• Majority verdict overturns its own earlier ruling, also those of trial court and LHC in case filed by PM Shehbaz
• Case remanded to trial court with directions to allow PTI founder to answer interrogatories
• Justice Kakar dissents, cites prolonged delays in proceedings

ISLAMABAD: The Supreme Court, by a majority of two to one, on Thursday set aside its Dec 29, 2022 judgement endorsing the closure of PTI founder Imran Khan’s right to defend himself in the Rs10 billion defamation suit filed by Prime Minister Shehbaz Sharif.

Headed by Justice Ayesha A. Malik, a three-judge SC bench, also comprising Justice Muhammad Hashim Khan Kakar and Justice Ishtiaq Ibrahim, heard a set of review petitions filed by Mr Khan. Justice Kakar, however, dissented from the majority judgement.

While overturning the earlier decisions of the Lahore High Court (LHC) and the trial court, the SC remanded the matter to the trial court with directions to provide Mr Khan a reasonable opportunity to file replies to the interrogatories and proceed with the suit in accordance with the law.

The case reached the Supreme Court after the trial court closed Mr Khan’s right to defend himself, a decision that was upheld by the LHC and later endorsed by the SC.

The trial court, through its Oct 20, 2022 order, dismissed objections raised by Mr Khan seeking rejection of the interrogatories submitted by PM Shehbaz and directed him to answer them. Later, through an order dated Nov 24, 2022, the trial court struck out his right of defence for failing to submit answers to the interrogatories.

PM Shehbaz had instituted a damages suit against Mr Khan on July 7, 2017, alleging that the PTI founder had defamed him.

Two legal infirmities

Authored by Justice Ibrahim, the majority judgement on Thursday recalled that Mr Khan’s challenge to the earlier verdict was primarily anchored upon two 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 invoking 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 for case management, it was the “death knell” of a party’s defence as its nature was strictly penal.

The judge further observed that the trial court, in its orders of Nov 8 and 17, 2022, had explicitly acknowledged and accepted Mr Khan’s inability to respond to the interrogatories due to critical injuries sustained in the widely reported shooting that occurred on Nov 3, 2022.

Once the trial court accepted the factum of the shooting incident on Nov 8, 2022, the element of “wilfulness” was legally extinguished, the judgement said.

However, on Nov 24, 2022, the trial court abruptly changed its stance, striking out the petitioner’s defence despite the continued existence of the same medical incapacity, it added.

“Thus, the earlier majority judgement suffers from errors apparent on the face of the record, which have resulted in a manifest miscarriage of justice,” Justice Ibrahim observed.

He added that the earlier judgement fundamentally erred in validating the invocation of Order XI, Rule 21 of the CPC based upon a retrospective evaluation of the petitioner’s past conduct, while ignoring the immediate and compelling medical incapacity resulting from the assassination attempt.

In her additional note, Justice Malik observed that in a case plagued by adjournments since 2017, the trial court must strike a balance between ensuring a fair trial and considering the legitimacy of any request for adjournment.

Dissenting note

Justice Kakar, in his dissenting note, observed that the case was a classic example of delay on the part of the petitioner and the helplessness of the trial court in concluding the litigation within a reasonable period.

The record revealed that the suit had been instituted in 2017, while the written statement was filed after a delay of about four years, Justice Kakar noted.

As per the order sheet dated April 26, 2022, the answers to the interrogatories were ready, and only the senior counsel’s signature on the draft was pending, he noted.

He added that on the next date of hearing, instead of answering the interrogatories in compliance with the trial court’s directions and the previous undertaking, objections were once again filed only to delay the proceedings.

Published in Dawn, June 12th, 2026