MABAD - Mukhtar Mai, a gang rape victim, Thursday filed a review petition against the Supreme Court verdict of rejecting her appeals and acquittal of her tormentors who had raped her almost nine years ago.
The criminal review petition filed through Barrister Aitzaz Ahsan contended that the judgment was inherently flawed and set a dangerous precedent for times to come, thus it needed to be reviewed. The court was also requested in the miscellaneous review petition to constitute a larger bench for hearing the review petition against the courts April 21 verdict. It said a long standing principle of law relating to 'common intention had escaped the attention of the judges in majority and their conclusion, thus about it is erroneous. It submitted that even a sudden change of mind of one accused could implicate all in the commission of the offence on the principles enumerated in various judgments, where the principles have not been considered.
Hence all the respondents/accused who were named by the complainant as having been members of the Mastoi Panchayat deserved to be convicted and sentenced after the review of both the judgments (of the learned majority as well as of the learned minority) to the extent necessary so as to result in the acceptance of the appeals filed by the petitioner before the apex court.
Thus, and in addition, to the extent that the minority judgment accepts the opinion of the majority in relation to the accused convicted by the trial court but acquitted by the majority, that judgment also needed to be reviewed, the petition said. It said all the material evidence had been ignored or misread by the court while giving judgment.
The petition said that majority of judges had upset the settled law by holding that even where a PW is not produced, his or her statement recorded under Section 164 of the CrPC could still be used and that too under Section 172 (2) of the CrPC and that inference could be drawn from it for the purposes or under Article 129(g) of the Qanoon-e-Shahadat Order, 1984.
It said the observation of the majority judges that suggestion during cross-examination could be considered against the accused only if he had taken a 'statutory defence, is contrary to the settled law on this point especially when there is no 'statutory defence to the offence of rape. Another strong observation that the facts stated by the complainant about the holding of the 'Panchayat were 'hearsay, goes against the settled principle that all facts whether seen or perceived would be stated in the court as direct evidence of the event happened and not caught by the mischief of hearsay evidence.
It said the majority judges had not given reasons for upholding the acquittal of the accused who had been convicted by the trial court.
The findings were contrary to the evidence on record, adding that the evidence had been accepted and noted with care by the learned judge in minority.
Even an implication that the members of a Panchayat or jirga were only to be held responsible if actual and individual actions were attributed to each one individually, had the tendency to encourage the parallel, informal and illegal criminal justice system prevalent in the rural areas of Pakistan, the petition stated and prayed the court to review and recall its judgment in the very interest of justice.
On April 21, the Supreme Court had rejected, by a majority of two to one, appeals of Mukhtar Mai against acquittal of her tormentors who had raped her almost nine years ago and for enhancement of their sentence. Only Abdul Khaliq, one of the 14 accused in the case, will remain in prison to serve life sentence.
The court had also discharged the March 14, 2005, suo motu notice under which the March 3, 2005, verdict of the Multan bench of Lahore High Court had been suspended. The high court had reversed a trial courts judgment on the basis of insufficient evidence and faulty police investigations.
In its detailed judgment, the Supreme Court had ordered that all accused who were arrested because of its July 28, 2005, directives be released forthwith, but ruled that Abdul Khaliq be released only after completing his sentence.
The court had taken up the appeals against the order of Multan Bench of the Lahore High Court commuting the sentence of the accused (Abdul Khaliq) and acquitting the abettors involved in gang-raping Mukhtar Mai case on June 22, 2002, on the orders of a Punchayat (village council) convened by the influential Mastoi Tribe in the village of Meerwala in southern Punjab.