' Accused Muhammad Sachal and Shah Nawaz have been challaned by S.H.O. Railway Police Station Padidan under section 126 of Railway Act and 436, P.P.C.
2. Briefly stated the prosecution case is that on 20-8-1986 at about 11-50 a.m. Some miscreants set fire to the railway cabin on the up platform of Khairpur Railway Station. An alarm was raised by the cabin man and the persons present on the platform whereupon A.S.I. Muhammad Hussain, In charge of Khairpur Railway Police Post and the duty constable Nazir Hussain and A.S.M. Akber Ali reached there. Ali Akber and cabin man extinguished the fire while duty constable Nazir Hussain and P.Ws. Habib and Yousuf All chased the culprits and arrested present accused Muhammad Sachal and Shah Nawaz and produced them before the Investigating Officer A.S.I. Muhammad Hussin who was Incharge of Railway Police Post, Khairpur in presence of A.S.M. And other Railway Officers. A petrol can was also found near the cabin. The Investigating Officer arrested the accused.
He then inspected the scene of offence as well as the place where the culprits while being chased had fired shots at the pursuing party. The Station Master handed over a memo. To the A.S.I. Which he entered into Roznamcha at the police post. He then sent the memo. And Roznamcha to Railway Police Station Padidan for being incorporated in 154, Cr.P.C. Hook. He then made inquiries from the witnesses. Muhammad Iqbal S.H.O. Padidan .Came and verified the investigation and challaned the case as shown above.
3. A charge was framed against the accused under sections 436, P.P.C. And 126, Railways Act to which they pleaded not guilty and claimed to he tried. In, their statement under section 342, Cr.P.C.
The accused have denied to have set on fire the cabin. They have alleged that they are innocent and that they were caught by the police near Railway crossing gate and have been falsely implicated in this case.
4. Main points for determination in this case are:
(1) Whether the railway cabin was set on fire on 20-8-1986 as alleged
(2) Whether the present accused had committed mischief by explosive substance and set on fire the 'said railway cabin to cause destruction to the Railway or to endanger the safety of the railway passengers in railway trains.
5. My findings on these points are as follows:-
(1) Yes.
(2) Not proved. REASONS: POINT NO. 1: ' There is no dispute on this point. Even the accused have not denied that the railway cabin was set on fire. The prosecution has adduced abundant evidence oral as well as circumstantial to prove that on 20-8-1986 the signal cabin on the up plateform of Khairpur Railway Station was set on fire.
Statements of Muhammad Jorial, the cabinman Exh.4, Nazir Hussain duty constable Exh.8, Muhammad Hussain (A.S.I.), the Investigating Officer Exh.9 and Ali Akber A.S.M. On duty at the relevant time Exh.15 amply show that they had seen with their own eyes the signal cabin on fire.
Such Mashirnama was prepared by the A.S.I. Exh.6. The A.S.I. Also found a petrol can lying abandoned near the cabin, which he secured. The defence counsel had not cross-examined the witnesses regarding this aspect obviously because it was not challenged. Hence 11- no hesitation in holding this point in the affirmative.
6. POINT NO. 2: ' On this point the prosecution case was based on the evidence of constable Nazir Hussain and P.Ws. Habib and Yousuf who have been projected as eye-witnesses of the incident of setting fire to the cabin and who had chased the present accused and caught them and brought to the scene of offence and produced them before the A.S.I. Muhammad Hussain in presence of A.S.M. Ali Akbar.
P.W. Habib has been examined as Exh.7. He has given a go-by to the prosecution case and has resoled from his 161, Cr.P.C. Statement. He has stated that he had not chased the culprits nor anybody was arrested in his presence. He has exonerated both the accused. His 164, Cr.P.C.
Statement was not recorded by police. The learned S.P.P. Did not declare him hostile and did not cross-examine him obviously because of the absence of 164, Cr.P.C. Statement and any material to discredit his testimony.
7. P.W. Yousuf has not been examined nor any explanation has been given for his not having been put in the box. In any case the suppression of his evidence would raise the presumption against the prosecution in view of the settled law on this point. P.W. P.C. Nazir Hussain is the only witness who has given some evidence against the present accused. It will he useful to reproduce the actual words stated by him:- ''At about 11-55 a.m. When I was near the Musafirkhana lower class I heard commotion and noise. I rushed towards the scene of occurrence and noted that there was a fire. I approached nearer and found that the signal cabin was on fire I saw the two accused present in Court trying to escape from the scene of occurrence. I chased them. They started firing at me I also fired. Other passengers present on the platform also Helped me and I overpowered the two accused. Now adds that there were other persons with the accused present and they were firing at me. Those who were firing ran away and I arrested the two accused present in Court, who were running with them. Accused Muhammad Sachal had a petrol can in his possession at that time. I with the help of the public arrested the two accused and presented them before the Subedar who had arrived at the Railway Station from the Thana alongwith other policemen. The accused were then taken to the police station. The accused present in Court are identified by me."
8. From the above extract of evidence it is quite clear that Nazir Hussain has made three allegations against the accused which can, if believed, connect them with this crime. (i) That he had seen the accused trying to escape from the scene of offence. It may be pointed out that he did not state that he had seen the accused setting fire to the cabin. The mere fact that the accused had tried to escape from the scene of offence cannot incriminate them. The platform is a public place and the presence of the accused at the platform cannot incriminate them. Similarly their leaving the scene of offence cannot raise any adverse inference against them because whenever there is fire at any place the natural conduct of the persons present there can be of escaping from there to a place of safety. (ii) The second thing that has been stated by Nazir Hussain is that when he chased the culprits they started firing at him. But in the same breath he has added that there were other persons with accused who were firing at him and who had run away. By that he has implied that the present accused had not fired at him. This also gets support from the fact that no fire-arm has been secured from the possession of anyone of these two accused. It on the contrary suggests that those persons who had fired at the constable and had made good their escape were perhaps the real culprits and not the present accused who have been caught by the police constable. (iii) The third thing that is stated by Nazir Hussain is that accused Muhammad Sachal had a petrol can in his possession at that time. This is falsified by the Investigating Officer who has stated that the petrol can was found lying at the cabin. It is, therefore, quite clear that the evidence of Nazir Hussain does not in any way incriminate anyone of these two accused.
9. A.S.I. Muhammad Hussain was the Investigating Officer. His evidence in connecting the present accused with this crime is of a secondary nature. He has stated that the present two accused were produced before him by constable Nazir Hussain. Constable Nazir. Hussain is said to have stated to A.S.I. Muhammad Hussain that these were the persons who had set fire to the cabin but the evidence of Muhammad Hussain A.S.I. Carries no weight in view of the fact that P.C. Nazir Hussain did not claim to have seen these accused setting on fire the cabin or to have stated to the A.S.I.
That he had seen the accused setting fire to the cabin. Similarly the statement of the A.S.I. That Nazir Hussain told him, that the accused were carrying petrol can with them and had set fire to the cabin with that petrol, is inadmissible because P.C. Nazir Hussain had not made any such statement before the A.S.I. In his cross-examination it is admitted that P.C. Nazir Hussain had not stated in his 161, Cr.P.C. Statement that the accused had been caught alongwith a petrol can by P.C.
Nazir Hussain A.S.I. Ali Akber Exh.15 has also given similar evidence as that of Muhammad Hussain A.S.I. And does not incriminate the accused in the least. I am, therefore, satisfied that the prosecution has failed to prove the guilt of the accused.
10. I, therefore, hold both the accused not guilty and acquit them of thelc above charge. The accused are on bail. Their bail bonds are discharged.