Two judges use the Hudood ord standard of proof
Crime reporters in Karachi newsrooms are so intimately familiar with the extremities of vile human behaviour that even the most unspeakable of acts—necrophilia, incest—leave them unfazed. Remember the woman who chopped up her husband and cooked him in a handi with her butcher loverman? Or the bone-chilling Paposhnagar grave defiler? This week, however, a court made fresh memories of a case that even the most hardened of hacks had found difficult to digest: the Quaid-e-Azam mazaar gang rape case from thirteen years ago.
A newly wed teenager was found stumbling around outside the mazaar by Rangers jawans early in the morning. When they handed her over to the police, it emerged that she had been repeatedly raped in an underground room. At one point of the investigation the police sent the chattai or sheet from the room for DNA testing to Islamabad. Jo choka dene walli baat thi… the forensic expert called me and said she had hit 100 separate DNA samples on it and should she continue testing? These were the words of Niaz Khosa, who was SSP South (investigation) at the time and was tasked with investigating the case. At least one hundred different men had deposited their DNA in that room. Khosa, who has since retired, shared this horrific detail of the case which was never reported on when SAMAA Digital contacted him this week. We got in touch with him because a court had freed the men accused of raping the bride at the mazaar. The judge said that DNA could not be used as proof under the Hudood laws—even though their DNA was a match proving the gang rape.
The Quaid-e-Azam mazaar case dates to 2008. Crime reporters were shaking their heads in disbelief when their syndicate erupted with news that a woman had been raped at Mohammad Ali Jinnah’s mausoleum—only one of the most revered national symbols of Pakistan, the founding father’s final resting place. This story made every single heinous crime they had ever reported pale in comparison.
The eighteen-year-old woman had come from Punjab and was visiting the mazaar with her new husband and family on March 15, 2008. She told the police later on that she and her husband had arrived earlier than the rest of the relatives. Her husband left her in a spot to go fetch them from outside. Two people approached her, one aimed a pistol at her and the other forced a handkerchief over her mouth. They took her to a room where three more people arrived. She was forced to drink something and was raped.
Jo choka dene walli baat thi… the forensic expert called me and said she had hit 100 separate DNA samples on it and should she continue testing?SSP South Investigations (retired) Niaz Khosa who handled the case
Two days later, in the early hours of March 17, Rangers jawans found her stumbling around in an unstable condition outside the mazaar.
Her father had registered FIR No 50/2008 under Sections 365-B (kidnapping with intent to commit Zina) of the Pakistan Penal Code read with 376(ii) of the Protection of Women (Criminal Laws Amendment) Act 2006 at Brigade police station.
By March 18, she was taken to Civil Hospital Karachi for a medico-legal examination. Woman Medico-Legal Officer Dr Rohina Hassan collected swab samples and sent them to Islamabad’s Institute of Biomedical and Genetic Engineering (IBGE) along with her clothes for forensic analysis.
On March 20, the police took the mazaar’s Assistant Manager for Security Khadim Hussain into custody after the victim identified him in a line-up. The two other men accused of raping her, Personal Assistant to the Resident Engineer of the Quaid-e-Azam Management Board Arif Ansari and Accountant Raja Muhammad Arif were arrested after the DNA report confirmed their involvement.
The investigating officer submitted his charge sheet against the accused men before a magistrate and the case was sent to a Karachi East District and Sessions Judge by June 7, 2010.
During the trial, IBGE Principle Scientific Officer Dr Abdul Hameed told the court that the DNA profile of the victim’s stained clothes matched with the DNA profile obtained from the semen and blood samples taken from Khadim Hussain. And it was a 100% match for the other two men, Arif Ansari and Raja Muhammad Arif.
However, by April 6, 2013, Karachi East District and Sessions Judge Nadeem Ahmed Khan acquitted the men accused of raping the woman. In his judgement, Judge Nadeem Ahmed Khan did not treat DNA reports as evidence. He observed that while the reports might be helpful in establishing the parentage of a child and other purposes, their utility and evidentiary value was not acceptable under the Hudood laws since these laws had their own standard of evidence.
The victim went into appeal against the acquittal. She pleaded with the Sindh High Court that the trial judge had ignored the evidence and referred to Islamic law even though the case had been registered under the Pakistan Penal Code. (FIR No 50/2008 under Sections 365-B for kidnapping with intent to compel a woman to illicit intercourse of the Pakistan Penal Code read with 376(ii) for gang rape of the Protection of Women Criminal Laws Amendment Act 2006 at Brigade police station).
The verdict on her appeal came on May 21, 2021. Justice Salahuddin Panhwar set aside the initial judgment to acquit by the Karachi East District and Sessions Judge. He then sent the case back to the trial court with instructions that it pass a fresh judgement strictly in accordance with the law.
However, last week, on October 5, Karachi East Additional District and Sessions Judge Ghulam Mustafa Laghari also acquitted the men in the retrial. This time the court said the prosecution had not produced enough evidence through their witnesses. This judge also ruled that the value of a DNA test as evidence was not acceptable in a case falling under the penal provision of zina punishable under the Hudood laws, which have their own “standard of proof” (confession, four male witnesses).
The mazaar rape victim’s lawyer Barrister Amna Usman has expressed disappointment with the judgement, acquitting the three men.
