MUHAMMAD ILYAS vs IJAZ AHMAD BUTT and another

' SAJJAD ALI SHAH, J.---By this petition leave is sought to file appeal against order dated 21-5-1992 of learned Judge in Chamber of Lahore High Court, Lahore, whereby Cr.Misc. Application No,1568/B/92 has been allowed treating it as Constitutional petition and in the result respondent No,1 namely Ijaz Ahmed Butt has been released on bail subject to his furnishing bail bonds in the sum of Rs,one hundred thousand with one surety in the like amount to the satisfaction of Assistant Commissioner, City Lahore.

2. Petitioner Mohammad Ilyas before us is complainant in the case and is aggrieved against the order of the High Court mentioned above, on the grounds that the same has been passed beyond jurisdiction particularly, in view of bar or jurisdiction provided under Article 212-B(8) of the Constitution which precludes High Court in exercising of jurisdiction under Article 199 of the Constitution or under Criminal Procedure Code in cases which are to be tried by Special Courts constituted for the purpose of trial of heinous offences, for which separate special appellate forum is also set up.

3. It appears from the perusal of the order of the High Court impugned before us in this petition that the case is triable under sections 302/148/149/324, P.P.C. And 337-A of the Qisas and Diyat Ordinance and is pending in the Special Court for Speedy Trials. In this case there are in all six accused persons and as per challan produced in the trial Court, names of respondent No,1 Ijaz Ahmed Butt and Mirza Mohammad Sadiq have been placed in Column No,2. Allegation against Ijaz Ahmed Butt is that he was present at the spot armed with Klashnikov and with its butt gave blows to Rehmat All son of Mohammad Sharif on his face who became injured. Ijaz Ahmed Butt pleaded alibi and filed application for bail before the trial Court which was dismissed vide order dated 30- 3-1992. He then filed bail application before Lahore High Court (Cr. Misc. Application No,1568/92) in which he requested for grant of bail till the decision of trial. This application for bail was converted by the High Court into writ petition under Article 199 of the Constitution and has been allowed and in the result bail is granted as stated above.

4. We propose to dispose of this petition on the short ground that respondent No,1 Ijaz Ahmed Butt is not an accused person so far as his name is not included in the challan in the column of accused persons but appears in column No,2 of the Challan because investigating agency was short of material against him. He himself on his own approached the trial Court for bail and on failure filed application in the High Court for that purpose. It appears that so far neither police has taken any steps to arrest him because for doing so police has to show that sufficient material is available against him and his name for that reason is to be taken out from column No,2 and put in the column of accused persons who are not in custody. Similarly trial Court has not taken any steps to show that respondent No,1 Ijaz Ahmed Butt was being treated as accused person. Trial Court declined to grant bail to him on technical grounds, inter, alia that report submitted under section 173, Cr.P.C. Was contradictory.

5. In the circumstances and for the facts and reasons mentioned above, no interference is warranted at this stage because prosecution does not treat respondent No,1 (Ijaz Ahmed Butt) as accused person so far. Question whether order of bail granted by the High Court was valid or nor will arise only when steps are taken by the prosecution to treat Ijaz Ahmed Butt as accused person.

When such steps are taken, it would be open to the complainant to approach Supreme Court questioning validity of order of bail granted by the High Court. Subject to the above observations, we refuse leave and in the result dismiss the petition.