MUZAMIL AKHT AR SHABIR, J..---This case put up as an objection case before this Court is the second case filed by Saghir Ahmad son of Manzoor Hussain/petitioner , who is appearing in person, seeking direction in terms of Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, to be issued to the Ambassador of USA Embassy Islamabad, Pakistan, who has been impleaded as sole respondent in the matter , to issue visa and provide air tickets to the petitioner and his family members to travel to the United States of America (`USA'), where according to him he has already applied for asylum by filing an application through post, wherein he has claimed that he is facing danger to his life. Further states that he is also entitled to same relief under the Geneva Convention. The earlier petition filed by the petitioner vide Diary No. 127132/21 by the same title, was held not to be maintainable vide order dated 06.09.2 021 by upholding the objection to the maintainability of said petition at Sr.
No. 40 of the objection sheet. In the instant case, the petitioner has again sought the afore-referred relief by claiming that he may be allowed to explain the circumstances for maintainability of the writ petition.
2. Of fice has raised objections reflected at Sr . Nos. 40 and 42 of the objection sheet, which are reproduced below:- "40. Writ Petition is not maintainable against USA. Embassy as being private entity .
42. Second Writ Petition is not competent."
3. The petitioner in person has argued that he is resident of 'Pakistan and is entitled to setting-aside of office objections relating to maintainability of the petition and acceptance of his Writ Petition as it relates to his fundamental rights provided in the Constitution of Islamic Republic of Pakistan, 1973, (Constitution') and the Rules of the Geneva Convention and prays that his prayer be allowed by directing the Ambassador of USA Embassy , Islamabad, to issue visa and air tickets to the petitioner , to reach USA for attending to his application for asylum.
4. On the other hand, the learned law officers have objected to the maintainability of this Writ Petition by arguing that the Ambassador as well as the Embassy of USA are not working in connection with the affairs of the Islamic Republic of Pakistan/Federation rather enjoy absolute/complete immunity being representative of the foreign sovereign country performing functions on behalf of their country wherein they are fully empowered to frame their own policies without intervention of courts in Pakistan, hence, pray that of fice objections be sustained.
5. When confronted as to the maintainability of this petition by itself as well as on the ground that earlier petition, on the same issue, filed by him was held to be not maintainable by upholding the office objection, the petitioner states that no other remedy is available to him, therefore, this Court under Article 199 of the Constitution, can issue Writ against the respondent Ambassador/ Embassy .
6. Although the petitioner by impleading Ambassador of USA Embassy , Islamabad, as a respondent in this petition has prayed for issuance of direction to him to issue visa and flying ticket to him and his family members by stating that he is entitled to the same under Rules of Geneva Conventions, however , no specific law, clause or Rule of the Geneva Conventions has been highlighted in this petition or through oral arguments and to that extent this petition taken up as an objection case is vague.
The petitioner seeks issuance of direction in the nature of Writ of Mandamus to the Ambassador of USA Embassy , Islamabad, however , this Court can only issue direction in the nature of mandamus to the persons mentioned in the definition of "person " under Article 199 (5) of the Constitution of Islamic Republic of Pakistan, 1973, which unless the context otherwise requires includes anybody politic or corporate, any authorit y of or under the control of the Federal Government or of a Provincial Government, and any Court or Tribunal, other than the Supreme Court, a High Court or a Court or Tribunal estab lished under the law relating to Armed Forces of Pakistan. The afore- referred definition provides that constitutional petition can be exercised against the, persons mainly working in connection with the affairs of the Federation, Province or Local Government or represent the State or its departments or courts subordinate to the superior courts whereas constitutional petition is not maintainable against Supreme Court of Pakistan, High Courts or Tribunals established under law relating to Armed Forces of Pakistan, which have been expressly excluded. Neither the Ambassador nor the Embass y fall in any category provided above that is subject to W rit jurisdiction of this Court.
