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Criminal Appeal No. 20 of 1956, decided on 3rd February 1958.
, S. 417‑Appeal directed by Provincial Government to be presented to Karachi Bench of High Court but presented to Bench at Quetta‑No illegality involved in presentation of appeal.
, Ss. 4 (t) and 417 Appeal directed by Provincial Government to be presented by one Public Prosecutor maybe presented on his directions by another.
, S. 101 (a)‑Allowing shunting against General Rules 252, 255 after line clear had been given for an approaching train‑Railway servant guilty under section‑Signals for approaching train not having been lowered‑Immaterial.
By allowing the shunting of a goods train to proceed after the line clear for an approaching Mail train had been given, the accused, Assistant Station Master, who was in charge at the relevant time, was guilty under clause (a) of S. 101, Railways Act, because he acted in breach of the General Rules, 252 and 255; and also under Clause (b) for breach of the rule contained in paragraph 3 (a) of the Working Rules for the relevant station. The accused's action also amounted to a "rash or negligent act" within the meaning of clause (c), because by giving the line clear before the shunting had been completed he created considerable risk of a collision between the Mail and the Goods train. Although the accused had not had the signals lowered for the Mail, giving the line clear amounted to an invitation to the Mail to proceed to the Station. The signals alone cannot be considered to be sufficient protection as they may be either overlooked by the driver or lowered on account of some defect in them. (In this case there was evidence that the signals were defective since before the occurrence and were in a drooping position.
, S. 101‑Running train faster than allowed by Rules‑Within mischief of section.
, S. 101‑Guard endangering safety of persons by disobeying rules as to prompt shunting of his train from one line to another‑Shunting after line clear had been given for an approaching train‑Offences under S. 101.
‑Lenient‑Ground‑Inordinate delay (nearly six years) in case reaching conclusion‑Sentence passed: 3 months instead of 2 years.
, S. 101‑Whether offence also falls under S. 304‑A, Penal Code (XLV of 1860).
‑Appearing as defence witness for railway employee accused under S. 101, Railways Act (IX of 1890) but not coming forward to make a statement during investigation of case‑Liable to be dealt with departmentally for breach of duty.
Illahi Bakhsh F. Khamisani, Additional Advocate‑General for Appellant.
Respondents : In person.
Dates of bearing:. 3rd, 6th to 10th and 13th to 15th January 1958.
-- On the night between the 13th and 14th of October 1952 a collision took place at the Jhatpat Railway Station between 4‑Down Mail and 534‑Down Goods Train, as a result of which eight persons lost their lives, fifteen persons were injured in varying degrees and much railway property was wrecked or damaged. Abdul Aziz, an Assistant Station Master who was then posted at Jhatpat ; Muhammad Bashir Khan, the Guard of 534‑Down Goods Train, and Abdur Rahim, the Driver of 4‑Down Mail, were tried by Mr. Ali Dost Bughti, 1st Class Magistrate, Sibi, for offences under sections 304‑A P. P. C. and 101 / 126, Railways Act. By his order dated the 22nd of December 1955, the learned Magistrate acquitted Abdul Aziz and convicted Muhammad Bashir Khan and Abdur Rahim of both the offences. On appeal the learned Sessions Judge, Quetta, acquitted both of them by his order dated the 19th of March 1956. The Govern ment of West Pakistan has appealed to this Court against the acquittal of all the three persons through the Additional Advocate General at Karachi. Appeal No. 20 is against the acquittal of Muhammad Bashir Khan and Abdur Rahim by the learned Sessions Judge and Appeal No. 21 against the acquittal of Abdul Aziz by the learned Magistrate.
A preliminary objection was taken by the learned counsel for Abdul Aziz to the competency of the appeals. He contended that the appeals must be rejected on the ground that while the Pro vincial Government had, under section 417 of the Code of Criminal Procedure, directed the Additional Advocate‑General, West Pakis tan at Karachi, to file the appeals in the High Court of West Pakistan Bench at Karachi, they were presented before the Bench at Quetta by the Public Prosecutor of Quetta on behalf of the Additional Advocate‑General, Karachi. As far as the question of presenting the appeals to the High Court at Quetta instead of Karachi is concerned, no illegality is involved therein. Section 417 of the Code only speaks of the presentation of an appeal to the High Court and, for the purposes of that section, it would be immaterial as to at which place an appeal is presented so long as it is presented to the High Court. It is true that the Government had directed in its orders dated the 9th of June 1956 that the appeals be presented to the High Court Bench at Karachi ; but a contravention of that order would not invalidate the appeals. The Additional Advocate‑General has indorsed on the memoranda of both the appeals that they were presented at Karachi but were not accepted. There is an order of the Chief Justice of this Court that all non‑urgent petitions or appeals relating to the former area of Baluchistan should be filed at Quetta and that only urgenones may be filed at Karachi. Thus there was a compliance of the Provincial Government's orders and the appeals were ultimately presented at Quetta in accordance with the standing orders of the
Chief Justice.
There is also no contravention of any law in the presentation of the appeals at Quetta by the Public Prosecutor of that place. Section 417 empowers the Provincial Government to direct "the Public Prosecutor to present an appeal to the High Court". Where there are more than one Public Prosecutor in a particular area, there seems to be no reason as to why any one of them may not validly file an appeal. The section itself is concerned with only two facts : (1) That there must be a direction by the Provin cial Government to present an appeal against an order of acquittal; and (2) that such a direction can be given only to a Public Prose cutor or that such an appeal can be presented only by a Public Prosecutor and by no other person. In the present cases the Provincial Government had directed the Additional Advocate General at Karachi to file the appeals; but as they had subse quently to be presented at Quetta in accordance with the order of the Chief Justice, they were presented there by the local Public Prosecutor on behalf of the Additional Advocate‑General, who, under a notification under section 492 of the Code of Criminal Procedure, is a Public Prosecutor for the whole of the West Pakistan. The definition of " Public Prosecutor" in clause (t) of section 4 of the Code includes "any person acting under the directions of a Public Prosecutor". The expression "Additional Advocate‑General at Karachi" in the orders of the Provincial Government regarding the present appeals can, for the purpose of section 417, only mean "the Public Prosecutor at Karachi" and nothing more and must, therefore, be deemed to include any person acting under his direction. The presentation of these appeals by, the Public Prosecutor at Quetta, acting under the direction of the Additional Advocate‑General at Karachi, must, therefore, be held to be in accordance with the provisions of section 417. We accordingly reject the preliminary objection.
