Timely Abolishment of the Two-Finger Test Would Have Favoured Mukhtaran Mai’s Rape Appeal – In Conversation with Barrister Aitzaz Ahsan

[TRIGGER WARNING: Graphic Content]

Ever since Justice Ayesha Malik ruled in favour of the abolishment of the abhorrent two-finger test in rape cases, I was intrigued to find out whether such a ruling, if delivered three years earlier, could have positively impacted Mukhtaran Mai’s case as well. It is this very question that has led me to interview both the lady and her lawyer.

The two need no introduction. Barrister Aitzaz Ahsan is a senior advocate of the Supreme Court, a seasoned politician and one of the most respected voices and brilliant minds of our country. Mukhtaran Mai is a women’s right activist, a survivor of violence against women and a symbol of courage.

Since numerous articles have already been published about the heroic struggle of Mukhtaran Mai, my aim is to analyze and explore the implications of the 2019 review appeal against the acquittal of 13 perpetrators in her gang-rape case.


In July 2002, Ms Mukhtaran Mai, a member of the Gujjar community, was gang-raped by members of the influential Mastoi tribe in her village as an act of vengeance against her brother, Abdul Shakoor, who had been accused of indulging in illicit sexual relations with Salma, the sister of a man who was a member of the Mastoi tribe. After a struggle of 17 years, Ms Mai lost her case on the basis that she had not been a virgin at the time of her rape. Two years after the verdict, the High Court abolished the virginity test in rape cases.

I have divided the discussion into two parts. Part 1 is an interview with Barrister Aitzaz Ahsan, while Part 2 will be with Ms Mukhtaran Mai.


Q1: You took this case on a pro bono basis. What drew the attention of an established, senior lawyer such as yourself to Ms Mai’s case?

Barrister Aitzaz Ahsan responded with praise for Ms Mai and her clear-cut vision for protecting other women and children from having to suffer the same trauma which she herself had to undergo. He stated that she had a “broad vision for ending the smothering practice of rape and honour killing,” adding that she was a woman far progressive for where she had come from (a village without even any electricity).

He admittingly mentioned that when the state offered Mai a cheque worth PKR 5 million, she refused to accept it for herself and instead directed the funds towards building the first school in her village. Initially an all-girls school, it now provides co-education as well.

Barrister Aitzaz Ahsan went on to show his appreciation for Mai’s sophisticated and gentle nature, stating that not once had she been “harsh in her words towards her assailants”. The most shocking of his revelations included the fact the children of her tormentors have also been studying at her school. If this isn’t a measure of her character, then what is?

Q2: In the 2019 judgment of Mukhtaran Mai’s review appeal, the Supreme Court stated that a ‘review was not synonymous with an appeal’ and held that, for there to be a rehearing, there had to be ‘a glaring omission or patent mistake of fact or law’. Do you believe that if the two-finger test had been abolished three years ago, Ms Mukhtaran Mai would not have suffered the same ill fate?

Barrister Aitzaz Ahsan began by stating that it could have been a huge factor tilting the decision in favour of Ms Mai as a woman’s virginity would not have been up for questioning.

He then affirmed that Justice Ayesha Malik was a “very respected voice and judicial arbiter of legal matters” and had delivered a very “rational” judgment, one that was very “welcome” in today’s world.

He also expressed that the repercussions of the Supreme Court’s verdict not only went far beyond the despair of Mai but also acted as a sanction for the abuse of sex workers, divorcees and married women.

Barrister Aitzaz Ahsan then made a salient revelation that the main reason they had lost their case was because by the time the case had gone into review, the culprits had already served their prison sentence, so it was not in the “province” of the Supreme Court to reinstate those sentences. It was ‘justice delayed, justice denied’ in its purest form.

Q3: It was reported that there was an 8-day delay in the filing of the FIR (first information report), against which the Supreme Court ruled that a delay of that sort would have been understandable in the case of an ‘unmarried virgin, whose future would have been stigmatized’ but not a ‘a grown up lady who had been a divorcee for so many years’. What are your views on such a reductionist and insensitive approach towards a rape victim with a tribal background?

