This transfer application has been moved by the applicant/ accused Syed Qabool Muhammad Shah, facing trial in Crime No, 18/2004 P.S Baldia Hyderabad, under Section 302-324 Q.D.O in Section Case No, 213/2004 (State Vs. Syed Qabool Muhammad Shah) pending in the Court learned District & Session Judge Hyderabad for transfer of the case to any Court at Karachi on the consideration of the facts that the applicant is resident of Karachi and is suffering cardiac ailment and it will be strenuous and dangerous for his life to reach the trial Court at Hyderabad. Besides that trial Court at Hyderabad is unsafe as the complainant party wields considerable influence in Hyderabad being owners and operator of one of the most influential television channel namely KTN.
2. It seems that earlier the applicant was released on parole from 31.3.2006 to 26.5.2007 thereafter he was bailed out on 25.5.2007 and remained on bail till 10.11.2010. It seems that bail was cancelled by the Apex Court on 01.12.2009 as the learned Court taking into consideration the preliminary report dated 25.11.2008 wherein it was reported that "he is a middle aged man, well oriented in time, space & person Pulse: 50/pm, regular, BP: 110/70 mm of Hg Normal Heart sounds and clear chest.
His cardiovascular system was stable and well compensated to clinical examination".
3. Since then the applicant is behind bar, in the meantime it appears that two witnesses have already been examined at Karachi. It seems that after transfer application was filed, this Court through a detailed order dated 12.4.2010 granted transfer application.
4. However, Apex Court remanded the case back to this Court to pass an order afresh after, hearing the complainant party as well. Since then this transfer application is pending.
5. On 31.12.2010 the Court directed the applicant to be examined by a board constituted by Agha Khan Medical University. Consequently a report was received that applicant was examined. In the assessm ent report, it was recommended that further assessment would be required as last structural CAD evaluation was nearly six months old and certain tests were recommended. The report was forwarded to Liaquat University Hospital Hyderabad/Jamshoro to ascertain that ailment which is identified could be treated at Hyderabad or otherwise and so also applicant was also directed to get the test suggested by Agha Khan Medical Board to be carried out.
6. Tests were conducted by Atomic Energy Medical Centre, Karachi on 27.4.2011.
7. In the meantime report, dated 5.4.2011 was also received from Liaquat University Hospital Hyderabad / Jamshoro as follow; "It is submitted in your honour that the medical facility which the applicant suffering from is not available at Liaquat University Hospital Hyderabad/Jamshoro". Medical Superintendent Liaquat University Hospital Hyderabad / Jamshoro
8. Mr. Ryas Khan learned counsel for the complainant contends that though for considering bail under Section 497 Cr.P.C. ground of illness or health could be considered as a good to seek bail as per proviso to Section 497 Cr.P.C. the Court may direct that any person under age of 16 years or any woman or any sick or infirm person being accused be released on bail such is not specifically mentioned in Section 526 of the Code of Criminal Procedure.
9. It was therefore, urged that ground of illness or infirmity is no ground to entertain transfer application. It was further urged that it is convenience of the parties that is relevant consideration and not the convenience to the accused alone facing trial, therefore, the convenience or infirmity and/or illness of the applicant is not to be considered as a good ground for transfer.
10.Learned APG supported the contention of the complainant, according to him the test facility may not be available but the treatment could be provided if at all required at Liaquat University Hospital Hyderabad/Jamshoro. Though the applicant was declined bail on the health ground by the Apex Court on the basis of report that were available then thereafter the matter proceeded and the bone of contention between the parties is whether cases could be transferred and tried at Karachi or otherwise.
11.Learned counsel for the applicant in rebuttal contended that there are numbers of instances where the cases have been transferred on the ground of health. In the case of Urvashi Govind Advani (Smt) vs. State of Karnataka and another (2004) 12 Supreme Court Cases 110., the Court transferred the case on the ground that applicant is suffering from cancer to the. Principal District and in the case of M/s. Harbans Lal and Sons & ANR vs. Ramson Cycles Tut.) Ltd., (AIR 2009 SC
(SUPP) 146), the case was transferred on the ground that the person undergoing treatment for his heart ailment and also dialysis once or twice. The cast was transferred from Ludhiana, Punjab, to District Judge, Tis Hazari Courts, Delhi.
12. I have heard the arguments and perused the record.
13. Adverting to the first contention of the learned counsel that while entertaining the transfer application for conceding transfer the Court cannot take into consideration the medical ground. It may be observed that grounds under Section 526 Cr.P.0 are merely illustrative and not exhaustive though it is always desirable that the cases are tried within the jurisdiction of the Court where the crime has been committed. Clause (e) to Section 526 Cr.P.0 is wide enough to give ample power to the Court to consider transfer of case if it is expedient to meet the ends of justice. Therefore, I proceeded to examine the medical report now received pursuant to order of this Court. Applicant was examined by Agha Khan University and report was filed on 24.1.2011. Report recommended further investigation to be carried out. Investigation was carried out by the Atomic Energy Medical Centre and as per its report dated 27.4.2011, which record as follows; "BLOCKAGES FOUND IN ANGIO AND THOSE SEEN IN THALLIUM ALSO
1. LCX (left circumflex artery 100% distal artery blockage.
2. LAD (left anterior descending) 30-40% blockage.
3. RCA (Right Coronary Artery) multiple areas of critical stenosis"
So also the reply of Medical Superintendent Liaquat University Hospital Hyderabad/Jamshoro dated 5.4.2011 "that the medical facility which the applica.nt is suffering from is not available at Liaquat University Hospital Hyderabad, Jamshoro". Indeed trial in which the applicant is involved is charged under Section 302 PPC but at the same time the Court has to take human approach towards any issue irrespective of the fact that applicant is involved in a murder charge which fact in isolation does not desist the Court to consider the bail and/or transfer on medical ground.
14. As noted above, in terms of Section 526 (e) Cr.P.0 order to transfer case could always be passed as may be expedient to meet the ends of justice. Therefore, contention of learned counsel for the complainant that this Court cannot concede transfer application on the medical ground or ground of infirmity is not sustainable. The case has already proceeded at Karachi and. two witnesses have already been examined.
15.I would therefore, direct the trial by the said Court at Karachi, however all the expenses as may be incurred for bringing or traveling expenses of the witnesses, if any, from Hyderabad to Karachi shall be paid by the applicant as may be determined by the learned trial Court.
16.The learned trial Court is directed to expedite the trial of the case which otherwise as per judicial policy is to be disposed of as early as possible and entire evidence to be completed preferably within a period of three working months of the Court below.
17.The prosecution is directed to ensure that all the witnesses are produced on each and every date, the applicant be produced on each and every date before the trial Court. Any delay cause by applicant shall be excluded from the period of three months as granted by this Court.