ISLAMABAD - The Islamabad High Court Friday directed the Interior Ministry to decide the matter of putting the name of US diplomat Colonel Joseph Emmanuel on Exit Control List within two weeks as he is allegedly involved in killing of a youngster in a road accident

A single bench of IHC comprising Justice Aamer Farooq announced the verdict which he had reserved after hearing arguments of both the sides and ruled that the US diplomat does not enjoy “absolute” immunity.

Justice Aamir noted in his twenty pages judgment: “Since the ‘immunity’ from trial and punishment is not absolute and is only with respect to the courts of receiving state and a ‘Diplomatic Agent’ can still be tried for the offence in his country therefore one would conclude that there is no ‘bar or immunity’ qua the investigation of a criminal offence, meaning thereby that a ‘Diplomatic Agent’ can be interviewed by the Investigating Agency in the receiving State, however the ‘immunity’ exists from arrest and detention. Moreover, ‘Diplomatic Agent’ is to be treated with dignity and these aspects have to be kept in view while conducting the investigation of the matter.”

He added that in the present case, respondent No.2 (Inspector General Islamabad police) in person, reported that investigation stands concluded and report under section 173 Cr.P.C. has been filed before the competent authority. It is felt that police, in the instant matter, acted with undue haste and performed its functions negligently.

“Naturally, the trial cannot commence because of the ‘immunity’ enjoyed by respondent No.1 (Colonel Joseph). In this backdrop, the federal government can take up the issue with the Government of United States of America for waiver of ‘immunity’, in case, it wishes that respondent No.1 should be tried for the alleged offence(s) committed in Pakistan.

Otherwise, a request can be forwarded to the Government of United States of America for trial of respondent No.1 for the offences mentioned in FIR No.168 of 2018 in United States of America. In case, the Government of United States of America refuses to try respondent No.1 or proceed further, the matter can be agitated before the competent forum for enforcing the terms of the Treaty i.e. VCDR and seeking remedies provided under the law, if any,” read the judgment.

The IHC bench also observed in the verdict that though under the Rules of 2010, the federal government can place the name of any person on Exit Control List on the orders of a High Court, however, since the matter is already pending before the competent authority i.e. the federal government, hence it just and proper that the issue of placement of name of respondent No.1 be decided by it. Respondent No.6 (Interior Ministry) is, therefore, directed to decide the application for placement of name of respondent No.1 on ECL in accordance with law, especially in light of observations made hereinabove expeditiously preferably within a period of two weeks from the date of this order.

Previously, Deputy Attorney General (DAG) Raja Khalid had informed the IHC bench that the Vienna Convention gives diplomatic immunity to the American military attaché so he can be tried only if his immunity is withdrawn.

The petition was moved by Muhammad Idrees father of deceased Ateeq Baig through his counsel Mirza Shahzad Akbar Advocate and cited Colonel Joseph, Inspector General (IG) Islamabad Police, Chief Commissioner, federal government through Prime Minister, Secretary Interior and SHO police station Kohsar as respondents.

The petitioner stated that he is the father of deceased Ateeq who was killed by Joseph in a widely reported car accident which took place in Islamabad on April 7.  He added that Joseph is a citizen of the United Stated of America who is currently employed in Pakistan as air defence attaché at US Embassy in Pakistan and nominated accused in FIR No 168/208 lodged by the complainant.

He continued that till filing of this case, it is believed that he continues to reside in Pakistan but is busy trying to flee the country. He added that since the accident took place at a signal on Margalla Road where Safe City Project cameras are functioning and since it happened during broad day light, vivid video footage of the accident is available. This video footage has been widely shared in the electronic media and social media.

Petitioner’s counsel Miza Shahzad adopted in the petition that the video footage clearly shows that the Petitioner’s son was killed on account of rash driving by Colonel Joseph Emmanuel while according to by-standers, the accused also appeared to be heavily intoxicated.

He maintained that because the accident took place in heart of the capital city, Traffic Police Officials reached the site immediately and recognized that the evidence showed that the accused is guilty of cognizable offences. However, instead of arresting the accused, they allowed him to leave the site once he informed them that he was an employee of the United States Embassy in Islamabad. “It is significant to point out that the police officials did not subject the accused person to a “breath test” or made any effort to collect his blood sample or urine sample which would provide conclusive evidence about whether he was driving while drunk,” said the petition.

According to the lawyer, till the filing of this writ, the police has made no effort whatsoever to conduct any sincere effort to conclude investigation of FIR No. 168/2018 according to law and no efforts have been made to trace and arrest the accused whom the police itself has allowed to escape the site once he informed them that he was an employee of the United States Embassy in Islamabad.

Petitioner said that there is a clear and present danger that the accused person who had committed heinous offences in Pakistan is trying to leave the borders of the country in order to evade investigation by the police and trial under the laws of the country.

He added that despite this clear and present danger, the federal government has not put the accused person, on the Exit Control List.

Therefore, he prayed to the court to direct SHO, IG and Chief Commissioner to ensure that fair and transparent investigation is conducted with regard to the allegations contained in FIR No. 168/2018 against the accused person and 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.

He also requested the court to direct them to complete the investigation of this case at the earliest and submit police report under Section 173 Cr.PC (challan) before competent court at the earliest and conduct disciplinary proceedings against those police officials who were responsible for the illegalities alleged in this Petition.

The petitioner further requested the court to direct federal government and secretary Interior to ensure that name of the accused is put on the Exit Control List and remains on it till the conclusion of the case against him.

He pleaded the court to direct Chief Commissioner to submit a report to this court regarding the investigation and fate of similar incidents involving the death of Pakistani citizens by rash driving of foreign diplomats in Islamabad.