Barrister Aitzaz Ahsan expressed his disappointment with the judgment stating that, except for Justice Nasirul Mulk who in his dissent took into account Ms Mai’s conservative background, the other judges had failed to adjudge factors such as the educational background linked to her tribal upbringing.

He went on to assert that the main reason behind the delay was the “patriarchal” mindset embedded in Mai’s village where, in a meeting of a hundred people, not one person had objected to the will of the panchayat directing Mukhtaran to be gang-raped in vengeance of her brother’s alleged sin (for which there had been no concrete evidence in the first place).

Q4: The judgment appears to reflect misinterpretation and disregard of evidence. Can you tell us if the sole testimony of a rape victim holds any weightage?

According to Barrister Ahsan, jurisprudence regarding evidentiary requirements has remained consistent since pre-Partition, but while every victim for any offence requires corroborative evidence, a rape victim, in fact, does not.

Rape is a crime of such heinous nature that it is often done in the absence of any witness. Therefore, Ms Mai’s very own word should have been enough, but due to a grave misreading of evidence, it unfortunately was not.

Other corroborative evidence can also be used in rape cases, such injury on the buttocks of the victim proving that she had, in fact, been subjected to violence, which could directly coincide with her statement that she had been ‘dragged’. In such cases, “circumstantial evidence” (like examining the fingertips of the accused and the victim for DNA evidence), or the doctrine of “last seen” (whereby two people are last seen together and after an interval of time one is found dead or injured), are also sometimes employed.

Q5: What, in your view, is the impact of such a judgment on other rape victims who are scared of the burden of proof required to prove their cases despite having someone as capable as yourself as their legal counsel?

Barrister Aitzaz Ahsan, referring to the earlier Supreme Court judgment, stated that the initial verdict was “misogynistic”. He stated that the recent judgment delivered by Justice Ayesha Malik was not only “logical” and “reasoned” but also discussed the history of the dreadful two-finger test. He was hopeful that the recent judgment could cover the void created by the judgment of the Supreme Court, going so far as to say that it “virtually trumped the Supreme Court judgment against Mukhtar Mai.”

Q6: Since Ms Mai’s judgment was heard by an all-male bench, do you think the presence of a female judge could have impacted the verdict in Ms Mai’s favour? 

Barrister Aitzaz Ahsan believed that the presence of a female judge could have crucially affected the verdict; it could have either changed the ratio of the judgment, or at least neutralized it.

He went on to offer appreciation for Justice Nasirul Mulk, stating that his dissent was a “bold” move.

Q7: There seems to be some controversy around marital rape being covered under Pakistani law. Could you please clarify the confusion?

“The law is very clear, sexual intercourse without consent is rape,” said Barrister Aitzaz Ahsan. Had the law not been enforced, sex-workers would have been subject to repeated sexual violence.

According to Barrister Aitzaz Ahsan, the issue arises with the interpretation of clerics who wrongfully believe that the nikahnamah is physical proof of “consent in perpetuity”.

Q8: How would you redraft the law if you could?

Barrister Aitzaz Ahsan responded that while the law afforded adequate protection, it was in the “application” of the law that we faltered. He stated that the first step should be towards the social upgradation of women in our society, for which education is essential.

Referring back to Ms Mai, he stated that she herself has been studying in her own school. The school now provides children’s uniform and a regular pick-and-drop service as well. This should make you think about what excuses you may have for not prioritizing education.

Q9: Do you think that death penalty and life sentence are not severe punishments? What about castration and public humiliation? 

Where an over-excited millennial like myself would have celebrated the public humiliation of a rapist, Barrister Aitzaz Ahsan’s years of wisdom and experience shined through as he stated that public humiliation only conditioned people to violence. He stated that state-led violence would never result in an internally peaceful nation and would instead stunt its growth.

Stay tuned for Part 2 with the woman herself, Ms Mukhtaran Mai.

The views expressed in this article are those of the author and do not necessarily represent the views of CourtingTheLaw.com or any organization with which she might be associated.

Sara Shafi

Author: Sara Shafi

The writer has pursued an LLB degree from the University of Nottingham.