Al Wakeelo
Your Digital Lawyer, Always on Duty
Initializing Secure Chambers
Your Digital Lawyer, Always on Duty
Initializing Secure Chambers
Petitioner: (1) Muhammad Idrees (2) Adnan Iqbal VS Respondent: (1) Colonel Joseph Emmanuel etc (2) Federation of Pakistan etc.
Court Name: Islamabad High Court Judge(s): Aamer Farooq Title:(1) Muhammad Idrees (2) Adnan Iqbal vs (1) Colonel Joseph Emmanuel
etc (2) Federation of Pakistan etc. Case No.: (1) CASE NO.W.P. NO.1386-2018 (2) CASE NO.W.P. NO.1385-2018 Date of Judgment:2018-05-11 Reported As: 2018 IHC 47 Result: Petition disposed off Judgment AAMER FAROOQ J. This judgment shall decide instant petition as well as W.P. No.1385-2018, as common questions of law and facts are involved. 2. The facts, leading to filing of above mentioned petitions, are that petitioner in W.P. No.1386-2018, is the father of Attique Baig (deceased), who was killed by respondent No.1 in a car accident, which took place in Islamabad on 07.04.2018. Respondent No.1 is a citizen of United States of America and is posted as Air Defence Attach at Embassy of United States in Pakistan. On the complaint of petitioner in W.P. No.1386-2018, FIR was registered bearing No.168 dated 07.04.2018 under sections 320, 337(G), 279, 427 PPC at P.S. Kohsar, Islamabad. According to the contents of FIR, respondent No.1 hit the petitioner's son while driving Land Cruiser No.CD-64-48 (QP-058) at Margalla Road, Islamabad at about 2:55 p.m. on 07.04.2018, whereas the petitioner's son was riding Motorcycle bearing No.ARN/900-ICT. Attique Baig, the petitioner's son, died on spot, while his cousin namely Raheel Ahmad, suffered serious injuries. The entire accident has been recorded in Safe City Project Cameras and apparently, video footage of the accident is also available. The Traffic Police officials as well as officials of Islamabad Capital Territory Police, reached at the spot immediately. The police officials, including respondent No.2, took respondent No.1 to the Police Station, however did not formally arrest him. Allegedly, on verification from Ministry of Foreign Affairs, respondent No.1 was released. 3. Admittedly , neither formal statement of respondent No.1 was reduced in writing nor a 'breath test' was conducted or blood or urine sample was obtained to determine, whether he was driving while drunk. Initially , the police made entry in Daily Diary (Entry No.19) recording the accident but on 08.04.2018, a formal report was registered i.e. FIR No.168. 4. Respondent No.2 claims that matter has been duly investigated and as a result whereof, report under section 173 Cr.P.C. has been filed before the competent forum. Meanwhile, respondent No.4 made a request to
---
## Page 2
respondents No.5 & 6 for placing the name of respondent No.1 on Exit Control List (ECL). 5. During the course of proceedings, learned Deputy Attorney General submitted that since respondent No.1 is a 'Diplomatic Agent ' therefore due caution is to be exercised to verify the 'immunity ', he enjoys from arrest/investigation and placement of his name on ECL. 6. This Court, on 18.04.2018, directed respondent No.5 to proceed and decide the matter with regard to placement of name of respondent No.1 on ECL in accordance with law, pursuant thereto on 24.04.2018, Qalandar Khan, SO, Ministry of Interior , appeared in person and apprised the Court that request for placement of name of respondent No.1 on ECL is still pending meanwhile, he has been put on Black List. 7. This Court, after hearing preliminary arguments on 24.04.2018, framed six different questions in order to resolve the controversy involved in these petitions. For ease of convenience, said questions are reproduced below:- i. Whether the immunity provided in Article 31 includes the immunity from investigation? ii. Since the immunity of diplomatic agent does not exempt him from the jurisdiction of the sending State, whether the investigation in the matter is to be conducted by the receiving State or the sending State? iii. In order to investigate an accused whether request is to be made for the said purpose by the receiving State to the sending State? iv. In case the investigation is conducted by the sending State whether it is their prerogative to commence prosecution of the accused before the competent courts of the sending State? v. In case the investigation is conducted by the receiving State and during the investigation the accused is found prima facie responsible whether the government of receiving State shall accordingly make a request for prosecution of the diplomatic agent to the sending State and in case of refusal by the sending State the consequence? vi. Whether travel restrictions by placing the name of any accused who is a diplomatic agent be imposed under Vienna Convention or laws of Pakistan? 