“To effectively combat violence against women, the provincial governments must ensure that police officers receive appropriate training aimed at recognising and overcoming gender and patriarchal biases,” observed Justice Muhammad Hashim Khan Kakar in a 10-page judgment he authored regarding domestic homicide.
In domestic homicide, the tragedy is not only that a woman may be killed behind closed doors, it is that the doors may close upon the truth as well, Justice Kakar bemoaned, adding it was the job of the legal system to extract truth behind them.
Justice Kakar was heading a two-judge bench, including Justice Ishtiaq Ibrahim, that had taken up a jail appeal of Habibullah, challenging the Nov 29, 2022 Sindh High Court (SHC) rejection of his plea. The appellant was convicted of murdering his wife, Aqeela Bibi, in Karachi in 2011.
The Supreme Court however upheld life sentence and a fine of Rs500,000 awarded to the appellant as compensation to the legal heirs of the deceased.
Justice Kakar emphasised that law enforcement agencies (LEAs) must adopt a genuinely gender-sensitive approach to investigation, ensuring that every available piece of evidence was duly identified, preserved and brought on record.
Likewise, the privacy of the matrimonial home should not be permitted to become a shield behind which perpetrators may evade accountability, and if any lapse happens due to negligence or a casual attitude of any investigating officer (IO), they must be held accountable.
Justice Kakar explained that certain offences belong to a special category of offences known to jurisprudence as a “Crime of Difficult Proof”, adding there were some crimes which were of frequent occurrence in society, and yet difficult to prove, like crimes committed inside the secrecy of homes such as infanticide or adultery.
Cases relating to domestic violence equally fall within this categorisation, including murder of a wife within the private bounds of her matrimonial home, Justice Kakar observed.
He added that such crimes could be termed as crimes of difficult proof primarily because they were committed inside closed, private structures such as a house, where the perpetrator enjoys complete physical control over the environment and also allows the perpetrator to easily destroy vital evidence, clean up the crime scene or stage the homicide to look like a suicide, accident, or intruder attack.
Since these acts take place in the privacy of the home, the only people present are usually the victim, the perpetrator, and sometimes their minor children or immediate family members, Justice Kakar pointed out.
As the perpetrator and other inmates are usually close relatives hence it is very unlikely for them to come forward or testify against him. This is particularly true when the victim is a daughter-in-law, Justice Kakar regretted.
Due to the absence of primary evidence, these crimes become difficult for the prosecution to prove, Justice Kakar said.
A married woman ordinarily resides within her husband’s family home, where she may be wholly dependent upon and surrounded by her husband and in-laws.
As in South Asia, domestic violence against wives remains particularly prevalent and lethal violence may occur within the very confines of the matrimonial home, which places the victim in a position of huge vulnerability and affords the perpetrators, which includes the husband or his close relatives, a greater opportunity to conceal the true circumstances of her death by portraying the homicide as an accident or suicide, the judgment said.
If such cases are dealt with under traditional criminal procedure and conventional evidentiary standards, such offences will go unpunished.
The judgment also noted with grave concern the disturbing trend in cases involving violence against women. After taking the life of a woman, the perpetrator often does not stop there as an attempt is also made to assassinate her character and thereby justify the crime or pose as if taking her life was not a crime at all.
A wife may be killed because the husband wishes to get rid of her, a sister may be killed for some unlawful design, or a woman may lose her life after years of abuse, only for the perpetrator thereafter to portray her as immoral or of bad character.
In this manner, a woman is not allowed to live in peace during her lifetime, nor is she allowed dignity after her death, the judgment regretted.
This tendency reflects a deeply rooted patriarchal mindset in which a woman’s life, choices and dignity are regarded as having lesser value, and the perpetrator seeks to place the blame upon the woman rather than confront his own criminal conduct.
More troubling still, such prejudice can find its way into the criminal justice system itself, where the circumstances of a woman’s death may not receive the same seriousness and care in investigation that they deserve, as though her life was of lesser value and, therefore, did not warrant a proper and complete investigation, as was observed in the case at hand.