Next arises the question whether the respondent, who holds office in Pakistan i.e., receiving state to perform various functions on behalf of his own foreign country i.e., sending state, which also includes consular activity to provide visa facility to people of Pakistan for the purpose of travelling to his country can be treated to be working in connection with affairs of Federation of Pakistan for treating the respondent as amenable, to Writ jurisdiction on the ground that Writ jurisdiction could be exercised even against a statutory body , which satisfies the following 'function test' to reach conclusion that it is performing functions in connection with the af fairs of Federation of Pakistan:- "(i) whether the functions entrusted to the organization or person concerned are indeed functions of the State involving some exercise of sovereign or public power;
(ii) whether the control of the organization vests in a substantial manner in the hands of Government; and
(iii) whether the bulk of funds is provided by the State."
Reliance in this regard is placed on 2013 SCMR 1707 (Pakistan Defence Officers Housing Authority and others v. Lt. Colonel Syed Jawaid Ahmed) and PLD 2010 SC 676 (Pakistan International Airlines v. Tanweer- ur-Rehman) . In regard to 'function test' it is observed that the Ambassador of USA and its Embassy (which is the premises of foreign diplomatic mission of USA and is to be treated/deemed to be part of USA under the International Law) being representatives of another sovereign country enjoying. diplomatic immunity and protection under the Vienna Convention on Diplomatic Relations 1961 ('Vienna Convention') are not working in connection with the affairs of the Federation, Province or Local Government in and for Pakistan to perform function of the state of Pakistan involving exercise of its sovereign or public power or functioning as an authority under its control in a substantial matter and are not being supplied with funds provided by State of Pakistan, hence, cannot be treated as performing functions in connection with the affairs of Federation of Pakistan as conditions of 'function test' are not satisfied, consequently , cannot be held to be person amenable to constitutional jurisdiction of this Court. Even otherwise the functions of the Diplomatic Agents and Missions such as Ambassador and Embassy in a foreign country acting on behalf of their own country have been enumerated at page 1038 in Encyclopedia of Public International Law; Volume One published in 1992 by Elsevier Science Publishers B. V. SARA Burgerhartstraat, Amsterdam the Netherlands under the auspices of the Max Planck Institute for Comparative Public Law and International Law under the Direction of Rudolf Bernhardt as under:- "(a) Functions The main functions of the diplomatic mission are: representation of the sending State in the receiving State, with a view to maintaining and promoting friendly relations between them; and protection of the interests, of the sending State and its nationals. Since World War II, however , the functions of the diplomatic mission have also come to include activities in the economic, cultural and related fields. Often such activities (e.g. in the field of information) are not welcomed by the receiving State which may view them as (---) intervention into its (---) domestic jurisdiction (---Non-Intervention, Principle of). Art. 3(1) of the Vienna Convention enumerates, inter alia, the following functions of the diplomatic mission:
(i) Representation of the sending State in the receiving State. As the principal function of the diplomatic mission, representation is entrusted primarily to the head of mission, although other diplomatic agents also participate at the appropriate level.
(ii) Negotiating with the government of the receiving State. In practice, it is difficult to distinguish (---) negotiation from representation, although the latter is primarily a generic description for all diplomatic functions. In fact, most definitions of diplomacy are based upon the notion of negotiation.
(iii)"[P]romoting friendly relations between the sending State and the receiving State, and developing their economic, cultural and scientific relations" (Art. 3(1), this being, in fact, an extension of the representation function.
Its inclusion in the Convention is best explained by the steadily increasing importance in recent decades of promoting such activities (---Cultural and Intellectual Cooperation).
(iv) Observation, i.e. "ascertaining by all lawful means conditions and developments in the receiving State, and reporting thereon to the Government of the sending State" (Art. 3(1)(d)). The Convention limits this function by providing that it may be effected only by "lawful means", thereby implicitly excluding activities not compatible with friendly relations between States, such as espionage.