Before dealing with the cases of the respondents in the two appeals, it would be useful to state certain relevant facts which are beyond dispute. Jhatpat Railway Station is situate on the Jacobabad‑Sibi Section between Sukkur and Quetta. The next station towards Quetta side is known as Temple Dera and there is no intervening station between Jhatpat and Jacobabad. The Down trains come from Temple Dera side and the Up trains from Jacob abad side. There are three lines at Jhatpat. The first, adjoining the only platform at the station, is a loop line known as the first loop line; the line thereafter is the main line and will be hereafter referred to as the second line ; and after that there is the second loop line which will be hereinafter referred to as the third line. According to the Working Time Table of the Quetta Division (which is meant for the use of the railway servants and contains the necessary directions for them), the 534‑Down goods train leaves Temple Dera at 04, 05 p.m. and reaches Jacobabad, with out stopping at Jhatpat, at 5‑00 p.m. Temple Dera is not the stopping station for the 4‑Down Mail which passes through it at 11‑12 p.m. and arrives at 11.44 at Jhatpat from where she departs at 1.1.47. The 7‑Up Quetta Passenger departs from Jacobabad at 10‑10 p.m. and arrives at Jhatpat at 10‑28. The goods train reached Jhatpat late on that day, with the result that it was stopped at the station and was to stay there until the 4‑Down Mail and the 7‑Up Passenger had both arrived and left the station. According to the trains register of Jhatpat station (Exh. P‑1) and that of Temple Dera (Exh. P.‑3), 534‑Down arrived at Jhatpat at 10‑20 p.m. and was taken on the second line, that is to say, the main line. According to the trains register of Jhatpat (Exh. P‑1) and that of Jacobabad (Exh. D. B.) the 7‑Up Passenger left Jacobabad at 10‑41 and arrived at Jhatpat at 10‑57 p.m. The 4‑Down Mail on its way to Jhatpat passed through Temple Dera station at 11‑12 p.m. according to the registers of Temple Dera and Jhatpat.
At the point where all the three lines meet on the Temple Dera side, there are down home signals. At a distance of 606 feet from these signals (towards Temple Dera side) there is the shunting limit board and 1321 feet further up there is the Down outer signals‑the exact distance between this‑ signal and the Down home signals is 1927 feet. The length of the goods train was 1860 feet. The impact between the engine of the Mail train and the brake‑van of the goods train took place at a point between the, shunting limit board and the outer signal which is 693 feet from the latter. Thus at the time of the collision 1234 feet of the goods train was beyond the home signals on the Temple Dera side, 538 of it being beyond the shunting limit boards ; and 626 on the station side of the home signals, i.e., on line No. 2. The whole train had not passed beyond the home signals. There is no manner of doubt that the 4‑Down Mail had passed the outer signal before the scheduled time ; but the exact time of the occurrence is in dispute and might as well be determined at the very outset.
The Mail had passed Temple Dera exactly at the scheduled time, viz., at 11‑12 p.m. The distance between Temple Dera and Jhatpat stations is 141 miles (vide P. W. 1 and the Working Time Table) ; and the distance covered by the 4‑Down up to the point of impact about 14 miles. P. W. 14 Allah Waraya says that at the time of the collision the Mail was running at a speed of about 40 miles per hour. At that speed she must have taken about 21 minutes to reach the point of impact and, according to this calcu lation, the collision must have taken place at about 11‑33 p.m. But Allah Waraya has given the speed only from his impression. It might have been more or less. Judging, however from the evidence on the record regarding the time of concurrence, Allah Waraya's estimate appears to be fairly accurate.
P. W. 4 Ch. Ghulam Rasul was the S. H. O., Jhatpat Police Station. He stated that at about 11‑3U p.m. on the 13th of October 1952 he received information about the accident through a con stable of the Railway Police, Jhatpat : that he made an entry in the daily diary of the police station and that thereafter he proceeded to the spot after having informed the E. A. C., Jhatpat, of the accident. The report in the daily diary was recorded at 12‑05 a.m. P. W. 6, W. P. Beaty, Railway Guard of Jacobabad, was going to Quetta by 7‑Up Passenger on private business. He stated that when he came out of the compartment after the accident he looked at his watch and it was 11‑30 p.m. P. W. 9 M. M. Alain was the Station Master at Jhatpat. He was off duty from 8 a.m, on the 13th of October 1952, having been relieved by the respondent Abdul Aziz. He was informed at his house at about 11‑50 p.m. by Ahmad waterman of the accident and shortly afterwards A. S. M. Abdul Aziz also called on him. He has stated that when he reached the station with Abdul Aziz, it was exactly 11‑55 p.m. according to his own watch and that of the Controller. He was informed by Abdul Aziz that the accident had taken place at 11‑25 p.m. and that he mentioned that time in the telegram which he sent to all the railway officials concerned regarding the accident. Exhibit P‑13 is a copy of the telegram P. W. 10 M. R. Khan, who was the Guard of 4‑Down Mail, asserted that the accident took place at 11‑40 p.m. according to his watch which he noted in his journal (Exh. P‑14). This gentleman was obviously interested in stating that his train was running to time. It has been established beyond doubt from his cross‑examination that the entries in his journal are quite unreliable. He was charge‑sheeted by the railway for having torn away the page in which the original entries had been made on the 13th of October 1952. On the other hand, the respondents Abdul Aziz and Muhammad Bashir Khan are interested in fixing the time of the accident as early as possible in order to show that the accident took place only because the 4‑Down Mail arrived far ahead of the scheduled time and was travelling at an excessive speed. P. W. 11 M. J. Abbasi, the Sectional Controller, stated that he received information about the accident at about I 1‑45 p.m. on control telephone from the guard of 534‑Down goods train. He has, however, stated the time only from his memory. P. W. 12 S. G. Stillwell, S. S. Commandant. Kimari Karachi, who was returning to Karachi from Quetta by 4‑Down Mail, stated that he noticed after the accident that his watch had stopped at 11‑32 p.m. His statement lends itself to the inference that the accident took place at 11‑32 p.m. and that his watch stopped on account of the terrific jerk caused by the collision. P. W. 13 D. C. Mackanon was the Guard of 7‑Up Passenger. He finished his work in his brake at 11‑25 p.m., got down the platform and walked towards the engine. When he was near the engine, he saw the headlight of the 4‑Down Mail coming from Temple Dera side. When the collision took place he looked at his watch and it was 11‑30 p.m.
D. W. 1 and D. W. 2, examined by the respondent Abdur Rahim, did not depose to the time of the accident ; nor did the witnesses produced by Muhammad Bashir Khan. D. Ws. 4 and 6 to 14 were produced by the respondent Abdul Aziz. According to the watch of D. W. 6, a Mail Guard, who was travelling in the 4‑Down Mail as a passenger, the time of the accident was 11‑30 p.m. D. W. 12 Muhammad Aslam Khan, who was the Station Master of Nushki and was returning from Sukkur by the 7‑Up Passenger, stated that according to his watch the accident took place at 11‑30 p.m. The entire evidence on the record leaves little doubt that the collision occurred at about I 1‑30 p.m. and that the time, according to different watches, may have been a couple of minutes this way or that. The accident may well have taken place at 11‑32 p.m. when the watch of P. W. 12 stopped, or it may have been that that watch was running fast by two minutes or so.
We now proceed to consider the case against the Assistant Station Master Abdul Aziz (Criminal Appeal No. 21 of 1956). He was charged with the following acts of negligence or contravention of the rules :‑
(1) That he had given line clear to Temple Dera for 4‑Down Mail without the shunting of 534‑Down Goods Train from line No. 2 to line No. 3, which he had ordered, having been completed.
(2) That he had lowered the home and outer signals for the 4‑Down Mail before the completion of the shunting.
