P L D 1984 Lahore 145 (PLP)

2. The complaint is not maintainable, in that, in terms of cl. (d) of sub‑Article (5) of Article 15 of the Provisional Constitution Order, 1981, notwithstanding any judgment of any Court, including any judgment in respect of the powers of Courts relating to judicial review, any Court, including the Supreme Court and a High Court shall not issue any process against the Chief Martial Law Administrator or a Martial Law Administrator or any person acting under the authority of either. The President of the Islamic Republic of Pakistan and the Governors of Provinces also enjoy absolute immunity in respect of criminal proceedings under Article 248 of the Cons titution of the Islamic Republic of Pakistan, 1973 read with the Provisional Constitution Order, 1981. Article 248 of the Constitution reads thus: ‑ "(1) The President, a Governor, the Prime Minister, a Federal Minister, a Minister of State, the Chief Minister and a Provincial Minister shall not be answerable to any Court for the exercise of powers and performance of functions of their respective offices or for any act done or purported to be done in the exercise of those powers and performance of those functions provided that nothing in this clause shall be construed as restricting the right of any person to bring appropriate proceedings against the Federation or a province. (2) No criminal proceedings whatsoever shall be instituted or continued against the President or a Governor in any Court during his term of office. (3) .......................................... (4) .."

3. The process of this Court cannot be used for disseminating scanda lous matters against the Head of the State and Chief Executive of the Province. It is also the duty of the Court to protect the public servants against false, frivolous and vexatious complaints by members of the public. The Court must not lightly accept such complaints until it is thoroughly satisfied that a prima facie case has been made out against those who are accused of criminal offences. Here the learned Advocate‑General has informed the Court that the gates of this Court were closed on 12th November, 1983, mainly for security reasons as it was apprehended that the miscreants would enter the premises and create law and order situation. The petitioner has not even alleged that the gates were closed mala fide or the officials under whose orders it were closed bore any personal grudge or malice against him or that the lawyers and litigant public were not allowed entry in the Court premises to pursue their cases. There appears to be great force in the submission of learned Advocate‑General that the gates were closed bona fide and in public interest. I am, therefore, inclined to hold that prima facie the complaint does not constitute any criminal offence.

4. The complaint is also hit by section 197 of the Code which reads thus :- "(1) When any person who is a judge within the meaning of section 19 of the Pakistan Penal Code or when any Magistrate, or when any public servant who is not removable from his office save by or with the sanc4on of the Central Government or a Provincial Government, is accused of any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty, no Court shall take cognizance of such offence except with the previous sanction: ‑ (a) in the case of a person employed in connection with the affairs of Centre, of the President ; and (b) in the case of a person employed in connection with the affairs of a Province, or Governor of that Province. (2) The President or Governor, as the case may be, may determine the person by whom the manner in which the offences for which, the prosecution of such Judge, Magistrate or public servant is to be conducted, and may specify the Court before which the trial is to be held." It would, therefore, be seen that by reason of the facts alleged in the com‑1 plaint, the requisite sanction was necessary to prosecute the public servants on the charges alleged.

5. Reference be made to S. M. H. Rizvi v. Abdus Salam (PLD1960SC358), wherein it was observed: ‑ "But cases are conceivable in which the facts alleged in a complaint or report do not constitute a prima facie case of the offences alleged, and in such a case, if a Magistrate were to call for evidence the duty of the Courts of correction would be to reverse that order and to dismiss the complaint or report. The case is similar whereupon a correct view of the law, the complaint before a Magistrate cannot be proceeded with in the absence of sanction by reason of the facts alleged." Also refer Rahman Dewan v. State (PLD1958SC(Pak.)21), wherein Cornelius, J. observed :‑ "Even though some of the acts of a public servant may appear not to be within the precise powers vested in him, yet if he did them by virtue of his office, having no private axe to grind such acts would have the protection of section 197, Cr. P. C. The case would fall clearly within the mischief of section 197 of the Cr. P. C." In view of the above, I hold that the complaint is frivolous and vexatious, and the same is hereby dismissed in limine M. Y. H. Complaint dismissed.