A Rapist-Friendly System

The verdict is out. Five of the six men received a non-guilty verdict and for one the death sentence was reduced to life imprisonment. Citing “insufficient evidence”, the Multan bench of Lahore High Court in “Mukhtar ;Mukhtar Mai gang rape case” sided with the defendants who were facing capital punishments.

“Justice is finally served” says Mr. Saleem, the defense lawyer.

Are we missing something here? Isn’t she the one who was gang raped by four men in front of hundreds of her fellow villagers under the specific order of a village council presided by village elders.

Mukhtar Mai is devastated but standing tall. She is a thin, frail woman and probably weighs less than a hundred pounds. But don’t underestimate her will, she vows to fight and plans to appeal to the Supreme Court. She may be in for another shock.

The guilty free verdict by the appeals court is shocking but not entirely unexpected.

The judicial system in Pakistan is set against the victim at the very outset. The burden of proof rests with the victim. Failure to prove the allegations in a sexual assault can have potentially disastrous consequences. The victim could easily be turned into a proven offender of “Qazf” or slander, punishable with whipping (100 lashes) or capital punishment depending upon the circumstances of the case.

Majority of sexual assault cases in Pakistan deal with plaintiffs, witnesses and defendants who are either illiterate and have no formal education. Police record their statements in plain Urdu or one of the local dialects.

These records are then translated in English for the courts creating discrepancies or outright omissions. In some cases the omissions are deliberate and are intended to help the defendants, especially if they know people in higher circles.

In almost all such cases victims sign statements that they simply cannot read or understand.

Introduction of evidence in the court of law, which is plagued by shabby and often tainted police work, inadequate documentation and poor record keeping by the police does not bode well for the victim. It is relatively easy to find discrepancies within the records once they are reviewed by the higher courts.

Given the inconsistencies within records, it is not uncommon for the appellate courts to favor the defendant. You couple a poorly documented case with a good defense lawyer and the rapists are home free.

It is argued that probably the stiffer penalties for sexual assaults are one of the reasons for the courts to err on to the side of defendant. These harsher capital punishments were brought to the system by the Zina and Hudood Ordinances (1).

In order to justify a capital punishment the courts invariably have to set higher evidentiary standards. Inconsistencies, omissions, faulty or tainted evidence are valid grounds for acquittal.

The current Hudood laws are probably too idealistic. There is a lack of alternative or lesser punishment under Sub-section (4) of Section 10 of the Offence of Zina (Enforcement of Hudood Ordinance, 1979). Thus, if death cannot be awarded due to inadequate evidence, the accused has to be acquitted.

The judicial system appears impotent in such cases and falters badly. On one hand it brings a harsher capital punishment for the rapists, but at the same time it sets the stage against the victims in such a way that a conviction becomes unattainable.

Lesser penalties including longer jail terms or life imprisonment coupled with a higher conviction rate is a compromise that could be more appealing to the masses.

The idea, after all, is to get all the rapists off the streets and locked up for good. In the current judicial system they end up right on the street simply by default.


Ref: 1. Sub-section (4) of Section 10: Offence of Zina and Hudood Ordinance, 1979.
2. Section 376 of Pakistan Penal Code 1860.
3. Section 6 (C) Terrorist Act, 1997

To find out more and to support her cause see: http://www.mukhtarmai.com