The learned Magistrate acquitted Abdul Aziz on his findings that the signals on the Temple Dera side had not been lowered and that when the Assistant Station Master gave line clear to 4‑Down Mail, he cancelled his previous orders of shunting of the goods train, but the guard was shunting the train "of his own accord without the knowledge of the Assistant Station Master". At first the learned Additional Advocate‑General attacked both the findings of the learned Magistrate but subsequently he stated that he did not wish to contest the finding that the signals were lowered at the time of the accident. The entire voluminous evidence relating to the question was read out to us at the Bar and we are satisfies that the state of evidence is such that it is not possible for us to set aside the finding of the learned Magistrate in an appeal against an acquittal. The only points, therefore, which remain for us to consider in this appeal are :‑
(1) Whether it is an act of negligence or a breach of rules on the part of a Station Master to give line clear to a train in the circumstances of this case ; and
(2) Whether at the relevant time the shunting of the goods train was being done by its guard without the orders and the knowledge of the respondent Abdul Aziz.
As regards the first question it will be useful to refer to the relevant rules regarding the working of the railways. General Rule 252 runs as follows :‑
"Conditions under which permission to approach may be given. The line shall not be considered clear, and permission to approach shall not be given, unless‑
(a) .
(b) the Home, if any, and the outer have been put to ON ' ; and
(c) the line is clear‑
(i) to the shunting board, adequate distance board, or advanced starter (if any) at that end of the station nearest the expected train; or
(ii) to the home signal, if there is no shunting board, adequate distance board or advanced starter; or
(iii) to the Outermost facing points, if there is no shunting board, adequate distance board or advanced starter and no home signal."
The Jhatpat Station is provided with a shunting board, as already stated, and, therefore, the two conditions which in the present case had to be fulfilled before a line clear to 4‑Down Mail could be given, were that the signals should be "ON" and the line should be clear up to the shunting board. This rule shows that double protection is considered necessary by the railway authorities for the safety of the passengers and property. The rule appears to be eminently reasonable. The signals may not work properly at the spur of the moment; or they may, for some reason or other, be overlooked or ignored by the driver of the coming train. In any case, if shunting beyond the shunting board is done when the coming train has left the last station, the driver, being ignorant of it, would not know at what reduced speed he should approach the station section in order to avoid an impact with the train which is being shunted.
It is clear from the rule itself that the line right up to the shunting board should be kept clear till the arrival of the incoming train and the matter is further clarified by the following rules :‑
(G. R.) 253.‑"Obstruction in the face of an approaching train. The line in rear of the Home signal or in the absence of Home Signal in rear of the outermost facing points in the direction of a train for which permission to approach has been given shall only be obstructed when a shunting Board or an Advanced Starter is provided * * * * * * *, and under special instructions * * * * *."
(S. R.) 253/l.‑Shunting Boards‑In certain cases Advanced Starters or Shunting Boards are provided to allow of shunting outside the Home signal after permission to approach has been given, when such a procedure is definitely allowed in the Working Rules of the Station * * * * * *
(G. R.) 254.‑"Obstruction within station section.‑If the necessary signals are kept ON', shunting may be carried on either‑
(a) between Shunting Boards or Advanced Starters subject to the Provisions of Rule 253, or
(b) between the Home signals, if there are no Shunting Boards or advanced Starters, or
(c) between the outermost facing points, if there are no Home signals or Advanced Starters or Shunting Boards."
(G. A.) 255.‑"Obstruction outside station section‑The line between the station section and the Outer signal not to be obstructed unless a railway servant specially appointed in this behalf by the Station Master is in charge of the operation, and unless‑
(a) the Block section into which the shunting is to take place is clear of an approaching train, or
(b) if an approaching train has arrived at the Outer signal, the Station Master has personally satisfied himself that the train has been brought to a dead stand at that signal."
"Block section", according to the definition in Rule 1, means "that portion of the running line that is situated between the last stop signal of one station and extends to the Home signal or the shunting limit board or advance starter of the other station nearest to the approaching train" (P. W. 1).
(S. R.) 255/1.‑"Shunting outside station section.‑Shunting under this rule is permitted under the above conditions on the North Western Railway. Station Masters are reminded that under clause (b) they are personally responsible for ascertaining that the approaching train has come to a stand."
Para. 3 (a) of the Working Rules for Jhatpat station runs as follows :‑
"This station should work in accordance with the general and subsidiary rules. Special attention is drawn to the General Rules 45 (c), 254, 255 and Subsidiary Rules 39/2(ii) and 255/1.
Shunting outside the Home signal under S. R. 255/1 is not permitted in the face of Up/Down train for which permission to approach has been given."
(S. R.) 336/1.‑"Cancellation of line clear.‑(a) If line clear has been given to the sending station and it becomes necessary for the receiving station to cancel it owing to the line becoming obstructed, or for any other cause, the Station Master of the receiving station will immediately send the Obstruction Danger' signal. If the signal is not immediately acknowledged, it must be repeated again and again until acknowledged,"
It is clear from the above‑noted rules that in the present case the Assistant Station Master could not permit‑or should have stopped‑the shunting of the 534‑Down Goods Train beyond the home signal on Temple Dera side after having given the line clear to the 4‑Down Mail. P. W. 1 also said.
"The Shunting Limit Boards provided at Jhatpat were there only to mark the adequate distance but shunting to the approaching train beyond the Home signal was not permitted according to para. 3 of the Yard Working Rules of Jhatpat "
It has already been shown that the goods train at the time of the collision had not only gone beyond the home signal but also beyond the shunting limit board. It is not denied‑indeed it is admitted‑by the respondent Abdul Aziz that he had initially ordered for the shunting of the goods train from line No. 2 to line 3 from the Temple Dera side. His case is that when he gave the line clear to 4‑Down Mail, he countermanded the shunting order, ordered the guard not to shunt, arranged for the reception of the 4‑Down Mail on line No. 3 instead of the main line, namely, line No. 2, and thereafter remained busy with the issuing of the tickets to the passengers until the collision and that the guard shunted the goods train against his orders and without his know ledge. We proceed to consider this defence.
From the Working Time Table of Quetta Division, it appears that 534‑Down goods train arrives at Temple Dera at 3‑45 p.m. and departs at 04‑05 p.m. and that it proceeds from Temple Dera straight to Jacobabad without stopping at Jhatpat. On the 13th of October 1952, she was running late and according to Exh. P‑1, the train register of Jhatpat, she reached Jhatpat at 10‑20 p.m. and was detained there in accordance with the orders of the Sectional Controller (P. W. 11). According to Exh. P‑1, as also according to Exh. D/A Jacobabad train register, the 7‑Up Passenger left Jacobabad at 10‑39 p.m. and arrived at Jhatpat at 10‑57. The timings of inquiry for, and the giving of, the line clear, however, in the two registers do not tally.
While the line clear, according to Jhatpat, register, was given at 10.01, the time mentioned in the Jacobabad register is 10.11. Learned counsel for the respondent argued that the difference in the timings is due to the fact that the clock at the Jhatpat Railway Station was not working properly. This cannot obviously be so ; because the time of the departure and arrival of 7‑Up mentioned in the two registers is exactly the same. We have compared other entries in the two registers and find that the difference exists mainly in the timings of the line clear and is only due to the fact that the persons responsible for making the line clear entries have not always had regard to accuracy and had sometimes made them only from memory afterwards. The time for asking for the line clear for 542‑Down in both the registers is entered as 04‑10 p.m.; but the time for its being given is mentioned as 04‑11 p.m. In Jhatpat register and as 04‑47 in Jacobabad register which is obvi ously wrong. The timings in the Jhatpat register for the giving of line clear for 541, 15 and 293‑Up trains are mentioned as 08‑56 a.m., 06‑16 p.m. and 06‑55 p.m., while those in the Jacobabad register are 08‑51 a.m., 06‑22 p.m. and 06‑57 p.m. It will be observed that the difference in each is not the same.
