Supreme Court rejects Mukhtar Mai's 2011 review petition on technical grounds

The Supreme Court on Thursday rejected a review petition filed against the acquittal of the accused in the Mukhtar Mai case.
A three-member bench of the apex court, under Justice Gulzar Ahmed's stewardship, heard the review petition which the defendant, through her counsel Barrister Aitzaz Ahsan, had filed against the suspects' acquittal in May 2011.
According to the court order, the points raised in the application could not form the basis of a review petition.
"Only a mistake [or mistakes] in a ruling can be highlighted [for reconsideration] in a review petition," Justice Ahmed observed.
He added that the points highlighted in the review petition would instead be considered in a separate case.
Mai had been gang-raped in June 2002 on the orders of a village council as a 'punishment' after her younger brother was accused of having illicit relations with a woman from a rival clan.
She had accused 14 men of being involved in the rape. In Aug 2002, an anti-terrorism court had sentenced six men to death — four for raping Mai and two for being part of that jirga. The remaining eight were released.
Later, the Lahore High Court's Multan bench, on separate appeals, acquitted five of the convicts and converted the death sentence of Abdul Khaliq to life imprisonment.
Mai had subsequently challenged their acquittal in the top court. However, the court, in its April 2011 verdict, had rejected her appeal by a majority of two to one — much to the consternation of rights activists.
Mai, whose ordeal and struggle for justice has seen her become the voice of oppressed women, sought the constitution of a larger bench, instead of a three-judge bench. In her review petition, Mai stated that the apex court's verdict was a great miscarriage of justice because it stemmed from a misreading and non-reading of material evidence on file.
The counsel for Mai had argued today that, according to the ruling in the case, there was no sign of a wound on Mai's body. However, he (the counsel) could show from the record that her body had borne torture marks.
The recent Supreme Court judgment in the Mukhtar Mai case, has led to an interesting dichotomy.  There is one faction that has powerfully condemned the verdict, citing a miscarriage of justice. Mai herself has declared in many of her televised interviews, “Is this what the courts made me wait five years for?” Another side claims, that while the judgment is a source of dismay, society and the media is equally responsible for failing the victim.
But it is a third voice that is sure to set tongues wagging and create a powerful division between those for and those against the judgment.
Journalist Bronwyn Curran in her 2006 book on the case “Into the Mirror”, had originally presented another side to the tale, in which Mai was not just a victim of forced rape, but also of tribal politics which went beyond being bartered as cattle. Curran has recently stated in an article, that “I would challenge anyone who has the opportunity to pore through all such records and interview members and associates of all sides in this case to come up with any conclusion other than that 13 of the 14 accused are innocent”.
While Curran does not deny the heinous crime suffered by Mai, she does bring to light several nuances in the case, which have the potential to raise some disturbing questions about how such cases are dealt with on the ground.
As a first point of divergence, Curran states that the case of gang rape was not registered by Mai herself, but by a cleric and a “local journalist-cum-rights monitor”. Could not this detail have ultimately shifted the entire focus of the case, had it been investigated further at that time? Would this not have been a point investigators and rights-groups used to establish any malicious intent against Mai and her family by outsiders hoping to “cash in” on the unfortunate event? If it is true, that Mai or her family did not take the first step to register the case, then why weren’t the cleric and local journalist investigated themselves more transparently by both the prosecution and the defense?
The fact that Mai was suddenly catapulted into an international media storm, as also noted by Curran, is another point of divergence. It potentially even further removed the focus of the investigation from corroborating the events alleged in the case, instead relying more on the fact that an illiterate woman from a poor tribal background had been subjected to indescribable humiliation and pain. Recalling back nine years to the event, memory of news reports were rife with stories of a lone woman’s plight against tribal injustices, followed by the infamous Musharraf misquote of the century.
Again, this does not deny the fact that Mai has been horrifically wronged. But somehow, the blitz of media attention that this case has received, could leave us to question whether perhaps, we allowed too many fine details to go unnoticed, as the case itself became larger than life (as did Mai), that could have perhaps actually gone in Mai’s favour, if correctly proven at the time.
With the absence of forensic kits and proper DNA testing, (neither of which either existed or were appropriately utilised in Mai’s case), it is very difficult to ascertain whether a woman has been raped or not, leaving only her own claim as the primary evidence. In such an event, the investigation typically relies on eyewitnesses, which in our patriarchal society, easily go against the victim.
