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Criminal Transfer Application No. 1 of 1984, decided on 25th April, 1984.
(a) Criminal Procedure Code (V of 1898)-
---S. 526--Prohibition (Enforcement of Hadd) Order (4 of 1979)), Arts.3 & 4--Transfer of case--State complainant--Convenience of accused, held, has to be considered rather than that of complainant.
(b) Criminal Procedure Code (V of 1898)--
---S.526--Prohibition (Enforcement of Hadd) Order (4 of 1979), Arts.3 & 4--Transfer of case--Counsel for State making statement that he would feel no difficulty in examining witnesses if case transferred- Accused sick and likely to seek adjournments again and again as it would not be possible for him to reach Court where case pending until he fully recovered--Transfer of case allowed in circumstances.
Raja Qureshi for Appellant.
M.I. Memos Addl. A.-G. Sind for the State.
Date of hearing: 25th April, 1984.
By this application under section 526(d) Cr.P.C., the applicant prays for transfer the case under sections 3 and 4 of the Prohibition Enforcement of Hadd) Order read with section 14 of the Dangerous Drugs Act (vide F.I.R. No.9/83) presently pending in the Court of Sub-Divisional Magistrate, Rohri District Sukkur to the Court of Sessions Karachi.
2. The reason stated in support of the application is that the applicant is suffering from backache due to slipped disc of his lumbo-sacral region and, therefore, cannot move freely.
3. In support of the application, Mr. Raja Qureshi has filed a photostat copy of the medical certificate dated 25-6-1983 which is imported to have been issued by Prof. A. Rahim, F.R.rC.Sr., which reads as follows:-
"Mr. Muhammad Jamshed son of Mr.Sultan had backache due to slipped disc of Jumbo-sacral region. He was operated and is much relieved of his acute problem. Hut' he is advised:
(1) Avoid bending forwards.:
(2) Avoid lifting weights.
(3) Avow driving or travelling on rough roads.
(4) Use of Jumbo-sacral belt.
(5) Regularly do spinal exercise."
4. I have heard Mr. Raja Qureshi Advocate in support of the application and Mr-M.I. Memos, Additional Advocate-General.
In support of the application, Mr. Raja Qureshi has relied on a decision of Lahore High Court in Sohan Lal v. Gopal Singh, 1926 Cr.LJ. 563, wherein Mr. Justice LeRossignol considered the ground of convenience of the accused preferable to the convenience of the complainant.
The order for ready reference is reproduced in extenso herein
The petitioner is the accused in the case and his convenience has to be considered rather than that of the complainant who, however, belongs to petitioners village.
Montgomery is far away from the petitioner's abode, whilst Pakpattan is near. I transfer the case to the Court of Sub -Divisional Officer, Pakpattan"
7. He has also relied on a decision of this Court in Haji Bashir v . (1) Jumo (2) State, 1968 P Cr. L J 1100, wherein a learned Single Judge transferred the case from the Court of Sub-Divisional Magistrate Nasirabad, District Jacobabad to the Court of Additional District Magistrate; Karachi on the ground of the convenience of the accused who was residing in Karachi.
8. To the same effect is the decision of. Patna High Court in P.H.Mrtcalfe v. J.Watson, A I R 1924 Patna 708.
9. Although ail these cases are of private complaints but the principle enunciated in them will be applicable even to a case where the State is a complainant as conceded by Mr.M.I. Memon, Additional Advocate-General, Sind.
10. Mr. Memon States that besides tile Investigating Officer, there are four witnesses, out of which, two are reserved witnesses who may or may not be examined and therefore, he feels no difficulty in examining them at Karachi in case the case is transferred.
11. Mr.Qureshi submits that because of the sickness of the applicant, if the case is not transferred then the applicant may have to apply for adjournment again and again as it may not be possible for him to reach the Court where the case is pending until he fully recovers.
12. Under the aforesaid circumstances. I transfer the case from the Court of Sub-Divisional Magistrate, Rohri to the Court of Sessions at Karachi as the. learned Additional Advocate-General states that now this case is to be tried by the Court of Sessions in view of the enhancement of the punishment provided for tile offence alleged to have been committed.
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