(v) Protection in the receiving State of the interests of the sending State and of its nationals. The --- diplomatic protection of a State's nationals abroad and of their rights in the receiving State has customarily been considered as the function of ---consuls, and is mentioned as such in the---V ienna Convection on Consular Relations (1963), Art. 5 of which contains a detailed list of consular functions. With the increasing administrative amalgamation in most States of the diplomatic and consular services, this rigid distinction no longer applied. Article 3(2) of the Vienna Convention on Diplomatic Relations also reflects this amalgamation by stating that a diplomatic mission may perform consular functions. These include, inter alia, the issuance of --- passports, registration of births, marriages and deaths, and various notarial functions, subject to the legislation and practice of the receiving State.
Accordingly , some States do not recognize --- marriages performed by diplomatic and consular agents."
The same functions of the Diplomatic Agents and Missions are also provided in the book of International Law Sixth Edition published in 2008 by Cambridge University Press and authored by Malcolm N Shaw QC Sir Robert Jennings, Professor of International Law, University of Leicester . None of the afore-referred functions are being performed by the respondent on behalf of State/Federation of Pakistan rather the same are for the benefit of his own country . Even the said functions do not mention that visa facility shall be provided to citizens of the other country what to say of as of right, hence, this Court cannot issue a direction in the nature of mandamus to the respondent as court can only issue a direction to a respondent to do somethin g when the said respondent is required by law to do the same, whereas no Law of Pakistan can compel the respo ndent to issue visa or air tickets to the petitioner and his family especially when it is the discretion of every sovereign country or its diplomatic mission to issue or refuse visa to the residents of other countries keeping in view their own laws, rules and regulations, policy , etc., from which the said missions draw their enabling powers, which are part of their domestic laws and the processing of application for visa has to conform to their pre-requisites on the basis of their domestic laws, which questions can be better decided by the authority vested with such duties under the Sovereign authority of their respective country . For the exercise of their diplomatic duties, all conventions are based upon mutual respect of domestic laws of other sovereign states and even it is beyond imagination that conventions would abridge their domestic laws or impinge their sovereignty . Even otherwise visa in most cases is issued as a courtesy to the citizens of the other country with a view to maintain and promote friendly relations, economic or cultural activities, etc in exercise of discretionary power vested in an Ambassador/ Embassy and not as of right, which exercise of discretion cannot be interfered with by the courts of another country .
7. Furthermore, section 86-A of the Code of Civil Procedure, 1908 (`C.P.C.') substituted by the C.P.C. (Amendment)
Ordinance 1970 vide its section 2 with effect from 28th February , 1970, relating to suits against diplomatic agents provides that no proceedings in any court shall lie against a diplomatic agent except in a case relating to (a). any private immovable property situated in Pakistan held by him in his private capacity and not on behalf of sending State for the purpose of the mission; (b). a succession in which the diplomatic agent is involved as executor , administrator , heir or legatee as a private person and not on behalf of the sendin g State; (c). any professional or commercial activity exercised by the diplomatic agent in Pakistan outside his official functions. The said Section provides immunity to the diplomatic agents against legal proceedings and its exceptions and the same immunity was also provided in Article 31 of the V ienna Convention on Diplomatic Relations, 1961 in the following terms:- "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 I 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."
The immunity provided by the afore-referr ed Article 31 has been recognized as having force of law in Pakistan vide section 2 of the Diplomatic and Consular Privileges Act, 1972, which provides as under:- "2. Provision of Conventions to have force of law. (1) Not-withstanding 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, 1960, set out in the Second Schedule shall, subject to the other provisions of this Act, have the force of law in Pakistan."