By 2006, a new law, the Woman Protection Act was introduced and removed the offence of rape from the ambit of the Hudood ordinance and brought it under the ambit of the Pakistan Penal Code
What is not clear is why two judges—at the trial and then the retrial—both acquitted the three men in the mazaar gang rape case by saying that Hudood law standard of proof was not provided. The case was filed under the Pakistan Penal Code. Why bring in the Hudood Ordinance?
Traditionally, rape cases were prosecuted according to the Hudood ordinance which has its own standard of proof. But by 2006, a new law, the Woman Protection Act was introduced and removed the offence of rape from the ambit of the Hudood ordinance and brought it under the ambit of the Pakistan Penal Code (Ta’zirat-e-Pakistan). The penal code has its own standard of proof and it doesn’t need four eyewitness to prove a rape has taken place.
“The trial and retrial judges ignored scientific evidence while referring to the Islamic law, even though the case proceeded under the Ta’zir or PPC,” said Barrister Amna Usman. “The accused [men] were to be convicted and sentenced under the Ta’zir or PPC.” Not the Hudood ordinance.
She said the victim identified Khadim Hussain twice (once before a magistrate and twice in the courtroom. She could not identify the other two men for two reasons; firstly, she was drugged and; secondly, it was difficult for her to identify people she met for the first time in life.
However, the DNA was a match. “According to the report of the scientific authority, samples collected from the body and clothes of the victim matched one hundred percent with the DNA samples of the three accused persons,” Barrister Amna Usman said.
If you want to find where the law talks about DNA, you have to go to Qanun-e-Shahadat Order 1984 (Law of Evidence). DNA as evidence comes under Article 59 of the section called ‘Opinion of third persons when relevant’ and under Article 164 (production of evidence that has become available because of modern devices). So when any case talks about evidence, we refer to this law.
A turning point on the question of using DNA as evidence in a rape case came four years after the mazaar gang rape, in 2012.
On March 21, 2012, four men gang raped a thirteen-year-old girl in Rawalpindi. Her father went to the Ratta Amral police to file an FIR but the police did not do this even though a medical examination confirmed she had been raped.
By 2012, three judges of the Supreme Court ruled that DNA tests and the preservation of DNA as evidence in rape cases be made mandatory
The Supreme Court took suo motu notice of this incident and the case was sent to a sessions court in Rawalpindi for trial in which daily hearings had to be held. However, just a day later, the court was told that the families had reached an out-of-court settlement.
Fearing that the rapists would be acquitted, a petitioner filed an instant constitutional petition under Section 265-K of the Criminal Procedure Code. The petitioner pleaded that the out-of-court settlement be declared invalid and the State continue to prosecute the men accused of the rape in the Rawalpindi sessions court. It asked that mandatory DNA testing be done to ensure every rape case is properly prosecuted. And so, by October 2, 2012, three judges of the Supreme Court ruled that DNA tests and the preservation of DNA as evidence in rape cases be made mandatory.
The Supreme Court said that initially DNA tests were excluded from evidence, and Pakistani courts generally did not rely on them while making convictions. However, given the technological developments that had taken place in the last decade, the Supreme Court recognized that the precision and accuracy of DNA technology made it possible for courts to convict real culprits, exclude potential suspects and exonerate wrongfully accused persons. The court also held that DNA tests could not be considered in isolation and required corroboration from other pieces of evidence.
With its ruling on DNA, the Supreme Court certainly made the use of this kind of scientific evidence admissible in a rape case. But the problem of witnesses still persisted. However, even this aspect of the law was addressed eventually by the courts.
On March 26, 2008, a thirteen-year-old girl was gang raped in Faisalabad. Faisalabad’s Saddar police station registered the FIR under Sections 376, 34 of the Pakistan Penal Code. An additional sessions judge convicted the men to ten years of rigorous imprisonment and a fine of Rs50,000. This was the Ghulam Mohay-ud-Din alias Baoo vs State case.
The men filed an appeal in the Lahore High Court against their conviction, which was set aside on medical grounds. But at the same time, LHC’s Justice Rauf Ahmad Sheikh made an interesting ruling: it is true that such offences (rape) are committed in solitude, so the absence of eyewitnesses is not material. The victim’s statement, backed by medical evidence, is enough to prove rape. (But if the statement of the victim does not inspire confidence or her own character appears to be doubtful, then her statement alone cannot be deemed to be sufficient to prove the allegation of rape punishable under Section 376 of the PPC).
Women (or indeed children and men) are mostly raped behind closed doors or in isolated spots. Rape is hardly a crime committed in full public view. Witnesses are rare.
It is true that such offences (rape) are committed in solitude, so the absence of eyewitnesses is not material
LHC’s Justice Rauf Ahmad Sheikh
If one goes by this Lahore High Court ruling, the mazaar gang rape case was also wrongly judged. The Hudood law requires four witnesses if two adults have committed the offence of having consensual sex outside of marriage. First, the mazaar case was not about consensual sex at all. “The requirement to produce four witnesses who had explicitly witnessed the sexual act is possible only if the act is committed in public,” Barrister Amna Usman added.
There was a third point on which the mazaar gang rape case was misjudged. “The victim had gone missing for two days that suggests that she was abducted,” Barrister Amna Usman said, “but the court did not give its finding on the charge of kidnapping.”