Five-member larger bench of IHC headed by CJ IHC Athar Minallah summons Imran Khan for indictment on 22nd Sep in contempt case
ISLAMABAD, Sep 08 (SABAH): Five-member larger bench of the Islamabad High Court (IHC) headed by Chief Justice IHC Athar Minallah and comprising Justice Mohsin Akhtar Kayani, Justice Miangul Hassan Aurangzeb, Justice Tariq Mehmood Jahnagiri and Justice Babar Sattar while rejecting the reply of Pakistan Tehreek-e-Insaf (PTI) Chairman and former prime minister Imran Khan in contempt of case for threatening the woman district and sessions judge Islamabad Zeba Chaudhry has summoned him for indictment on 22nd September.
Chief Justice IHC Athar Minallah announced the verdict after reserving it after hearing the arguments of all the lawyers including Imran Khan’s counsel Hamid Khan Advocate, Attorney General for Pakistan Ashtar Ausaf Ali, court amicus curiae Munir Ahmed Malik and Makhdoom Ali Khan Advocate. Advocate General Islamabad Barrister Jehnangir Khan Jadoon also appeared in the court. Chief Justice IHC Athar Minallah said that the response of Imran Khan is not satisfactory. The five-member larger bench unanimously decided to indict Imran Khan in the contempt case.
IHC Chief Justice Athar Minallah observed that PTI Chairman Imran Khan’s replies to the court’s show-cause notice appeared to be “justifying” contempt of judiciary and showed “no remorse or regret”.
The IHC had initiated contempt proceedings against Imran Khan over his diatribe against Additional District and Sessions Judge Zeba Chaudhry, who had approved PTI leader Dr. Shahbaz Shabbir Gill’s physical remand in a sedition case, at a public rally in Islamabad’s F-9 Park on Aug 20.
On Wednesday, the former premier had submitted a second reply to the court after the first was termed “unsatisfactory”.
At one point during Thursday’s hearing, the IHC CJ Athar Minallah observed that Imran Khan’s responses were justifying contempt of court. Imran Khan’s counsel, Hamid Khan, said there was a difference between giving a justification and a clarification. “I am giving a clarification here.” “Would you have submitted the same reply if these words were used for a Supreme Court of Pakistan or a high court judge?” Justice Minallah asked.
He highlighted that Imran Khan was giving the justification that Gill was tortured while in police custody. “Tell us […] will the decisions be taken in rallies or the courts,” Justice Minallah inquired.
For his part, Imran Khan’s lawyer said that all judges were deserving of respect.
Subsequently, Justice Minallah said that the judges of district courts were more important than those of the high court or Supreme Court.
“Often times, the matter is not as serious as it is understood to be,” Hamid contended, admitting that Imran didn’t use the word “action” in his diatribe against the female judge in the correct way.
Justice Babar Sattar asked Imran’s counsel if legal action under the Contempt of Court Act could be publicly commented on.
Hamid replied that every citizen had the right to initiate legal proceedings, adding that the word action didn’t necessarily mean to threaten. “We assure the court that no one was threatened,” he maintained.
Justice Sattar also observed that the words used by Imran were “threatening”.
However, Imran’s lawyer argued that his client had stated multiple times that he was never against the judiciary. “He ran a campaign for the freedom of the judiciary,” Hamid pointed out.
He clarified that the PTI chairman’s aim was not to use harsh words against the female judge. However, Justice Sattar said that Imran was still trying to justify what he had said.
“There is a difference between a justification and a clarification. This is what I am trying to tell you,” Hamid contended.
To this, Justice Sattar asked: “Does Imran Khan want a fair trial? Is this why he has submitted this response?”
Imran’s lawyer replied that his client wanted the contempt case to be wrapped up.
Justice Athar Minallah observed that the former prime minister was taking a very “risky” stance. “The apex court had also warned Imran of contempt,” he recalled. “You are now once again saying that you won’t do this in the future.”
Justice Minallah reiterated that even now Imran wanted to justify his remarks, adding that the case of PML-N’s Nehal Hashmi was similar to the one at hand. “Nehal had not taken the name of any judge.”
Justice Minallah went on to ask why the judges of the lower courts were considered different to those of higher courts. “You are justifying contempt of court which means that you have no remorse or regret,” the judge observed.
Justice Sattar also noted that Imran had not shown any remorse through his behaviour. “Even after the speech and the contempt of court case, justifications are being given,” he said.
Justice Sattar asked that if the PTI would threaten “action” against the five judges hearing the case if he was not happy with their decision.
“Are you trying to say that what Imran said was right and that the world has perceived it to be wrong?” the judge asked.
During the hearing, Hamid Khan also said that hurling a threat at the female judge was not Imran’s objective. “Imran has always stood up for the rights of women.”
Justice Minallah said the case was not about women’s rights but was about the judge of a lower court.
At one point, Justice Minallah remarked that he didn’t care if the courts or judges were sidelined. “But here, the matter is of criminal contempt on which notice is taken across the world. We will too,” Justice Minallah said, saying that this contempt could affect the people’s trust in the judiciary.
