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The Supreme Court upheld on May 20 the death sentence awarded to Zahir Jaffer in the murder of Noor Mukadam, a move celebrated as a win for women across Pakistan. But even this rare victory was tempered by a dark cloud, courtesy some observations made during the course of the proceedings.

During one hearing, the nature of the relationship between the victim and the perpetrator was brought up by the defence counsel. In response, Justice Hashim Kakar, who headed the bench hearing the appeal, opined that a man and woman living together out of wedlock was against religion and morals. This happens in Europe, not here, he reportedly said.

Judges are not there to judge morality — their only duty is to judge the criminal charge. The observations may have been in response to the defence counsel and said about both the victim and perpetrator, but it is undeniable that women shoulder a larger portion of the assigned blame and stigma when it comes to even the implication of romantic relationships.

It is indefensible that responses to violence against women continue to be dominated by dangerous ideals of the “perfect victim”. The victim’s character is made a central topic in courtrooms, and absurd examples of “western” culture are invoked to question the decision-making of victims.

Words matter

Judges must be more gender sensitive about their language and remarks. From the police to the defence counsel to members of the bench: confronting our judicial system often comes with the worst type of re-victimisation. It does not matter what happens in Europe, it matters how our system treats victims of gender-based violence. Dangerous stereotypes are perpetuated in our judicial decisions.

For example, in Amir Razzaq vs The State (2019), while hearing a case of alleged sexual assault, the Lahore High Court held that the woman was aware of her actions and showed “voluntary participation” while “exercising a choice between resistance and assent and this can be safely assumed given her age and previous matrimonial experience”. A court dismissing a case due to lack of evidence is acceptable. However, the reality is that courts in Pakistan do not just dismiss cases for evidentiary reasons, but perpetuate harmful stereotypes in their decision-making process. A woman’s age or the fact that she has been married before has nothing to do with allegations of sexual violence.

In Muhammad Javed vs The State (2022 PCr. LJ Note 45), the Lahore High Court acquitted a man of rape, and in doing so held, “I am conscious of the fact that age of the victim was about 16 years but for that reason no premium can be given to her because she appeared to be a mature lady who used to work as maid in Lahore….her hymen was old torn.”

Courts continue to bizarrely rely on the ‘maturity’ of a victim, her prior marital status, her relationship with the perpetrator. This has no relevance to cases of sexual violence, and shifts the focus to the victim, when the victim is not on trial. The reasoning in the above cases shows that our courts decide what makes a victim an “actual” victim, and who is more worthy of being considered a victim. This is not justice.

While Noor Mukadam’s case is a stepping stone, it has also once again brought to light the need to confront biases that are deeply embedded within our system.

The ‘perfect victim’

To be considered deserving, “the victim should be physically weaker, there should be no previous relationship, the victim must be acting or doing something considered respectable, and the victim cannot be blameworthy in any way,” wrote Hannah Bows in Revisiting the ‘Ideal Victim’: Developments in Critical Victimology. The approach shifts the burden onto the victims — she shouldn’t have spent the night out, she shouldn’t have been with a man, and she should have known better. Per Catherine MacKinnon, “Virtuous women, like young girls, are unconsenting…rapable”. Whereas, “Unvirtuous women…are consenting, unrapable”.

The ideal victim our society keeps searching for does not exist. By proposing how a victim could or should have acted differently, the implicit suggestion is the brutal crime could have been avoided. The burden must not and cannot be on victims to alter their behaviour.

Women are subjected to gender-based violence in their homes, at their workplace, in the middle of the day, and in the dark of the night. Women are subjected to gender-based violence by family members, acquaintances, and total strangers. Even when a victim does everything right — and in many cases of domestic violence — she is still told it is a ‘private matter’ that does not belong in the courts.

In Muhammad Imran vs. The State (2024), a man accused of rape attempted to rely on a prior relationship with the victim. The accused and the victim had been arrested in an earlier case under a section which criminalises engaging in obscene acts, or singing, reciting or uttering obscene songs in a public place. Justice Ayesha A Malik, dissenting from the majority judgment, held that the prior incident “in no manner…suggests that the Petitioner and the Complainant were involved sexually based on their willingness and consent”. In the same dissent, Justice Malik holds that a victim’s sexual history is irrelevant.

While Justice Malik wrote a dissent, the principle had already been reinforced by Justice Mansoor Ali Shah in 2021. As far as precedent goes, our courts have established that the conduct of the victim is not on trial. Regardless of her past sexual history or moral character, a woman is entitled to equal protection of law.

Since our courts have held that the moral character of a victim is of no relevance in cases of gender-based violence, there is no excuse for judges in the highest court of the land to continue giving sermons on ethics. It is crucial for victims as well as their families to have confidence in the system. It is not just the result that matters; the process of reaching the result is of equal importance. For now, in many respects, the legal process itself constitutes re-victimisation and character assassination of the victim.

Gender sensitisation

In our justice system, cases of gender-based violence are predominantly heard by male judges. It is crucial for judges of the trial court, high courts and Supreme Court to undergo gender sensitisation training. Words matter. Language matters. The atmosphere in the courtroom matters. It makes all the difference. The Constitution guarantees the right to dignity, and the right to privacy.

The right to dignity is an absolute right, for which there are no exceptions. Especially at a time when judicial remarks are widely reported, judges must be mindful of the language they use.

At times, there may be an unconscious bias. It is important for judges to be aware of pre-existing beliefs and stereotypes influencing their conduct. These pre-existing stereotypes must always be questioned.

It is, however, heartening that there is an acknowledgement from male judges regarding the importance of recognising and confronting unconscious bias.

In Shahzad Ahmad vs. The State (2025), Justice Babar Sattar held: “It is equally imperative for a judge to bear in mind, especially while deciding criminal cases involving sexual abuse, that judges, like all human beings, are the products of their own experience and the gender identity of an individual does have a role to play in informing the social consciousness of such individual. Bearing this in mind it is also essential because women are disproportionately represented in the judiciary … A judge must be aware of his own construct of the social reality as a means to preventing his own lived experience from interfering with the discharge of adjudicatory authority.”

Gender sensitisation training is vital to confront the biases that exist, and manifest, in the courtroom. In large part, the shape the legal discourse takes begins with judges. In order to uphold constitutional guarantees of non-discrimination and equality, not only does the judiciary need to be more representative, but sitting judges must also be more gender sensitive. Judges must intervene and manage a hostile courtroom environment when defence counsel crosses the boundaries of acceptable conduct.

Gender-based violence is pervasive, and the cases where the victims or their families manage to fight right till the end are a small exception.

From the investigation to the trial, rather than searching for “perfect victims”, the focus must remain on justice and ensuring the conviction of perpetrators of crime.