condition
Interestingly, in an attempt to escape this charge, the accused admit to zina in the cross-examination (shown below) when they suggest in cross-examination that she had been handed over the shalwar “inside the room after commission of zina”.
XIV.
Confessional cross-examination containing the defence:
This is a very significant aspect of the case. It was contended that the accused had admitted their guilt in their § 342 statements in that they formally pleaded that their defence to the charges was what had been put to the PWs in the cross-examination. In the cross-examination, a number of suggestions were put to the PWs; the bare reading whereof shows a clear admission on the part of the accused. But the learned majority, without considering them all, holds that there suggestions amount to ‘admission’ only with respect to the defence of Abdul Khaliq but not others. The material suggestions put to the PWs in their cross-examination by defence are appended herewith as Appendix B.
The important point that was expressly urged was that this was not an ordinary case of cross-examination. Here was a case in which, rather than articulating a defence in their statements u/s 342 Cr.P.C, the accused had
27
expressly stated that their defence was contained in the cross-examination. There was thus no escape from the conclusion that any confessional suggestion to a witness must be construed as the explicit defence and not simply taken as an ordinary suggestion in the ordinary course of an ordinary cross-examination. Here the accused adopted the cross-examination after it had been conducted in their presence. This was a solid, considered and ex post facto endorsement of the concessions and suggestions-amounting-to-confessions.
Thus were such matters, inter alia, like zina, nudity, panchayat, locking up of Shakoor, admitted by the defence. The learned majority has not taken proper note of this facet of the case that is accordingly proved.
C. That in addition to whatever has been stated hereinbefore, some of the legal findings and conclusions based thereon of the Hon’ble Majority Judges are not sustainable being contrary to the settled law, hence are liable to be reviewed. Those, inter alia, include the following:
(i) That Hazoor Bakhsh and Ghulam Hussain being close relatives of the petitioner – complainant, cannot pass the test of independent witnesses; therefore recovery of pistol is disbelieved. Such a finding is against the settled law that a ‘factum of recovery’ cannot be ignored simply because the witness of memo of recovery is related to the victim?
(ii) That the Hon’ble Majority Judges have upset the settled law by holding that even where a PW is not produced, his or her statement recorded under Section 164 of the Cr.P.C could still be used and that too under Section 172 (2) of the Cr.P.C and that inference could be drawn from it for the purposes or under Article 129(g) of the Qanoon-e-Shahadat Order, 1984.
(iii) The observation of the Hon’ble Majority Judges that suggestion during cross-examination could be considered against the accused only if he 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.
(iv) Another strong observation that the facts stated by the petitioner about the holding of the ‘Panchayat’ were ‘hearsay’, goes against the settled principle that all facts whether seen or perceived would be stated in the Court as direct evidence of the event happened and not caught by the mischief of hearsay evidence.
D. That the learned majority judges have not given reasons for upholding the acquittal of the accused who had been convicted by the Trial Court. The findings are contrary
28
to the evidence on record, including but not limited to the fact, for instance that the learned majority judges having held that DW-2, Nadeem Saeed, is an independent witness and having relied on part of his evidence by discarding the case of the prosecution against Muhammad Fayyaz (who pleaded the defence of mistaken identity), yet the learned majority judges ignored his evidence categorically asserting that ‘Faiz Mastoi’ was ‘Sarbarah’ and had immense influence in the area whereby the acquittal was upheld. This evidence has been accepted and noted with care by the learned judge in minority.
E.
Whether people of Akath (Panchayat) shared guilt?
a. The learned majority has held that in case no specific role is attributed to an individual then the persons of Akath (Panchayat) cannot be held responsible even if the allegations are that they are all responsible (attention is invited to Para.18). The learned minority judge has agreed with the conclusion.
b. Even an implication that the members of a Panchayat or jirga are only to be held responsible if actual and individual actions are attributed to each one individually, has the tendency to encourage the parallel, informal and illegal criminal justice system prevalent in the rural areas of Pakistan. Who does not know that women are bartered, traded, exchanged in settlement of disputes by jirgas and panchayats as a part of customary “law” in our backward areas? Wanni and Savara are just two of the barbaric traditions in which women (mothers, sisters and daughters of all ages) are handed over by callous male jirgas and panchayats. The mere participation in such a gathering, without more, should be enough to establish criminality and common criminal intent. And the petitioner had expressly named these acquitted accused during her testimony before the trial court.
c. In this regard, the Hon’ble Court should take account of the fact that in such an unfortunate incident as that of the Sialkot lynching, the Courts did not hesitate to pass appropriate orders simply on account of the number of persons deemed to have facilitated the sordid act through their presence at the time of occurrence. The error is apparent wherein the judgment not only ignores the presence of these persons as constituting a threat by their sheer number (to the locals of the area) but also acquiescing to the act through their inaction as evidencing a ‘common intention’ for the act to be perpetuated (as reflected in the Sialkot lynching incident).
29
d. By expressing sheer incredulity at the prospect of ‘haul’ing them up as too arduous a task, the judgment is inherently flawed and sets a dangerous precedent for times to come.
e. That the long standing principle of law relating to ‘common intention’ has escaped the attention of the learned judges in majority. Their conclusion, thus, about it is erroneous. It is submitted that even a sudden change of mind of one accused could implicate all in the commission of the offence on the principles enumerated in the judgment of (i) 2007SCMR1539 (Muhd Akram Vs The State), (ii) PLD1975SC351 (Khair Muhd Vs The State) and (iii) PLD1975SC207 (Hayat Vs The State) the principles whereof have not been considered.
f. Hence all the respondents/accused who were named by the petitioner as having been members of the Mastoi Panchayat deserve to be convicted and sentenced after the review of both the judgments (of the learned majority as well as of the learned minority) to the extent necessary so as to result in the acceptance of the Appeals filed by the petitioner before this Hon’ble Court.
g. Thus, and in addition, to the extent that the minority judgment accepts the opinion of the majority in relation to the accused convicted by the trial court but acquitted by the majority, that judgement also needs to be reviewed.
F. As all the material evidence has been ignored or misread, therefore, the submissions made by the counsel of the petitioner during oral hearing of the appeals and summarized in his written submission are reiterated, as if reproduced herein.
It is therefore most respectfully prayed that this Hon’ble Court may kindly be pleased to review and recall the Judgment under Review in the very interest of justice and grant the relief as prayed for in the titled Criminal Appeal.
Drawn by: Filed by:
AITZAZ AHSAN MEHR KHAN MALIK
Senior Advocate Supreme Court Advocate-on-Record

