Dr. QAISER RASHID vs FEDERAL SECRETARY, MINISTRY OF FOREIGN AFFAIRS, GOVERNMENT OF PAKISTAN, ISLAMABAD

ORDER

' This appeal is filed against order of the learned Single Bench passed in Criminal Original No,935- W/2005 on 19-9-2005 in Writ Petition No,18609 of 2004.

' The brief facts leading to the present appeal are that the appellant had entered into a contract with a private institution in Berlin, Germany, "German Arthritis Research Center (DRFZ)". According to the learned counsel, the said Centre was required to issue appellant a research experience certificate. According to the learned counsel for the appellant, he was denied the said certificate, whereupon, the appellant filed Writ Petition No,18609 of 2004 which was disposed of with direction to the Secretary Foreign Affairs. The direction reads as under:-- .... The office to send a copy of this order along with writ petition as well as its annexure to the Secretary Foreign Affairs, Islamabad, who will look into the grievance of the petitioner and sympathetically will make his best efforts to get redress, the grievance of the petitioner from the Institute of German Arthritis Research Centre (DRFZ) Berlin Germany through Pakistan Embassy at Germany."

3. According to the learned counsel for the appellant, the above mentioned order of this Court was not honored by the Foreign Office, hence appellant had to file Criminal Original No,935-W/2005 on 19-9-2005.

4. The Foreign Office submitted para wise comments along with a letter from the Institute in the Criminal Original No,935-W/05. On 20-4-2006, learned Single Bench of this Court decided criminal original in the following words:-- "The direction issued by the learned Bench vide order dated 12-11-2004, while disposing of Writ Petition, was duly complied with by the respondents. The Ministry of Foreign Affairs did call upon the Embassy of Pakistan in German Democratic Republic, which in turn, wrote to the Institute. Response of Institute was also brought on record. In these circumstances, when direction given by this Court has been duly complied with, the Ministry of Foreign Affairs cannot be called upon once again, to secure a certificate for the petitioner. The Ministry of Foreign Affairs or Embassy of Pakistan was not under any obligation to approach a private foreign Institute for issuance of a certificate to petitioner whether he was entitled or not, to have received such a certificate."

' The Hon'ble Single Bench further declared that the criminal original was, under the circumstances, totally misconceived.

5. We agree with the order of the learned Single Bench passed in Criminal Original No,935-W/2005 for the following reasons, that.

6. The appellant entered into an agreement for certain training with a private institution which is based in Germany. Two points are important to note, i,e, agreement with a private institution; secondly, in a territory which is not a part of the Province (Pakistan). This Court can issue Mandamus only to a "person" who performs functions in connection with affairs of Federation, Province or a Local Authority. A The definition of "person" is given in clause (5) of Article 199 itself, which does not include a private institution. The other requirement or condition precedent is that such person must be based within territorial jurisdiction of this Court. Under Article 175 of the Constitution, every Province has a separate High Court. Following the above constitutional mandate, Lahore High Court has its jurisdiction within the Province of the Punjab and also within the territory of Federal Capital Islamabad, under special arrangement. Germany, of course, is out of territorial jurisdiction of Lahore High Court, therefore, no writ can be issued in this matter.

7. Constitutional jurisdiction or jurisdiction of judicial review by this Court is exercised under Article 199 of the Constitution and not under any other instrument. The Lahore High Court is a creature of Constitution of Pakistan, thus, it can only exercise powers which are conferred upon it by or under the Constitution.

8. The Hon'ble Supreme Court of Pakistan while examining the provisions of Article 199 of the Constitution observed as under:- "A perusal of the above sub-clause (a)(i) of the above Article indicates that a High Court has power to issue a direction to a person performing within its territorial jurisdiction functions in connection with the affairs of the Federation, a Province or a Local Authority to refrain from doing anything he is not permitted by law to do or to do anything he is required by law to do. Similarly, under sub-clause (a)(ii) a declaration without lawful authority or of no legal effect can be given by a High Court in respect of any act done or proceedings taken within its territorial jurisdiction by a person performing functions in connection with the affairs of the Federation, a Province or a Local Authority." (Sandalbar Enterprises (Pvt.) Limited v. Central Board of Revenue and others PLD 1997 SC 334.

' Examining the facts and circumstances of the present case in the light of above finding made by the Hon'ble apex Court, will show that the said institution is based outside territorial jurisdiction of this Court and it is also not a "person" as defined by Article 199 of the Constitution itself in clause (5) of the same Article.

9. The learned counsel has vehemently alluded to Vienna Convention on Consular Relations, 1963.

According to him, under the said Convention, the Embassy of Pakistan in Germany is bound to get the desired certificate from the Institute mentioned in the preceding paras. We have already observed in the preceding para that constitutional jurisdiction by this Court can be exercised under Article 199 of the Constitution and not under any other law or a Treaty. For further guidance a judgment from the Hon'ble Supreme Court is referred to. In the said judgment, effect of Treaty between different countries and jurisdiction of Courts was considered at length. The relevant portion of the report is reproduced a sunder:-- "Admittedly, in Pakistan, the provisions of the Treaty were not incorporated through legislation into laws of the country, therefore, the same did not have the effect of altering the existing laws, as such, rights arising therefrom called treaty rights cannot be enforced through Court as in such a situation, the Court is not vested with the power to do so.

' It may be significantly mentioned here that according to Article 175(2) of the Constitution of Islamic Republic of Pakistan, no Court has any jurisdiction unless conferred by or under any law or the Constitution, therefore, treaty unless was incorporated into the law so that it become part of Municipal Laws of the Country, no Court shall have jurisdiction to enforce any right arising therefrom." (Society Generale De Surveillance S.A. v. Pakistan, through Secretary Ministry of Finance, Revenue Division, Islamabad, 2002 SCM R 1694."

10. In view of the above discussion and reasons, we are not convinced by the arguments offered by the learned counsel for the appellant, resultantly, this appeal is accordingly dismissed.