Subsection (6) of section 86-A supra defines that diplomatic agent in relation to a State means the Head of the Mission of the Sending State in Pakistan and includes the members, of the staff of that mission having diplomatic rank. This means that not only the Amba ssador but also the staff members having diplomatic ranks are immune from being proceeded against in the jurisdiction of this Court except for the exceptions provided in the section 86-A of the C.P.C. and Article 31 of the Vienna Convention. The Diplomatic and Consular Privileges' Act, 1972, Vienna Convention and the C.P.C. provide immunity to the diplomatic agents against being proceeded in the jurisdiction of the courts including Writ Petitions as the principles of the C.P.C., which unless specifically barred, are applicable to constitutional petitions as well, whatever may be the nature of jurisdiction, as laid down in PLD 1970 Supreme Court 1 (Hussain Bakhsh v. Settlement Commissioner , Rawalpindi and others), which principle has been reiterated in PLD 1992 Supreme Court 723 (Federation of Pakistan through Secretary , Ministry of Law, Justice and Parliamentary Affairs, Islamabad and others v. Aftab Ahmad Khan Sherpao and others) and PLD 2004 Supreme Court 70 (Ardeshir Cowasjee and others v. Karachi Building Control Authority and others ), hence, the immunity provided to the Ambassador as diplomatic agent in terms of section 86-A supra against suits shall also be applicable to constitutional petitions filed against him.
8. Even otherwise, the petitioner is seeking a Writ of Mandamus in terms of Article 199(1)(a)(i) of the Constitution, which provides that subject to the Constitution, a High Court may, if it is satisfied that no other adequate remedy is provided under the law, on application of an aggrieved party , make an order directing a person, performing within the territorial jurisdiction of the court, functions in connection with the affairs of Federation, a Province or a Local Authority to do anything which he is required by law to do, however , the Constitution has not made the respondent amenable to the jurisdiction of this Court and the Ambassador or the USA Embassy is neither working in connection with the affairs of the Federation (i.e. Pakistan) nor is legally bound to provide visa and air tickets to the petitioner and his family members, theref ore, the petitioner's case does not fall within the jurisdiction of this Court provided under Article 199 of the Constitution, consequently , Writ of Mandamus cannot be issued.
9. The petitioner further states that Writ be issued against the respondent as his fundamental rights may be infringed. The said claim of infringement of fundamental rights can be made for seeking a remedy against State of Pakistan in the courts working in Pakistan but that claim cannot be extended to pass a direction to an Ambassador/Embassy of a foreign country to issue a binding direction for issuance of visa to the petitioner , which even otherwise is not his fundamental right. At this stage, the petitioner states that the respondent may waive right of claiming privilege against being proceeded in the courts of Pakistan but the said ground is not sufficient to invoke constitutional jurisdiction of this Court against the respondent merely on the assumption or in anticipation that the claim of immunity may be waived by the sending state in terms of subsection (4) of section 86-A of C.P.C., especially when the Vienna Convention recognizes that respect for privileges and immunities of diplomatic missions is essential in order for the sending states to properly perform their diplomatic functions and the diplomatic agents enjoy complete immunity from criminal jurisdiction of the host state, and immunity from all civil and administrative jurisdiction, except in narrow circumstances in which they are acting outside their official capacity . Even otherwise waiver of immunity in respect of any 'proceedings cannot be held to imply waiver immunity in respect of any measure of execution for which a separate waiver shall be necessary in terms of subsection (5) of section 86-A of C.P .C.
10. In view of the above, as this Court cannot direct the Ambassador of USA Embassy , Islamabad, to issue visa to any person, therefore, the constitutional petition is not maintainable and office objection at Sr. No.40 is upheld and sustained to the extent of non-maintainability of writ petition. As regards the remaining portion of the objection at Sr. No. 40 that the Ambassador/Embassy is a private entity , suffice is to say that neither the Ambassador/ Embassy of a foreign country can be treated as equivalent to State of Pakistan nor it can be treated as a private entity/person in relation to exercise of jurisdiction of this Court rather the same are representat ives of foreign sovereign states (sending states) having different right, privileges and immunities from the State of Pakistan (receiving state) and its subjects, therefore, the office objection at Sr. No. 40 to the extent of phrase 'as being private entity' is modified accordingly .
11. As regards office objection at Sr. No. 42, as office objection against the same prayer made in earlier Writ Petition put up as an objection case was upheld by this Court, therefore, without commenting upon the maintainability of second petition, in view of the fact that office objection at Sr. No. 40 has been sustained , the office objection at Sr . No. 42 is also sustained .