Despite the Islamabad High Court (IHC) giving PTI Chairman Imran Khan another chance to submit a “well-considered” response in the contempt case — seen in the government camp as a kind of “favour” — the former prime minister is not out of the woods, and may face difficulty in clearing his name.
The contempt proceedings were initiated against the PTI chief for his controversial remarks about District and Sessions Judge Zeba Chaudhry, who had approved his chief of staff, Shahbaz Gill’s physical remand in a sedition case.
"We are not inclined to discharge the said notice having found the reply to be unsatisfactory bearing in mind, inter-alia, the law laid in the cases reported as ‘Suo Motu Contempt Proceedings’ [PLD 2018 SC 773], ‘Suo Motu Contempt Proceedings’ [PLD 2018 SC 738] and ‘The State vs Dr Firdous Ashiq Awan’ [2020 PLD 109 Islamabad],” says the written order issued by a five-judge larger bench of the IHC.
Read more: IHC dissatisfied with Imran’s reply
The order was referring to the Supreme Court judgments wherein three PML-N leaders — Nehal Hashmi, Talal Chaudhry and Daniyal Aziz — were convicted of contempt during former chief justice Mian Saqib Nisar’s era.
IHC Chief Justice Athar Minallah also told the counsel for the PTI chief that when his client issued the threatening statement against Judge Zeba Chaudhry, the matter [Shahbaz’s Gill case] was pending in the high court.
Senior lawyers; however, believe that the sub-judice rule does not apply in the present time, as it is applied at the time when the jury was siting to decide cases.
A lawyer says that in view of the IHC observation, Imran faces another charge: that he gave the statement to affect a sub judice matter.
The order referred to the IHC’s own judgment in Firdous Ashiq Awan contempt case wherein the court held that Article 205(2)© has explicitly made any act liable to be punished for contempt if it tends to prejudice the determination of a matter which is pending before a court.
"The Constitution, the highest law of the land, thus recognises the sub judice rule. This type of contempt essentially falls within the ambit of 'criminal contempt'.
"Any incorrect reporting by a reporter which is published or aired could amount to a criminal contempt. Trial outside the court in any form which tends to influence the proceedings and determination in a pending matter would attract the offence of criminal contempt if the intent is to obstruct the administration of justice or divert the course of justice.
“It would, therefore, depend on the facts and circumstances of each case as to whether the act had tended to or was intended to prejudice the determination of a matter pending before the Court. Pre-trial or during trial publicity or acts relating to pre-judging the outcome of pending proceedings also prejudices the determination of pending matters before the Court.
“The offence of criminal contempt will be attracted if the likely prejudice is substantial. It is not a condition precedent for the commission of criminal contempt that the alleged act had actually prejudiced determination but it would be sufficient if the act tended to interfere with the administration of justice. There must be some degree of intent to prejudice or obstruct the administration of justice.
"Each case has to be decided on its own merits. The acts committed during the pendency of a matter are the most serious form of contempt because it has a likely effect on one of the most important rights, i.e., the right to a fair trial.
“The power relating to the law of contempt is applied with great reluctance but the only category of contempt which cannot be ignored is when the act tends to prejudice the determination of a pending matter because it has the effect of infringing the constitutionally guaranteed right of due process. Likewise, acts which amount to prejudicing public confidence in the administration of justice in a pending case would fall within the ambit of commission of a criminal contempt.
“Any publicity during pending proceedings or attempts to influence the public by creating a perception that extraordinary favours are or have been extended to a litigant – otherwise than in accordance with the law — would definitely be an act done with the intent to divert the course of justice or impede and obstruct the administration of justice," says the judgment authored by IHC Chief Justice Athar Minallah.
Another challenge for Imran’s legal team is to differentiate his case from the three PML-N leaders’ contempt matters.
A member of the team says that they will explain as to how Imran’s case is different from three other contempt cases. “Despite tendering an unconditional apology, Nehal Hashmi was sent behind the bars for one month.”
The IHC chief justice has already made it clear that the judgements in the contempt cases were binding on the high court.
However, it is a fact that the legal fraternity never appreciated the Supreme Court judgments wherein the three PML-N lawmakers were disqualified in contempt matters.
The PTI chairman has another advantage: he may approach the apex court in case of any adverse order against him.
Moreover, the IHC had appointed senior lawyers — Muneer A Malik and Makhdoom Ali Khan — as amicus curiae in this matter.
It is learnt that both the senior lawyers generally are not in favour of using contempt power by the superior judiciary against political leaders. This is another advantage that may go in Imran’s favour.
In 2014, when the apex court initiated contempt proceedings against Imran Khan, Muneer A Malik was the attorney general for Pakistan and appeared in the proceedings on a court’s notice.
Malik, in his submission, had made distinction in the contempt proceedings initiated by the apex court for disobedience of its order and contempt arising out of scandalous remarks made by an individual. He contended that in the latter case this court had been showing its magnanimity and restraint in taking any stern action against the alleged contemnor (Imran Khan).
He further contended that the present day judiciary at the level of Apex Court, is the most independent judiciary in the history of our Country, and it has reached a point where whosoever makes allegation against the judiciary, people will never believe it and the judiciary will remain untainted.
With these submissions, he suggested for a lenient view in the matter by discharging the show cause notice for initiating contempt proceedings against Imran Khan.
One interesting thing is that Imran’s counsel, Hamid Khan, amicus curie Muneer A Malik and the IHC chief justice were active members of the lawyers’ movement.
Campaign against IHC CJ
In the meanwhile, PML-N supporters and anti-Imran media persons have initiated a campaign against the IHC chief justice for allowing Imran to submit the supplementary reply.
A senior official told The Express Tribune that he urged them instead of criticising the IHC, they should remain silent as it is a matter which is being taken up by the high court itself.
He said the PML-N should avail the opportunity by requesting the IHC to decide appeals filed by Maryam Nawaz against her conviction in the Avenfield case.
Interestingly, the IHC chief justice had given big relief to the PML-N in past. Even Nawaz Sharif and Maryam Nawaz’s bail was granted by the IHC chief justice during former chief justice Mian Saqib Nisar.
The IHC chief justice also gave relief to several media persons and social activists during the PTI regime. Several PML-N and PPP leaders were granted bail by the IHC.
It is also a fact that since the Panamagate, the PML-N had faced difficulties criticising the judiciary.
It is learnt that the PML-N supporters might have got upset by the IHC chief justice observation wherein he asked Attorney General for Pakistan Ashtar Ausaf Ali to review the policy regarding registration of sedition and terrorism cases.
This has prompted them to initiate a campaign the IHC chief justice to pressure him not to pass a judicial order against the cases registered under the Anti-Terrorism Act,