The judge recalled that Imran had called on his supporters to gather outside the court. “We have repeatedly told you to submit a well-thought out response.”
Imran’s counsel said that his client had used the word regret in his response on the court’s orders, once again asking the IHC to dismiss the case.
“We can assure the court that Imran Khan will be more careful in the future,” he said, concluding his arguments.
Taking the rostrum at the outset of the hearing, Imran’s lawyer pointed out that a revised reply was submitted to the court on Wednesday. He said that the new reply was submitted after taking the court’s directives at the last hearing into consideration.
Hamid said that two apex court judgments had also been attached with the reply. “We want this case to be wrapped up now,” he said.
Hamid also referred to the case of firebrand PML-N leader Daniyal Aziz, who was convicted by the SC in 2018 for contempt.
“At the previous hearing, the IHC had instructed us to review contempt cases in the SC,” he said, adding that the court had also referred to the cases of Aziz and Talal Chaudhry. However, Imran’s case is different from the other two cases, Hamid said.
Here, Justice Minallah remarked that there were three types of contempt of court charges: judicial, civil and criminal.
“Those case do not fall under criminal contempt as they talked about the role of the court,” he said, adding that Imran had commented on a matter that was sub-judice.
“We have not initiated contempt proceedings in an attempt to scandalise the court,” the IHC CJ said. The also pointed out the criminal contempt was an offence that was “serious in nature”.
Justice Minallah said that ignorance was irrelevant in case of criminal contempt. “We had explained to you this was [a case of] criminal contempt,” he remarked, adding that the PTI chief had been directed to think before submitting a reply.
“We are defenders of freedom of expression but incitement cannot be allowed,” Justice Minallah said.
He said criminal contempt of court was “a very sensitive matter”, adding that the district court was a “red line” for the court. He observed that the law had outlined a procedure for when a person was aggrieved by the judgment of the court.
Our society is so polarised that followers insult opponents in public places, Justice Minallah said. “If they do the same thing with a judge, then what will happen?” he asked.
He maintained that the independence of the judiciary was the court’s top priority. The court also asked Imran whether he tried to justify his actions in his reply submitted to the IHC.
“We have tried to provide an explanation and not a justification,” Imran’s counsel Hamid replied.
Reminding Imran of the court directives at the previous hearing, the IHC chief justice said: “The offence is serious in nature. We had explained it last time, but you did not understand.”
The IHC chief justice questioned whether a former prime minister could claim ignorance of the law as a defence.
In his arguments during the hearing on Thursday, Attorney General of Pakistan (AGP) Ashtar Ausaf Ali said that he had the transcript and video recording of Imran Khan’s speech.
“Even in his speeches later too, Imran had passed the same comments against the female judge,” he stated. “He thinks that if the SC forgave him once, it will do the same again and again.” Ausaf Ausaf Ali also pointed out that Imran did not submit his response with an affidavit.
Attorney General Ashtar Ausaf stated that the apex court had pardoned a similar incident eight years ago and now the offenders believe that they can repeat the same mistake and be pardoned continuously. He claimed that an affidavit should have been submitted with Imran’s reply.
“The intent and purpose of the defamator are very important,” AG Ausaf said, adding that in 2014, a contempt of court case was also filed against Imran, with similar charges and procedures.
He highlighted that the charges against Imran were waived. The AG’s argument was left incomplete as the court summoned judicial assistants to the rostrum.
Meanwhile, Munir Ahmed Malik, the counsel for the IHC, said the contempt law had been used to strengthen the judiciary. “It is true that there are judgments of the Supreme Court in contempt of court cases, but it is also true that this law is constantly evolving.” He said that the words spoken outside the court could never impact the IHC.
“The words are disappointing, but not an obstacle to the dispensation of justice,” he added and opined that the contempt proceedings could either be quashed if an apology was tendered or better conduct was shown.
Malik, subsequently, requested the court to wrap the contempt case in light of the reply submitted by Imran.
Taking the rostrum, amicus curiae Makhdoom Ali Khan said public interest lies in the delivery of justice and said the same is present in freedom of speech.
Giving an example of the US and former president Donald Trump, Khan said Trump had called the apex court’s decision the worst, yet the US supreme court showed restraint and sought another path. He added that what was said by the party chief during the public gathering might affect the judicial system.
The chief justice, replying to the judicial assistant, said the PTI has been threatening the court since the start of proceedings in the case.
“We want to make one clear to you, the conduct that should have been seen after the contempt of court proceedings was not present,” said the chief justice. “Do you want us to accept their explanation?”
Khan said the court should give respite to Imran in the case. The bench then asked the judicial assistant regarding his opinion, to which he replied that Imran’s reply that was submitted should be accepted.
“Remorse has been expressed in this case,” said Khan, adding that the court can “give one chance to Imran” as he wrapped up his argument.
Makhdoom Ali Khan said that public interest lied in both dispensing justice and the freedom of speech. “In America, a president had called a court decision the worst,” he highlighted, going on that the judiciary there had shown restraint and taken out a second way out.