According to Jatpat register, line clear for the 4‑Down Mail was given at 11‑01 p.m.; but in the Temple Dera register it is 10‑51 p.m. According to Jhatpat register, line clear for 541, 15 and 293 Up trains was given at 10‑31. a.m., 06‑26 p.m. and 07‑29 p.m. respectively ; but the timings mentioned in the Temple Dera register are 10‑41 a.m., 06‑41 p.m. and 07‑32 p. m. The difference not being the same in each case, it cannot be said that it is due to the difference in the timings of the clocks at the two stations. The difference in the timings of the giving of the line clear for 534‑Down is only five minutes and not ten as in the case of 4‑Down Mail. Therefore, the clock of Temple Dera station was running slower, if at all, by five minutes. The time for giving the line clear for 542‑Down in both the registers is exactly the same, namely, 03‑13 p.m.; but in the case of 532‑Down there is again a difference of four minutes‑and in this case the Temple Dera timing is ahead by four minutes. There are many other conflicting entries in the three registers ; but it would be useless to refer to them, especially as they were neither discussed nor mentioned at the Bar.
While it is impossible to say anything about the entries in the Temple Dera and Jacobabad registers, it is clear from the entries made by the respondent Abdul Aziz on the 13th of October 1952 in the Jhatpat register that at least some of them are fictitious. Although the ill‑fated 4‑Down Mail never left the Jhatpat station for its onward journey, the time of its arrival and departure at and from Jhatpat as well as Jacobabad were originally written in the register. Subsequently the word "cancelled" was written over these entries : but the figure "23" can be seen with the naked eye. Similarly there are erasures in the columns for entries regarding the departure of 7‑Up. There is no doubt that there has been a tempering with the entries regarding the 7‑Up Passenger and 4‑Down Mail. In this state of affairs it is impossible to place any reliance upon the entries made by the respondent, and, in the absence of any evidence or argument on behalf of the respondent to the contrary, there is no alternative to accepting the time of line clear for 4‑Down Mail as 10‑51 p.m. as given in the Temple Dera Register.
The rules as well as the evidence make it abundantly clear that it is for the Station Master to give orders for shunting and for the guard of the train ordered to be shunted to obey. As regards the time when the respondent ordered the guard of the goods train to shunt his train from line No. 2 to line No. 3, there is only the evidence of two witnesses, P. W. 7 Wirasat Ali, who was at the relevant time posted as a pointsman at Jhatpat station, and P. W. 15, the driver of the engine of 534‑Down goods train. The former appears to be a partisan of the Station Master and the latter of the guard, Muhammad Bashir Khan. After a careful scrutiny of their statements and the other circumstances, we feel convinced that the shunting had been ordered some time before the arrival of the 7‑Up Passenger and was actually commenced some time after the train arrived at the platform. We are fortified in this connection by the admission of Muhammad Bashir Khan that he had been ordered to shunt at about 10‑40 p.m. There is nothing to substantiate the plea of the respondent Abdul Aziz that he had ordered the shunting immediately on the arrival of the goods train. There was no hurry about it as the shunting, according to the evidence, was not to take more than forty minutes at the outside. Indeed some witnesses have stated that the shunting could have been done even in fifteen or twenty minutes. There was thus plenty of time as the Mail Train was not due at the station for another hour and twenty‑four minutes. Moreover, after the arrival of the goods train, its guard went to the Station Master's room to ask the Sectional Controller to permit him to proceed with his train to Jacobabad at once. The guard was to accompany the train only as far as Jacobabad and was, therefore, keen not to reach his home or resting place late in the night. The Sectional Controller, P. W. 11 M. J. Abbasi, has stated that the guard asked for his permission at about 10‑35 p.m. (but he has stated the time only from his memory) before the arrival of 7‑Up. Quite naturally up to that time the Station Master would not have ordered the shunting without allowing the guard to obtain the orders of the Sectional Controller.
It, however, seems that the guard did not start shunting in the hope that if the 7‑Up, which was running late, reached Jhatpat early enough, he might again be able to persuade the Sectional Controller to permit him to proceed to Jacobabad without waiting for the Mail. There is no reason whatever to doubt the statement of Mr. Abbasi that the guard was annoyed at his refusal and that he repeated his request to him after the arrival of 7‑Up. It is, therefore, clear that the respondent's order for shunting had not been carried out to his knowledge until the time when the guard contacted the Sectional Controller the second time after the arrival of the 7‑Up; and that, according to the Temple Dera train register, he had already given the line clear for the 4‑Down Mail before the arrival of 7‑Up. But even if he gave the line clear at 11‑01 p.m. his action is nonetheless reprehensible because the second line had yet to be cleared, and the obstruction removed, for the reception of the Mail. In either case he was guilty of the breach of the rules already referred to and was directly responsible for the unfortunate collision which caused so much loss of human life and property.
The next question which falls to be considered is whether the respondent had cancelled his previous order for shunting before giving the line clear. It is alleged by the witnesses who supported the respondent that the guard was in the Station Master's room when the latter gave the line clear and ordered him not to shunt from line No. 2 to line No. 3. They further assert that the Station Master declared that he would receive the Mail on line No. 3 and ordered the pointsman to set the points accordingly. P. W. 7 Wirasat Ali, D. W. 7 Babu Ali, another pointsman, D. W. 9 Muhammad Ashraf, a railway police constable, and D. W. 13 Ahmad, who was then working as the waterman at Jhatpat station, support this version. All these witnesses, excepting Muhammad Ashraf, were, at the time of the occurrence in question, serving under the respondent Abdul Aziz. It has been demonstrated in the cross‑examination of P. W. 7 Wirasat Ali that, in order to help the respondent, he had gone back upon his statement made before the police and that the story set up by him in the trial Court was in direct contravention of his statement during the investigation by the police. According to his earlier statement, the Station Master never cancelled his origblal order of shunting. There are also material contradictions between the statements of these four witnesses. According to D. W. 7 and D. W. 13, the respondent had ordered P. W. 7 Wirasat Ali to ask Allah Bakhsh Pointsman "to set the Down‑facing points for reception of the 4‑Down Mail on line No. 3 ;" but not so according to P. W. 7 and D. W. 9. D. W. 7 Babu Ali says that after the respondent had cancelled his previous order of shunting, he left the Station Master's room before P. W. 7 Wirasat Ali D. W. 9, however, says that Wirasat Ali left the room before Babu Ali. There are strong and unquestionable circumstances to show that the evidence of these four witnesses in defence of the respondent is false and that the order for shunting the goods train from line No 2 to line No. 3 from the Temple Dera side was in fact never cancelled.
