Ministry pleads with SC to set aside LHC order for removal of diplomat’s name from ECL

Published June 15, 2021
The bench issued notice to the respondent (Umar Zahoor). — Photo courtesy SC website/File
The bench issued notice to the respondent (Umar Zahoor). — Photo courtesy SC website/File

ISLAMABAD: The interior ministry has requested the Supreme Court to set aside a June 9 directive of the Lahore High Court (LHC) about removing the name of Umar Farooq Zahoor, a diplomat and alleged fugitive, from the Exit Control List (ECL). Mr Zahoor is the husband of Sofia Mirza, an actress.

Umar Farooq Zahoor stands accused of taking his minor daughters abroad illegally after obtaining their passports under fictitious names and parentage even though the LHC had already ordered that his name be placed on the ECL. Wher­eabouts of the two girls are not known.

The appeal against the June 9 high court order, which was moved through Additional Attorney General Chaudhry Aamir Rehman, was taken up on Monday by a three-judge Supreme Court bench, headed by Justice Umar Ata Bandial.

The bench issued notice to the respondent (Umar Zahoor).

The petition pleaded that in pursuance of an FIR, a judicial magistrate had declared Umar Zahoor a proclaimed offender and the National Central Bureau (NCB) had requested the Interpol to issue a “red notice” against the respondent, which the Interpol did.

Subsequently, the magistrate issued a perpetual warrant of arrest against Umar Zahoor, who then moved a criminal revision against the order without appearing before the sessions court’s Lahore registry. The sessions court set aside the magistrate’s order over the perpetual warrant, but that order itself was challenged. It was later suspended.

The authorities concerned then placed Umar Farooq’s name on ECL, but he challenged the red notice before the CCF-IPSG, a quasi-judicial international forum at Interpol headquarters in Lyon, France.

The CCF-IPSG upheld the red notice against the respondent in January and ruled against his plea for diplomatic immunity.

At this, the respondent, Umar Farooq, approached the LHC for removal of his name from ECL without disclosing the pendency of criminal cases against him.

The interior ministry’s petition pleaded that the immunity provided in Article 31 of the 1961 Vienna Convention on Diplomatic Relations does not imply immunity from investigation.

The immunity is from arrest and detention, but nowhere does the convention stop the authorities from conducting an investigation against a diplomat, the petition argued.

Since the law does not protect a diplomat from the jurisdiction of the “sending state”, it is evident that immunity is not from prosecution of the offence but the jurisdiction of courts.

As a corollary, investigation into an offence can be carried out by either state and to that extent the Vienna convention does not provide any immunity, the petition said.

It contended that the courts do not allow an interlocutory relief if it amounts to allowing the main case before its conclusion and in the present case the main relief sought was removal of name from ECL. The LHC had “erred in law” by granting relief at an interim stage, the interior ministry observed.

“Thus the interim relief granted by LHC is arbitrary, whimsical and against the well-settled principles of law,” the petition said.

It recalled that the respondent was facing a number of cases — ranging from the abduction of minors and their removal from the Supreme Court’s jurisdiction to bank fraud, money laundering, violation of Passport Act and Exit from Pakistan (Control) Ordinance, 1981.

Published in Dawn, June 15th, 2021

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