' AKHTAR ALI G. KAZI, J.--- Appellant Ahmed Hussain son of Aijaz Hussain, has been convicted by the learned Judge Special Court III (S.TA.), Karachi in Case No,401 of 1991, under section 126 of Railways Act and sentenced to undergo R.I. For four years vide his judgment, dated 14-1-1992 and this appeal has been filed against that judgment of conviction.
2. The brief facts as alleged by the prosecution are that on 4-7-1991, the appellant was working as A.S.M., Gilani Railway Station. On that day, communication system between Gilani Railway Station and Depot Hill Railway Station had failed. It is case of the prosecution that the appellant gave clearance to the driver and the guard of KCR-5 Up, with the result that KCR-5 Up and KCR-4 Down passenger trains met with head on collusion, between Railway Stations Gilani and Depot Hill. As a result of this incident two bogies of KCR-4 Down derailed and engines of both the trains were damaged. It is also alleged that about 20 persons including the drivers and firemen of both the trains were seriously injured. It is further alleged that the appellant wilfully and deliberately gave clearance, which resulted in the accident and caused huge loss to the railway department. This also resulted in injuries to the passengers and the staff of the railway department.
3. Charge was framed against the appellant for offence under section 126/101 of the Railways Act and section 333/338 of P.P.C. To which the appellant pleaded not guilty.
4. The prosecution examined P.W. Fahimuddin (Exh.3), who was at that time Station Master, Railway Station Gilani, P.W. Syed Masood Hyder (Exh.4), who was on duty at KCR-5 Up train, P.W. Amir Muhammad Malik (Exh.7) was A.M. Engineer of Railway Department, P.W. Abdul Razak (Exh.9) was working as Driver of 5-Up KCR, P.W. Moinul Haque (Exh.10) was working at that time as Inspector of works and was present at the place of incident and has acted as Mashir of Wardat, P.W. Abdul Sami (Exh.13) was driver of KCR-4 Down, P.W. Ghulam Nabi (Exh.16) was working as A.S.M. Depot Hill Station. P.W. Dr. Pritamdas (Exh.17), had examined injured persons P.W. Nasrullah (Exh.25) was working at that time as Chief Controller in Circular Railway, Karachi. P.W. Mazhar All (Exh.28) was on duty on the train. P.W. Niaz Ahmed was Assistant Sub-Inpector Police who recorded the First Information Report in this case. Sikandar Shah (Exh.33) was S.H.O. Who took over and conducted further investigation and finally P.W. Muhammad Rafique S.H.O., City Railway Police Station completed the remaining investigation.
5. It is the case of the prosecution that the communication system had failed between the two stations namely Gilani and Depot Hill and the trains were running on OP.128 and OP.129 with memorandum of messages. The prosecution witness Masood Hyder who was train guard in KCR-5 Up has stated that on 4-6-1991 he was on duty at KCR-5 Up and he proceeded on that day alongwith the train from Karachi City to Diigh Road via Circular Railway S.I.T.E. Nazimabad, Liaquatabad, Gulshan-e-Iqbal and Karachi University. When the train arrived at Gilani Railway Station had failed and there was no co-ordination between the Depot Hill Station and Gilani Railway Station. He has stated that he started the train at 6-16 a.m. From Railway Station Gilani and was given authority to do so by A.S.M. Ahmed Hussain (the appellant) and the memorandum was given to him and a message was passed to the driver. He has produced memorandum given by the appellant to him as (Each 5) He has also produced photostat copy of OP.128 as (Exh.6). He has further stated before the trial Court that on receiving this memorandum he started the train from Gilani to Depot Hill. But on the way at about 6-35 a.m. At signal KM 3/5 his train collided with another passenger train KCR-4 Down and as a consequence of this the engines of both the trains were damaged and some passengers sustained injuries. According to him the drivers and the firemen of both the trains also sustained injuries. He has further stated that two or three bogies derailed and as a consequence of that the railway property was damaged. The learned trial Court has relied upon (Exh.5) as main piece of evidence against the appellant. This document contains a message, which is reproduced per verbatim as under:-- "To ' I am started KCR-5 Up at OP.128 portion (B) page No,36579 due to all communication failed on arrival of KCR-5 Up at yours. You may be start any Down train. I cannot start any Up train."
Exh.6 is other document, which has been produced by the railway guard, regarding permission to proceed without line clear issued by the appellant. This contains some instructions to be followed in case, the communication fail between the railway stations. The other important witness of the prosecution namely, Muhammad Saleh has been examined by the prosecution as (Exh.16). He was working as A.S.M., Depot Hill Station on the day of incident. He has stated that on 4-7-1991 KCR-4 Down train started from Depot Hill Station at 6-30 a.m. He has further stated that at 5-50 a.m. KCR- 3 Up came to the Depot Hill Station and he received message (Exh.5). According to him it was written in this message by A.S.M. Gilani that KCR-3 Up was sent by the appellant and it was direction to him that if there is any train the track was clear for sending the other train on circular line towards Gilani Station. He has further stated on this clear signal received from the accused, he sent KCR-4 Down train, which proceeded towards Depot Hill Station. This train, according to him started at 6-30 a.m. And and he received information of the accident at 6-55 a.m. That an accident had taken place at 3/2 K.M. Stone. He has further stated that this accident took place on account of message contained in (Exh.5). According to him, had he not received this message, he would have not passed the train and the accident would have not taken place.
6. The trial Court Judge has also relied mainly on this piece of evidence. The contents of (Exh.5) clearly show that this message clearly indicated that the appellant had started KCR-5 Up on OP- 128 portion. He has further mentioned in this message that on arrival of KCR-5 Up at Depot Hill Station, any Down train may be started, as he will not start any Up train. In fact, this message has been sent through P.W. S. Zahoor Hyder who was the guard of KCR-5 UP train. Therefore, the question of sending this document by 3-Up as has been alleged by the prosecution does not arise.
The document speaks for itself, and it is clearly mentioned in it that he had cleared KCR-5 Up for proceeding towards Depot Hill Station. Even if, assuming for the sake of arguments, had this document been sent by 3 Up, 4 Down KCR should not have been allowed to proceed towards Gilani Railway Station.
7. It is contended by the learned counsel for the appellant that the contents of Exh.5 have not been properly understood by the prosecution witnesses and the learned trial Court has wrongly placed reliance on this document, for the purpose of convicting the appellant. He has further stated that as per the railway rules, certain instructions have to be followed by the drivers of the trains when a permission is granted on a single line to proceed without line clear. It appears that the instructions contained in Exh.6 have not been properly followed by the engine drivers, which has resulted in this accident.
8. We have gone through the record and proceedings of this case and also read the entire evidence. We have also gone through the judgment of the trial Court and we feel that on the basis of the evidence which has been produced by the prosecution, in this case no conviction cab be based on such evidence. We, therefore, allow the appeal and set aside the conviction and sentence. We had by a short order dated 12-5-1992 allowed the appeal and set aside the conviction and sentence of the appellant and ordered that the appellant be set at liberty forthwith if not required in any other case and these are the reasons for the same.