' ANWAR ZAHEER JAMALI, J.---The appellants Zahoor Ahmed, Rafiq Ahmed and Inayatullah have preferred this appeal under section 7 of the Suppression of the Terrorist Activities (Special Courts)
Act, 1975 read with section 410, Cr.P.C. Against the judgment, dated 3-5-1995 passed by the Special Judge (Suppression of Terrorist Activities) Sukkur Division at Khairpur (hereinafter referred as trial Court) whereby each one of them, being found guilty was convicted and awarded life imprisonment under section 126 of the Railway Act (hereinafter referred as the Act) and two years imprisonment under section 128 of the Act. Ghulam Muhammad son of Allah Rakhio, the fourth accused of this crime, was however, acquitted and no appeal against his acquittal has been preferred by the State.
2. Briefly the prosecution case as narrated in the F.I.R. Of Crime No,2 of 1990 Police Station Railway Police Rohri is that complainant Choudhary Sardar Ahmed, Chief Controller Pakistan Railway Sukkur, on 4-1-1990. At 0-30 hours lodged complaint that on verbal information received at Sukkur Controller Office at 23.35 hours on 3-1-1990 though Station Master Sangi, the Driver of 26 down Bahauddin Zakiria Express shot-up and dashed with Down Larkana . Empty Special standing on down main line resulting the engine and five coaches of said train capsized, blocking both up and down lines. Number of injured persons and casualties are still awaited, from the site of the accident, four ambulances of the Edhi and four ambulances of Military Hospital Pano Akil accompanied by Col. Asif with medical staff rushed the site of the accident. Rohri Relief train with medical van left Rohri Station at 045 hours, accompanied by M.O ROH, M.O., Suldcur Dev-HI, ATO-III, DME, AME-I Station Master, Head Train Examiner Rohri Permanent Way Inspector with gangemen and station vendors further details follow:
3. On submission of challan before the trial Court charge was framed against the appellants on 26th November, 1990 and thereafter, amended charge was framed on 17-9-1991, to which the accused persons pleaded not guilty and claimed to be tried.
4. The prosecution in order to prove their case examined several witnesses, who also produced documents as detailed below:--
(i) P.W.1 Adam Ali as Exh.3, Police Constable posted at Sangi Railway Station at the relevant time who had witnessed the incident..
(ii) P.W.2 Sardar Ali as Exh.4, the Ex- Station Master of Sangi Railway Station, who had left the charge on 3-1-1998 at 6-00 p.m. He produced the copy of telegram as Exh.4/A
(iii) P.W.3 Bashir Ahmed as Exh.5, A.S.-I. Of Railway Police Post at Police Station, Rohri. He had acted as one of the Mashir of Wardat along with the Mashir Mukatiar Ahmed. He produced such Mashimama as Exh.5-A.
(iv) P.W.4 Taj Muhammad Exh.6 Driver of Down Larlcana Special. He produced his statement, dated 9-1-1990 as Exh.6-A.
(v) P.W.5 Ghulam Muhammad as Exh.7, S.H.O. Rohri Police Station and he produced the Mashimama of arrest of accused Inayatullah as Exh.7-A.
(vi) P.W.6 Zafar Iqbal as Exh.8, Chief Controller Pakistan Railways, he produced copy of telegram as Exh.&-A.
(vii) P.W.7 Safdar Hussain as Exh.9, S.H.O. Railway Police posted at Police Station Railway, Rohri at the relevant time, he produced the list of injured persons as Exh.9/A-1 to Exh.9/A-5, three lists of dead bodies as Exh.9/B-1 to 9/B-3, Mashimama of arrest of accused Zahoor Ahmad as Exh.9/A (actually marked as 9/C) Mashimama of arrest of accused Ghulam Muhammad as Exh.10/A (actually marks as 10/D).
(viii) P.W.8 Muhammad Iqbal as Exh.10, H.0 Railway Police Station Rohri, he was one of the Mashir of arrest of accused Rafiq alongwith other Mashir P.0 Muhammad,. Arshad and he produced such Mashimama as Exh.10/A.
