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Case No. S.K. 4 of 1979, decided on 15th June, 1987.

‑‑S. 126‑‑Attempt to wreck train‑‑None of eye‑witnesses produced nor the Station Master, who lodged first information report, named any accused or gave their description‑‑No identification parade held as it was not possible to identify any one of a big crowd that gathered at railway station and alleged to have thrown stones at train causing breakage of its window panes or participated in brickbatting‑‑One of witnesses produced introducing improvements in prosecution story through his statement in Court‑‑Element of malice not found from conduct or behaviour of any of members of crowd towards any of passengers as such main ingredient of S. 126, Railways Act remained unproved‑‑No Mashir was involved in whole prosecution story which was a ruling consideration for any criminal offence‑‑Held, all affair was only a mischief which could be punished, if at all, by other provisions or regulations of Railways Act but same could not be basis for prosecution under S. 126 or 127 of the said Act‑‑Accused acquitted in circumstances.

‑‑‑S. 126‑‑Attempt to wreck train‑‑Malice‑‑To prove an offence against accused under S. 126 of Act, prosecution has to establish that the acts of accused were malacious.

Hussain Shah Rashidi for Petitioners.

Date of hearing: 15th June, 1987.

The offence in this case relates to the area covered by the Kot‑Lalu Railway Station. On 5‑ 6‑ 1979 a rumour went around in that area that Miss Benazir Bhutto was passing from this Railway Station. A group of political workers and others rushed to the Railway Station to have a glimpse of their leader. Perhaps they were neither aware of the train by which their adored leader was travelling, nor of the time of passing of the train through this Station. Everybody present wanted to take a chance and try his luck. The crowd continued swelling and according to some witnesses upto 2,000 people gathered on this wayside Railway Station. They gazed on every approaching train. The first to arrive turned out to be a goods‑train. It was allowed to pass without any unhappy incident. Then "18‑Down" Tezrao showed up. As this Station was not scheduled stop of this train, the Station Master lowered the signal allowing the train to pass. Some of the enthusiast went to the signal Cabin and raised the signal up. The train stopped providing an opportunity to the enthusiasts to look for their leader by running around the train from compartment to compartment. The train was delayed by 20 minutes. Ultimately it was allowed to pass without any unpleasant incident. As the crowd had become unmanageable, the Station Master Mr. Ghulam Rasool informed the Police and a Police party headed by S.H.O. Ghulam Hussain arrived in the scene. It is unfortunate that the trouble shooters instead of being a little more tactful tried to be more loyal than the king: The police party consisted of S.H.O. Ghulam Hussain and three Constables. They were still taking the stock of the situation when "16‑DN" Karachi Express which was running late by one hour appeared at the outer signal at about 13‑05 p.m. As there was no scheduled stop of this train on this Station, the Station Master had given a clearance to this train to pass. But some of the members of the crowd again pulled up the signal and the train stopped somewhere between the outer‑signal and the Railway Station. Again the enthusiasts searched for their leader in this train and not finding any trace of her on that hot summer afternoon got so much disgusted and annoyed that they threw some brickbats at random which resulted in the breaking of some window panes, of the Air‑condition coach. Not finding the lady in the air‑condition Coach the crowd, allowed the train to pass without any further trouble.

2. It is not difficult to visualise that after their disappointment on two trains the crowd would have cooled and would have melted away after the "16‑DN" had left. It is alleged that as the crowd had become unruly the Police party wanted them to disperse immediately. S.H.O. Ghulam Hussain ordered firing in the air. Consequently one fire was shot in the air and the enthusiasts started running away. The overzealous Police party chased the mob and those who could run faster escaped but those who were left behind were apprehended by the three Policeman who were assisting the S.H.O. Ghulam Hussain. Each one of the three policemen has claimed a bag of two victims to his credit. P.W. Ghulam Ali claims to have arrested Mohammad Saleh and Lal Bux, P.W. Sain Bux claims to have arrested Ali Nawaz and Ghulam Abbas and P.W. Mohammad Aslam has arrested Din Mohammad and Ghulam Mohammad. After apprehending these six persons the police party retired to the Police Station. An F.I.R. was lodged by Ghulam Rasool. Inve3tigation was carried out by S.H.O. Ghulam Hussain. Six more were arrested and sent to Police Station.

