July 12, 2008	Saturday	Rajab 8, 1429

KARACHI, July 11: The judicial magistrates (JMs) have no authority to grant bail before arrest, the Sindh High Court said in a ruling on Friday.

Disposing of a seven-year-old criminal revision application against grant of pre-arrest bail to an accused by a magistrate, Justice Khalid Ali Z. Qazi asked the SHC registrar to circulate copies of the order among the magistrates and other relevant authorities and functionaries.

According to the details of the case, Abdul Majeed lodged a fraud case against Mohammad Ayub on April 11, 2001. Ayub surrendered himself before the judicial magistrate-II, Karachi (West), who admitted him to bail on April 16, 2001. The JM relied on a 1978 judgment of the Lahore High Court rendered by Justice Mohammad Afzal Zullah.

Aggrieved by the magistrate’s order, complainant Majeed appealed for the cancellation of bail but an additional sessions judge dismissed his appeal on October 31, 2001.

The complainant, thereupon, preferred a criminal revision application before the high court. Majeed seemed to have lost interest in his application and the high court converted it into a suo motu criminal revision to consider the magistrate’s authority to grant bail before arrest. Advocate F. Karim Durrani appeared for the applicant and advocate Shahadat Awan assisted the court first as amicus curiae and subsequently as prosecutor-general.

Justice Qazi noted in his ruling that the 1978 LHC judgment relied upon by the Karachi magistrate in his pre-arrest bail order was revisited by Justice Zullah himself in 1980 in Mohammad Saeed’s case. The judge observed in his subsequent ruling that a magistrate could only grant bail in the following circumstances:

• If the person seeking bail has been placed under actual custody; or

• He appears in response to a process issued by the court; or

• He is brought before him by the police or other detaining authority.

Justice Qazi said that bail in the first category could be granted only if the accused was already in actual custody. The second category deals with the persons appearing in response to a court process and is meant only to ensure their appearance. In the third category, either the police or some other law-enforcement agency produces a person before the magistrate. There is no scope for a person to contend that his voluntary appearance in the court should be construed as ‘judicial custody.’ ‘Custody’ means ‘actual restraint’ and there is no concept of ‘constructive custody’ by way of voluntary surrender.

Declaring that the impugned order of the magistrate was not in consonance with the law, the judge, however, remarked that ‘this is not a fit case to cancel the bail as the record of the case has remained consigned to the high court for six or seven years due to the pendency of the revision application, for which the accused was not to blame.

Besides, the accused has appeared on every date and has even executed a personal bond apart from furnishing surety before the magistrate. Remanding the record to the trial court, he ordered its expeditious disposal.

Doctors’ petition

The Sindh High Court issued notices to the provincial government and other respondents in a petition moved by two more doctors against their failure to issue them appointment letters after their final selection by the Sindh Public Service Commission.

The petitioners applied for the posts of medical officers in the population welfare department in response to a newspaper advertisement in January 2006. Four hundred and seventy-five female doctors and 23 male doctors qualified a written test conducted by the SPSC in October 2007. Out of the successful candidates, 131 female and four male doctors were finally recommended for appointment by the commission after viva voce in February. However, despite the lapse of four months, they have not been issued appointment letters, the petitioners submitted through their counsel, Mohammad Nawaz Shaikh.

A division bench comprising Chief Justice Azizullah M. Memon and Justice Khalid Ali Qazi issued notices to the respondents for July 22 when identical petitions would come up for hearing. The bench restrained the respondents to fill up the vacancies or re-advertise the posts in the meantime.

Promotion plea

The bench allowed a petition moved by Maula Bux Khatian for promotion to grade 21. The petitioner claimed that he was the senior-most of the secretariat service, serving as a provincial secretary. However, officers junior to him were promoted by the provincial selection board in January this year while his seniority and competence were ignored.

The bench directed the selection board to consider the petitioner’s case at its next meeting without fail.

CDGK restrained

A division bench of the Sindh High Court comprising Chief Justice Azizullah M. Memon and Justice Khalid Ali Z. Qazi on Friday restrained the city district government Karachi and the nazim of Mianwali Colony from demolishing 26 shops in the said area till July 21, adds PPI.