8. Learned counsel for the petitioner in W.P. No.1386/2018, inter alia, contended that diplomatic immunity, from criminal and civil suits, has been an international practice and has been reduced in Vienna Convention on Diplomatic Relations, 1961. It was contended that under the Convention, Diplomats and their families, have 'immunity' in receiving State's civil and administrative jurisdiction; that principle of diplomatic immunity cannot signify 'impunity'. Reliance was placed on cases reported as 'Dickinson Vs. Del Solar' [1930] 1 K.B. 376' and 'Empson Vs. Smith' 1 Q.B. 426 (1996). It was further submitted that under Article 31 of the Vienna Convention, the Treaty has to be incorporated in good faith in accordance with the ordinary meaning to be given in terms thereof. It was highlighted that the purpose of the Treaty is provided in its preamble to enforce the efficient performance of the functions of the Diplomatic Missions as representing states. Moreover, by virtue of Article 31 of the Convention, a 'Diplomatic Agent' enjoys 'immunity' from criminal jurisdiction of a State. In this behalf, jurisdiction over a fact, presupposes that a crime has taken place. It was contended that Author Rain Livojia has expressed in an Article that the 'criminal jurisdiction of states' is not a fact but a legal assessment of facts. 9. Learned counsel further submitted that bar provided with regard to prosecution under 'The Diplomatic Immunities and Consular Privileges Act, 1972' is procedural in nature and not substantive. Reliance was placed on case reported as 'A.N. Qureshi Vs. Union of Soviet Socialist Republic' (PLD 1981 SC 377). Learned counsel next contended that 1972 Act must be read in consonance with the Constitution of Pakistan, especially the fundamental rights enshrined therein by virtue of which, it is provided that fundamental rights of a citizen, cannot be curtailed or restricted. 10. Learned counsel further contended that since the 'immunity' is enjoyed by a 'Diplomatic Agent' from criminal jurisdiction, it does not include investigation of the criminal offence. Since the bar is not absolute therefore the Agent can be prosecuted in the sending State. In this behalf, it was contended that it is the failure on part of respondent No.2 to investigate the matter properly by reducing the statement of respondent No.1 in writing and obtaining his blood and urine samples for verifying whether he was drunk at the time of accident. It was further contended that police officials investigated the matter negligently. Learned counsel further emphasized that investigation, of a criminal offence involving a 'Diplomatic Agent', is prerogative of the receiving State and is not hit by the 'immunity'
---
## Page 3
enjoyed by a 'Diplomatic Agent'. It was further submitted that since the matter, ultimately, is to be tried either in the receiving State or the sending State therefore criminal offence has to be investigated and all, including respondent No.1, have to cooperative for this purpose. Learned counsel contended that there is no express prohibition on travel restrictions, either internationally or locally, qua Diplomats, hence they are to be treated in accordance with law. It was contended that in light of Section 2 of Exit from Pakistan (Control) Ordinance, 1981 read with Rule 2(c) of Exit from Pakistan (Control) Rules, 2010, the Federal Government is empowered to put any person, involved in a heinous offence, on Exit Control List. Reliance was placed on case reported as 'Prime Minister 's Inspection Team, National Highway Authority Vs. Zaheer Mirza' (2011 SCMR 371). It was also contended that Federal Government needs to devise a Comprehensive Code and Standard Operating Procedure (SOP) for enabling police authorities to act in such like situations. 11. The petitioner , in W.P. No.1385-2018, while appearing in person, inter alia, contended that provisions of 'The Diplomatic Immunities and Consular Privileges Act, 1972' and 'Vienna Convention' are in violation of the fundamental rights as guaranteed in the Constitution of Pakistan. It was requeste d that direction be issued to the Federal Government to take steps, to bring these provisions, in consonance with the Constitution of Islamic Republic of Pakistan. Apart from above, the petitioner adopted the arguments addressed by learned counsel for the petitioner in W .P. No.1386-2018. 12. Learned Deputy Attorney General, inter alia, contended that Vienna Convention, which was adopted by Pakistan and became of law of land under 'The Diplomatic Immunities and Consular Privileges Act, 1972', a 'Diplomatic Agent' enjoys certain immunities and protection. Learned Deputy Attorney General took the Court through the provisions of Vienna Convention, whereby diplomatic immunity can be claimed and enjoyed accordingly . He placed reliance on case reported as 'Ghulam Muhammad Vs. United States Agency for International Development (US Aid) Mission, Islamabad & Another ' (1986 SCMR 907 ). 13. Respondent No.2, appearing in person, contended that statement of respondent No.1 was reduced in writing and after investigation, report under section 173 Cr.P.C. has been filed before the competent forum. 14. The arguments advanced by learned counsels for the parties have been heard and the documents placed on record examined with their able assistance. 