ISLAMABAD: The Supreme Court on Thursday restored the right of defence of former prime minister and Pakistan Tehreek-e-Insaf (PTI) founding chairman Imran Khan in a Rs10 billion defamation case filed against him by incumbent Prime Minister Shehbaz Sharif.
A three-member bench of the apex court, headed by Justice Ayesha A Malik and comprising Justice Hashim Khan Kakar and Justice Ishtiaq Ibrahim, announced judgement in a review petition filed by Imran Khan against the apex court’s majority judgement upholding the Lahore High Court’s order striking off his right of defence in the Rs10 billion defamation case filed by Shehbaz Sharif.
The court accepted the review petition of Imran Khan and set aside its majority judgement passed on December 29, 2022, along with the judgements of the high court and the trial court.
The court remanded the matter to the trial court with the direction to provide the petitioner (Imran Khan) a reasonable opportunity to file his reply to the interrogatories and proceed with the suit in accordance with law.
“By a majority of two-to-one (Justice Kakar dissenting), Civil Review Petition No 2-L of 2023 is allowed and the majority judgement dated 29.12.2022 is hereby set aside along with the judgements of the high court and the trial court,” the court announced the judegment in open court.
“The matter is remanded to the trial court with the direction to provide the petitioner reasonable opportunity to file his reply to the interrogatories and proceed with the suit in accordance with law. Civil Review Petition No.1-L of 2023 is hereby dismissed,” Justice Ayesha announced in the short order.
The 13-page judgement, authored by Justice Ishtiaq Ibrahim, observed that the trial court, in its orders dated 08.11.2022 and 17.11.2022, explicitly acknowledged and accepted the petitioner’s inability to respond to interrogatories due to a critical injury sustained in a widely reported shooting incident that happened on 03.11.2022.
“Once the trial court accepted the factum of the shooting incident on 08.11.2022, the element of ‘wilfulness’ was legally extinguished,” said the judgement.
The apex court, however, observed that on 24.11.2022, the trial court abruptly shifted its stance, striking out the petitioner’s defence despite the continued existence of the same medical incapacity.
The court held that when a party is hospitalised due to gunshot wounds, the failure to sign an affidavit or consult with counsel is a physical impossibility and not a contumacious act.
“The law does not compel a man to do what he cannot possibly perform (Lex non cogit ad impossibilia). Thus, a default occasioned by a physical catastrophe or force majeure — which includes circumstances entirely beyond a party’s control — cannot be characterised as wilful or contumacious as was the case at hand. I am of the view that the trial court had acted mechanically in imposing this penalty upon the petitioner and that the majority judgement erred in analysis of this fact,” Justice Ishtiaq held.
The court noted that the petitioner indeed sought numerous adjournments since the inception of the proceedings, as rightly pointed out by the majority judgement. However, it is 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 heavy costs or peremptory orders with realistic timeframes,” said the judgement.
“Instead, the court remained dormant in its disciplinary capacity for years, only to jump to the most extreme penalty on 24.11.2022, less than a month after the documented firing incident on 03.11.2022. Such an approach ignores the principle of proportionality, as the judiciary’s duty to ensure expeditious justice does not grant a licence to commit summary injustice,” it said.
The court held that by justifying the striking out of the defence through a retrospective tally of adjournments rather than a focused examination of the petitioner’s immediate and involuntary disability, the majority judgement has committed an error apparent on the face of the record.
“Equity and the spirit of the law lean towards a determination of cases on their merits. Thus, the finality of a judgement must not be sought at the altar of a technical knockout when a legitimate ‘sufficient cause’ for delay exists,” said the judgement.
The court noted that a literal and contextual reading of Rule 21 reveals a clear, tripartite sequence: first, the existence of a specific order for answer to interrogatories or discovery; second, a failure to comply with said order with penal consequences (dismissal of suit if plaintiff, and right to defence struck off if defendant); and third, that the party interrogating or seeking discovery may apply to the court for an order to that effect.
“It is only upon the fulfilment of these conditions that the court is empowered to order invocation of penal consequences under Rule 21,” it said, adding that the use of the phrase ‘apply to the court’ is a statutory command that vests the initiative in the hands of the aggrieved party.
The court held that the legislature has deliberately avoided the use of language such as ‘the court may’, which is found elsewhere in the code when suo motu powers are intended.
“Therefore, the power to strike out a defence under this rule is contingent and derivative, remaining dormant until a formal application is preferred. In the present case, the record is void of any such application by the respondent,” the court held.
“By proceeding to strike out the defence in the absence of a statutory trigger, the trial court erred, and the majority judgement, by validating this overreach through an inference of suo motu empowerment, has ignored the clear letter of the law,” the court held, adding that this disregard for the procedural mechanism constitutes a patent error on the face of the record, as no other inference regarding suo motu authority can be legally drawn from the explicit wording of the provision.
Similarly, Justice Kakar in his dissenting note held that the review jurisdiction does not allow re-hearing of decided cases, more so when the court has given a conscious and deliberate decision on points of law as well as fact while disposing of the petition before it.
The judge held that the record reveals that it is a classic case of delay on the part of the petitioner and helplessness of the trial court to conclude the lis within a reasonable time. “The record reveals that the suit was instituted in the year 2017, whereas the written statement was filed after a delay of about four years.
“Similarly, the interrogatories were made on 16.3.2022 and despite availing five or six opportunities, the petitioner failed to respond to them,” the judge noted.
Justice Kakar held that as per the order sheet dated 26.4.2022, answers to the interrogatories were ready and the draft was only required to be signed by senior counsel. However, on the next date of hearing, instead of answering the interrogatories in compliance with court directions and previous undertaking, once again objections were filed just to delay the proceedings.
“Such conduct on the part of the petitioner was apparently wilful disobedience, and I see no justification to depart from the earlier view taken by this court,” the judge held and dismissed the petitions on merits.
It is pertinent to mention here that in 2017, Imran Khan had alleged that Shehbaz Sharif offered him a bribe of Rs10 billion to remain silent in the Panama Papers case. Shehbaz rejected these allegations as baseless, malicious, and false, and filed a Rs10 billion defamation suit against him in a Lahore sessions court. Due to an alleged delay of four years in submitting a reply by Imran Khan, the trial court struck off his right of defence, which he challenged in the Lahore High Court, but his appeal was dismissed.
He then filed an appeal in the Supreme Court, where a three-member bench, through a majority decision by Justice Mansoor Ali Shah and Justice Amin-ud-Din Khan, dismissed his appeal and upheld the high court’s decision to strike off his right of defence. However, Justice Ayesha, in her dissenting note, held that Imran Khan should have been given an opportunity to defend himself. Imran Khan later filed a review petition against this majority decision in the Supreme Court.