Knowing well that these weaknesses exist in our society, one would have thought that Mai’s supporters would have paid closer attention to detail in the investigation, in a more organised and protective atmosphere, rather than in an extremely public and hostile environment. If a foreign journalist could come up with a thesis as Curran, then why couldn’t Mai’s counsel and supporters in civil society, do so as well?
Granted that the atmosphere reeked of danger and patriarchal obstacles, but isn’t that what defenders of human rights are meant to challenge? The fact that (as is claimed) the storm of protest in 2005 on the release of five of the accused, which sent them and eight others acquitted right back to jail, was based on outrage rather than physical evidence, has now added to Mai’s current woes.
Mai’s victimisation and experiences from 2002 to date cannot be discounted or demeaned at any level. But the “lack of evidence” as cited by the ruling judges, seems to be as much the responsibility of her supporters and the prosecution, as of a patriarchal and weak Pakistani justice system.
In even the most basic and impartial of judicial systems, evidence presented in a court of law is the benchmark for a final decision, either by a jury or judge. Unfortunately, courts cannot enlist foot soldiers to go out and conduct investigations on their behalf. Rather, it is the result of investigations conducted by law-enforcement agencies to support the prosecution’s case that forms the basis of evidence used by the courts on which to pass judgment.
Resultantly, it is the evidence and its collection that must be questioned, rather than the judgment. At the moment, no one seems to be commenting on the former, only the latter.
There is no question of the fact that a woman has been wronged for the last nine years. There is no question that this woman has set a courageous precedent for other women like her. But we must also realise, that despite her courage, society is still unable to draw adequate attention towards such crimes against women.
This raises two questions. Firstly, does a case have to have the “elements” of a Mai case for the criminal justice system and society at large to take notice of it? Secondly, why is it that when cases such as this come to light, there is inadequate focus on the minute technical and legal details, which are ever so crucial in solving such cases? For how long can we keep using patriarchy and conservative tribal norms as reasons for not delving into the facts head-first?
These questions are not meant to accuse anyone of fabrication or mis-intent. Not even Curran denies that a crime has been committed, as one has to repeatedly acknowledge. What these questions are meant to raise, is concerns over the quality of and methodology used to provide evidence in cases like this, given the conservative and patriarchal structures that go against the (female) victim. Unless both the prosecution and the external advocacy elements are not technically and legally sound in their details, it is just not enough to lay blame on tribal jirga’s and the justice system alone.
If Mai’s appeal is conducted by her supporters in a similar fashion, we will probably never be able to contribute to justice being served in similar cases in the future.As the author of a 2006 book "Into the Mirror" on the Mukhtaran Mai case and a former Islamabad-based Western female news correspondent, I must raise a voice of dissent amidst the shrill reaction to the Supreme Court’s acquittal of 13 of 14 men accused in Mukhtaran Mai’s case.
In 2005-2006, after many months painstakingly poring through every police statement, medical record, witness testimony, and cross-examination transcript in this case, coupled with multiple visits to Mirwala, Jatoi and Dera Ghazi Khan for extensive interviews with members of both sides of this case, I reached the same conclusion as the Supreme Court has in 2011. The Lahore High Court reached the same conclusion in 2005. Indeed, I would challenge anyone who has the opportunity to pore through all such records and interview members and associates of all sides in this case to come up with any conclusion other than that 13 of the 14 accused are innocent.
May I stress that fundamental to that conclusion (shared by myself, the Supreme Court and the Lahore High Court) is that Ms Mai is indeed a victim of a heinous crime. The question is: of what? The Supreme Court and Lahore High Court find that Ms Mai is a victim of rape, hence their maintenance of Abdul Khaliq’s conviction for rape.
It is my belief that Ms Mai is a victim of two heinous crimes here. One is sexual assault: the kind of sexual assault experienced by women forced to marry against their will, and by women handed over by their men folk as compensatory chattel to settle a feud.
Which leads me to what I believe is the paramount crime here: Vani. Under current laws, Ms Mai’s men folk would be convicted for handing her over to the Mastoi family to atone for her teenage brother’s alleged misbehaviour with a teenage Mastoi girl. The tradition of handing women over to atone for their male relatives’ wrongdoing, known also as Swara, was outlawed by the Pakistan government in January 2005.
