Muhammad Ismail v. United Nations High Commissioner for Refugees (UNHCR) through representative & another

JUDGMENT SHEET

PESHAWAR HIGH COURT, PESHAWAR

JUDICIAL DEPARTMENT

C.R. No.282-P/2024

Muhammad Ismail v. United Nations High Commissioner for Refugees (UNHCR)through representative &another For Petitioners: Mr. Amin Ur Rehman Yousafzai Advocate Amicus Curiae Mr. Khalid Rehman, Advocate Research Assistant by: Mr. Riaz Aslam Daavi, SRO PHCP Date of Hearing: 11.06.2026

JUDGMENT

MUHAMMAD NAEEM ANWAR, J: - In the instant civil revision petition, the petitioner, Muhammad Ismail, has assailed the concurrent findings recorded by the learned courts below and invoked the revisional jurisdiction of this Court with the following prayer:

“It is, therefore, very humbly prayed that on acceptance of this Revision Petition the impugned judgment/order dated 08.01.2024 passed by the learned Additional District Judge-I, Peshawar in Civil Appeal No. 16/13 of 2023, and judgment and order dated 25.09.2018 passed by the learned Senior Civil Judge, Peshawar in Case No. 198/01 may kindly be set-aside and enhance the decretal amount by accepting the entire claim of Rs. 90 million raised by the petitioner in his suit/plaint.”

2.Counsel for the petitioner argued that the petitioner is the owner/landlord of the premises, situated at Rashida, G.T. Road, Chamkani/Nasirpur, Peshawar, which had been leased out to the respondents/UNHCR and was being used by them as a warehouse. During the subsistence of the tenancy, and while the respondents were in possession and occupation of the premises, a fire broke out on 08.07.2012 during repair/welding work being carried out at the site, resulting in substantial destruction of the building and consequential loss to the petitioner. He asserted that the fire was the result of gross negligence on the part of the respondents and their failure to observe requisite safety measures, which position,

according to him, stood fortified by the inquiry material brought on record. On such basis, the petitioner instituted a suit for recovery of damages to the tune of Rs.90 million, comprising Rs.30 million as construction cost already incurred, Rs.40 million for reconstruction/rehabilitation of the damaged building, Rs.10 million as loss of rental income, and Rs.10 million on account of mental torture, agony and other non-pecuniary damages. The grievance of the petitioner is that although his claim was partly accepted and a decree was passed in his favour to the extent of Rs.35 million, as against the total claim of Rs.90 million, the learned courts below failed to award the full amount claimed and did not properly appreciate the evidence relating to rehabilitation cost, loss of rent and non-pecuniary damages. The petitioner has, therefore, filed the instant petition seeking enhancement of the decretal amount.

3.The respondents, despite being summoned in the instant proceedings, failed to appear; however, they asserted immunity from court proceedings through diplomatic correspondence routed by the Government of Pakistan, Ministry of Foreign Affairs, Islamabad. In this regard, Mr. Muhammad Asfandyar Ali Khan, Assistant Chief of Protocol (IV), Ministry of Foreign Affairs, Islamabad issued letter No. M/o Foreign Affairs U.O. No. P(IV)- 5/67/2025 (UNHCR), dated 11.06.2025, addressed to the Registrar of this Court, whereby Note Verbale No. EO-052-2025, dated 07.05.2025, issued by the Representation Office of UNHCR in Pakistan, was forwarded for consideration. Through the said Note Verbale,1 UNHCR claimed immunity from legal process by invoking Article 105 of the Charter of the United Nations and the Convention on the Privileges and Immunities of the United Nations, dated 13.02.1946, particularly Article II, Sections 2 and 3, and Article V, Section 18(a) thereof, and further requested that the An official diplomatic note or communication.

legal proceedings be discontinued. In view of such claim, this Court, vide order dated 20.11.2025, considered it appropriate to examine whether the immunity so asserted, founded upon the aforesaid correspondence, was sufficient for grant of immunity to defeat or affect the proceedings notwithstanding thatdecree had already been passed against the respondents by both the learned courts below. Accordingly, Mr. Khalid Rehman, Advocate, was appointed as amicus curiae to assist the Court on the question of immunity, as well as on the procedure under which such immunity may be claimed in consonance with the Constitution and the law of the land.

4.Learned amicus curiae, Mr. Khalid Rehman, Advocate, submitted that Article 22 of the Charter of the United Nations (“UN”) empowers the General Assembly to establish such subsidiary organs as it deems necessary for the performance of its functions. In exercise of such authority, the Office of the United Nations High Commissioner for Refugees (“UNHCR”) was established in the year 1949. He submitted that UNHCR, being a subsidiary organ and integral part of the United Nations, is entitled to the privileges and immunities available to the United Nations under Article 105 of the Charter and under the Convention on the Privileges and Immunities of the United Nations, adopted by the General Assembly in the year 1946, particularly Article II, Sections 2 and 3 thereof.He further submitted that, in Pakistan, the said Convention has the force of law by virtue of section 2 of the United Nations (Privileges and Immunities) Act, 1948 (“Act of 1948”). The same position, according to him, is reflected in Article VII of the Cooperation Agreement between UNHCR and the Government of Pakistan, signed at Islamabad on 18.09.1993, wherein the Government undertook to apply to UNHCR, its property, funds, assets, officials and experts on mission, the relevant provisions of the 1946 Convention, as implemented in Pakistan under the Act of 1948. On the strength of the aforesaid

instruments, learned amicus curiae argued that UNHCR enjoys immunity from legal process unless such immunity is expressly waived. Referring to Article IX of the Cooperation Agreement, he submitted that privileges and immunities are granted in the interests of the United Nations and UNHCR, and not for the personal benefit of the individuals concerned, and that waiver of immunity lies with the Secretary-General of the United Nations where, in his opinion, immunity would impede the course of justice and can be waived without prejudice to the interests of the United Nations and UNHCR. He added that no such waiver has been shown in the present case.Learned amicus curiae further submitted that the claim of immunity does not leave the petitioner remediless, as Article VIII, Section 29 of the 1946 Convention contemplates appropriate modes of settlement for disputes arising out of contracts or other disputes of a private law character to which the United Nations is a party, and the lease agreement between the parties also contains an arbitration mechanism. He, therefore, contended that, in the absence of waiver of immunity, ordinary civil proceedings against UNHCR could not be maintained before courts in Pakistan. Reliance was also placed on the judgment reported as 2021 CLC 1379.