P. W. 7 Wirasat Ali has said that Allah Bakhsh Pointsman was asked by the Assistant Station Master to go to the guard of 534‑Down and have it shunted to line No. 3 and that Allah Bakhsh left in his presence. He admitted in his cross examination.
"The points for No. 2 line were already set as the goods train had already arrived on the scene. In order to take the (goods) train from line No. 2 to line No. 3, it was also required to set the points for No. 3, but that setting was to take place only after the (goods) train had cleared off the facing points. The key for that purposes was given to Allah Bakhsh by A. S. M. It was given to him at that time when A. S. M. had ordered to call the (goods) train guard for shunting. The said key was in the possession of Allah Bakhsh till the accident took place."
It is thus clear that right up to the time when the collision took place Allah Bakhsh must have been under the impression that he had the A. S. M.'s order to have the goods train shunted from line No. 2 to line No 3 and not to set the points to receive the Mail train on line No. 3. There is not a shred of evidence on the record to suggest that any change in these orders was ever communicated by anybody to Allah Bakhsh. Allah Bakhsh himself has not been examined by the respondent. The respon dent alleged in his statement before the charge‑sheet that he had ordered Wirasat Ali to convey his orders to Allah Bakhsh to set line No. 3 for the reception of 4‑Down Mail, but he did not put a single question to Wirasat Ali to that effect in cross examination in spite of the fact that the latter was out to /help him at all cost. There is also no reason whatever to believe that if Wirasat Ali had been ordered to that effect, he would have failed to carry out the order. It was the duty of the Station Master to give instructions to Allah Bakhsh, as in the case of all pointsmen, personally and not by sending out verbal messages, vide S. R. 31/7. B. This duty became all the more imperative in the circumstances of the present case. The respondent knew that he had ordered Allah Bakhsh to have the goods train shunted ,from line No. 2 to line No. 3 and if he had really decided to change the order he had to ensure, in order to avoid a disaster, that Allah Bakhsh was immediately apprised of the change.
It is necessary to describe in some detail the system at Jhatpat station for the reception of the Down trains and the lowering or putting up of the signals, which is known as inter locking system. When no train is to be received, all the signals are up and keys Nos. 1, 2 and 3 are kept in the Station Master's room in a padlocked box which is specially provided for that purpose (vide P. W. 1). Key No. 1 is used for setting the points for the reception of Up trains and key No. 2 for Down trains. Key No. 3 controls the levers at the station for lowering the signals ; but can be effectively used only in conjunction with some other key as will be presently explained. If a Down train has to be received on line No. 3, the Station Master hands over key No. 2 to the pointsman personally who goes and inserts it in point. No. 3 in which there are already two keys, namely, keys Nos. 28 and 54. He takes out key No. 28 and the line is safely locked for the reception of the train on it. If the train is to be received on line No. 2, key No. 2 is inserted at first in point No. 3 and key No. 54 is taken out and in its turn is inserted into point No. 2 in which there are two permanent keys, namely, keys Nos. 26 and 30. The pointsman takes out key Nos. 26 and line 2 is safely set for the reception of the train. If, however, line No. 1 is to be set, then instead of key No. 26, he takes out key No. 30 from the facing point No. 2. It is only with the help of either key No. 26 or key No. 28 or key No. 30 that key No. 3 can be worked to lower the signals for the coming train. After a particular line has been set for the reception of the train, one of these three keys is taken by the pointsman to the Station Master who then gives key No. 3 to the pointsman for lowering the signals. In the present case the second line had already been set for the reception of 534‑Down goods train, after which the key No. 26 must have been taken to the Station Master for lowering the signals for that train. After the arrival of the goods train, the signals must have been put up again and key No. 26 taken out of the lever. Thereafter either key No. 26 would have been sent back to the facing point in order to obtain key No. 2 or it would have been returned to the pointsman for the shunting of the goods train from line No. 2 to line No. 3. Thus when the respondent ordered the shunting, he would have handed over to the pointsman concerned either key No. 26 or key No. 2. In either case before the goods train had passed the home signal from line No. 2, the pointsman would have been in possession of key No. 26. Had the Station Master changed his order regarding the shunting, he would have seen to it that key No. 28 was brought to him within a reasonable time. The respondent has not led any evidence or cross‑examined any prosecution witness to show that within about half an hour or more, which must have elapsed between the giving of the line clear and the collision, he ever tried to contact Allah Bakhsh or made any attempt in any other manner to obtain this key. By obtaining this key alone, he could be sure that his alleged second order not to shunt the goods train had been carried out. The possession of this key was also necessary to lower the signals for the reception of the Mail train on line No.3
Admittedly until 10‑30 p.m., that is to say, until about 12 or 14 minutes before the scheduled time of the arrival of the Mail train, he did not bother about either of these objects. This circumstance strongly points to the conclusion that in fact he had not stopped the shunting and waited for so long only because he knew that the relevant key could not come to him for about half an hour or so, the time required for shunting the goods train to line No. 3. In view of the considerations just mentioned, we attach no importance to the statement of P. W. 9 M. M. Alam, the Station Master, that he found key No. 53 in the key box. Neither the Station Master nor P. W. 1 was put any question in cross‑examination by the respondent as to the exact significance of the presence of this key in the key box. We are convinced, in view of the overwhelming circumstances to show that the original shunting order had not been cancelled, that in fact line No. 3 had not been so set. The Station Master may have deposed falsely in order to help his assistant ; or considering that the Station Master arrived at the station some time after the occurrence, the respondent himself might have obtained the key to create a defence for himself. It was impossible for him to obtain key No. 28 as it could be obtained only if the goods train had either not crossed the home signal at all or had crossed it completely. The fact that the train collided with the Mail while parts of it were on either side of the home signal made it impossible for the respondent to make out any plausible cause regarding the setting of the points on the Temple Dera side for the alleged reception of the Mail on line No. 3.
There is yet another circumstance to show that the respondent could not have really ordered the reception of the Mail train on line No. 3. The 7‑up Passenger was already on line No. 1 and the goods train by being allowed to remain on line No. 2 would have obstructed the passenger trains, namely, 7‑Up and 4‑Down. P. W. 1 a Railway Traffic Inspector, has stated‑
"Mail train could have been taken on line No. 3 but this could have meant that there would have been intervening goods train between two passenger trains which is against rules. Rule No. S. R. 31 /8 lays down the procedure regarding crossing of two passenger trains at a station which has got one passenger platform."
On behalf of the respondent Abdul Aziz this rule has been used to demonstrate the. motive on the part of the guard of disobeying the order of the respondent not to shunt the goods train to line No. 3. But this ingenious argument fails to take into consideration that by shunting his train to line No. 3, the guard was laying himself open to two charges instead of one. He would have been charged with the disobedience of the Station Master's order and also for shunting after the line clear had been given. We cannot, in the circumstances of this case, persuade ourselves to believe that the guard tried to shunt the train in defiance of the orders of the respondent Abdul Aziz. If he had, the respondent would surely have come to know of it in lime to prevent tile disaster. It was his duty to set that the shunting was carried out properly and without endangering the safety of other trains and persons. Apart from the General Rule No. 161 which enjoins upon every railway servant to "see that every exertion is made for ensuring the safety of the public", there is the specific rule 147 which runs :
"The Station Master shall see that the shunting of the train or vehicles is carried on only at such time and in such manner as will not involve danger."
