SC sets aside order closing Imran’s right to defence in Rs10bn defamation suit by PM Shehbaz

ISLAMABAD: The Supreme Court, by a majority of two to one, on Thursday set aside its Dec 29, 2022 order endorsing the 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 petition filed by PTI founder and former premier against the closure of his right to defence in the Rs10 billion defamation case. Headed by Justice Ayesha A. Malik, a three-judge SC bench also comprising Justice Muhammad Hashim Khan Kakar and 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 and to proceed with the suit in accordance with law. Authored by Justice Ibrahim, 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; and 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). Justice Ibrahim 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 and 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 tr