5.Learned counsel for the petitioner argued that the respondents neither raised the plea of immunity before the learned trial court nor before the learned appellate court; rather, despite proper service, they failed to appear and contest the proceedings. He further submitted that, by entering into a lease agreement with the petitioner, the respondents subjected themselves to the operation of the law of the land and, therefore, after passing of the decree by the court of competent jurisdiction, they cannot be permitted to raise the plea of immunity at such a belated stage.

6.Argumentsheard; record perused.

7.The following are the central questions for determination before this Court in the instant petition:

1.Whether UNHCR, being a subsidiary organ of the United Nations, enjoys immunity from legal process before the courts in Pakistan?

2.Whether international commitments undertaken by Pakistan, including its accession to or ratification of different international instruments, have the force of law within Pakistan?

3.Whether, by entering into a lease agreement with the petitioner, UNHCR expressly or impliedly waived its immunity and submitted itself to the jurisdiction of the local courts in respect of disputes arising out of the said agreement?

4.Whether the learned courts below properly appreciated the evidence on record while awarding Rs.35 million instead of the full claim of Rs.90 million?

Pre-Suit Correspondence and Assertion of Immunity by UNHCR:

8.Before addressing the questions formulated above, it would be appropriate to trace the history of the instant litigation. The record shows that, before institution of the suit, the petitioner addressed a letter dated 31.08.2013 to respondents seeking compensation for the damage caused to the warehouse by the fire incident of 08.07.2012. The said claim was replied to by UNHCR through letter dated 27.06.2014,2 wherein UNHCR disputed liability and denied that the fire was attributable to its sole responsibility. It was asserted that the petitioner had granted permission for repair of the roof, whereafter the repair work was assigned to a contractor, and that the fire broke out during welding work undertaken by the said contractor. UNHCR further relied upon the lease arrangement to contend that maintenance, repair and safety of the premises were matters falling within the responsibility of the lessor/petitioner. It was also stated therein that, under the Convention on the Privileges and Immunities of the United Nations, legal proceedings against UNHCR could not be initiated or pursued before national courts, administrative agencies or legislative bodies.Thereafter, the petitioner issued a legal notice Pages 101 to 102 of paper Book.

dated 06.05.2015,3 claiming damages, which was replied to by UNHCR on 07.07.2015.4 In the said reply, the respondents not only controverted the petitioner’s claim on merits, but also asserted immunity from legal process by relying upon Article 105 of the Charter of the United Nations and the Convention on the Privileges and Immunities of the United Nations, 1946, contending that UNHCR, its property, funds, assets and officials were immune from proceedings before national courts and from measures of execution unless such immunity was expressly waived. The respondents further maintained that the petitioner was not without remedy, as disputes of a private law or contractual character could be resolved through the modes contemplated by the governing instruments and the lease agreement, including consultation, conciliation and arbitration.

History of litigation before Courts:

9.After getting no relief through legal notice, the petitioner instituted Civil Suit No.198/01 of 2015 before the Court of Senior Civil Judge, Peshawar, on 05.12.2015, for recovery of damages against the respondents. The respondents, despite service of summons, failed to contest the proceedings and were ultimately proceeded against ex parte, whereafter the petitioner led ex parte evidence. During the pendency of the suit, the learned trial court took up the question of maintainability, as reflected in Order No.305 dated 19.01.2017. But the matter was thereafter decided by the successor court vide Order No.35 dated 24.04.2017, holding that by entering into contractual relations with the petitioner, the respondents had waived their immunity for purposes of the dispute and had submitted themselves to the jurisdiction of the local courts. Subsequently, the suit was decreed on 25.09.2018 on the basis of ex parte evidence; however, the claim was only partly Pages 106 to 109 of the Paper Book.

Pages 112 to 113 of the Paper Book.

5“.... Going through the plaint, court deems it fit to first determine the question of maintainability of suit in hand keeping in view the immunity enjoyed by UN...”

allowed and compensation was awarded to the extent of Rs.35 million instead of Rs.90 million as prayed for by the petitioner. Feeling aggrieved, the petitioner filed RFA No.02-P/2019 before the Peshawar High Court on 18.12.2018 under the law then in force. Upon subsequent change in law and jurisdictional arrangement, the matter was remanded on 11.05.2023 to the District Judge, Peshawar, where it was entrusted to the learned Additional District Judge-I, Peshawar, and registered as Civil Appeal No.16/13 of 2023. After hearing, the appeal was dismissed on 08.01.2024, thereby maintaining the judgment and decree of the learned trial court. The petitioner has now invoked the revisional jurisdiction of this Court, questioning the concurrent judgments and decrees of the courts below to the extent of refusal to enhance the decretal amount to his full claim. The United Nations, its Charter and Organs:

10.As to question No 1, the United Nations was established in the aftermath of the Second World War under the Charter of the United Nations,6 signed at San Francisco7 in 1945, as an international organization entrusted with the purposes of maintaining international peace and security, promoting friendly relations among nations, achieving international cooperation in economic, social, cultural and humanitarian matters, and encouraging respect for human rights and fundamental freedoms. To achieve its purposes, the Charter8establishes an institutional framework through which the United Nations acts, functions and discharges its mandate. This framework consists of principal organs and subsidiary organs. The principal organs are those expressly established by the Charter itself, namely the General Assembly, the Security Council, the Economic and Social Council, the Trusteeship Council, the International Court of Justice and the Secretariat. At the same time, the Charter recognizes that the work 6https://treaties.un.org/doc/publication/ctc/uncharter.pdf 7 City of California in USA.

