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Special Case No. SK‑1 of 1978, decided on 1st April, 1979.

‑‑---S. 128‑Benefit of doubt‑No tangible evidence showing any of accused having either stopped special train or instigated others to stop same by blocking railway track‑Station‑diary made by Station Master immediately after incident not suggesting anyone of accused being responsible for stopping train and merely stating generally people of village having stopped it‑Mere fact of accused either giving an application to Station Master for stopping special train or visiting railway officers in saloon, held, would not make accused responsible for incident nor establish their participation in crime Accused given benefit of doubt and acquitted, in circumstances. [Benefit of doubt‑Evidence].

Jalaluddin Baloch, Special Public Prosecutor for the State."

A. R. Baloch for Applicants.

Dates of hearing : 31st March and 1^st April 1979.

The 3 accused above‑named have been tried in respect of an offence under section 128, Railways Act, 1890, for allegedly instigating some chil dren to stop the Special Train of the Federal Government Inspector of Railways (F.G.I.R.) at Wahab Shah Railway Station, by standing on the railway tracks, and in consequence of the obstruction of the track by the children, the said Special Train was unlawfully detained at Wahab Shah Railway Station for about 30 minutes.

2. The prosecution case, shortly stated, is that on 7th February, 1978, the Federal Government Inspector of Railways was travelling from Tando Adam to Mirpur Khas via Hyderabad for the purposes of carrying out track and other inspections. The train was scheduled to run through Wahab Shah Railway Station which was on its line of travelling. However. when the train came to the said station, it as forced to stop, due to the presence on the track of some children who were holding a red cloth across the track. A crowd of people had also gathered at the platform of the station. Some of the officers travelling in the Special Train contacted the people on the platform and tried to persuade them to allow the train to proceed but they declined to do so until and unless they were permitted to make personal representation to the F.G.I.R. As there appeared to be no .other alternative for the train to be allowed to proceed and the children to be removed from the track, some members of the public standing on the platform, including accused Ali Mohammad, were taken to the Saloon of the F.G.I.R. and after they had seen the officers in the Saloon, including the F.G.I.R., the train was allowed to proceed and the children cleared the track. In consequence of this unauthorised stoppage of the Special Train, not only the Special Train was delayed for about 30 minutes, but it is further stated that the Super Express, which was following the Special Train, also got delayed. Immediately after the incident, Syed Boota Shah, the Station Master of Wahabshah made an entry in the Station Diary to the effect that at about 8.05 hours a mob of student. headed by Gulmunir Shah (accused), General Secretary of Welfare Asso ciation of Wahabshah village, came to the Platform and gave him a letter for stopping the Special Train of the F.G.I.R. at Nawabshah Railway Station but as the Special‑Train was already at the outer signal and it was arranged that it should pass through Wahabshah, the Control Officer dec lined permission to stop the train at Nawabshah. It is further stated in the diary that the people of Wahabshah had stopped the Special Train against through signals by showing red cloth and detained it from 8.15 hours to 8‑45 hours for taking their demands to F.G.I.R. in his Saloon. On the same day, Traffic Inspector Moinuddin Ahmad also sent a telegram to the S.H.O., Hyderabad Railway Police Station, to the effect that the 3 accused had instigated the small children and made them to stand in the track in the face of the Special Train of F.G.I.R. and in consequence the train suffered heavy detention and the 10 Down Train following was also detained on that account. This telegram was registered as the F.I.R. by S.H.O. Abdul Karim at Hyderabad Railway Police Station. He thereafter pro ceeded to the scene of offence where he recorded the statements of Boota Shah, Allah Bux and Tayeb Ali. He then arrested the 3 accused from Wahab Shah village and released them on bail. On 8th February, 1978, the S.H.O. recorded the statements of Guard Jamil Ahmad, Driver Aziz ‑Ahmad and Fireman Riasatullah. On 9th February, 1978, he recorded tire further statement of Traffic Inspector Moinuddin Ahmad On 19^th February, 1978 the accused were challaned.

3. The prosecution have examined in this case, Railway Guard Jamil Ahmad, Station Mater Syed Boota Shah, Engine Driver Aziz Ahmad, Traffic Inspector Moinuddin Ahmad, Divisional Transportation Offices Mr. Amir Mirza and S.H. O. Abdul Karim.

4. All the 3 accused have denied that they had any hand in the stopping of the Special Train of the F.G.I.R. or that they had instigated any children to do so. The defence of accused Ali Mohammad is that he was not even at Wahabshah on the day of the incident but on the contrary he was on duty at his office at Hyderabad and it was on the following day that he learnt through co‑accused Hot Khan about the registration of the case against him and hence he presented himself before the Police at the Hyderabad Railway Police Station on 8th of February, 1978. and was released on bail. He has alleged that he has been falsely implicated in this case by the railway people because he had protested to the higher railway authorities over the high‑handed action of the railway people in closing down two Locals which served the people of Wahabshah and other small stations of the area. With his statement, he has produced cuttings from various newspapers and also copies of the representations which he had made to the higher authorities complaining against the railway people ,or having cancelled the two locals of his area.