Here, Justice Minallah said that the same country had also suspended Donald Trump’s Twitter account for inciting followers. “This is the reason why we are saying the choice of words is very important for a political leader,” he said.
However, Makhdoom contended that the remarks of a leader, made at a rally, could not affect the court’s proceedings, saying that further time could be granted to the PTI leader.
“Imran should use the words of regret and apology in his detailed reply,” he said, urging the court to show “magnanimity and pardon Imran”.
To this, Justice Minallah asked if someone’s ego was more important than the prestige of the judiciary and pointed out that Imran did not even tender an unconditional apology in his response. Subsequently, the judges took a five-minute break.
Imran Khan arrived at the IHC prior to the hearing. He was swarmed by reporters as he made his way to the IHC amid tight security alongside Shibli Faraz and Faisal Javed Khan.
Strict security arrangements were made prior to the hearing with a heavy police presence in the region and the road to the IHC blocked with barbed wire.
Admission of court reporters, including lawyers, to the courtroom, is subject to a pass from the Registrar’s Office.
Speaking to media outside the courtroom, Imran Khan quipped that the security arrangements in place made him feel like Kulbhushan Jadhav — an Indian spy sentenced to death by Pakistan for his involvement in subversive activities in the country.
In response to a question about whether he will tender an unconditional apology, the PTI chief sarcastically said he would obtain a NOC from Matiullah Jan, a senior journalist, as he had more experience.
Before appearing for the hearing, the PTI Chairman Imran Khan told journalists that he would become “more dangerous” if the government decides to send him behind bars. “They have been trying to [put me in jail for long now]. I will be more dangerous if they send me to jail,” Khan said, as he smiled, showing confidence ahead of the hearing. The PTI chairman wondered who did the authorities fear as they had deployed a heavy contingent of police outside the IHC. He also refused to comment on whether he would apologize to the court or not.
Talking to media personnel outside the court, Imran was asked to comment on the security situation prior to the hearing.
“It is as if Kulbhushan Yadav was coming,” he remarked adding that he was unaware of what everyone was afraid of.
When asked if he would apologize for his comments regarding the additional sessions judge, Imran joked that he wouldn’t do anything without the journalist’s permission.
PTI lawyers stopped journalists from asking any further questions.
Imran expressed disappointment that he could not watch the Pakistan vs. Afghanistan cricket match last night. He maintained that he would talk to journalists after the hearing.
Khyber-Pakhtunkhwa (KP) Chief Minister Mahmood Khan arrived at the IHC before the hearing and was prevented from entering the court. He was joined by PTI leaders Ali Awan, Raja Khurram Nawaz, Murad Saeed, Fawad Chaudhary, among others. The PTI members started chanting loud slogans ahead of the hearing.
It is worth mentioning here that the decision to initiate contempt proceedings against Imran was taken by Justice Aamer Farooq while hearing a petition challenging Gill’s police remand. On August 23, the court summoned Imran on August 31 and issued him a show-cause notice.
A day before the hearing, the former prime minister submitted a reply before the IHC wherein he expressed his willingness to “take back” his words about the judge if they were “regarded as inappropriate” and pleaded before the IHC that the judges who had agreed to initiate the case against him should consider withdrawing themselves from the bench as, according to him, they had pre-judged the matter.
However, the IHC had deemed the response to be “unsatisfactory” and asked the PTI chief to submit a “well-considered” response.
Following this, Imran on Wednesday submitted a fresh reply in the court. In the revised response, however, Imran stopped short of rendering an unconditional apology. He stated that “I have a profound regard and respect for this honourable court and its subordinate courts and judge”.
The fresh response stated: “The respondent [Imran Khan] takes this opportunity to express his deep regrets over his unintentional utterances during the course of his speech at a rally which was taken out in response to the shocking news of physical torture of Shahbaz Gill.
“The respondent never meant to hurt her [the judge’s] feelings and if her feelings have been hurt, it is deeply regretted. The respondent neither meant to threaten the lady judge nor could he think of doing so,” it added.
Imran assured the IHC that he would not “shy away from expressing his remorse to her. Those utterances were never meant to interfere with or in any way influence the course of administration of justice.”
According to the reply, the PTI chairman due to his busy schedule was not aware that the issue of Gill’s remand was a sub judice matter, and “after horrific news of physical torture” he unintentionally uttered these words against the judge.
“The respondent’s reference to the lady judge and other officers during his speech was spontaneous and in the spur of the moment and was not calculated to personally attack any judicial officer or the judiciary in any manner whatsoever.”
Imran also cited the statements of former prime minister Nawaz Sharif against the former chief justice of Pakistan and the judges of the apex court following his disqualification in the Panamagate case.
He stated that “the purpose of the contempt law is not to punish anyone but to uphold the majesty of law. The respondent believes in the rule of law and supremacy of the constitution.”
The PTI chief also beseeched the court to follow Islamic principles of “forgiveness and restrain” in the contempt of court case against him.