The Supreme Court of Pakistan, by a 2-1 majority, on Thursday set aside its December 29, 2022 judgment that had upheld the closure of PTI founder Imran Khan’s right to defence in the Rs10 billion defamation suit filed by Prime Minister Shehbaz Sharif. A three-member bench headed by Justice Ayesha A. Malik and comprising Justice Muhammad Hashim Khan Kakar and Justice Ishtiaq Ibrahim heard review petitions filed by the former prime minister. Justice Kakar dissented from the majority verdict. The court overturned the decisions of the Lahore High Court and the trial court, remanding the matter back to the trial court with directions to provide Imran Khan a reasonable opportunity to file replies to interrogatories and proceed with the case in accordance with the law.
Majority Judgment Highlights
In the majority judgment authored by Justice Ibrahim, the court held that Order XI, Rule 21 of the Civil Procedure Code (CPC), which permits striking out a party’s defence for non-compliance, is a penal provision and should be invoked only in exceptional circumstances. The judgment noted that the petitioner’s challenge rested on two key grounds: the improper reliance on his past conduct to justify a penal sanction and the absence of a formal application required before invoking the provision. Justice Ibrahim observed that striking out a defence amounts to the “death knell” of a party’s case and should not be imposed unless the conduct is contumacious, obstinate and wilfully defiant. He stressed that courts must exercise utmost restraint when considering measures that deprive a litigant of the constitutional right to a fair trial under Article 10A.
Medical Incapacity Considered
The court noted that the trial court had previously acknowledged Imran Khan’s inability to respond to interrogatories due to injuries sustained in the November 3, 2022 shooting incident. Once the court accepted the fact of the shooting, the element of wilful default was legally extinguished, the judgment said. “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,” Justice Ibrahim observed. The judgment further held that the trial court acted “mechanically” in striking out the defence and failed to consider less severe measures. While acknowledging that Imran Khan had sought numerous adjournments since the institution of the suit in 2017, the court noted that the trial court had consistently granted them without imposing lesser penalties such as costs or strict timelines.
Justice Malik’s Observations
In a separate note, Justice Ayesha Malik observed that although the case had been plagued by delays since 2017, the petitioner’s public shooting and resulting injuries justified a reasonable adjournment. She emphasized that courts must balance the right to a fair trial with the need for timely disposal of cases. “The right to defence cannot be struck out without considering all relevant factors,” she stated.
Dissenting Opinion
Dissenting, Justice Kakar held that the record reflected a pattern of delay by the petitioner. He noted that the written statement had been filed nearly four years after the suit was instituted and that despite multiple opportunities, Imran Khan failed to answer interrogatories issued in March 2022. According to the dissenting opinion, the petitioner’s conduct amounted to wilful non-compliance, and repeated objections appeared aimed at delaying the proceedings.
