Daily Times

The recent hullabaloo about the Lahore High Court’s acquittal of Shah Hussain, who had allegedly stabbed his class-fellow, Khadija Siddiqui, twenty-three times for spurning his advances, is a curious case of a society being torn between the influence of the social media and the sound and normative principles of law. Does the fact that a young college-girl stabbed multiple times in the broad-daylight automatically lead to the conclusion that one particular person she has belatedly nominated has perpetrated this heinous crime, especially in the light of her admission that she had already accepted his marriage proposal?

On the other hand, the established principles of criminal law require that the identity of, and the offence allegedly committed by, the accused has to be proved beyond any shadow of a doubt, through a cogent and unshakable ocular account, corroborated by the medical evidence, proof of recovery and that of alleged motive.  The wisdom is that a thousand culprits may go scot-free, but not a single innocent person ought to be convicted — such is the value of presumption of innocence and perusal of evidence in the criminal law.

As far as the ocular account is concerned, first of all, the question arises as to why Khadija, despite knowing the accused, nominated him after five days of the occurrence and lodging of the FIR? This, on the face of it, establishes a well-thought plan to implicate Shah Hussain due to some extraneous reasons. The prosecution, as per the judgment, tried to justify the delay in nomination by establishing that Khadija was unconscious in the meanwhile; however, the evidence of the medical doctor establishes otherwise. The doctor also states in her evidence that Khadija said a boy attacked him, at first instance, without taking any name. The judgment further goes on to state that the incident might have taken place, but not in the manner as described by Khadija and other prosecution witnesses. Therefore, the ocular account, being untrustworthy, could not have been relied upon, especially as to the identity of the accused. In this regard, the honourable judge laments the lack of production of independent witnesses from the public.

Brandishing the image of the honourable judge of the High Court on social media with self-righteous allegations, without any understanding of the basics of the criminal law is unfair

As far as the corroborative evidence is concerned, firstly, the blood-stained clothes of Khadija, or any foot mats or article in the car were neither produced before the investigation officer nor secured by him. Similarly, the recovery of the alleged weapon of offence, ie, a knife, on the alleged pointation of the accused at a belated stage from a public park, without being blood-stained; and the conflicting accounts of the helmet allegedly being worn by the accused, did not help the prosecution case either. Right, not the fault of the prosecution and Khadija; but that of the faulty investigation; nevertheless, the accused cannot be penalised for this. However, one may say that the judgment should have talked about any forensic evidence allegedly found on the helmet, in the shape of sweat swabs or blood stains, especially to establish the identity of the accused.

In the same vein, the judgment bemoans the lack of material/expert witness to establish the additional twelve injuries allegedly suffered by Khadija after the eleven injuries alleged initially. Even otherwise, when the injuries were challenged by the accused, Khadija did not join the District Standing Medical Board constituted for this purpose. Most importantly, the claim of the prosecution that she was shifted to the services hospital has been belied by the medico-legal report, which reflects that both the injured were medically examined by order of magistrate section 30, Lahore Cantt, before the registration of FIR. All of this leads to concoction and exaggeration to secure the maximum punishment for the accused.

Finally, the most important piece of corroborative evidence is the proof of the motive attributed to the accused of the commission of the said crime. The prosecution had alleged that the accused attacked Khadija on her refusal of his marriage proposal; however, this motive has been shattered by an admitted letter by Khadija in which she had accepted the accused’s proposal. The superior court judgments are categorical in this regard that once the motive is alleged, it ought to be proved beyond any shadow of a doubt; else it may prove fatal to the prosecution case.

Here one would like to allude to the statement/observation in the judgment that Khadija admitted having a friendship with different people, which statement has been taken wrongly on the social-media sphere. The purpose here is not to malign the victim; but to narrate an admitted fact by Khadija in her evidence, in order to establish, with the help of the other evidence discussed above, that the accused may have been someone else; and not Shah Hussain, against whom Khadija never lodged any complaint inside or outside of college. Why would she? She had accepted his proposal.

Most importantly, blame the faulty investigation or poor prosecution, if you want; blame the judicial system and its inherent bottlenecks, if you want; blame the male-dominated society, if you want; but to blame the integrity of a judge, who otherwise has given a sound judgment based on the available evidence, despite containing some lapses, is nothing but a sheer slander, if not an outright contempt of court. On the other hand, the fingers could only have been raised at the judge, and his case referred to the otherwise ineffective supreme judicial council, if the decision, on the face of it, had exhibited partiality or, for that matter, incompetency.

In the instant matter, all the aggrieved person can do so is to file an appeal before the supreme court to challenge the contents of the decision and not the personality of the judge. The accused did the same when two lower forums convicted him; why should the victim be any different? Therefore, brandishing the picture of the honourable judge of the High Court on the social media with self-righteous allegations, without understanding the basics of the criminal law, which even otherwise, are based on common sense, is unfair.

Interestingly, the chief justice of Pakistan has chosen to take a suo moto action on the social media concerns regarding the health of the judgment of the High Court, despite the existence of the remedy of appeal to the victim. Such a practice of taking suo moto actions on the pressure of the social media, and that too in the criminal matters being agitated in the hierarchy of the courts, ought to be discouraged, as has been held by a resolution of the Lahore High Court lately.

We must, as a part of this society, understand that it’s the courts, despite their shortcomings, which decide the matters on the basis of the material on record and the established law; and not the social-media brigade, on the basis of their self-styled evidence and perceptions. A judge ought not to be influenced by such extraneous circumstances, but only be guided by the available evidence and the law of the land — this is what has been apparently done by the Hon’ble Judge of the Lahore High Court.

The writer is a lawyer based in Lahore, and can be reached as @naumanqaiser@gmail.com and @naumanqaiser

Published in Daily Times, June 11^th 2018.