ISLAMABAD: The Supreme Court. by a majority of two to one, on Thursday set aside its Dec 29, 2022 orderendorsingthe closure of the right to defence of PTI founder Imran Khan in the Rs10 billion defamation suit filed by Prime Minister Shehbaz Sharif.
In April, the apex court had resumed hearing a review petitionfiledby PTI founder. former premier against the closure of his right to defence in theRs10 billion defamation case.
Headed by Justice Ayesha A. Malik, a three-judge SC bench also comprising Justice Muhammad Hashim Khan Kakar. Justice Ishtiaq Ibrahim took up a set of review petitions filed by Imran Khan, also a former prime minister. Justice Kakar, however, dissented from the majority judgment.
Overturning the earlier judgments of the LHC as well as the trial court, the SC remanded the matter back to the trial court with the direction to provide the petitioner (Imran Khan) a reasonable opportunity to file his reply to the interrogatories. to proceed with the suit in accordance with law.
Authored by , the majority judgment on Thursday recalled that Imran’s challenge to the earlier judgment was primarily anchored on two pivotal legal infirmities: first, the illegitimacy of relying on past conduct as a retrospective basis for a penal sanction;. second, the absence of a formal application as a mandatory jurisdictional prerequisite for the invocation of Order XI, Rule 21 of the Civil Procedure Code (CPC).
observed that Order XI. Rule 21 of the CPC was not a routine tool of case management; it was the “death knell” of a party’s defence, as its nature was strictly penal.
“The law does not favour the forfeiture of a substantive right of defence on a technicality unless the conduct of the party is proved to be contumacious, obstinate. stubbornly defiant.”
When a court contemplates a measure that deprives a person of their fundamental right of defence, a right that is anchored in the constitutional guarantee of a fair trial under Article 10A, it must exhibit the utmost judicial restraint. proceed with absolute caution, emphasised.
He also observed that the trial court, in its orders of November 8. 17, had explicitly acknowledged and accepted Imran’s inability to respond to interrogatories due to a critical injury sustained in a widely reported shooting incident that happened on Nov 3, 2022.
Once the trial court accepted the factum of theshooting incidenton Nov 8. 2022, the element of “wilfulness” was legally extinguished, the judgment said, while noting, “But on Nov 24, 2022, the trial court abruptly shifted its stance, striking out petitioner’s defence despite continued existence of the same medical incapacity.”
“When a party is hospitalised due to gunshot wounds, the failure to sign an affidavit or consult with counsel is a physical impossibility. not a contumacious act,” observed.
“The law does not compel a man to do what he cannot possibly perform; thus a default occasioned by a physical catastrophe or force majeure that includes circumstances entirely beyond a party’s control. cannot be characterised as wilful or contumacious as was the case at hand.,” stated the judgement.
further observed that the trial court had acted “mechanically” in imposing this penalty upon the petitioner. that the earlier majority judgment erred in the analysis of this fact.
The judgment conceded that the former prime minister indeed sought numerous adjournments since the inception of the proceedings. as rightly pointed out by the earlier majority judgment. However. it was pertinent to note that the trial court saw fit to grant them without ever resorting to the lesser penalties available in the judicial quiver.
“Had the court truly determined that the petitioner was employing strategic delay tactics. it was empowered to ensure the expeditiousness of justice through the imposition of high costs or peremptory orders with realistic timeframes.”
“Instead. the trial court remained dormant in its disciplinary capacity for years, only to jump to the most extreme penalty on Nov 24, 2022, less than a month after the documented firing incident. Such an approach ignores the principle of proportionality as the judiciary’s duty to ensure expeditious justice does not grant a license to commit summary injustice,” observed.
Thus, the judgment said that the earlier majority judgment suffers from errors apparent on the face of the record, which have resulted in a manifest miscarriage of justice, adding that the “judgment erred fundamentally in validating the invocation of Order XI, Rule 21 of the CPC based upon a retrospective evaluation of petitioner’s past conduct, while ignoring the immediate. compelling medical incapacity resulting from theassassination attempt”.
Meanwhile, Justice Malik, in her additional note, observed that in a case plagued by adjournments since 2017, the trial court should weigh the “balance between a fair trial. the legitimate grounds for the latest request for adjournment”.
“The courts are entrusted with the responsibility to dispense justice, for which they are under a duty to ensure a timely trial, which duty may have been overlooked in some of the previous instances of adjournment where requests were granted mechanically. without due consideration,” she maintained.
However, Justice Malick said the petitioner’s public shooting. injury at a political rally justified the grant of an adjournment for a reasonable time under the circumstances.
“The right to defence cannot be struck out without considering all relevant factors,. the court must weigh the balance between a fair trial and the circumstances at hand,” Justice Malik said.
Justice Kakar, in his dissenting note, observed that the case at hand was a classic case of delay on the part of the petitioner. of the trial court’s inability to conclude the lis within a reasonable time.
“Record reveals that the suit was instituted in the year 2017, whereas the written statement was filed after a delay of about four years,” Justice Kakar observed, adding the interrogatories were made on March 16, 2022,. despite availing of 5 to 6 opportunities, the petitioner failed to respond to the same.
“As per order sheet of April 26, 2022, answers to the interrogatories was ready. the draft was only required to be signed by the senior counsel, however, on next date of hearing, instead of answering the interrogatories in compliance of the trial court directions and previous under taking, once again objections were filed just to delay the proceedings,” he wrote, while pointing that “Such conduct on the part of petitioner was apparently wilful disobedient, Justice Kakar observed.
The trial court, through its order of October 20, 2022, dismissed the petitioner’s objections to the interrogatories of the respondent. directed him to submit answers to those interrogatories. Later. through a subsequent order dated Nov 24, 2022, the trial court struck off the petitioner’s right of defence due to non-submission of answers to the interrogatories.
In his suitfiled in 2017, PM Shehbaz said Imran levelled baseless allegations against him. He sought a decree for the recovery of Rs10bn as compensation from the defendant for the publication of defamatory content. The defamation suit said Imran wrongly accused PM Shehbaz of offering Rs10bn to the latter through a common friend in exchange for withdrawing thePanama Papers case.
**Author: Justice Ibrahim**
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