The Charter of UN.

of the United Nations may require additional organs from time to time. Accordingly, Article 79 permits the establishment of subsidiary organs in accordance with the Charter, while Article 2210 specifically empowers the General Assembly to establish such subsidiary organs as it deems necessary for the performance of its functions. Thus, the Charter not only establishes the principal organs of the United Nations, but also provides the constitutional basis for creation of subsidiary organs whenever required for the effective discharge of its functions.

UNHCR as a Subsidiary Organ of the UN and its Statutory Mandate:

11.Pursuant to the authority conferred by Article 22, read with Article 7, of the Charter of the United Nations, the General Assembly11 established the Office of the United Nations High Commissioner for Refugees (“UNHCR”) through Resolution 319 (IV) of 03.12.1949, to operate from 01.01.1951, and thereafter adopted its Statute through Resolution 428 (V) of 14.12.1950. The Statute12 declares that the High Commissioner, acting under the authority of the General Assembly and under the auspices of the United Nations, shall provide international protection to refugees falling within the competence of the Office and seek permanent solutions to refugee problems by assisting Governments and, subject to the approval of the Governments concerned, private organizations in facilitating voluntary repatriation or assimilation within new national communities. The work of the High Commissioner is declared to be entirely non-political in character, humanitarian and social in nature, and ordinarily related to groups

1.There are established as the principal organs of the United Nations: a General Assembly, a Security Council, an Economic and Social Council, a Trusteeship Council, an International Court of Justice, and a Secretariat. 2. Such subsidiary organs as may be found necessary may be established in accordance with the present Charter.

The General Assembly may establish such subsidiary organs as it deems necessary for the performance of its functions.

General Assembly of UN.

The Statute of UNHCR.

and categories of refugees. The High Commissioner is required to follow policy directives of the General Assembly or the Economic and Social Council, reports annually to the General Assembly through the Economic and Social Council, and may seek cooperation of Governments, inter-governmental organizations, specialized agencies and private organizations for the protection and welfare of refugees. The Statute also provides for the organization and financing of the Office. The High Commissioner is elected by the General Assembly on the nomination of the Secretary-General; staff members are appointed within the limits of budgetary appropriations and remain responsible to the High Commissioner in the exercise of their functions; the Office is located in Geneva; and its administration and finances are regulated within the United Nations system. Thus, UNHCR is not an independent private or municipal entity; rather, it is a United Nations office created by the General Assembly for the discharge of a non-political, humanitarian and social mandate relating to refugees, and remains accountable to the General Assembly. Convention on the Privileges and Immunities of the United Nations, 1946:

12.In order to enable the United Nations to discharge its functions independently within the territories of its Member States, the Charter itself makes provision for its legal capacity, privileges and immunities. Article 10413 provides that the Organization shall enjoy, in the territory of each Member, such legal capacity as may be necessary for the exercise of its functions and fulfilment of its purposes, while Article 10514 provides that the Organization, its representatives and officials shall enjoy such privileges and immunities as are necessary for the fulfilment of its purposes and for the independent exercise of their functions. To particularize The United Nations has such legal capacity in each Member State as is necessary for the exercise of its functions.

The United Nations enjoys such privileges and immunities in each Member State as are necessary for the fulfilment of its purposes. Its officials and Member State representatives also enjoy necessary functional privileges and immunities.

and give practical effect to these Charter provisions, the General Assembly adopted the Convention on the Privileges and Immunities of the United Nations(“Convention”) on 13.02.1946. Article I, Section 1 of the Convention recognizes the juridical personality of the United Nations and its capacity to contract, acquire and dispose of movable and immovable property, and institute legal proceedings. Article II then deals with the property, funds and assets of the Organization. Section 215 thereof contains the core protection by declaring that the United Nations, its property and assets, wherever located and by whomsoever held, shall enjoy immunity from every form of legal process except insofar as such immunity has been expressly waived, with the further stipulation that no waiver shall extend to any measure of execution. This institutional immunity is reinforced by Section 3,16 which declares the premises of the United Nations inviolable and protects its property and assets from search, requisition, confiscation, expropriation or any other form of interference, whether by executive, administrative, judicial or legislative action, and by Section 4, which makes its archives and documents inviolable wherever located. The Convention further extends functional protection to officials under Article V, Section 18,17 and SECTION 2. The United Nations, its property and assets wherever located and by whomsoever held, shall enjoy immunity from every form of legal process except insofar as in any particular case it has expressly waived its immunity shall extend to any particular case it has expressly waived its immunity. It is, however, understood that no waiver o£ immunity shall extend to any measure of execution.

SECTION 3. The premises of the United Nations shall be inviolable. The property and assets of the United Nations, wherever located and by whomsoever held, shall be immune from search, requisition, confiscation, expropriation and any other form of interference, whether by executive, administrative, judicial or legislative action.