The police and court records shows that both
the prosecution and the Mastoi family agree that it was Ms Mai’s men folk who presented her to the Mastoi family after many hours negotiating, via a local cleric, to resolve a feud. The feud had erupted earlier that day when Mukhtaran’s brother Shakoor was seen with the Mastoi girl Salma in the sugarcane field between the two families’ homes.
The prosecution’s version of what happened next is well-known. There is also a little-credited defence version; the other side of the story. For what it’s worth, the defence version fits the pattern of many a feud and its resolution in rural Punjab and Sindh: to settle the feud, the perpetrator’s family hands over a female to the victim’s family to be married off to one of their men.
I have met the women of the Mastoi family and heard their vivid accounts of what happened that night. They showed me the shoddy room in their home where, they say, they saw Abdul Khaliq bring Mukhtaran Mai to spend the night with him after a ‘sharai nikah’, an on-the-spot marriage without a certificate. For what it’s worth, they recall Ms Mai being thrown out one or more days later and sent back to her family, in a state of disgrace.
What happened to Ms Mai was outrageous, unsolicited, and must be punished. But the evidence, cross-referenced with my own protracted field research and interviews, suggests that what happened is considerably different from what is alleged by the prosecution.
I would beseech anyone who is concerned with justice and human rights to examine this case in real detail, retrace its genesis and comb through the records, and ask themselves whether a dangerous miscarriage of justice lies beneath the famous Mukhtaran Mai story.
I urge the detractors of the Supreme Court’s brave decision to objectively examine whether the 13 acquitted men, who have each spent between six and nine years in jail despite earlier acquittals, have been wrongly accused and imprisoned.
Perhaps the most obvious wrongful imprisonment is of the eight men accused of being part of an alleged panchayat. These men, who lived 3.5 hours travel from Ms Mai’s village on the other side of the Indus, were acquitted in the original 2002 trial for want of evidence. It is worth reading what the original trial judge had to say about how those men came to be arrested and why he released them without charge. This is the same judge who convicted four others of gang-rape and two of aiding and abetment. Astonishingly, these eight acquitted men were re-arrested two and a half years later in reaction to the storms of outrage that followed the Lahore High Court’s 2005 acquittal of five out of six convicted men. They have been in jail for the six years since 2005, without charge. Where are the human rights advocates standing up for them?
Apart from a wealth of inconsistencies in statements to police and witness testimonies, the paucity of evidence affects many celebrated aspects of the prosecution story. The allegation that Shakoor was molested by three Mastoi males is pure fabrication and easily revealed as such on any study of the case. The claim of Ms Mai being paraded naked before hordes of people was thrown out in the original 2002 trial, yet nevertheless has embedded itself in many re-tellings by media and rights groups. The presentation of the Mastoi tribe as wealthier and more powerful than Ms Mai’s clan was discounted in the original 2002 trial, when police admitted under cross-examination that Ms Mai’s family owned more land and had more powerful connections than the Mastoi family, well before this story began.
It is also my belief that Ms Mai is a victim of characters around her who have used her, her family, the local police and courts for their own purposes. Talk to any lawyer in southern Punjab and they will tell you how often false cases are filed between enemies. It’s my belief that Ms Mai was shamefully taken advantage of and had little control over events once the charges, filed not by her or her family but by two unrelated men, went public.
The charge of gang-rape was brought to the police by the cleric Abdul Razzaq and a local journalist-cum-rights monitor who had heard rumours after Razzaq made claims in a Friday sermon. Ms Mai was not involved in the lodging of charges. Some hours later, she was hauled into the police station unceremoniously in the back of a police truck. There she found a statement already written by the cleric in her name. She was told to attest it with a thumbprint. As is well-known, at that time she could neither read the statement, nor write her name. How was she to know what she was attesting with her thumb?
The next day the charge was in a local newspaper, the following day in national and international press, and just three days later Ms Mai had a cheque for 500,000 rupees in her hand from President Pervez Musharraf. No investigation had taken place, and Ms Mai was already both an international heroine and wealthier than any illiterate villager from a wretched Indus backwater could have ever dreamed.



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South Punjab News : Supreme Court rejects Mukhtar Mai's 2011 review petition on technical grounds
Supreme Court rejects Mukhtar Mai's 2011 review petition on technical grounds
"Only a mistake [or mistakes] in a ruling can be highlighted [for reconsideration] in a review petition," Justice Ahmed observed.
South Punjab News
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