Lastly, the allegation that the respondent had decided to receive the Mail on line No. 3 is belied by the entries in Ex. P. 1/A. The witnesses who support him allege that he announced this decision to the guard when he gave the line clear for 4‑Down Mail, which according to the entries made by him in Ex. P. 1/A was given at 11.01 p.m. There are overwhelming indications to show that the respondent tampered with, and altered, the entries in that register, some time after the accident; and yet the existing entries in it are to the effect that the 4‑Down was to be taken on the second line and the 534‑Down was to go to line No. 3. Even if these entries had been made before giving line clear, the res pondent had still half an hour to correct them as indeed he ought to have done if he had really cancelled the shunting order and had decided to receive the Mail on line No. 3. The allegation is undoubtedly an afterthought.
In view of the foregoing reasons, we are convinced that even assuming that the line clear for 4‑Down Mail had not been given by the respondent before the arrival of the 7‑Up Passenger train, the respondent did not in fact cancel his original order for shunting and that the shunting was proceeding in accordance with his orders. Before, however, parting with this aspect of the case, we may also mention certain admissions made by the respondent soon after the occurrence. P. W. 1 Masood Ahmad, Traffic Inspector Railway, Jaccobabad, arrived at Jhatpat with the relief train on the 14th of October 1952 at 1‑20 a.m. He states‑
"I enquired from M. Aziz, the accused, as to how the accident had occurred. He informed me that the driver of the said Mail had crossed the outer signal and collided with the said goods train which was being backed from line No. 2 to line No. 3 from Temple Dera Side at the station."
In cross‑examination by the guard, Muhammad Bashir Khan, and the driver Abdur Rahim, he stated‑
"Now after hearing my statement recorded by police at Jhatpur I remember that Assistant Station Master Aziz had informed me that he granted line clear to 4‑Down Mail while shunting of 534‑Down was in progress, hoping that it would be completed before the arrival of 4‑Down. He also had told me that he wanted to back 534‑Down from line No. 2 to line No. 3 from Temple Dera side and the shunting had not been completed when the line clear was demanded by Temple Dera and was granted by me. He had admitted before me that he had made a mistake when I pointed out to him that it was against the rules and that he had breached Jhatpat Station Working Rule as well as general rules."
P. W. 9 M. M. Alam, the Station Master, who reached the station a few minutes after the occurrence, stated in his cross‑examination by the guard and the driver‑
"On my inquiry Abdul Aziz had told me that he was getting 534‑Down goods train from line No. 2 to line No. 3 on Temple Dera side I do not remember to have stated before the police that I questioned Abdul Aziz as to why he was carrying on the shunting after giving the line clear as it was not allowed when line clear had been given. Abdul Aziz had replied that a mistake had been committed and that he then returned from the way and I went on to the spot of the accident. (Confronted)."
P. W. 16 has proved that P. W. 9 had stated before the police during the investigation‑
"I asked him (Abdul Aziz) as to why he was getting the train backed from that side and (said) that the shunting should not have been done from that side after giving the line clear. He (Abdul Aziz) replied that the mistake was destined to occur and had occurred."
When these statements were put to the respondent before the framing of the charge‑sheet, he replied‑
"No. They (that is to say, Masood Ahmad and Alam) misunderstood me. These words were uttered by M. B. Khan, Guard of 534‑Down, before me after the accident which I told in the course of the conversation with them."
His explanation is obviously unconvincing as neither Alam nor Masood Ahmad mention the name of the guard in connection with the respondent's admissions to them. The respondent did not put this explanation of his to either of them; nor did he attempt to support his subsequent explanation by cross‑examining the wit nesses regarding his admissions to them. Even the respondent's own witness, D. W. 2 Aziz‑ur‑Rahman, Railway Guard, Quetta Division, admitted in his cross‑examination‑
"When the accused Abdul Aziz met me during the night of the accident, he told me that the driver came against signals.
There is not an iota of evidence that at any time after the collision the respondent told anyone that the guard of the goods train had defied his orders by attempting to shunt the goods train from line No. 2 to line No. 3
Section 101 of the Railways Act runs as follows
"if a railway servant; when on duty, endangers the safety of any person‑
(a) by disobeying any general rule made, sanctioned, published and notified under this Act, or
(b) by disobeying any rule or order which is not in consistent with any such general rule, and which such servant was bound by the terms of his employment to obey, and of which he had notice, or
(c) by any rash or negligent act or omission, he shall be punished with imprisonment for a term which may extend to two years, or with fine which may extend to five hundred rupees, or with both."
We are clearly of the opinion that by allowing the shunting of the goods train to proceed after the line clear for the 4‑Down Mail had been given, the respondent was guilty under clause (a) of the section, because he acted in breach of the general rules mentioned in the earlier part of this judgment; and also under clause (b) for breach of the rule contained in paragraph 3 (a) of the Working Rules for Jhatpat station. His action also amounted to a "rash or negligent act" within the meaning of clause (c), because by giving the line clear before the shunting had been completed, he created a considerable risk of a collision between the Mail and the goods train. It is true that he had not had the signals lowered for the Mail; but giving the line clear amounted to an invitation to the Mail train to proceed to Jhatpat Station. The signals alone cannot be considered to be sufficient protection as they may be either overlooked by the driver or lowered on account of some defect in them. In fact there is some ;evidence on the record that the signals at Jhatpat station were defective since some time before the occurrence and were in a drooping position.
We now proceed to dispose of Appeal No. 20 against the acquittal of Muhammad Bashir Khan and Abdur Rahim. We shall deal at first with the case against the latter. In view of the unsatisfactory state of evidence relating to the condition of the signals on the Temple Dera side at the time of occurrence, we must hold, for the purposes of the case against the respondent Abdur Rahim, that the signals were in lowered position and that the respondent did not defy them as alleged by the, Assistant Station Master. The learned Sessions Judge, however, did not, while acquitting Abdur Rahim, consider the charge of having failed "to be cautious and vigilant in contravention of J G. R. 140, S. R. 6 (a) and (b) and Para. 1116 of the Operating) Manual and other Working Rules."
Clause (b) of General Rule 89 lays down :‑
"The driver shall regulate and control the running of his train as accurately as possible according to the Working Time Table, so that to avoid either excessive speed or loss of time; he shall not make up between any two stations more time than is allowed in this behalf by special instructions."
According to the Working Time Table, the Mail is to travel between Temple Dera and Jacobabad normally at a speed between 33 and 40 miles. An extra time of five minutes is allowed for running between Temple Dera and Jacobabad. P. W. 1 has stated :
"Stopping trains are required to pass at a reduced speed of ten miles per hour while passing home signal. I produce the Working Time Table in force in October 1952. According to this Time Table, 4‑Down Mail was to pass Temple Dera at 11‑12 p.m. and reach Jhatpat at 11‑44 p.m., the total running time being thirty‑two minutes for a distance of 141 miles. The booked speed of 4‑Down Mail for that section is 33 miles per hour. When the trains are running to time, they are not required to exceed their prescribed speed. Drivers, however, authorised to travel up to the maximum speed of 40 miles per hour if the train is running late and it is necessary to make up time. In no case drivers are to exceed this speed limit of 40 miles per hour. The minimum running time of 4‑Down Mail between Temple Dera and Jhatpat is 23 minutes."
