Last month, the Supreme Court set aside Lahore High Court's (LHC) decision to free Shah Hussain after the latter had acquitted Hussain in June 2018.

Hussain, son of a senior lawyer, was first convicted in July 2017 for attempting to kill his fellow student, Khadija Siddiqui, by stabbing her several times.

The Supreme Court's decision marked a victory for justice, but the whole ordeal has shown serious lapses in rudimentary application of criminal law.

Basic errors

A few errors in the LHC judgment stemmed from oversight of cumulative evidence recorded by the trial court: for example, critique on lack of production of blood-stained clothes, whereas the clothes had in fact been produced and exhibited by the prosecution.

Other errors stemmed from detrimental reliance on menial facts, which, even if contradictory, did little to negate the credibility of the chain of events: for example, discrepancy in the colour of the helmet recovered and additional doctors not produced to corroborate injures no. 12-23.

The apex court rightly deemed the prosecution’s inconsistency in corroborating the helmet colour as inconsequential (helmet’s colour wasn’t written in prosecution’s original memorandum of recovery, and misidentification of colour did not negate contents of claim).

Related: Khadija was stabbed 23 times in Lahore. Here's how she put her attacker behind bars

The lack of production of surgeons who examined injures no. 12-23 as witnesses was deemed by the apex court as insignificant, since the evidence of earlier and later injuries were both based on the notes/records of the medical officer and not the surgeon(s) anyway.

The LHC went into extensive examination to ascertain whether, to what extent, and where, the victims suffered bodily injuries. The apex court deemed the prosecution’s lack of production of certain articles at the scene of the crime to showcase blood (e.g., floor mat) as inconsequential, as evidence of blood was not necessary to prove injury.

The LHC was fair in questioning whether the prosecution’s lack of introduction of certain evidence adequately showcased that the events took place at the alleged location. Unwittingly though, the LHC answered its own query by later stating that the “injury on a witness is…indication of…presence at the spot.”

Identification

The LHC could not reconcile the victim’s assertions made at the hospital immediately after the attack (a boy attacked me) vs. the victim’s statement recorded five days later (that the convict/Shah Hussain attacked me).

As noted by the apex court, the LHC cherry-picked the medical officer’s testimony, whereas the whole testimony showed that before the victim could utter any additional details of the attack, she was operated upon by the surgeons. The effects of anesthesia lasted five days, which prevented the victim from identifying the perpetrator till later.

The LHC observed that since the victim was lucid enough to answer medical and factual questions immediately after the attack, she should have been able to tell the medical officer about the perpetrator’s identity right then.

Jurisprudence around the world affords victims of severe bodily attacks leniency by not attacking a victim’s credibility based on his/her lack of immediate identification, reporting and/or sharing details.

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It has been empirically shown that victims of bodily trauma (e.g., rape, sexual assault, knife attack) are less likely to identify/explain, let alone report such incidents due to factors such as disorientation, fear of retaliation and/or humiliation.

Victims of such attacks often also suffer from the psychological phenomenon of repression or blockage which leads to inability to immediately identify a suspect.

In similar context, Pakistan's Supreme Court has repeatedly held that delay in registration of trauma cases such as rape is a natural result of the socio-cultural situations coupled with the painful mental condition of the victim.

It is unfortunate that in this case, the victim’s lack of immediate identification of the convict was only reconciled with the narrative that she was taken away by surgeons before she could give away the identity of the convict.

Motive

The motive attributed by the prosecution to the convict (which was accepted by the trial court, and the appellate court/additional sessions judge (ASJ)) revolved around the convict attacking the victim as retaliation to her rejection of his advances.

The LHC instead swallowed the defendant’s (apparent) smoking gun: a letter allegedly authored by the victim stating her desire to marry the convict (prior to the attack).

The apex court held that the LHC only took into account a portion of the victim’s statement during the trial, while her entire statement showcased that the convict’s motive stemmed from wanting to silence the victim as she was about to report the convict’s harassment to his mother.

Also read: What the Sahiwal shooting tells us about police culture

The apex court also flipped the tables and held that even if the convict’s version was to be believed (that the victim was persistent upon continuing relations with the convict, against his will), the convict’s actions of attacking the victim could be construed as the plausible motive of “getting rid of her.” The prosecution never really asserted this notion, though, and perhaps it was for the best.

Evidence about a prior relationship was nefariously used by the convict in this matter, to show the victim's bias and motive. Although it reaches to the stereotype concerning a lying victim, generally an accused has a right to say that a false accusation against him was made out of malice.

Fortunately, the convict’s efforts to portray as such (i.e., victim’s alleged willingness to marry) were negated by persuasive evidence to the contrary (i.e., convict’s continued harassment of the victim) by the trial and appellate court, but somehow was not convincing enough for the LHC.

Independent witnesses

The apex court rejected the LHC's conclusion that non-production of independent witnesses by the prosecution weakened the case.

For the apex court, the victim’s younger sister and the complainant identifying the convict as the perpetrator at the convict’s first court appearance, deemed the eye-witnesses credible.

The apex court went as far as stating that the “injured eyewitness…had absolutely no reason to falsely implicate [the convict].” This is far-sweeping, and goes back to the motive ascribed in the case.

The notion that independent witnesses did not testify against the convict does not hamper the merits of the case. The Supreme Court has held in the past that corroboration to the testimony of an interested witness need not always be from an independent witness, but can also be sought from any circumstance which would satisfy the mind of the court that the witness spoke the truth.

For the trial court, and the appellate court/ASJ, the witnesses’ testimonies were truthful, and it was proven beyond a reasonable doubt that the convict committed the crimes.

Revisional jurisdiction

Finally, the apex court rightly held that the LHC was granted revisional jurisdiction only, and not appellate jurisdiction in the matter.

The LHC exercising revisional jurisdiction can only cure defects on instances where a subordinate court’s misreading or not reading of the evidence leads to a conclusion contrary to the law.

Instead, as the apex court rightly concluded, the LHC had put on the cap of an appellate forum and wrongly embarked upon a full-fledged reappraisal of the evidence, which it was not empowered to do.

While the whole episode has been a moral victory for justice, it would be a stretch to claim that it has been a victory for jurisprudence.

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