' Through this petition Irfan Ali Shah alias Poopi Shah has applied for bail in respect of a case under sections 302/34, P. P. C. Registered at Police Station Yakki Gate, Lahore. The report had been lodged by one Muhammad Afzal, brother of Muhammad Arshad, deceased. The petitioner along with Javed Ali Shah, his brother has been involved in this case. Javed Ali Shah is an absconder and is stated to have been run away from the custody. The case has been adjourned from time to time in order to ascertain whether the case has been submitted to the Special Military Court for trial of the petitioner. On 23rd July, 1979 the learned counsel for the State made a statement that the petitioner was being tried by a Military Court, but however, he was not sure whether the orders to that effect had been passed by the Martial Law authorities. It has now been ascertained and a report to this effect has been made on 8th August, 1979 which has been placed on record. According to the report the case has already been entrusted to Lt.-Col. Nabi Ahmad, Special Military Court No, 13, near District Courts, Lahore.
2. The learned counsel in the first instance argued that the petitioner had been detained without any order of remand as required under section 344, Cr. P. C. And therefore the detention of the petitioner being illegal he was entitled to the grant of bail. Reliance has been placed on Syed Ghulam All Shah v. State (1) in this behalf. On merits the learned counsel urged that in the F. I. R. The petitioner has been shown to be empty-handed and been attributed the proverbial lalkara. To my mind the first question to be considered is whether this Court can go into these questions at all if once the case has been entrusted to a Military Court. Reference in this case may be made to a decision of the Supreme Court reported as Rana Muhammad Amin v. The State (2) wherein their Lordships of the Supreme Court have held that a case having been withdrawn from the ordinary Courts of law for trial by Special Military Courts, the High Court would not have jurisdiction to grant bail. The relevant portion of the order is for the sake of clarity quoted below :- "In view of the submissions made by the learned Assistant4 Advocate-General, we consider that the case stands competently withdrawn from the ordinary Courts of law for trial by a Special Military Court, and accordingly, we have no jurisdiction to grant bail to the accused. This matter should have been brought to the notice of the High Court by the learned counsel appearing for the State. In the circumstances the petition fails and is hereby dismissed."
' This Court has, therefore, no jurisdiction to grant bail in any circumstances. In case of trial by Special Military Court the procedure to be followed is as provided under the Pakistan Army Act, 1952 and section 133 of the Act, provides as under :- "133. Bar of Appeals.-No remedy shall lie against any decision of a Court martial save as provided in this Act, and for the removal of doubt it is hereby declared that no appeal or application shall lie in respect of any proceeding or decision of a Court martial to any Court exercising any jurisdiction whatever."
3. The question of grant of bail for non-complying of the provisions! Of section 344, Cr. P. C. (if any) cannot be also gone into as it is not concerned with merits of the bail application and, therefore, the decision' reported as 1978 P Cr, L 1596 is of no avail to the petitioner.
4. This petition is, therefore, not competent and is dismissed as such.
(1) 1978 P Cr. I, 3 596 (2) 1978 SCMR 420