During his cross‑examination by Abdur Rahim, he stated
"At a speed of 33 miles per hour a distance of 141 miles between Temple Dera and Jhatpat can be covered in 27 minutes. But a few minutes are added to this running time for controlling speed to enter Jhatpat where the train is to stop.
It would thus appear that according to rules the Mail train ought not to have taken less than thirty two minutes for travelling between Temple Dera and Jhatpat. The distance could have been travelled in not less than thirty two minutes if the train had been running late. On this particular day the 4‑Down Mail had left Temple Dera at right time, namely, 11‑12 p.m., according to the train registers of Jhatpat and Temple Dera. We have already held that the accident took place at about 11‑30 p.m. Thus the Mail had crossed the outer signal of Jhatpat Station in about eighteen minutes' time‑which is much less than the normal time which ought to have been observed on the day of the occurrence as the train was running right time ; and even less than the minimum running time of twenty‑three minutes.
P. W. 14 Allah Waraya, who was the fireman of the 4‑Down Mail, has stated that "the speed of the train was 40 miles per hour when he reached near the outer signal." In his cross-examination by Abdur Rahim, he frankly admitted that "it is only my statement. It might be right or wrong. Anyhow, as fart as I can say the speed was this". According to the facts just mentioned, however, there is no doubt that the train was being driven just before the accident at a speed greater than 40 miles per hour. This was definitely in contravention of the rules and the respondent must be held to be guilty under section 101 of the Railways Act for their breach.
P. W. 5 has stated that "from the platform line (of Jhatpat station) the track is straight up to Temple Dera". P. W. I stated‑
"If the train is moving at a speed of ten miles per hour, it should be possible for, the driver of the train to bring it to a dead speed within a few paces by sudden application of brakes."
P. W. 8 stated‑
"Usually the headlight throws its beams and illuminates to a distance of 1500 feet. The 4‑Down Mail having a length of 666 feet with a speed of 33 to 40 miles per hour could have been stopped within a length of 1500 feet."
P. W. 1 said that the outer signal could have been seen from a distance of one mile. The red lamps in the rear of the guard's brake‑van, which were burning at the time and constituted danger signals, were burning at the time (vide P. W. 3). Had the guard regulated and controlled the running of his train as required by General Rule 89 and had he also observed Rules 122 and 6 which required him to be vigilant all the time, there is little doubt that in view of the facts just mentioned he would have either averted the disaster altogether by stopping his train in time, or, at any rate, considerably mitigated the damage by reducing the force of the impact between the two trains. Rule.122 lays down:‑
"Every driver shall keep a good outlook while the train is in motion
Clause (b) of Rule 6 says : ‑
"He (the driver) shall not, however, trust entirely to signals but always be vigilant and cautious."
In answer to the question : "What means you adopted to avoid the collision when you saw the obstruction and red signals" put to him by the Magistrate before the framing of the charge, the respondent Abdur Rahim replied: "I applied the vacuum. This gave a sudden jump and jerk to the engine and I, fell down.",
In the first place, even if the respondent had applied the vacuum, as alleged by him, the precaution was taken too late and does not absolve him from the rash driving and the failure to be vigilant and cautious all the time. The answer, in the context of the present cases, points to the conclusion that the respondent had been driving the train at an impermissible speed and that he noticed the obstruction and red signal when it was already too late. Secondly, there is no evidence on the record to show that there was any jerk, as alleged by the respondent, before the collision. Neither of the two witnesses, examined in his defence deposed to it and all the other evidence on the record is to be contrary effect.
The story about the jerk and the respondent's falling down in consequence was perhaps set up in order to show that the driver did not contravene Rule 140, which runs as follows:‑
"No driver shall move from his working locomotive or his self‑propelled vehicle when on duty whether at a station or on a running line, except in case of absolute necessity and after a competent man has been placed in charge of the locomotive or vehicle
P, W. 14 Allah Waraya stated that he "suddenly found that the driver of the engine, accused Abdur Rahim, had jumped out of the engine". After a careful perusal of his statement, we are of the opinion that that assertion of the witness contains only his impression and not what he actually saw. But in view of the fact that the driver himself admits to having dropped out of the engine before the collision actually took place and the consider ations just mentioned, we think that the driver got unbalanced on seeing the goods train and jumped out of the engine to save his life. We, however, do not attach any importance to this act of the respondent. We find him guilty under section 101 for his failure to control the speed according to the Rules and to observe vigilance and caution before he jumped out of the engine.
The guard of the goods train, the respondent M. B. Khan, is alleged to have contravened the rules by (a) having shunted his train while the signals were down ; (b) having delayed the shunting of his train in disobedience of the orders of the Assistant Station Master ; and (c) having carried on the shunting after the line clear for the 4‑Down Mail had been given to Temple Dera. As regards the first, allegation against him, we must reject it on the sole ground that there is no satisfactory evidence on the record to enable us to give a finding whether the signals were "on" or "down". It is necessary to restate certain facts in order to determine the other two questions.
As we have already stated, the goods train, of which the respondent was the guard, arrived at Jhatpat from Temple Dera at 10‑20 p. m.; the 7‑Up arrived at 10‑57 p.m. and the collision took place at about 11‑30 p.m., while the shunting of the goods train from line No. 2 to line No. 3 was in progress. According to the train register of Temple Dera Station, the line clear for the 4‑Down Mail had been given at 10‑51 p.m., while according to that of Jhatpat station it was given at 11‑01 p.m. P. W. 11, the Sectional Controller, has stated that the respondent contacted him twice for permission to proceed to Jacobabad before the arrival of the 4‑Down Mail at. Jhatpat, once before the arrival of 7‑Up and the second time after her arrival at 10‑57 p.m. The exact time when these two contacts were made is not a matter of record and the witness admits that he has given them only from memory.
The first question to be determined is as to when the Assis tant Station Master Abdul Aziz gave the order for shunting of the goods train. There can be no manner of doubt that such an order was binding upon the respondent whose duty it was to execute it with promptitude. Rule 96 lays down :‑‑
"When a train is within station limits, the guard shall be under the orders of the Station Master."
Rule 177 says‑
"Every Railway servant shall promptly obey all lawful orders given by any person placed in authority over him."