5. Accused Gulmunir Shah, in his statement under section 342, Cr. P. C., has stated that he is the General Secretary of the Villagers Welfare Association, and in that capacity had met the Divisional Trans portation Officer at Tando Adam with the request that he and his colleagues were anxious to meet the F. G, I. R. to present their grievances personally to him, but the Divisional Transportation Officer informed him that the F. G. I. R. would be holding an inspection at Wahabshah on the follow ing day, and they could conveniently meet him then. The accused has stated that in consequence of this suggestion given to him by the Divisional Transportation Officer, he met the Station Master, Wahabshah, and at the latter's request gave him an application in writing for stopping the train, as they had a programme to meet the F. G. I. R., but since the Station Master informed him that the train would not stop at Wahabshah, he went home. Like accused Ali Mohammad, he has denied that he either stopped the train of the F. G. I. R. or instigated any children to do so.

6. Accused Hot Khan has also denied that he was at Wahabshah on the day of the incident and has contended that he has been falsely im plicated in the case at the instance of Wadera Gul Hassan and his cousin, Cabin‑man Jani, as in his capacity as a Post Master at Wahabsbah, he had received a registered letter from the Agricultural Bank, Hala, addressed to Wadera Gul Hassan, who tried to pursuade him to return the letter undelivered with the endorsement that Gul Hassan was not available, but he (accused) refused to comply with his request, which made Wadera Gul Hassan angry, and he threatened to see the accused. In his defence, this accused has examined a Teacher, by name Ahmad Khan, who has produced the Attendance Register of the Teachers of Wahabshah which shows that accused Hot Khan was on leave from the 5th to the 8th of February, 1978. The witness also has produced the outward Register of Wahabshah Primary School which shows that accused Hot Khan had submitted an application on 4th of February, 1978, for casual leave with effect from 5th of February, 1978.

7. The points which arise for determination in the case are :-

(i) Whether the Special Train of the F. G. I. R. was unlawfully stopped or detained at Wahabshah Railway Station ; and

(ii) If so, it was so stopped by or at the instigation of all or any one of the accused.

8. Findings

Point No. I.‑In the affirmative.

Point No. 2.‑Not established. ,

9. Point No. I . N.v.

There is overwhelming evidence establishing the fact that the Special Train of the F. G. I. R., which was to run through Wahabshah Railway Station, had been unauthorisedly stopped at the said station and detained for about 30 minutes P. W. Aziz Ahmad, the Driver of the Special Train, has deposed that after doing an inspection just outside the outer signal of Wahabshah Railway Station, he started the Special Train, which was to run through Wahabshah Railway Station to Hyderabad, but when the train came to Wahabshah Railway Station, he found a group of 30 to 40 boys standing on the track, who were holding a red Chadar' across the track, and consequently he was forced to stop the train lest the train might go over some of the boys standing on the track. He has further stated that after detention of 25 minutes, he got the signal from the Guard of the Train that they could leave and as the track had been cleared of the boys, who had moved on to the platform, he started the train and .it left Wahabshah Station for Hyderabad. Driver Aziz Ahmad is corroborated fully on this point by P. W. Jamil Ahmed, who was the Guard of the Special Train. as also Syed Boota Shah, the Station Master of Wahabshah Railway Station, and Traffic Inspector Moinuddin Ahmed and Divisional Transportation Officer, Amir Mirza, who was also travelling in the Special Train. All of them have testified that though the Special Train was to run through Wahabshah, it had to stop at Wahabshah Railway Station because the track was blocked by some boys who were carrying a red chadar' and on this account the train was unlawfully detained at Wahabshah for 30 minutes. There has been no cross‑examination of any of these witnesses on this point. It is, therefore, established.

