' This is a constitutional petition filed by Muhammad Aslam and ten others, petitioners Nos.1 to 11, for the quashment,of the order of the learned Sessions Judge, Faisalabad, dated 29-9-1981, passed in provisional jurisdiction.
2. The brief facts of the case are that the petitioners, who are the Ex-Members of the Town Committee, Chak Jhumra on 5-5-1980 passed a resolution No,2/16 to the effect that Muhammad Sarfraz, respondent No,2, who was a lessee of two shops of the Town Committee, had made the said shops a den for gamblers and other undesirable elements of the area, who sat there and teased ladies and respectable persons who passed by, and that, therefore, the shops may be got vacated from him. The resolution also called upon the Deputy Commissioner, the Superintendent of Police and the S.H.O., Police Station Chak Jhumra, to take proceedings against the said respondent, after investigating into the said matter. On behalf of the petitioners it is urged that the said resolution was passed in pursuance of certain operational functions which were transferred to them as members of the Local Councils by the Government of the Punjab, vide its memorandum dated 14-4-1980 (Annexure 'B' to the writ petition), which ,permitted them to take steps to eradicate social evils from their area. On 7-6-1980, Muhammad Sarfraz Khan, respondent No,2. Filed a private complaint against the petitioners under section 500/501/502, P.P.C. Alleging that their resolution amounted to defamation. After recording the preliminary evidence of the complainant, the Magistrate dismissed the complaint on 3-1-1981, holding that no case was maintainable in view of section 38(4) of the Punjab Local Government Ordinance, 1979, and that respondent No,2 had a remedy under section 156 of the same Ordinance, if he wanted to avail of the same. Being aggrieved by the said order, respondent No,2 preferred a revision petition before the Sessions, which was allowed on 29-9-1981 on the ground that the trial Magistrate had not recorded any finding that what the petitioners had allegedly said or done did not infringe any of the fundamental rights, before arriving at the finding that section 38(4) of the Ordinance protected the petitioners from any criminal proceedings. Being aggrieved by the said order passed in revision, the petitioners have filed the present constitutional petition, which is now before me for disposal.
3. I have heard the arguments of the learned counsel for the petitioners, respondent No,2 and the State and have also perused the record. Section 38(4) of the Punjab Local Government Ordinance, 1979, protects the members of the Local councils in respect of action taken by them in their meetings. The said provision of law reads as follows:- "(4) A member of a local council shall not be liable to any proceedings in any Court in respect of anything said by him or any vote given by him in the meeting of a local council or in a committee thereof, so long as such action does not undermine the ideology, integrity or solidarity of Pakistan and does not infringe the Constitutional Fundamental Rights."
The private complaint lodged by respondent No,2 against the petitioners referred to the offence of defamation committed by them and not to any violation by them of any of the fundamental rights.
The order passed by the learned Magistrate dismissing the complaint was, therefore, legal order.
The learned Sessions Judge, however, held that as the learned Magistrate did not at all advert to the question whether the action complained of did or did not infringe any of the fundamental rights, without recording a finding to that effect, the Magistrate could not have dismissed the complaint. He, accordingly, sent the case back to the learned Magistrate with a direction to try and decide the complaint in accordance with law. The observations of the learned Sessions Judge are not understood. It was not the respondent's case before the Magistrate that any of the fundamental rights of the respondent stood violated. In any case, by virtue of para.2(3) of the Laws (Continuance in Force) Order, 1977 (C.M.L.A. No,1 of 1977), the fundamental rights conferred by Chapter 1 of Part II of the Pakistan Constitution stood suspended with effect from 5-7-1977. In these circumstances, the observations of the learned Sessions Judge, on the basis of which the case was remanded, have no legal basis in law whatsoever. The order, therefore, passed by the learned Sessions Judge, Faisalabad, is without lawful authority.
4. For the foregoing reasons, this petition is accepted and the order of the learned Sessions Judge, Faisalabad, dated 29-9-1981 is declared to have been passed without lawful authority and as having no legal effect. There shall be no order as to costs.