15. Petitioner , in the instant petition, has sought the following relief:- "That in view of the foregoing law and facts, it is humbly prayed that the Court may kindly: i. Direct Respondents No.2, 3 and 4 (SHO, IG and Chief Commissioner): a) to ensure that fair and transparent investigation is conducted with regard to the allegations contained in FIR No.168/2018 against the accused person; b) to arrest the accused person unless they are satisfied, for reasons to be recorded, that such arrest is not necessary to secure the ends of justice; c) complete the investigation of FIR No. 168/2018 at the earliest and submit Police Report under S. 173 Cr. PC (challan) before competent court at the earliest; d) conduct disciplinary proceedings against those police officials who were respons ible for the illegalities alleged in this Petition. ii. Direct Respondents No. 5 and 6 (Federal Government and Secretary Interior) to ensure that Respondent No. 1, accused in FIR No. 168/2018, is put on the Exit Control List forthwith and remain s on it till the conclusion of the case against him. iii. Direct Respondent No. 3 and 4 (IG and Chief Commissioner) to submit a repor t to this Hon'ble Court regarding the investigation and fate of similar incidents in ICT involving the death of Pakistani citizens by rash driving of foreign diplomats. iv. Grant such relief as may be appropriate" Petitioner, in W.P. No.1385-2018, also seeks similar relief and in addition, direction to the Federal Government for amending the law on the diplomatic immunity to bring it in harmony with the Constitution of the Islamic Republic of Pakistan, 1973.
---
## Page 4
16. Admittedly , Colonel Joseph Emmanuel, is working as Air Defence Attach in U.S. Embassy in Pakistan hence is a 'Diplomatic Agent' for the purpose of Article 1 of Vienna Convention on Diplomatic Relations, 1961 (VCDR). Under Article 1 (e) of VCDR, a 'Diplomatic Agent' is the Head of a Mission or a Member of the Diplomatic Staff of the Mission. In 1961, to codify the immu nities and privileges to be enjoyed by a 'Diplomatic Agent', VCDR was acceded to by signatory States, The provisions of VCDR, were duly made law of Pakistan through 'The Diplomatic Immunities and Consular Privileges Act, 1972'. In this behalf, section 2(1) of the Act, reads as follows: - '2. Provisions of Conventions to have force of law.- (1) Notwithstanding anything to the contrary contained in any other law for the time being in force, the provisions of the Vienna Convention on Diplomatic Relations, 1961, set out in the First Schedule and the Vienna Convention on Consular Relations, 1963, set out in the Second Schedule shall, subject to the other provisions of this Court, have the force of law in Pakistan". The bare reading of the above Section shows that Articles of VCDR, mentioned in the first Schedule to the Act, have the force of law in Pakistan. The salient Articles, for the purposes of present controversy , are as follows: - ARTICLES 29 The person of a diplomatic agent shall be inviolable. He shall not be liable to any form of arrest or detention. The receiving State shall treat him with due respect and shall take all appropriate steps to prevent any attack on his person, freedom or dignity . ARTICLE 30 1. The private residence of a diplomatic agent shall enjoy the same inviolability and protection as the premises of the mission. 2. His papers, correspondence and, except as provided in paragraph 3 of Article 31, his property shall likewise enjoy inviolability . ARTICLE 31 1. A diplomatic agent shall enjoy immunity from the criminal jurisdiction of the receiving State. He shall also enjoy immunity from its civil and administrative jurisdiction, except in the case of: (a) a real action relating to private immovable property situated in the territory of the receiving State, unless he holds it on behalf of the sending State for the purposes of the mission; (b) an action relating to succession in which the diplomatic agent is involved as executor , administrator , heir or legatee as a private person and not on behalf of the sending State; (c) an action relating to any professional or commercial activity exercised by the diplomatic agent in the receiving State outside his official functions. 2. A diplomatic agent is not obliged to give evidence as a witness. 3. No measures of execution may be taken in respect of a diplomatic agent except in the cases coming under sub- paragraphs (a),(b) and (c) of paragraph 1 of this Article, and provided that the measures concerned can be taken without infringing the inviolability of his person or of his residence. 4. The immunity of a diplomatic agent from the jurisdiction of the receiving State does not exempt him from the jurisdiction of the sending State. ARTICLE 32 1. The immunity from jurisdiction of diplomatic agents and of persons enjoying immunity under Article 37 may be waived by the sending State. 2. The waiver must always be express. 3. The initiation of proceedings by a diplomatic agent or by a person enjoying immunity from jurisdiction under Article 37 shall preclude him from invoking immunity from jurisdiction in respe ct of any counter claim, directly connected with the principal claim. 4. Waiver of immunity from jurisdiction in respect of civil or administrative proceedings shall not be held to imply waiver of immunity in respect of the execution of the judgment, for which a separate waiver shall be necessary . ARTICLE 37