(ix) P.W.9 Piyara Masih as Exh.12, Engine Driver of ill-fated 26-Down Bahauddin Zakaria Express.
(x) P.W.10 Muhammad Attaulhh as E-th.13, Divisional Signal Engineer at the relevant time posted at Sukkur, who produced documents as Exhs.13/A-1 to 13/A-9.
(xi) (xi)P.W.11 Khadim Hussain as Exh.14, A.S.-1. Railway Police who had arrested accused Rafiq Ahmed.
(xii) (xii)P.W.12 Nazir Ahmad as Exh.16, Railway Gate-man at Sangi Railway Station at relevant time.
(xiii) (xiii)P.W.13 Moula Dino as Exh.17, Railway Gatekeeper of the south railway gate Sangi Railway Station at the relevant time.
(xiv) P.W.14 Muhammad Ismail as Exh.19, Fire man Railway who was posted with goods train Down Larkana.
(xv) P.W.14/A Anwarul Hassan as Exh.21, Assistant Mechanical Engineer Railway at Sukkur, who reached at Sangi Railway Station with the relief train. He produced his statement under section 161, Cr.P.C. As Exh.21-A.
(xvi) P.W.15 Muzafar Khan as Exh.22, Head Constable Railway Police Rohri, who had recorded message of the control room railway ;Ti 154, Cr.P.C. Book. He produced the same as Exh.22/A.
(xvii) P.W.16 Javed Iqbal as Exh.23, Divisional Engineer Railway who was Incharge of Khanpur Rohri Section at the relevant time. He produced certificate of cost of track damages at Sangi Railway Station as Exh.23/A.
(xviii) P.W.17 Abdul Razzak as Exh.25. He was serving with Pakistan Railways as Federal Government Inspector Railways at the relevant time and was appointed by the Chairman/Secretary Railways to hold an enquiry about the accident and submit such report. He produced his report as Exh.25-A which also contained documents Appendix "A" to Appendix "H"
(xix) P.W.18 Mir Baz as Exh.26, D.S.P. Pakistan Railways. He had reached along with his subordinate staff at Sangi Police Station at 00-30 hours on 4-1-1990. He produced documents as Exh.26/A Diagram of Sangi Station and also other documents as Exhs.26/Bl, 26/B2 and 26/B-3 showing the damage sustained by the Railway Department as a result of this accident.
(xx) P.W.19 Rehmatullah as Exh.28, Special Magistrate Sukkur Municipality, he had recorded the confessional statement under section 164, Cr.P.C. Of accused Zahoor Ahmed, Rafique Ahmed, Inayatullah and Ghulam Muhammed. He produced the same as Exh.28/A to Exh.28/D.
(xxi) P.W.20 Mahboob Alam as Exh.29, S.H.O. Railway Police Station Rohri, he had submitted the final challan of this case in Court on 25-5-1990. He produced the report of commission headed by Justice Doctor Tanzil-ur-Rehman as Exh.29/A.
(xxii) P.W.21 Ali Akbar as Exh.32, an employee of Pakistan Railways, he was posted as point-man and was available at Sangi Railway Station at the relevant time.
(xxiii) P.W.22 Javed Iqbal as Exh.33, an employee of Pakistan Railways, he produced relevant entries in the register as Exh.33/A and Exh.33/B.
5. The appellants in their statements under section 342, Cr.P.C. Recorded on 29-3-1992, admitted the case of prosecution to the extent that at the relevant time they were on their respective duties at Sangi Railway Station, however, they denied the responsibility of such accident on them. The appellant Zahoor Ahmed in his statement under section 342, Cr.P.C. Also produced photo copies of certain Railway rules and time table which were exhibited as Exhs.34/A and 34/B. None of the appellants opted to lead any evidence on oath to disproof the allegations against them or to examine himself on oath for this purpose.