3. The above is the gist of the prosecution case. The prosecution has examined Ghulam Rasool Station Master P.W.1, Ismail Pointsman P.W.2, Ghularn Qadir Pointsman P.W.7, Khadim Hussain Railway Cabinman P.W.8 Mohammad Raza Pointsman P.W.10, Mohammad Qasim Railway Engine Driver P.W.13, Muhammad Ashraf A.S.I. P.W. 3, Sain Bux Police Constable P.W. 4, Ghulam Ali Police Constable P.W. 5, Mohammad Aslam Police Constable P.W. 6 and Lal Jan Police Constable P.W.9. The main theme of the statement of each witness is that a .crowd between 1,000 and 2,000 persons had gathered at the Kottlalu Railway Station. The object was no other but to have a glimpse of Miss Benazir Bhutto. Some of the enthusiasts, who remain unnamed had downed the signal in order to stop the trains which had no scheduled stop at this Railway Station. Some others out of this huge crowd clue to disappointment and frustration on not finding her in the Air‑condition Coach showed their impatience and frenzy and threw some stones which caused damage to the window panes of the Air‑condition Coach. None of the witnesses states, who were the few enthusiasts, who actually threw stones causing breakage of the window panes. Station Master Ghulam Rasool, who has lodged the F.I.R., frankly admits in Court that he has not mentioned any name in his F.I.R., that no identification parade was held, that he could not give any description of the accused, that because there was a big crowd of 1,000 to 1,500 persons, it was not possible to identify any one or to give description of any person. Not only this, he was shown the accused in Court, but could not identify any one. The other witnesses also failed to mention the name of any of the accused, who may have caused any damage as alleged. None of the Police witnesses has specifically mentioned the name or identified any one of the accused, who may have manipulated with the signal or who may have participated in brickbatting on that day. It has also come in the evidence that on account of stone throwing a passenger travelling in the train was also hit and suffered injury, while the train was standing at the outer signal. But this story is belied by that injured person himself. Habib ur‑Rehman P.W.11 is that injured person and he has a different version of the incident. According to him, he was a hawker in Pudidan Railway Station and had entered in one of the compartments of this train to sell newspapers. A passenger purchased magazines worth Rs.25 and gave him a 100‑Rupee note. Before he could return the balance, the train started and he remained on board the train. According to him when the train reached Kot‑Lalu Railway Station he noticed a crowd of 4,000 to 5,000 people at the platform of this Railway Station. His story in his own words pluceeds as follows:‑

"I found a crowd of 4,0(0 to 5,000 people at the platform of this Station. They were raising slogans, but I cannot say what they were saying. The train left Kot‑Lalu Station for Daur. When the train was between Kot‑Lalu and Bandhi Railway Stations. some people started stoning the train. The train might have covered about 3‑4 miles from Kot‑Lalu when this incident took place. Due to the stoning the window s panes of the coach were broken and one of the window's panes hit my eyes. The train stopped at the next Station which was Daur, where Police had come and examined me. I was sent to Nawabshah Hospital for medical and treatment. I was treated as 'In‑door' patient for 10‑12 days. Police had also recorded my statement. I did not identify any of the persons who were involved in stoning the train:"

In cross‑examination this witness further clarifies by saying "I did not give description of any of the culprits in my statement under section 161, Cr.P.C. None of the culprits were paraded before me for identification. Re‑examination: Nil.

4. The statement of H.abib‑ur‑Rehman. the injured would disclose that the train did not at all stop at Kot‑Lalu Railway Station and whether has happened about 2 or 3 miles away from Kot‑Lalu Railway Station on the side of Bandhi. I would have taken it to be a lapse of memory on the part of this 25 years old Newspapers Hawker, but his version is supported by no less a person than the Engine Driver of the train P.W. 13 Mohammad Qassim son of Chotey Khan. His statement provides a very interesting reading and I would do well to reproduce the story in his own words. This is what he says:

"On 5‑6‑1979 I was on duty on Down Karachi Express. An accident hind taken place with this train at Kot‑Lalu Railway Station which is also called Bandhi Rly. Station, at about 2‑30 p.m. When the train entered the Yard of Bandhi Rly. Station, I found a large crowd or both the sides of the train. When the engine reached near the crowd, the people started pelting stones at the train. As the train was not supposed to stay at that station, hence I drove the train through the station towards the next destination but due to pelting of stones some coaches of the train were damaged." The witness now states that Kot‑Lalu and Bandhi are separate Railway Stations:' I had found the crowd at Kot‑Lalu Rly. Station where the crowd had damaged glass panes of the windows of the coaches by pelting stones, but I had taken the train through that station to reach Bandhi Rly. Station. I again found a huge crowd at Bandhi Rly. Station, where I was not supposed to stop the train but due to the crowd I had :topped the train. The crowd at Bandhi Rly Station also pelted stones at the Engine as well as the train. The glass panes of the Engine were also broken. Some of the pieces of glass had hit my face injuring me. After some time I and my Fireman found that the crowd was dispersing. Thereafter, I got clearance for departure of the train from the Station Master, and reached Nawabshah, Rly. Station, where the police had inspected the train and prepared memo. about the damage. Some broken pieces of glass panes of the windows of the Engine were produced by me before the Police. I did not see as to what damage was caused to other coaches of the train. Police had prepared such Mashirnama at Nawabshah which I had signed as Mashir. I produce it as Ex.44/A. Other Mashir was Ghulam Ghaus who had also signed it. I shall not be able to identify any of the persons who were in that crowd. or to persons who had pelted stones at the train.

