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March 30, 2009

The curious case of Mukhtar Mai


March 30, 2009

12 Angry Men is a movie worth seeing. It is about a murder trial. Eleven out of twelve jurors are convinced that the accused is guilty of murder – no doubt about it. They are interested in a quick verdict, to be free of further ordeal. One lone juror insists that they at least consider the possibility that the defendant is unjustly accused.

I should not give away the plot any further. However, one has been repeatedly reminded of this movie by the unending barrage of letters, editorials and articles on the Mukhtar Mai case over the last few years. Each – the most eminent writers included – convinced beyond doubt that the accused are guilty and deserve no mercy! In contrast, I say no more than that we should at least consider the possibility that the accused may perhaps be innocent.

Like in most disputes, there are two versions.

Mukhtar Mai’s version:

1. Mukhtar Mai’s brother, Shakoor, was found with Salma, the sister of the main accused, Khaliq.

2. This antagonised the accused party and Shakoor was handed over to the police.

3. The parties agreed to refer the matter to a panchayat.

5. Khaliq’s representatives on the panchayat declared that Mukhtar Mai should be raped, as revenge for Shakoor’s misbehaviour. Shakoor’s representatives disagreed and left.

6. Mukhtar Mai’s maternal uncle then brought her over to apologise for her brother’s conduct.

7. When Mukhtar Mai came to apologise, the accused, Khaliq, his brother and two others dragged her to their dera and raped her for an hour or so – while her father, uncle and other villagers waited outside

8. This happened on June 22, 2002 – the same day Shakoor was found with Salma.

9. The matter was reported to the police on June 30, 2002.

The accused party’s version:

Up to point three the two versions are identical – but then comes the variance.

According to the accused:

1. The panchayat resolved that Salma should be married to Shakoor (Mukhtar Mai’s brother) and Mukhtar Mai should be married to Khaliq.

2. Mukhtar Mai was then married to Khaliq on June 22, 2002 (through a nikah), and lived with him as his wife for a few days

3. Shakoor at the time was in police custody, and both parties jointly got him released after Mukhtar Mai’s nikah with Khaliq.

4. Salma was later married to one of the other accused on June 27, 2002.

5. The accused party asserts that it is on this occurrence (i.e., when contrary to the panchayat verdict Salma was married to one of the accused) that the gang rape case was filed by Mukhtar Mai.

6. According to the accused party, however, no gang rape took place

One significant fact is that medical examination of Mukhtar Mai was conducted on June 30, 2002. The doctor reported two relatively minor abrasions. Also, swabs taken from internal examination showed presence of semen (which proved that Mukhtar Mai had been subjected to intercourse).

The general belief remains that Mukhtar Mai is telling the truth – why else would a woman openly admit that she was gang raped! Not easy to find a convincing answer – though enmity encouraged by vested interests can cause irrational behaviour.

However, there are circumstances in this case which require even-handed evaluation. The following may be considered:

1. The fact that the panchayat was convened suggests that the parties acted with some parity – otherwise the stronger party would have forced its way.

2. It is also established by the prosecution’s evidence that Mukhtar Mai’s family was financially stronger than that of the accused. This eliminates the possibility that the accused were influential persons who abused their superior financial/social position. (Some journalists have reported that the family of the accused lives in a mud house of three rooms – 17 inhabitants in all.)

3. It is also on record that Mukhtar Mai’s brother, upon being caught by Khaliq, was handed over to the police. This suggests that the accused did not feel it within their power to deal with him on their own.

4. It is admitted by Mukhtar Mai that her brother was released by the police (at 2 a.m.) the same night as the occurrence – on account of a joint request by the parties (in which one of the accused personally went to the police station to have him released). This needs to be seen in the light of the fact that, according to both versions, the issue had arisen out of Shakoor’s conduct. So, while it is possible that after brutally raping Mukhtar Mai – for Shakoor’s fault, really – the accused party had a change of heart and may have gone to the police station at 2 a.m. at night to get Shakoor released; yet, can a contrary possibility be ruled out!

5. Mukhtar Mai has stated before the trial court that “probably I would have agreed to marriage with Abdul Khaliq accused, in case the offer of our panchayat ref marriages of Salma with Shakoor and in badla my marriage with Abdul Khaliq had been accepted.” Can one rule out the possibility that this is exactly why her uncle brought her over?

6. Mukhtar Mai has accepted in her evidence that she visited the house of the accused earlier in the day, to apologise for her brother’s conduct. She does not allege that she was raped by the accused at that time – though they would have had ample opportunity.

7. It is an established fact that the occurrence was not reported to the police for eight days. The prosecution says this is because the accused party was pressurising the complainant. That is, of course, possible, and does frequently happen. But, equally, can one rule out the possibility that the occurrence was reported (or cooked up) once it transpired that the accused had not kept their side of the bargain – i.e., when Salma was married to one of the accused on June 27 (a fact admitted during the trial).

8. Mukhtar Mai states that her father was a witness to her being dragged by the accused for rape, and received her after the crime had been committed. The father did not step forward to give evidence in support of Mukhtar Mai.

9. Mukhtar Mai says that she was dragged, pushed, beaten and then raped for one hour by four persons. The doctor, however, has reported no visible injuries – except for two minor abrasions.

10. Mukhtar Mai alleges that she was raped at the dera of two of the accused, Khaliq and Allah Ditta. She has admitted as well that this is the same dera where their mother, sisters, and the wife and children of Allah Ditta also reside, and that they were at home at the time of the incident. Is it likely that the accused may have raped Mukhtar Mai in the virtual presence of their own women? Or should one consider the possibility that it may not be so?

11. And now perhaps the most important aspect of the case. The medical report shows that semen was found during Mukhtar Mai’s internal examination. This would prove that intercourse took place. However, that in itself is equally consistent with both versions. Even the accused admit that intercourse took place; however, they allege that this was pursuant to a nikah between Khaliq and Mukhtar Mai and not on account of rape.

Still, the presence of semen sheds important light. There are two possibilities here:

1. The first is that the semen pertained to the occurrence alleged by Mai, which took place eight days earlier. Medical science suggests that even non-motile sperm would not normally be found more than 72 hours after occurrence (though, exceptionally, semen can be detected well beyond this time period). However, forensic medicine recommends that such internal examination be conducted no later than 72 hours after the occurrence.

2. The other possibility is that the semen detected in Mukhtar Mai’s examination pertained to a more recent intercourse (probably within the last 72 hours of the examination).

Let us weigh these competing possibilities. According to Mukhtar Mai’s version she was subjected to intercourse eight days prior to the medical examination. Medical science suggests that presence of semen after so many days is possible, but not likely. On the other hand, the accused maintain that Mukhtar Mai lived with Khaliq as his wife until close to the filing of the FIR. In which case, the presence of semen would not just be possible but likely. Intriguingly, medical science may perhaps support the version of the accused more than that of Mukhtar Mai.

Is it possible, then, that these are perhaps innocent people unjustly accused? I do not raise this as more than just a possibility.

Fortunately, we will not have to speculate as the matter is with the Supreme Court. One has no doubt that the court will decide justly and properly, on the basis of record and legal principles, and not public perception.

The writer is a Lahore-based lawyer. Email: salman [email protected]

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