6. On 22-4-1993 the learned State counsel moved an application (Exh.38) before the trial Court with a prayer that the site of Railway Station may be inspected by the Court to follow the operational system of signals to which the learned counsel for the accused raised no objection and, thus, the said application was allowed by a consent order of the same date, and in presence' of A.P.P, learned counsel for the accused and concerned staff of Railway site was visited by the trial Court on 11-8-1993. Such inspection notes are available on Court file as Exh.39.
7. At the time of passing of the impugned judgment, dated 3-5-1995 the trial Court framed two points for determination in the case and after examining the evidence adduced by the prosecution and other material placed on the record, and for the reasons recorded therein the trial Court found the appellants guilty for offence punishable under sections 126 and 128 of the Act and awarded them conviction of life imprisonment and imprisonment for two years. Both sentences to run concurrently. The fourth accused Ghulam Muhammad was not found guilty by the trial Court and, thus, he was acquitted.
8. We have heard Mr. Rasool Bux Palejo for appellant No,1 Zahoor Ahmed, Mr. M.A. Rasheed for appellants Nos.2 and 3 Rafiq Ahmed and Inaytullah and Mr. Sher Muhammad Shar A.A.-G. For the State.
9. At the outset Mr. Palejo contended that according to the case of the prosecution at the most an offence under section 101 of Railways Act was made out against the appellants and hence the S.T.A.
Court had not jurisdiction in the matter. After having taken us through the whole evidence he next contended that according to the evidence adduced by the prosecution at best a case of mere negligence was made out against the appellants as prosecution has failed to show any mens rea (guilty mind) in the acts on omissions of the appellants resulting in this tragic accident and unless guilty mind of the accused and their intention to commit the offence was established mere negligence was no offence and hence the prosecution has failed to establish any case for conviction on the accused under sections 126 and 128 of the Act. In this context the learned counsel also referred to page 6 of the report of commission, (Exh.29/A) which ruled out any possibility of sabotage and at page . 22 concluded that it was due to the negligence on the railway staff that such accident occurred The learned counsel in this regard also contended that the accident mainly occurred due to over speeding of 26 Down Bahauddin Zakaria Express but this aspect of the case was ignored by the trial Court. The learned counsel lastly contended that to constitute crime three ingredients viz intention preparation and attempt must co-exist and in case any of these ingredients are missing not offence could be attributed to accused persons. To support his above contention the learned counsel first referred to section 101, 126, 127 and 128 of the Railways he also referred to legal maxim "Actus non facit reum, nisi mens sit rea" and its commentary from the book interpretation of Statute by Bindra Page 125 and then relied on the case-law reported as Kazim Raza v. The State 1986 MLD 2624, Muhammad Ashraf v. The State PLD 1978 Lah. 1087, Muhammad Siddique and 28 others v. The State 1987 PCr.LJ 2051, State Bank of Pakistan v. Pervaiz Alam 1992 PCr.LJ 2016, Jahanara Khatun and others v. The State PLD 1967 Dacca 704, Syed Abul A'ala Maududi v. (1) The State Bank of Pakistan and (2) The Central Government of Pakistan PLD 1969 Lah. 908 and Additional Advocate-General and P.P West Pakistan at Karachi v. (1) Muhammad Bashir Khan and
(2) Abdul Rahim PLD 1959 (W.P.) Kar.
312.
10. Mr. M.A. Rasheed, the learned counsel for the appellants Nos.2 and 3 adopted the arguments of Mr. Palejo, however, he further made reference to the report of the commission Exh.29/A to support and distinguish the case of the appellants Nos.2 and 3 from the case of appellant Zahoor and submitted that at the most the case of the appellant No,1 Zahoor Ahmed was covered by section 126 of the Act while the case of the other two appellants Nos.2 and 3 was clearly out of the purview of section 126 of the Act and was covered only by sections 101 and 128 of the Act. In this context he also referred to the cross-examination of P.W.4 Zafar Iqbal (Exh.6) and deposition of other prosecution witness P.W.6 Taj Muhammad (Exh.8).
