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June 13, 2018

Khadija and the shadow of doubt


June 13, 2018

When a criminal defendant is prosecuted, the prosecutor must prove that the defendant is guilty beyond reasonable doubt. In other words, even if a judge thinks a defendant probably committed the crime, it is not enough to convict the accused. ‘Probably’ leaves room for the existence of reasonable doubt. On this established principle of criminal law, the defendant will be acquitted.

On May 3, 2016, Khadija Siddiqi was repeatedly stabbed in front of Ambassador Hotel in Lahore when she was picking her sister up from school. The accused was wearing a helmet that fell off, revealing his face. Khadija was taken to the hospital by her driver who was also present at the crime scene. Sub-inspector Javed Iqbal reached the hospital and interviewed Khadija’s sister, Sofia Siddiqi. Their driver also provided a statement describing the facial appearance of the accused. Khadija was not interviewed as the doctor stated that she was not stable enough to provide a statement.

On May 8, 2016, Khadija gave a statement to the investigation officer. She identified the man who attacked her as Shah Hussain. Dr Rozina, who conducted Khadija’s medical examination, identified 11 wounds on Khadija’s body in the first three to five minutes before rushing her to the operation theatre and a further 12 wounds after a detailed follow-up ultrasound and examination. The motive behind the attack was established as the existence of a strained relationship between the accused and the victim.

The magistrate judge found Shah Hussain guilty and charged him with seven years in prison. Although this order was upheld in the sessions court, the sentence was reduced. It was later overturned in the high court. So why was Shah Hussain acquitted?

The high court’s decision indicates that the court wanted to see more evidence from the crime scene. The defence asked for Khadija’s blood-stained clothes (despite having her sister’s clothes) and a mat from the car. However, they did not prove how this shirt or a mat in the car offered stronger evidence that Shah Hussain had committed the crime. Until a DNA test is conducted, splatters of blood on various items mean nothing.

A DNA test was conducted from the blood found on the helmet at the crime scene. The report of this test was submitted to the judicial magistrate the day he was set to announce his judgment at the first stage of the proceedings. The magistrate declined to admit this DNA. The prosecution, shockingly, did not appeal to have this DNA admitted either in the sessions court or in the high court, even though the law allows the admission of new evidence at each of these stages.

The DNA report concluded that the probability of an unrelated individual (not Khadija or Shah Hussain) contributing to the tested sample would be 1 in 1.2 million. On the balance of probabilities, the match found was theirs. If Shah Hussain was not present on the scene, what was his DNA doing in Khadija’s blood? The most crucial piece – the DNA – was missing from the court’s puzzle. It was neither mentioned in the judgments nor summoned by the courts. The high court seems to have found the existence of doubt on other questions that are not based on any evidentiary probe.

To begin with, the chain of events was mischaracterised. The judgment states that Khadija claimed to have been comatose at the time she gave her statement on May 8, 2016. This is incorrect. Khadija was not in a stable state on May 3, 2016 when the FIR was filed. She gave her first statement on May 8, 2016. The court seems to suggest that because she told the medical officer her name, she should also have identified her attacker.

What the court failed to consider is that she was suffering from the shock of several stabbings (at least 11 but up to 23). Simply because she was able to tell the medical officer her name doesn’t suggest that she was in a stable condition. She also had no duty to tell the medical officer that it was Shah Hussain who attacked her. When she made her first statement regarding the incident, she identified Shah Hussain. Her statement remained unchanged in court.

The defence also challenged the evidence presented regarding Khadija’s injuries in the medical examination by Dr Rozina. The judgment suggests that Dr Rozina succumbed to pressure to conjure up 12 injuries to add to the initially identified 11. In the absence of any alternative theory advanced by the defence (which proves that Khadija was actually not so severely injured), is it unclear why the court finds it difficult to believe that all of Khadija’s wounds were not identified following an initial, short examination.

The examining medical officer revealed that she was rushing to take Khadija to the operation theatre when she first identified 11 wounds. Upon full examination after the surgery and a later ultrasound, 12 further wounds were identified. As is expected, an ultrasound provides a greater vision into the body and could have assisted in identifying more wounds. The defence raised the issue of why the prosecution did not call any of the doctors from the second exam or even admit any of the medical reports. This, perhaps, is a reasonable question.

Another issue that was raised was the absence of any independent prosecution witnesses. But the defence did at no point succeed in undermining the independence of the witness testimonies. One of the witnesses is Khadija’s driver, a salaried employee. He can quit Khadija’s employment at any time and seek employment anywhere else. Thus, he cannot be seen as biased.

Another witness was her sister, a minor. Had she been instructed to conjure up a testimony, there is a strong chance a minor would reveal inconsistencies on the stand under pressure. As per the judgment, the defence failed to prove any such inconsistencies or suggest that the witnesses were compromised. Simply stating that they are connected to Khadija is not enough to prove that they are not credible witnesses.

The high court also found that Khadija’s 11 (or 23) fatal injuries do not lend any value to her credence as a witness (in addition to the fact that she was actually present at the scene). Yet, the defence advanced no counterfactual that undermines Khadija’s witness testimony – other than some pictures with the accused that suggest that she knew him. Khadija has never denied knowing him. It is unclear what material has been used to come to the conclusion that Khadija cannot be found to be truthful in her testimony other than the fact that she was friends with boys.

The court found that Shah Hussain did not have any motive to attack Khadija. In the same paragraph in the judgment, it is noted that Khadija had previously accepted his marriage proposal – which, therefore, suggests that the two were on good terms. Khadija has, however, revealed in her testimony that he had been harassing her for a while. The prosecution should have clearly established that Khadija had resisted his earlier advances, if this was the case. It is possible that Shah Hussain acted in a crime of passion to punish Khadija, who admitted that she no longer wanted any relations with him. This can be seen evidence of a strong motive – especially in Pakistan, which has a background of honour killings and crimes of passion.

Did the prosecution prove Khadija’s case beyond reasonable doubt? Though the DNA evidence is absent from the record, the crime was committed in the presence of three eyewitnesses – whose testimony hasn’t been undermined. The defence did not successfully create doubt about the existence of her bodily wounds, the eyewitness testimonies and the existence of a solid motive. The defence didn’t even have an alibi for Shah Hussain. The high court, however, has ruled that doubt was created. Are you reasonably doubtful?

The writer is a lawyer.

Email: [email protected]

Twitter: @aaminahq