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7 thoughts on “Mukhtar Mai Case Review Petition

  1. If you are serious about the case you would read the detail judgement of the SCP here:
    (http://www.af.org.pk/Important%20Courts'%20judgement/SC%20Judgment%20on%20Mukhtara%20Mai%20Case.pdf)
    And you will also try to get you hands on Australian AFP journalist Brown Curan book (Into the Mirror , The untold story of Mukhtara Mai), whose exhaustive research which reached the exact same conclusion as the court years before the verdict. (http://www.thenews.com.pk/TodaysPrintDetail.aspx?ID=44406&Cat=9)

    What you think happened did not happen.
    What the media portrayed at the time has largely been proved completely false.
    It was more a conflict between two pretty vicious bradaris in the South Punjab.
    (It was No gangrape,the real crimewas her own family handing her over in a vani marriage,
    she was not paraded naked, her baradari isnt even the weaker party in the area)
    The real scandal is that 13 innocent persons spent 9 years in jail to satisfy a ridiculous media witch hunt

    Also of note are other victims that this created from all of this. The road to hell is paved with good intentions, as they say,
    http://dawn.com/2011/06/13/2006-suspicions-of-mukhtaran-mai-involvement-in-panchayat-rulings-against-local-girls/
    http://wikileaks.org/cable/2010/01/10LAHORE14.html

    The Wily Aitzaz used this opportunity to his full advantage and got all the press he could. He wont be eager to go to court again knowing how flimsy the whole case is. Easy to just roll his eyes at the allegedly patriarchal supreme court,
    If only people actually spent an hour or two looking into the facts before coming to a conclusion.

    1. She already has a joke for a lawyer and one who only speaks of her book in courtroom and nothing on facts .Also what about the Right Honourable Chief Justice who promised relief to Mukhtaran I am from the land of Mukhtarab and here the real villains who failed her are Aitzaz and Right Honourable Chief Justice

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