---
## Page 5
1. The members of the family of a diplomatic agent forming part of his household shall, if they are not nationals of the receiving State enjoy the privileges and immunities specified in Articles 29 to 36. 2. Members of the administrative and technical staff of the mission, together with members of their families formings part of their respective households, shall, if they are not nationals of or permanently resident in the receiving State, enjoy the privileges and immunities specified in Articles 29 to 35, except that the immunity from civil and administrative jurisdiction of the receiving State specified in paragraph 1 of the Article 31 shall not extend to acts performed outside the course of their duties. They shall also enjoy the privileges specified in Article 36 paragraph 1, in respect of articles imported at the time of first installation. 3. Members of the service staff of the mission who are not nationals of or perma nently resident in the receiving State shall enjoy immunity in respect of acts performed in the course of their duties, exemption from dues and taxes on the emoluments they receive by reason of their employment and the exemption contained in Article 33. 4. Private servants of members of the mission shall, if they are not nationals of or permanently resident in the receiving State, be exempt from dues and taxes on the emoluments they receive by reason of their employment. In other respects, they may enjoy privileges and immunities only to the extent admitted by the receiving State. however , the receiving State must exercis e its jurisdiction over those persons in such a manner as not to interfere unduly with the performance of the functions of the mission. ARTICLE 39 1. Every person entitled to privileges and immunities shall enjoy them from the moment he enters the territory of the receiving State on proceeding to take up his post or, if already in its territory , from the moment when his appointment is notified to the Ministry for Foreign Affairs or such other Ministry as may be agreed. 2. When the functions of a person enjoy ing privileges and immunities have come to an end, such privileges and immunities shall normally cease at the moment when he leaves the country , or on expirty of a reasonable in which to do so, but shall subsist until that time, even in case of armed conflict. However , with respect to acts performed by such person in the exercise of his functions as a member of the mission, immunity shall continue to subsist. 3. In case of the death of a member of the mission, the members of his family shall continue to enjoy the privileges and immunities to which they are entitled until the expiry of a reasonable period in which to leave the country . 4. In the event of the death of a member of the mission, not a national of or perm anently resident in the receiving State or of a member of his family forming part of his household, the receiving State shall permit the withdrawal of the movable property of the deceased, with the exception of any property acquired in the country the export of which was prohibited at the time of his death. Estate, succession and inheritance duties shall not be levied on movable property the presence of which in the receiving State was due solely to the presence there of the deceased as a member of the mission or as a member of the family of a member of the mission. The 'immunity' , provided in the above mentioned Articles, is not absolute and can be modified or amended by the Federal Government under section 3 of the Act, which reads as follows:- "Restriction of Privileges and immunities.- If it appears to the Federal Government that the privileges and immunities, accorded to the mission or a consular post of Pakistan in the territory of any State, or to persons connected with that mission or consular post, are less than those conferred by this Act on the mission or a Consular post of that State or on persons connected with that mission or consula r post, the Federal Government may, by notification in the official Gazette, withdraw such of the privileges and immunities so conferred from the mission of that State or, as the case may be from all or any of the consular posts of that State, or, as from such persons connected therewith as it may deem fit". 17. The crux of the above provisions is that, Articles of VCDR mentioned in Schedule-I to the Act, have the force of law in Pakistan. Under section 3 of the Act, the privileges and the immunities can be modified and even withdrawn by the Federal Government. A 'Diplomatic Agent' is not to be arrested or detained and his 'person' is inviolable. He shall enjoy the 'immunity' from the criminal jurisdiction of the receiving State as well as civil and administrative jurisdiction thereof with three exceptions; the 'Diplomatic Agent' is not obliged to give evidence however the 'immunity' of a 'Diplomatic Agent' is in respect of jurisdiction of the receiving State, and does not exempt him from jurisdiction of the sending State, meaning thereby that if there is a civil claim against him or he is
