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Case No. S.K.1 of 1986, decided on 27th February, 1986.

‑‑‑--S. 128‑‑Unlawful act‑‑Wilful omission or neglect‑‑Accused driving tractor trolly through unmanned railway crossing‑‑Wheel of trolly stuck up between rails by accident‑‑Use of public road at point of crossing held, was not an unlawful act nor wilful omission or neglect on part of accused‑‑Charge under S. 128, could therefore, not be framed against accused.

Nooruddin Sarki for Appellant.

Muhammad Ibrahim Memon, A.A. ‑G./Special Public Prosecutor for the State.

Date of hearing: 27th February, 1986.

The accused is the Driver of a Tractor. On 23‑12‑1985, at 1‑45 a.m. he was crossing the railway track between Daur and Bucheri Railway Stations, when the tractor crossed the Railway track, but the wheel of the trolly which was attached to the tractor, got stuck up between the rails. It was time for the 70‑Down Sukkur Express to pass on this track. Two Railway Chowkidars Ghulam Nabi and Abdul Satter in course of their supervision duty reached the scene. They found the accused struggling hard to extricate the trolly from the rails and clear the railway track. Perhaps they also joined him, but could not succeed in pulling out the wheels from the track. Prudence prevailed and the Chowkidars put crackers on the rails. This device is usually used on such occasions to warn the coming locomotive and indicate to the Driver that there was some danger ahead. In this particular case three crackers cracked and it seems that the Driver tried to atop the train, but could not succeed in bringing the engine to a dead stop With the result that the accident took place. The stuck up trolly was smashed and perhaps the front portion of the Railway Engine was also damaged. This is the story of the prosecution and it is to be determined whether in these circumstances all the ingredients and requirements of section 128 of the Railways Act are complied with to justify the prosecution of the accused. Section 128 of the Railways Act runs as under:‑

"Section 128. If a person, by any unlawful act or by any wilful omission or neglect, endangers or causes to be endangered the safety of any person travelling or being upon any railway, or obstructs or causes to be obstructed or attempts to obstruct any rolling‑stock upon any railway, he shall be punished with imprisonment for a term which may extend to two‑ years."

Even on a casual reading of this section it is evident that the requirement of law is that act is either unlawful or the act of omission is wilful or there is an element of negligence involved. If these three preliminary requirements are fulfilled only then the question of further consequences like endangering the safety of a person travelling, or obstructions caused to the rolling stock, would arise.

In the present case the accused, in course of his duty as an employee of the owner of the tractor, was driving on a public road through an unmanned level crossing and just by accident the wheel of the trolly stuck‑up between the two rails. I do not see any illegality in either the use of the public road at that point of the crossing or any act of omission or neglect on the part of the accused in using that public road. It remains debatable whether it was an act of simple accident or this accident occurred on account of improper maintenance of the railway track which turned out to be a trap for trolly driven by the accused.

So far as the accused is concerned, all that I can say is that in the earliest opportunity and to the best of his ability, he made every effort to extricate the stuck‑up trolly. Fortunately the patroling party appeared on the scene and the accused did what he was supposed to do; i.e. he informed them and they in their turn took proper precaution in taking the preventive measures to avoid the collision if they could.

That in spite of all this if the collision between the trolly and Railway engine could not be avoided, it cannot be said to be an unlawful act or omission. There is no act of omission or negligence in crossing a Railway track at the crossing. The Railway track proved to be a "Trap" and the accused deserves as much sympathy and consolation as anyone else.

I do not think that in this case a charge can be framed. I would, therefore, discharge the accused so far section 128 of the Railways Act is concerned, as this is the only section under which cognizance can be taken by this Court. Mr. Muhammad Ibrahim Memon, learned Special Public Prosecutor for the State has drawn my attention to the F.I.R. in which the Police have charged the accused with certain other sections of the Penal Code. I agree with the learned Special Public Prosecutor that these sections not being triable by this Court cannot be dealt with in these proceedings.

The accused is discharged so far as his prosecution under section 128 of the Railways Act is concerned. The bail bond of the accused also stands discharged.

S.A. Appeal accepted.

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