SECTION 18. Officials of the United Nations shall:

(a)Be immune from legal process in respect of words spoken or written and all acts performed by them in their official capacity;

(6)Be exempt from taxation on the salaries and emoluments paid to them by the United Nations;

(c)Be immune from national service obligations;

(d)Be immune, together with their spouses and relatives dependent on them, from immigration restrictions and alien registration;

(e)Be accorded the same privileges in respect of exchange facilities as are accorded to the officials of comparable ranks forming part of diplomatic missions to the Government concerned;

to experts on mission under Article VI, Section 22, to the extent necessary for the independent performance of their official functions. At the same time, Article VIII, Section 2918 requires the United Nations to make provision for appropriate modes of settlement of disputes arising out of contracts or other disputes of a private law character to which the United Nations is a party. United Nations (Privileges and Immunities) Act, 1948:

13.In order to incorporate the international commitment embodied in the Convention into municipal law, Pakistan enacted the United Nations (Privileges and Immunities) Act, 1948. The preamble of the Act expressly states that it was enacted to give effect to the Convention on the Privileges and Immunities of the United Nations, and section 2 thereof provides, in clear non obstante terms, that notwithstanding anything to the contrary contained in any other law, the provisions set out in the Schedule to the Act of the Convention adopted by the General Assembly on 13.02.1946 shall have the force of law in Pakistan. The Schedule to the Act reproduces the material provisions of the Convention, including juridical personality of the United Nations, its capacity to contract, acquire and dispose of property and institute legal proceedings, immunity of the United Nations, its property and assets from every form of legal process unless expressly waived, inviolability of its premises, archives and documents, functional immunities of representatives, officials and experts, and appropriate modes of settlement for contractual or private law disputes. Thus, in Pakistan, the privileges and immunities of the

(f)Be given, together with their spouses and relatives dependent on them, the, same repatriation facilities in time of international crisis as diplomatic envoys;

(g)Have the right to import free of duty their furniture and effects at the time of first taking up their post in the' country in question.

SECTION 29. The United Nations shall make provisions for appropriate modes of settlement of:

(a)Disputes arising out of contracts or other disputes of a private law character to which the United Nations is a party;

(ft)Disputes involving any official of the United Nations who by reason of his official position enjoys immunity, if immunity has not been waived by the Secretary-General.

United Nations do not rest merely upon treaty obligation or international comity; rather, by virtue of the Act of 1948, the relevant provisions of the 1946 Convention have been expressly given statutory force and are enforceable as part of the law of Pakistan.

Entry and Establishment of UNHCR in Pakistan:

14.As far as the entry of UNHCR into Pakistan is concerned, it is noteworthy that Pakistan is not a party to the United Nations Convention Relating to the Status of Refugees, 1951, or to the Protocol Relating to the Status of Refugees, 1967.19 The presence and operation of UNHCR in Pakistan, therefore, did not arise from Pakistan being party to the said instruments, but from the consent of Pakistan, the international mandate of UNHCR, and the practical exigencies created by the large-scale influx of Afghan refugees. Afghan refugees began entering Pakistan in substantial numbers in the late 1970s and, by the spring of 1979, the Government of Pakistan, being concerned with the growing influx, requested UNHCR to assist in dealing with the refugee situation.20 Pursuant thereto, UNHCR signed its first assistance agreement in November 1979.21 After the Soviet intervention in Afghanistan in December 1979, the refugee situation assumed a prolonged and complex character. UNHCR thereafter established a permanent office in Pakistan in January 1980 and commenced what became one of its largest assistance programmes.

The 1993 Cooperation Agreement and Legal Status of UNHCR in Pakistan:

https://www.unhcr.org/sites/default/files/2025-02/1951-refugee-convention-1967- protocol.pdf

https://www.unhcr.org/sites/default/files/legacy-pdf/4868daad2.pdf (Afghan refugees in Pakistan during the 1980s: Cold War politics and registration practice). https://www.graduateinstitute.ch/sites/internet/files/2018- 12/UNHCR_and_CW_Work-P.pdf (The UNHCR and the Cold War: a Documented Reflection on the UN Refugee Agency’s Activities in the Bipolar Context).

https://www.researchgate.net/publication/233330295_The_role_of_UNH CR_and_Afghan_refugees_in_PakistanThe Role of UNHCR and Afghan Refugees in Pakistan by NasreenGhufran.

15.Besides the earlier arrangements under which UNHCR commenced its work in Pakistan, a more formal and comprehensive Cooperation Agreement was signed between the Government of the Islamic Republic of Pakistan and UNHCR at Islamabad on 18.09.1993.22 Through this Agreement, the parties placed their existing relationship on a defined legal, institutional and operational footing. The Agreement records that UNHCR was established by the General Assembly pursuant to Article 22 of the Charter of the United Nations, that it is a subsidiary organ and an integral part of the United Nations, and that its status, privileges and immunities are governed by the Convention on the Privileges and Immunities of the United Nations, adopted on 13.02.1946. It further regulates the terms and conditions under which UNHCR, within its mandate, may be represented in Pakistan, establish and maintain offices, assign personnel, communicate with the Government, and carry out its functions relating to international protection and humanitarian assistance for refugees and other persons of concern. The Agreement also provides for access by UNHCR personnel to refugees and other persons of concern, as well as to the sites of UNHCR projects, to the extent necessary for monitoring and implementation of its programmes. Thus, the Cooperation Agreement of 1993 formalized and regulated the cooperation which had already developed between Pakistan and UNHCR in response to the Afghan refugee situation. It also clarified that, while UNHCR operates in Pakistan with the consent and cooperation of the host State, it does so as a United Nations subsidiary organ enjoying the privileges and immunities attached to that status under the 1946 Convention, the 1993 Cooperation Agreement and the domestic law of Pakistan. The relevant Article VII of the Cooperation Agreement, 1993, is reproduced for reference:

“PRIVILEGES AND IMMUNITIES

(P L D 2024 Islamabad 231, per Justice Babar Sattar).

The Government shall apply to UNHCR, its property, funds and assets, and to its officials and experts on mission the relevant provisions of the 1946 Convention on the Privileges and Immunities of the United Nations, in a manner as favourable as accorded to other United Nations organizations, and as implemented in Pakistan under the Act of 1948.”