Cross‑examination to Mr. Hussain Shah Rashdi Advocate for the accused.

I did not stop the train at Kot‑Lalu Rly. Station because the signal was of clearance. The signal did not appear to have been tempered with by any one at Kot‑Lalu Rly. Station. I had received minor injuries, therefore, I was not referred to Medical Officer for examination and treatment. I did not remember if any Mashirnama was prepared by the Police in respect of my injuries. No damage to the engine was caused at Kot‑Lalu Rly. Station. The glass panes of the windows of the engine were damaged at Bandhi Rly. Station. I did not see the damage, if any, caused to the coaches of that train. I cannot read Sindhi. Police had prepared Mashirnama and obtained my signature.

Re‑examination: Nil."

No explanation is forthcoming why P.W.11 and P.W.13, who are no strangers, or casual visitors or chance witnesses but are closely associated with the Railways are making such a diagonally opposed statement from other prosecution witnesses. It is beyond comprehension that an Engine Driver P.W.13 of 58 years of age, who is frequenting this track every day, should make a mistake by mentioning Bandhi Railway Station instead of Kot‑Lalu Railway Station or vice versa. Moreover there is no mention by any of the witnesses about any damage to the Railway Engine or to the person of this Engine Driver, but this witness introduces this improvement in the story through his statement in Court.

Giving all concessions to the prosecution the case revealed through these 14‑15 witnesses is nothing beyond this that a large crowd had gathered on the track between Kot‑Lalu and Daur Railway Stations. The main anxiety of each member of the crowd was to pay respects to their leader Miss Benazir Bhutto. They were not properly briefed either by the Railway Staff or by the Police party which reached the Kot‑Lalu Railway Station well in time about the correct position. They allowed the situation to get out of hand. The net outcome of all this is nothing more than this that the frustrated enthusiasts in a state of childish frenzy on the hot day of June threw a few stones opt the train because their hopes of finding their leader in this train remained unfulfilled since early hours of the day till late afternoon. The reaction to this kind of disappointment is noticed every day in our daily life when a telephone subscriber attempting to contact a desired number repeatedly connects a wrong number and hears unpleasant remarks from the farther end. In this state of frenzy he sometimes crashes the Receiver breaking the instrument; or a man waiting on a Bus‑Stand for a Bus of a particular route hangs on the Bus‑stand. Buses of all other routes except the desired route Bus pass in front of him. But his Bus does not show up for long hours keeping him boiling on the Bus‑stand. After long waiting this Bus arrives. This frustrated passenger might do anything to steam out his anger and fury. Some times he shouts unpallatable and pungent remarks on the Transport Authority and some times strikes his umbrella or walking stick on the bus which might cause a dent or some damage to the vehicle before him. Such and other similar instances which are the common day occurrence cannot and should not be condoned. But they do occur. The question arises whether the culprits should be treated to be terrorists and should be booked under the Suppression of Terrorists Activities Act or other suitable penalties provided under the Acts or regulations should be awarded to them for their unruly behaviour. To prove an offence under section 126 of the Railways Act under which accused have been charged, the prosecution has to establish that their acts were malicious'. The section postulates that if a person "unlawfully,' maliciously wrecking or attempting to wreck a train" does any of the acts detailed in the four sub‑clauses of the section, then he would be punished with a penalty of transportation for life or for imprisonment for a term which may extend to 10 years.

In my opinion no element of malice can be discern from the conduct or behaviour of any of the members of this crowd either towards Miss Benazir Bhutto or towards injured Habib‑ur‑Rehman or for that matter towards any of the passengers. As such the main ingredient of the Section remains unproved. Even otherwise there is no mens rea involved in the whole prosecution story which is always a ruling consideration for any criminal offence. At the most it is a case of mischief which may be punished, if at all, by other provisions or regulations of the Railways Act and cannot be basis for prosecution under section 126 or 127 of the Railways Act.

I would, therefore, acquit all these accused. They are already on bail. Their bail bonds stand discharged.

M.Y.H/M‑ 177/K Accused acquitted.

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