10. Point No. 2

The evidence on this point adduced by the prosecution is discrepant, ' unsatisfactory and unconvincing. P. W. Jamil Ahmed, the Guard of the Special Train has not implicated anyone of the accused and in fact has admitted that he cannot say whether any of the accused were at Wahab Shah Railway Station. Moreover, he has been declared hostile by the learn ed Special Public Prosecutor. Similarly, the Driver of the Special Train, P. W. Aziz Ahmed, has not implicated anyone of the accused and frankly admitted that he did not notice the accused anywhere in the crowd or on the platform. So far as Station Master Boota Shah is concerned, all that he has Mated is that before the Special Train of the F. G. I. R. came to Wahab Shah Railway Station, accused Gulmunir Shah had contacted him at Railway Station and given him an application for stopping the Special rain on the ground that they wanted to meet the F. G. I. R. He has added that though he was informed by the Control Office that the request for the stopping of the Train at Wahab Shah could not be considered at such late stage, the Train was forced to stop at Wahab Shah Station because the track was blocked by some boys who were standing on the track with a red chadar'. Although, the witness has stated that he saw all the 3 accused in the crowd which had been standing on the platform, he has admitted that he did not see the accused either inciting the children to stop the train or telling them anything else. From his evidence, there fore, no inference can be drawn that the accused had a hand in the stopp ing of the train or had incited the boys, who had actually stopped the train, to do so. From the mere fact that accused Gulmunir Shah had given an application to the Station Master for stopping the train, no inference can be drawn that he was responsible for stopping the Train or had asked the boys to do so. If his intention was to stop the train by making the boys to block the track, it is unlikely that he would have given a formal application to the Station :Master seeking permission for stopping the Train. It may also be mentioned that in the entry in the Station Diary made by Station Master Boota Shah immediately after the incident, he has nowhere suggested that anyone of the accused was responsible for stopping the Special Train but has on the other hand merely stated generally that the, people of Wahab Shah. had stopped the Special Train.

11. The main evidence against the accused is that of Traffic Inspector Moinuddin Ahmed. According to him, the Station Master, Boota Shah, had shown him the children standing on the track, who had stopped the train, and had also taken him to accused Ali Mohammad and informed him that the latter had made the children to stop the train. However, Boota Shah was neither asked any such question nor has he stated in his evidence that he gave any such information to Traffic Inspector Moinuddin Ahmed. As such, the latter's statement that Boota Shah informed him that accused' Ali Mohammad had asked the children to stop the train, is not admissible in evidence. P. W. Moinuddin Ahmed has further stated that he had also seen the other two accused at the Wahab Shah Railway Station and that while accused Hot Khan was standing near the children who were in front of the Engine, accused Gulmunir Shah was standing about 10 or 15 paces away from the place where the children were standing on the track. In his cross‑examination he improved upon his statement made in cross‑examination‑in‑chief and stated that accused Hot Khan was standing between the lines of the Railway track. The witness has admitted that Divisional Transportation Officer Mr. Amir Mirza and Station Master Boota Shah were with him when he saw the children on the track and talked to accused Ali Mohammad. However, neither of these witnesses has supported him on the point that he was informed by Boota Shah that accused Ali Mohammad had instigated the children to stop the Train or that accused Hot Khan was standing on the track with the train. Moreover, Engine Driver Aziz Ahmed has also made no mention of the presence of accused Hot Khan on the tracks or near the children. He being the Driver of the Train, he was in the best position to know who were standing on the track blocking the path of the Special Train. It appears to me that P. W. Aziz Ahmad has deliberately made incorrect and exaggerated statements for the purposes of implicating the accused.

12. P. W. Moinuddin Ahmed has further stated that accused Ali Mohammad had accompanied him and the other officers of the railway to the Saloon of the F. G. I. R. for the purposes of representing their griev ances to the officers. On this point he is supported by other witnesses also. However, from the mere fact that accused Ali Mohammad went to the Railway Officers in the Saloon of the F. G. I. R., no inference can be drawn that he was responsible for stopping the Train or instigating the boys to do so. It is quite possible that he took advantage of the fact that the train had stopped in order to make a written representation to the higher authorities of the railway.

13. Another circumstance, which indicates that no reliance can be placed on P. W. Moinuddin Ahmed is that whereas he has stated that before their Train left Wahabshah Railway Station he had given a memo to the Station Master, Wahahbshah, for the Police, but the memo which is in the form of a telegram, is addressed to the S. H. O., Railway Police Station, Hyderabad. Moreover, Station Master Boota Shah has made no mention of this memo being handed over to him.

14. The evidence of Divisional Transportation Officer, Mr. Amir Mirza, also does not assist the prosecution. All that he has stated is that some boys had stopped the train and after the train was stopped, accused Ali Mohammad was taken by him to the Saloon of the F. G. I. R. where he gave representation to the officers. The witness has not only admitted that he has no knowledge as to who had instructed the boys to stand on the track and stop the train, but further he has not even spoken about the presence of the other two accused at Wahabshah Railway Station or at least noticing them there.

15. There is thus no tangible evidence to show that any one of the accused had either stopped the Special Train of the F. G. I. R., or had instigated the boys, who had stopped the Train, to do so. The learned Special Public Prosecutor incharge of the case frankly conceded that the evidence on the record does not establish the participation of the accused in the crime. This point, therefore, stands not established.

16. For the reasons stated by me above, I would ‑ give the benefit of doubt to each one of the accused and acquit them. Their bail bonds are ordered to be discharged.

Appeal allowed.

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