The bare reading of the aforesaid provision makes it clear that UNHCR cannot be treated as an ordinary private or municipal entity in Pakistan. Its property, funds and assets, as well as its officials and experts on mission, are entitled to the legal protection, privileges and immunities contemplated by the Convention on the Privileges and Immunities of the United Nations, 1946, which Pakistan has given effect to through the United Nations (Privileges and Immunities) Act, 1948.

16.The crux of the above discussion is that UNHCR, being a subsidiary organ and integral part of the United Nations, is entitled to the privileges and immunities available under the Convention on the Privileges and Immunities of the United Nations, 1946. In Pakistan, the said Convention has the force of law by virtue of section 2 of the United Nations (Privileges and Immunities) Act, 1948. When Article VII of the Cooperation Agreement, 1993, is read with the Schedule to the Act of 1948, it becomes clear that UNHCR, its property, funds, assets, premises, archives and documents, as well as its officials and experts on mission, enjoy immunity from legal process and interference, except where such immunity has been expressly waived in accordance with law.This legal position has been affirmed by the Balochistan High Court in Society for Community Development (SCD) v. United Nations International Children Emergency Fund (UNICEF),23 a case of similar nature, wherein the suit against UNICEF was dismissed by the learned trial court on the grounds that the agreement between the parties provided an alternate mechanism for resolution of disputes and that UNICEF, being a subsidiary organ of the United Nations, enjoyed immunity from legal process. The said decision 2021 C L C 1379 Baluchistan per Justice ZaheerUd Din Kakar

was maintained by the High Court.Therefore, the answer to question No 1 is in affirmative and the UNHCR enjoys the immunity from legal process before the courts in Pakistan.

17.As to question NO 2, Pakistan follows a dualist approach in matters of international law, which means that the mere signing, accession to, or ratification of an international treaty or convention does not, by itself, make such instrument enforceable within the municipal legal system, nor does it create rights or obligations enforceable before domestic courts, unless the same is incorporated into national law through appropriate legislation or statutory amendment.The Honorable Supreme Court affirmed the same principle in Shehla Zia,24 in the following words: “An international agreement' between the nations if signed by any country is always subject to ratification, but it can be enforced as a law only when legislation is made by the country through its legislature. Without framing a law in terms of the international agreement the covenants of such agreement cannot be implemented as a law nor do they bind down any party. This is the legal position of such documents, but the fact remains that they have a persuasive value and command respect”

The Honorable Lahore High court, in SGS (Société Générale de Surveillance,)25explained the concept of dualism in the following words:

“Administrative Law, Second Edition while discussing the concepts of Monism and Dualism states:-- "At a conceptual level, the manner in which international law, of which Community law may be regarded as sui generis (that is to say, unique) example, is dependent upon whether a particular State adopts a monist or dualist approach to international law. Monism is the doctrine whereby international law and national law form a single whole, or part of the same conceptual, structure, in which international law takes precedence. Under this doctrine, adhered to by, inter alia, France anti Italy, the obligations of international law, once assumed. entered automatically into the legal system, needing no domestic legislative acts. Once entered, the obligation take precedence over national law.

Dualism, on the other hand, regards the systems of international law and national law as separate, in order for Shehla Zia v. WAPDA (PLD 1994 Supreme Court 693) SGSSocieteGenerale v. Pakistan (2002 CLD 790 Lahore).

international law to enter into national law, some domestic legislative action must be enacted by the national Parliament. This is the view adopted by the United Kingdom and is one consistent with the sovereignty of Parliament. Treaties are part of international law, and can have no effect in domestic law unless and until a statute of the sovereign United Kingdom Parliament is enacted to give them effect."

In this country dualism is the accepted norms. No domestic laws were enacted to give effect to the above said Washington Convention of 1965. It remains merely, an executive Act and no more. The authorities relied upon by the learned counsel for the appellant are distinguishable and do not help him.”

Similarly, inSocieteGenerale De Surveillance S.A,26 the Honorablesupreme court reiterated the same stance in the following manner:

“Admittedly, in Pakistan, the provisions of the Treaty were not incorporated through legislation into the 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.”

The Honorable Islamabad High Court, in Asim Ahmed Afzal,27 relied upon the aforesaid judgments of the Honorable Supreme Court and held in the following words:

“An international agreement/treaty, unless made part of municipal law, is not enforceable by the courts of law and does not give rise to rights and obligations qua the citizens of Pakistan, however, non-incorporation of agreement/treaty into municipal law, does not extinguish the obligations of Pakistan as one of the signatories.”

In another case, titled RahilAzzizi v. The State,28 the Islamabad High Court explained that courts in Pakistan primarily apply municipal law, and where municipal law is clear, it must prevail even if it conflicts with an international obligation. However, where SocieteGenerale De Surveillance S.A v. Pakistan (2002 SCMR 1494) Asim Ahmad Afzal v. NAB (PLD 2021 Islamabad 323).

P L D 2024 Islamabad 231.

municipal law is open to more than one interpretation, the courts should prefer an interpretation consistent with international law, treaty obligations and the comity of nations, provided such interpretation does not conflict with an Act of Parliament or the Constitution. International law and conventions may, therefore, be used as interpretive aids to reinforce or guide the interpretation of domestic law, but they cannot override clear and binding municipal law.

