1. ' The applicant is facing trial under sections 304/227/338 and 279, P.P.C., read with section124-A of Railway Act, before the learned Sessions Judge, East Karachi.
2. ' The brief facts of the case are that on 21- 10- 1986, Mini Bus Mazda No, 353-090 entered into level crossing at gate No, 15 and collided with pilot engine. It was entangled with the buffer of the engine, and was dragged to a distance of about 400 ft. Similarly, another Mini Bus No,867- 941, on seeing the Mini Bus No, 353-090 entering the level crossing, also started and dislocated the chain from its drum, and collided with the above pilot engine in which 67 persons were injured, out of which 33 persons died. During, the investigation, it transpired That Mini Bus No 853-090 route No, D-1 and Mini Bus No, 867-941 route No, D-7 were parked/stopped at railway gate No, 15 facing towards Qaidabad. At about 12.42 noon, conductor Abdullah Khan of Mini Bus No 853-090 removed the chain of the gate, wherafter driver Zahid Khan entered into the gate with fast speed and thus the incident took place. The F.I.R. Was lodged by Laiq Ahmed Station Master Railway Station Landhi after receipt of information from a gateman.
3. ' That the owner of this Mini Bus bearing. No, 853-090 Habibullah had disclosed before the police the name of driver and conductor and the applicant was arrested.
4. ' I have heard Mr. Munawar Malik learned counsel for the applicant, Mr. Murtaza Hussain learned counsel appearing for the State, and have also gone through the police papers.
5. ' The contention of Mr. Munawar Malik is that the name of the applicant does not transpire in the F.I.R. That he was arrested on 11- 11- 1986.
6. ' That the applicant was merely a conductor, therefore, he cannot be made responsible for any act or omission of the driver who was driving the Mini Bus. That the offence, if any, will fall under section 304-A, P.P.C. Which of course is punishable with ten years, but since the schedule has not been amended the offence still remains bailable.
7. ' Mr. Murtaza Hussain, learned counsel for the State has contended that in this unfortunate incident 33 persons have lost their lives, in addition there to 34 persons were seriously injured. That the applicant was conductor of Mini Bus No, 853-090, and it was he who had removed the chains of the railway crossing without caring for the lives of the passengers, fully knowing that by this act, lives of the passengers were put in danger, and driver Zahid Khan entered into the gate with speed, and they were followed by another driver of another Mini Bus with the result that many persons lost their lives. According to him, P.W. Mst. Chand Tara and P.W. Basharat Ali have clearly stated that it was conductor of the Mini Bus route No, D/1 who opened the chains, and thereafter, the driver started the Mini Bus and tried to cross railway crossing.
8. I have considered the contentions of learned counsel for the-applicant as well for the State and have also gone through the police papers. The statement of Habibullah owner of Mini Bus shows that the applicant was the conductor of Mini Bus bearing No, 853-090 running on Route No, D/1.
9. P.Ws. Mohammad Farooq and Munir Iqbal have named the present applicant to be the conductor of Mini Bus No, 853-090 and this " position has not been controverted by the learned counsel for the applicant in bail application as well as in his arguments. The statements of Mst. Chand Tara, Basharat Ali and Nayyar Iqbal son of Gohar Ali clearly show that the conductor of Mini Bus of route No, D/1 opened the chain of the gate from Quaidabad side, and thereafter Mini Bus entered the gate with fast speed, which resulted in the present incident. The evidence of the gate-man Manawar Khan also shows that the present incident took place because the mini buses suddenly entered the gate.
10. ' In view of the above discussion, it is clear that it was the applicant who removed the chain of the gate by putting the lives of the passengers in danger, and the incident ultimately took 33 lives, and 34 persons were injured. I am, therefore, of the considered view that the applicant is not entitled to bail at this stage, and the application is accordingly, dismissed.
11. ' However, the applicant can repeat his bail application before the learned trial Judge after some material witnesses are examined in the case.