Clause (a) of Paragraph 23004 of the Operating Manual, North Western Railways, provides, inter alia, that "instructions for the necessary shunting to be done will be given to the Guard by the Station Master on duty". P. W. 15, the driver of the goods train, who appears to be an independent witness, and, if anything, is interested in supporting the respondent, admits that the order for shunting was given before the arrival of the 7‑Up Passenger. He said :
"Before the arrival of 7‑Up, the guard M. 'B. Khan, came with a Kantewala and had told him that the S. M., Jhatpat, wanted to reverse to train from Temple Dera side from line No. 2 to take it to line No. 3, which was lying vacant,"
In his statement before the framing of the charge‑'sheet, the respondent admitted that he had received the order at 10‑40 p.m. He also admitted that thereafter he went to the Station Master's office to contact the Controller for permission to‑ proceed to Jacobabad. He gives the time as 10‑43 p.m. The important fact, ‑ however; to note is that instead of starting the shunting at once, he made an attempt to obtain permission to proceed to Jacobabad instead. It is also in the evidence of P. W. 15 that the shunting did not start until after the arrival of the passenger train. He said : "The shunting had started after the 7‑Up was received." We have already stated that the guard had to go only up to Jacobabad and he was evidently in a hurry to reach there as early as possible. It appears that even after he had' been refused permission by the Sectional Controller to take his train to Jacobabad, he did not start shunting and waited for the arrival of the 7‑Up in the hope that thereafter he may be able to persuade the Controller to proceed to Jacobabad ahead of the 4‑Down Mail which was not to arrive at Jhatpat for more than three quarters of an hour after the arrival of the 7‑Up. He thus wasted more time and started shunting only after his second request had been turned down by the Controller after the arrival of the 7‑Up Passenger. He is thus clearly guilty of the defiance of the Assistant Station Master's orders. We might point out that in the absence of the Station Master, an Assistant Station Master has the same authority and duties as the former:
The next question is whether the respondent knew that the line clear had been given before or during the shunting. As we have been unable to accept the testimony of Wirasat Ali (P. W. 7) in its entirety and are inclined to think that he tried to favour the Assistant Station Master Abdul Aziz, we are unable to accept any part of his statement unless it is corroborated by some other reliable evidence or circumstance. In so far as his allegation that the Assistant Station Master had ordered the shunting before the arrival of the 7‑Up is concerned, it does not in any way help the Assistant Station Master. This witness has not been shown to have any grievance or grudge towards the respon dent, M. B. Khan. We have it from the evidence of the Sectional Controller (P. W. 11) that he had instructed Abdul Aziz before the arrival of the goods train that the train shall remain at the Station until the departure of the 7‑Up Passenger aid 4‑Down Mail, both of which were to cross each other at that station. These facts and the facts that 7‑Up was to be received on line No. 1 and 4‑Down Mail on line No. 2, must have come to the knowledge of the respondent before he was ordered to shunt his train from line No. 2 to line No. 3. This is also evident from one of the answers made by him during his statement before the charge‑sheet.
It runs‑
"I contacted the Controller once at about 10‑43 p.m. requesting him if he could allow me to proceed to Jacobabad ahead of 4‑Down Mail after the arrival of 7‑Up at Jhatpat."
According to P. W. 11 the respondent contacted him the second tithe at about 11‑8.m. If we could rely upon that time, there will be no manner of doubt that the respondent must have become aware before hand that the line clear had already been given. It is; however, possible that the respondent contacted P. W. 11 soon after the arrival of 7‑Up and before 11‑08. This is more probable because the respondent was in a hurry to leave for Jacobabad and was not likely to waste time. We have already said that it is satisfactorily proved that he conacted the Sectional Controller the second time after the arrival of 7‑Up which indisputably arrived at Jhatpat station at 10‑57 p.m. He must, therefore; have contacted the Controller at about 11‑00 p.m. or soon afterwards. The line clear must have been either asked for which according to Jhatpat train register was asked for at 11‑00 p.m. while the respondent was in the Station .Master's room as stated by P. W. 7 ; or given earlier at 10‑51 as stated in the Temple Dera train register. In either case the respondent must have come to know that the line clear had been given before he started shunting after contacting the Controller the second time.
For all these reasons we are convinced that the respondent is guilty of the offence under section 101 of the Railways Act inasmuch as the endangered the safety of the persons travelling in the 4'‑Down Mail by disobeying the rules, according to which E he had to promptly shunt his tram from line No: 2 to line No. 3 in accordance with the Assistant Station Master's orders and not to shunt it after the line clear had been given. P. W. I has stated that there is no Shunting Jemadar at Jhatpat Station. Rule 23004 of the Operating Manual, North Western Railway, says that at stations 'where there are no Shunting Jemadars, the 'guard is responsible for shunting and must personally supervise it. Rule 161 (b) provides that every railway servant who sees any obstruction shall take immediate steps, as the circumstances of the case may demand, to prevent the accident. We have already shown, that the shunting of the goods train beyond the home signal after the line clear constituted an obstruction to the 4‑Down Mail It was thus clearly the respondent's duty not to cause it‑especially in defiance of the Assistant Station Master's order. He way bound to obey all lawful orders, but not those in contravention of the rules‑particularly where the safety of life and property is involved. Sub‑clause (1) of clause (a) of Rule 161 requires that every railway servant shall see that every exertion is made for ensuring the safety of the public.
As regards the sentence we have no doubt that all the three respondents acted in a most reprehensible manner and deserve to be visited by the maximum punishment of two years' rigorous imprisonment provided for by section 101, Railways Act; but in view of the fact that these cases have, for various reasons, take an inordinate length of time to come to a final conclusion, we consider that three months' rigorous imprisonment will meet the cases. We, therefore, convict each of the three respondents for the offence under section 101, Railways Act, and sentence each of them to rigorous imprisonment for three months. As we would not have ordered the sentences to run consecutively even if we were to convict the respondents under section 304‑A, P. P. C., we do not consider it necessary to go into the question, whether they are also guilty under that provision‑a question which is not quite free from difficulty.
Before parting with this judgment, we would like to make a few observations. By far the larger portion of the time and the record was taken up by the evidence relating to the question whether at the time of the accident the signals towards the Temple Dera side were "down" or "on".
The prosecution led most unsatisfactory kind of evidence on that question. The only evidence which impressed us, and upon which we feel strongly inclined to act, was that of P. W. 9 Allah Waraya, the fireman of the 4‑Down Mail, but considerable doubt was caused by the evidence of P. W. 4, an Inter‑locking Mistry, in the employ of the railway at Jacobabad. He stated that he found that due to the pressure and weight of the fallen tanks of the goods train, one of the pully‑sticks had been completely thrust down in the earth beneath the tanks and the wires of the outer signals and those of the warner signals had been bent down at three places "( ) deep into the ground with the loads of the tanks over them. In view of these circumstances, he opined that it had become impossible to change the position, of the signals. Amazingly enough, the prosecution did not cross-examine the witness and his expert opinion was left on the record unchallenged in spite of the fact that this matter had been raised in the cross‑examination of P. W. 1. This evidence rendered us quite helpless .to record a definite finding that the signals were lowered at the time of the accident. We also wish to note that a number of railway employees were examined in defence, who were never examined during the investigation of the case. They were most probably not examined during the investigation, because the investigating authorities were unaware of the fact that they had witnessed anything. Under the rules it was the duty of these railway employees to have brought such knowledge as they possessed about the accident to the notice of the railway authorities concerned. Apparently they did not do so and they are liable to be dealt with departmentally for the hi‑ each of their l, important duty. Lastly, as we have pointed out elsewhere in this judgment, the timings in the train registers at Jhatpat, Temple Dera and Jacobabad do not tally especially with regard to those relating to the giving of line clear‑--- even on dates other, the one on which the occurrence in question took place. It is obvious that some of the persons responsible for keeping these registers have not been keeping them properly. This is a serious matter which requires notice by the railway authorities.
--- I agree with the conclusions by my learned brother.
A.H Respondent Convicted.
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