18.Applying the principle of dualism referred to above to the Convention on the Privileges and Immunities of the United Nations, 1946, it becomes clear that the said Convention would be enforceable in Pakistan as law only if incorporated into the domestic legal system through legislation. In the present matter, this requirement stands fulfilled, as the 1946 Convention has been incorporated into municipal law through the United Nations (Privileges and Immunities) Act, 1948, and its relevant provisions have thereby been given the force of law in Pakistan.Thus, the answer to Question No. 2 is that an international commitment undertaken by Pakistan, whether by signature, accession or ratification, does not by itself create rights or obligations enforceable against the citizens of Pakistan unless it is incorporated into domestic law through legislation or statutory amendment, and in the absence of such incorporation, it remains persuasive in nature. Under the constitutional framework of Pakistan, the executive branch (Federal Government)29 possesses the authority to negotiate, enter into, and ratify international treaties, agreements, and conventions. However, Pakistan adheres to the "Dualist" theory of international law as stated above. Consequently, such international instruments do not automatically become part of the domestic (municipal) law of the State. They only acquire statutory force and become enforceable in courts affecting the rights, liabilities, and legal positions of citizens if the Majlis-e- Articles 70(4) and 142 read with fourth schedule (federal legislative list) Part I, item No 3 and 32 of the Constitution of Pakistan.

Shoora(Parliament) incorporates them into the domestic legal system through specific legislation. In the present case, since the 1946 Convention has been expressly given the force of law in Pakistan by virtue of the UN (Privileges and Immunities) Act 1948, its provisions are enforceable as part of the law of Pakistan. The question is answered accordingly.

19.As to Question No.3,the argument advanced by learned counsel for the petitioner that UNHCR, merely by entering into a lease agreement with the petitioner, waived its immunity and submitted itself to the jurisdiction of the local courts is misconceived. Section 1 of the Schedule to the United Nations (Privileges and Immunities) Act, 1948, recognizes that the United Nations has juridical personality and the capacity to contract, acquire and dispose of property and institute legal proceedings. However, Section 2 of Article II expressly provides that the United Nations, its property and assets shall enjoy immunity from every form of legal process, except in so far as immunity has been expressly waived, and even such waiver shall not extend to any measure of execution. Similarly, Section 20 of Article V provides that immunity of officials may be waived only by the Secretary- General where, in his opinion, such immunity would impede the course of justice and can be waived without prejudice to the interests of the United Nations, while Section 23 contains a similar provision regarding experts on mission.In view of the above legal framework, particularly the United Nations (Privileges and Immunities) Act, 1948, it is not necessary for the United Nations or UNHCR to separately claim immunity in each case, as such immunity is directly available to them by operation of law. However, where immunity is to be waived, such waiver must be express, duly authorized, and clearly communicated. In present situation, no such waiver has ever been communicated by UNHCR. On the contrary, UNHCR has categorically asserted immunity at different stages: firstly, in reply dated 27.06.2014 to

the letter of the petitioner; secondly, in reply dated 07.07.2015 to the legal notice; and thirdly, through Note Verbale dated 07.05.2025, transmitted to the Registrar of this Court through the Ministry of Foreign Affairs. None of these communications contains any express waiver of immunity; rather, UNHCR consistently claimed immunity from legal process.Moreover, the lease agreement dated 27.11.2012 itself contains Article XII,30 which expressly provides that nothing contained in the contract shall be deemed a waiver, express or implied, of the privileges and immunities enjoyed by the organization. The said agreement was signed by both parties after reading and understanding its contents, which shows that the petitioner had knowledge of the said clause from the very time of execution of the agreement. Thus, by entering into the lease agreement, the petitioner acknowledged the privileges and immunities of UNHCR in terms of Article XII thereof. Therefore, the argument advanced by learned counsel for the petitioner is contrary to the contents of the lease agreement, which has been relied upon and accepted in toto by the petitioner himself. Consequently, in the absence of any express waiver, and in view of the specific stipulation contained in Article XII of the lease agreement, Question No. 3 is answered in the negative.

20.As to question No 4, from the above detailed analysis, discussion and examination of the record, it stands established that UNHCR enjoys immunity from legal process in Pakistan under the United Nations (Privileges and Immunities) Act, 1948. Consequently, the suit instituted before the learned trial court, as well as the appeal preferred before the learned appellate court, was not maintainable. Once it is held that the learned courts below lacked jurisdiction to entertain the suit, no occasion remains to examine whether the evidence on record was properly appreciated while awarding Rs.35 million instead of the full claim of Rs.90 million. Therefore, Question No. 4 does not require independent “Nothing in this lease shall be deemed a waiver, express or implied of any privileges or immunities enjoyed by the lessee.”

determination, having become infructuous, and is answered accordingly.

Alternative Remedy Available to the Petitioner:

21.Once it has been held that UNHCR enjoys immunity from legal process, the next question is what remedy, if any, remains available to an aggrieved party having a contractual dispute with UNHCR. The answer is found in the contractual and governing instruments themselves. The lease agreement provides a mechanism for resolution of disputes through amicable settlement and, failing such settlement, through arbitration under Article XIV, which reads as follows:

“Any dispute, controversy or claim arising out of or in relation the Lease Agreement or any breach, termination or invalidity thereof, shall be, unless settled amicably through negotiation, submitted to arbitration in accordance with the Arbitration Rules of United Nations Commission on International Trade Law. Any award rendered pursuant to this article shall be accepted as a final adjudication by the parties to which they agree to be bound.”

