SC rejects Mai's appeals against her tormentors

Wednesday, 20 April 2011 13:46

The judgement was announced by a three-Judge bench comprising Justice Mian Shakirullah Jan, Justice Nasir-ul-Mulk and Justice Mian Saqib Nisar, upheld a decision of the Lahore High Court, by acquitting five out of six accused.

The 86-page verdict is authored by Justice Mian Saqib Nisar with additional dissenting note of Justice Nasir-ul-Mulk over eight appeals (four each) against the acquittal of the accused having been initiated by the complainant and the State; one appeal had been filed by the convict and the last was the suo moto action espoused by the Apex Court.

The majority view which prevailed over the verdict cited lack of evidences during persecution and judicial proceedings.

The bench in its order said "In view of the majority decision, all the noted appeals are hereby dismissed. The suo moto action initiated by this Court vide order dated 14.3.2005 in the matter is also discharged."

"Therefore, all those who were arrested pursuant to the order of this Court dated 28.6.2005 if not required in any other case be released forthwith. Abdul Khaliq, however shall be released after serving his sentence as awarded to him by the learned High Court, the benefit of Section 382 Criminal Procedure Code extended to him by that Court is also maintained," the order further said.

Concluding his separate dissenting view, Justice Nasir-ul-Mulk disagreeing with contentions said that the certain errors pointed out by the learned counsel for the complainant in his view called for interference with the impugned judgment.

The High Court, as observed above, erred in holding that the delay in lodging of an FIR was fatal to the prosecution case; that the testimony of a rape victim required corroboration. The Court had overlooked that there was corroboration of the complainant's testimony, he added.

The Court failed to give due attention and weight to the testimony of the victim of the rape and its findings were considerably influenced by its erroneous view about the role of P.W. Maulvi Abdul Razzaq.

"The High Court was not entitled to use, and that too extensively, for the purpose of highlighting inconsistencies in the prosecution case, the statements recorded by Mirza Muhammad Abbas (P.W.6), during the facts finding inquiry, more so, treating such a statement of Ghulam Fareed, father of the complainant, as substantive evidence without his appearance in  the witness box. The High Court had failed to give any clear finding on the culpability of Abdul Khaliq," he added.

Noting down his separate decision he said "For the foregoing reasons Criminal Appeal No. 171 of 2005, filed by Abdul Khaliq, is dismissed, Criminal Appeal Nos. 163 to 166 of 2005, filed by the State and 167 to 170 of 2005, filed by Mst. Mukhtar Mai are partially allowed. The impugned judgment to the extent of acquittal of Allah Ditta, Ghulam Fareed, Faiz Mastoi and Muhammad Ramzan Pachar, is set aside and they are convicted under Section 10(3) of Offence of Zina (Enforcement of Hadood) Ordinance, 1979 read with Section 19 of the Ordinance and Section 109 PPC for abetment of zina-bil-jabr and under Section 7(c) of the Anti Terrorism Act, 1997 and on each count sentenced to imprisonment for ten years. The sentences shall run concurrently."

In 2002, Mukhtaran was allegedly gang raped on the orders of Panchayat in Meerwala, a village Punjab as punishment for her younger brother's alleged illicit relations with a girl from a rival tribe, the Mastoi.

Later investigations revealed that the boy was involved to cover up another ugly incident in which he was molested by Mastoi men.

Initially fourteen men were charged in the case in 2002 but six accused including the chief of the village council, a member of the council and the four other men were convicted and in August 2002 an Anti-Terrorism Court in Dera Ghazi Khan sentenced the perpetrators to death.

On account of the investigation, in all 14 persons were indicted in the matter; they were arrested and challaned by the police and charged by the Anti Terrorism Court (the Court) with the offenses under Sections 19 (4), 11 of the Offence of Zina (Enforcement of Hudood) Ordinance VII of 1979 read with Section 149 PPC and under Section 354-A read with Section 109 PPC and under Sections 10 and 7 (c) of the Anti-Terrorism Act, 1997.

On 3rd March 2005, the Lahore High Court overturned the convictions of five of these men and commuted the death sentence of the sixth Abdul Khaliq to life in prison.

The Supreme Court had taken suo motu on 28 June 2005 of the issue.