---
## Page 6
to be tried for a criminal offence in the receiving State, which is not possible due to his 'immunity' , he can still be tried in the sending State i.e. the countr y, on whose behalf, he is acting as a 'Diplomatic Agent'. Moreover , the 'immunity' provided to the 'Diplomatic Agent' from jurisdiction, may be waived by the sending State however waiver must be express. The 'immunity' enjoyed by a 'Diplomatic Agent', is also enjoyed by his family . In this regard, the 'immunities and privileges', are enjoyed by a person entitled to enjoy the same when he or she, enters the territory of the receiving State to take up his/her post and if already in its territory from the moment when his appointment is notified to the Ministry of Foreign Affairs or any such other Ministry . The 'immunities or privileges' end at the moment, the person leaves the country . 18. There is no case law on the subject of 'Diplomatic Immunities and Privileges' in Pakistan, which determines the extent and nature of such immunities and privileges. However , in case law reported as 'A.N. Qureshi Vs. Union of Soviet Socialist Republic' (PLD 1981 SC 377), the august Apex Court observed that statutes relating to Diplomatic Immunities and Privileges, are procedural statutes. 19. In order to determine the extent, scope and nature of Diplomatic Immunities and Privileges, benefit is drawn from case law propounded by the other jurisdictions, especially United Kingdom. 20. In case reported as 'Dickinson Vs. Del Solar' [1930] 1 K.B. 376, Lord Hewart C.J. observed that diplomatic agents are not, in virtue of their privileges as such, immune from legal liability for any wrongful acts. The accurate statement is that they are not liable to be sued in the English Courts unless they submit to the jurisdiction. Diplomatic privilege does not import 'immunity' from legal liability, but only exemption from local jurisdiction. The privilege is the privilege of the Sovereign, by whom, the diplomatic agent is accredited and it may be waived off with the sanction of the Sovereign or of the official superior of the Agent. 21. In case reported as 'Empson Vs. Smith' 1 Q.B. 426 (1996) ', the Court of Appeal of the United Kingdom, held as follows:- "(1) that, as the law stood at the time that the proceedings were begun, the defen dant was covered by diplomatic immunity , and the proceedings could not be lawfully maintained while that immunity remained, but that the action subsisted until struck out by the judge and the stay imposed by the registrar could have been removed and the action allowed to proceed if the immunity had been lost either by a valid waiver or, in respect of acts done by the defendant in his personal capacity , by the cessation of his diplomatic employment; that a change in the law similarly permitted the action to proceed, if not barred by the Limitation Act, 1939, if it removed the immunity previously enjoyed, which was probably the case here" 22. The International Court of Justice, in case reported as 'United States and Diplomatic and Consular Staff in Tehran Vs. Iran (Judgment dated 24.05.1980), observed as follows:- "There is no more fundamental prerequisite for the conduct of relations between States [..] than the inviolability of diplomatic envoys and embassies, so that throughout history nations of all creeds and cultures have observed reciprocal obligations for that purpose [...J. The institution of diplomacy , has proved to be "an instrument essential for effective cooperation in the international community , and for enabling States, irrespective of their differing constitutional and social systems, to achieve mutual understanding and to resolve their differences by peaceful means." 23. The name of any person can be placed on Exit Control List by the Federal Government under section 2 of Exit from Pakistan (Control) Ordinance, 1981 read with rule 2(c) of Exit from Pakistan (Control) Rules, 2010. In case reported as 'Prime Minister 's Inspection Team, National Highway Authority Vs. Zaheer Mirza' (2011 SCMR 371), the Hon'ble Supreme Court ordered that names of respondents, who were connected directly or indirectly with the collapse of Fly Over , were to be put on Exit Control List. The use of words 'any person' in 1981 Ordinance means that a person, who is residing temporarily in Pakistan and is likely to leave and never come back to evade law of Pakistan, even his/her name can be put on Exit Control List. For ease of convenience, Section 2(1)(2)(3)…
Read the unabridged text and precedent citation network on Al Wakeelo Legal Research Platform.