This position is also consistent with Article VIII, Section 29, of the Convention on the Privileges and Immunities of the United Nations, 1946, which requires the United Nations to make provision for appropriate modes of settlement of disputes arising out of contracts or other disputes of a private law character to which the United Nations is a party. The same provision forms part of the Schedule to the United Nations (Privileges and Immunities) Act, 1948, and therefore has the force of law in Pakistan. Further, Article VII of the Cooperation Agreement, 1993, applies the relevant provisions of the 1946 Convention to UNHCR, while Article X of the said Cooperation Agreement also reflects the same principle by providing for amicable settlement and, failing that, arbitration in respect of disputes arising under the Agreement. Therefore, immunity from legal process does not leave the petitioner without a remedy; rather, it excludes the jurisdiction of ordinary civil courts and directs the petitioner to the agreed and recognized mode of dispute resolution, namely

consultation, conciliation or arbitration, as provided in the lease agreement and supported by the Convention, the Cooperation Agreement and the Act of 1948.It is expected that UNHCR, being a body of the United Nations, shall address the grievances of the petitioner in terms of the lease agreement, either through an amicable settlement or through arbitration. As is evident from the Note Verbale, an amount of USD 70,000 has already been offered to the petitioner, whereas the petitioner claims a higher amount. In such circumstances, both parties should make earnest efforts to resolve the matter amicably or, failing such settlement, by recourse to arbitration in accordance with the lease agreement. Duty of the Court to Determine Jurisdiction at the Threshold:

22.Before parting with this judgment, it is necessary to observe that the instant litigation commenced in the year 2015, yet after almost a decade it has now been determined that the courts below lacked jurisdiction to entertain the matter. This has persuaded this Court to observe that the question of maintainability and jurisdiction ought to have been examined at the very threshold of the proceedings. Although, during pendency of the suit, one learned Presiding Officer adverted to the issue of maintainability, the successor court subsequently held the suit to be maintainable, without giving due consideration to the earlier correspondence of UNHCR, including the reply to the letter of the petitioner and the reply to the legal notice, wherein immunity from legal process had been specifically claimed.It is a settled principle that jurisdiction is the foundation of every judicial proceeding, and the foremost duty of a court, upon presentation of a plaint, is to satisfy itself as to maintainability, jurisdiction, cause of action and limitation. A court cannot proceed to adjudicate upon merits unless it first possesses lawful authority to entertain the lis. This principle also flows from Article 175(2) of the Constitution of the Islamic Republic of Pakistan, 1973, which provides that no court shall have any jurisdiction save as is or may be conferred on it by the Constitution

or by or under any law.This Court, in the case of Muhammad Afzal Khan,31 categorically held in the following words: “It is by now settled law that when a challenge is thrown about Courts' jurisdiction, then it is incumbent on the Court to decide such question first in the first instance before proceeding further on merits and where the Court comes to conclusion that it has no jurisdiction in the matter, then it must abstain to proceed any further and embark on the merits of the case. Wisdom in this regard is gained from the following authorities: ---

(1)Raja Khurshid Ali v. Dr. Abdul Malik, 1991 SCMR 1944;

(2)Miss RukhsanaIjaz v. Secretary, Education Punjab and others 1997 SCMR 167;

(3)Javed Hussain, Shah v. Government of Punjab and others

1998 SCMR 220;

(4)Asadullah Rashid v. Haji Muhammad Munir and others

1998 SCMR 2129.

7.Keeping in view the dicta laid down in the afore-quoted judgments by august Supreme Court of Pakistan it was incumbent upon the learned trial Court to decide the question of jurisdiction first. Neither the learned trial Court nor the Appellate Court appreciated this legal aspect of the case. It should have directed the learned trial Court to decide the question of jurisdiction first and for that should have remanded the case back to the learned trial Court with the clear direction to decide the question of its jurisdiction first and then to take up the application for impleadment, filed by the petitioners. The Courts below have, therefore, committed material irregularity.”

Even otherwise it is the mandatory and obligatory duty of every court to determine questions of jurisdiction and maintainability at the earliest possible opportunity, before proceeding to the merits of the case.Jurisdiction is considered the “heartbeat” of a legal proceeding; any adjudication conducted by a court lacking jurisdiction is coram non judice, void and of no legal effect. A court must address jurisdictional challenges as a “gatekeeping decision” to avoid futile exercises and prevent the waste of judicial time on proceedings that may ultimately be struck down for lack of authority.This principle has now also been statutorily emphasized by the The Khyber Pakhtunkhwa Code of Civil Procedure (Amendment) Act, 202032whereby section2633 of the Code of Civil 2005 CLC Peshawar 988

KPK ACT NO. XLIX OF 2020

26.Institution of suits through plaint. (1) Every suit shall be instituted by the presentation of a plaint in such manner as may be prescribed. (2) On presentation of the plaint, it shall be the duty of the Court to prima facie, satisfy itself of

Procedure, 1908, was substituted, requiring the court, on presentation of a plaint, to prima facie satisfy itself regarding jurisdiction, cause of action and limitation and, where it is not so satisfied, to record reasons.Moreover, the failure to address the question of jurisdiction at the inception resulted in prolonged litigation, unnecessary delay and avoidable consumption of judicial time Guidelines for Threshold Scrutiny of Jurisdiction, Maintainability and Proper Forum:

23.Before parting with the case, this Court considers it necessary to reiterate a fundamental principle governing the exercise of judicial power. Jurisdiction is the very foundation upon which the authority of every court rests. It is neither dependent upon the pleadings of the parties nor capable of being enlarged by their consent, waiver or acquiescence. Rather, every court is under an independent and continuing obligation to satisfy itself, at the very threshold, that it possesses lawful jurisdiction to entertain the lis before embarking upon an adjudication on the merits. This principle stands authoritatively settled by the august Supreme Court of Pakistan in the case of Raja Ali Shan vs. Messrs. Essem Hotel Limited and others (2007 SCMR 741), wherein it was unequivocally held that even in the absence of any objection or application by the defendant, the Court is duty-bound to determine, suo motu, whether it has jurisdiction to entertain the suit, for any decree passed by a court lacking jurisdiction is a nullity in the eye of law.In the present case, the petitioner had, prior to the institution of the suit, served a legal notice upon UNHCR through learned counsel. The reply furnished by UNHCR expressly asserted its immunity from legal process and specifically referred to the contractual mechanism governing the resolution of disputes through consultation, conciliation and, where necessary, arbitration under the applicable instruments regulating the legal jurisdiction, cause of action and question of limitation: Provided that if the Court does not satisfy itself, it shall be bound to record reasons for doing so.

status and functioning of UNHCR. Notwithstanding such unequivocal communication, the petitioner elected to institute an ordinary civil suit before a civil court having no jurisdiction over the subject matter. The institution of the suit before a forum inherently lacking jurisdiction was, therefore, fundamentally misconceived.

24.It is equally appropriate to observe that a litigant ordinarily seeks legal assistance from a lawyer with the legitimate expectation that he would be guided to the proper and competent forum prescribed by law. Identification of the appropriate forum is one of the foremost professional responsibilities of legal counsel. Failure to advise a litigant regarding the proper forum, particularly where the applicable legal framework clearly excludes the jurisdiction of ordinary civil courts or prescribes an exclusive mechanism for dispute resolution, not only results in unnecessary and protracted litigation but may also amount to deficient professional assistance. Courts, too, must remain vigilant that issues relating to jurisdiction are not treated as mere technical objections, for they go to the very root of judicial competence.Taking advantage of the present occasion, and with a view to avoiding recurrence of similar situations, this Court deems it appropriate to lay down the following principles for guidance of courts and members of the Bar:

i.Under Article 175(2) of the Constitution of the Islamic Republic of Pakistan, no court shall exercise jurisdiction unless such jurisdiction is expressly conferred by or under the Constitution or any law. Accordingly, every court must, at the inception of proceedings, independently satisfy itself regarding its jurisdiction.

ii. Jurisdiction cannot be conferred by consent, waiver, acquiescence or failure to raise an objection.

iii. The absence of the defendant, failure to contest the proceedings, or an ex parte order cannot validate proceedings instituted before a court otherwise lacking jurisdiction.

iv. Even in ex parte proceedings, the court remains under a continuing legal obligation to examine its own jurisdiction and the maintainability of the proceedings before granting any relief.

v. Upon presentation of every plaint, petition, appeal or other proceeding, the court shall first determine questions relating to jurisdiction, maintainability, limitation and existence of a cause of action before entering upon the merits. At that stage, the court may seek assistance from counsel and examine the relevant record to ascertain whether any statutory bar exists, whether any necessary party has been omitted or wrongly impleaded, or whether any amendment is legally required.

vi. Interim or ad interim relief should ordinarily not be granted unless the court is prima facie satisfied regarding its jurisdiction and the maintainability of the proceedings.

vii. Whenever the pleadings or the record disclose a statutory exclusion of jurisdiction, immunity from legal process, an arbitration agreement, want of cause of action or any other legal impediment going to the root of the matter, the court shall decide such question at the earliest possible stage in accordance with law.

viii. Members of the Bar owe a corresponding duty to assist the Court at the threshold on questions relating to jurisdiction, maintainability, limitation and the appropriate forum.

ix. No litigant should be compelled to undergo prolonged and expensive litigation before a forum which lacks competence in law to grant the relief claimed.

x. In matters governed by special statutes, exclusive forums, arbitral agreements, contractual dispute-resolution mechanisms or involving entities enjoying privileges and immunities under international law, counsel must exercise due diligence before initiating proceedings, and the court shall independently examine such jurisdictional issues before assuming authority over the matter.

Conclusion:

25.As a necessary consequence of the foregoing discussion, this Court finds that the instant civil revision is devoid of merit and is liable to be dismissed. However, the matter does not conclude there. The record unmistakably demonstrates that the suit itself, from its very inception, was not maintainable before the ordinary civil court, as the dispute was governed by a contractual dispute-

resolution mechanism under the applicable instruments regulating the legal status of UNHCR, coupled with the immunity enjoyed by the said organization from the jurisdiction of municipal courts. Consequently, the learned trial Court lacked inherent jurisdiction to entertain the suit or to adjudicate upon the rights of the parties.Although the learned trial Court partly decreed the suit and the learned appellate Court affirmed that decree, both judgments were rendered without lawful jurisdiction and, therefore, cannot be permitted to stand. It is a settled proposition of law that a decree passed by a court lacking inherent jurisdiction is a nullity, incapable of conferring any legal rights, and such defect may be noticed by a superior court at any stage of the proceedings.In this regard, reference may beneficially be made to the judgment of the august Supreme Court of Pakistan in Province of Punjab through District Officer, Revenue, Rawalpindi and others v. Muhammad Sarwar (2014 SCMR 1358), wherein it was authoritatively held that the revisional jurisdiction under Section 115, C.P.C. is not merely corrective but also supervisory in nature, empowering the High Court, in appropriate cases, to exercise suo motu revisional jurisdiction to rectify jurisdictional errors apparent on the face of the record in order to prevent perpetuation of an illegality. Accordingly, in the exercise of its suo motu revisional jurisdiction under Section 115, C.P.C., this Court sets aside the judgment and decree passed by the learned trial Court, as affirmed by the learned appellate Court, both having been rendered without jurisdiction. Consequently, the plaint is directed to be returned to the petitioner/plaintiff under Order VII Rule 10, C.P.C., for presentation before the forum, if any, competent in law to entertain the dispute. It is, however, clarified that the return of the plaint shall not preclude the petitioner from availing such remedy as may be available to him strictly in accordance with the lease agreement and the applicable legal instruments governing UNHCR, including the agreed mechanism of consultation, conciliation, or arbitration,

as the case may be. Any execution proceedings initiated on the basis of the impugned decree, if still pending, shall consequently stand annulled, the decree itself having been declared to be without jurisdiction. The learned Additional Registrar (Judicial) of this Court shall transmit a copy of this judgment to the respondents for their information and necessary action. This Civil Revision is, accordingly, disposed of in the above terms.

Announced on 11.06.2026.

Released on 20.07.2026.

JUDGE