11. Mr. Sher Muhammad Shar, the learned A.A.-G at the out set of his arguments submitted that this tragic accident resulted in loss of 238 precious lives of innocent passengers of 26 Down Bahauddin Zakria Express, injuries to 340 other passengers and financial loss in the shape of damages in the sum of Rs,2,13,52,000 to Pakistan Railways. From the report of the commission Exh.29/A, from the report of expert as Exh.25/A, from the confessional statements of the appellants, and also from the evidence of other prosecution witnesses examined in this case and other material placed before the trial Court the offence under sections 126 and 128 of the Act was fully established and proved against the appellants and thus, the trial Court has rightly awarded them conviction. The learned A.A.-G. Further argued that the report of the commission (Exh.29/A) is a material piece of evidence and can be fully relied as the same was prepared by a commission headed by a Senior Judge of the High Court and produced in Court without any objection from the defence side and its authenticity and genuineness is beyond any doubt. He referred to various portions at pages 14 to 22 of this report to show that even the appellants themselves had fully admitted their guilt before the commission. By reading certain passages from page 23 of this report the learned A.A.-G.
Attempted to show that the inter-locked standard-III Mechanical signaling system available at Sangi Station was a fool proof system for allowing entry to a train on line at the Railway Station and it was only due to the intentional acts and omissions of the appellants with their guilty mind that this accident occurred and all precautionary and safety steps provided in the system were frustrated. The leaned A.A.-G. Also referred the confessional statement of accused Rafiq Ahmed as Exh.28/B and also Exh.13-A/1 to Exh.13-A/9 to show tampering and false entries in the relevant record which were not possible unless the acts and omissions were intentional and with guilty mind. Lastly the learned A.A.-G. Conceded that case of appellants Nos.2 and 3 was only covered by sections 101 and 128 of the Act and not by section 126 of the Act and therefore, their conviction under section 126 of the Act may be set aside.
12. Mr. Palejo in reply to these submissions of the learned A.A.-G. Strongly objected to the admissibility and any reference to the Commission's Report Exh.29/A and submitted that though this report was brought on record without any objection from the defence side but still it has no evidentary or legal value and thus, the same cannot be referred or relied by the prosecution, however, he further submitted that as this report was produced by the prosecution, therefore, the appellants can avail any possible benefit out of it, with reference to the confessional statement under section 164, Cr.P.C. Of the appellants, the learned counsel contended that the same cannot be relied by the Court to sustain the conviction awarded to the appellants, however, he was unable to point out any legal infirmity in these statements.
13. We have considered the arguments advanced by the learned counsel for the appellants as well as of the learned A.A.-G. And also perused the material placed before us-.
14. To examine the first contention of Mr. Palejo that at the most offence under section 101 of the Act was made out against the appellants and hence S.T.A Court had no jurisdiction in the matter.
Suffice to say that the offence for which the appellants were charged was fully covered by sections 126 and 128 of the Act, which was a scheduled offence exclusively triable by a Court established under the Suppression of Terrorist Activities (Special Courts) Act, 1975 and hence the appellants were rightly challaned before the said Court having jurisdiction in the matter.
15. To examine the next contention- of Mr. Palejo that it was a case of mere negligence and that there was no guilty mind of the appellants behind this accident, therefore, no offence was committed by them. It will be pertinent that before screening the prosecution evidence in this context and to assess that how for and to what extent and manner such procedure was followed by each of the appellants in performance of their respective duties and as a .Result of whose fault the accident occurred or whether it was a mere case-of negligence of appellants with no guilty mind behind it the procedure and the working of the signal systems which was to be followed by the railway staff for the purpose of receiving a train to enter at some particular line of the Sanghi Railway Station may be examined. In this regard benefit can be had from the site inspection notes of the Presiding Officer of the trial Court, dated 11-8-1993 (Exh.39) which were prepared by him with the technical assistance of Divisional Transport Officer, Divisional Signal Engineer, other concerned staff of Pakistan Railway and also in presence of A.P.P. And counsel for the accused. Apart from it the report (Exh.25/A), wherein at pages 28 to 35 the author of the report P.W.17 Abdul Razak has minutely incorporated the whole procedure, and also the report of the commission Exh.29/A (page 23) are relevant for this purpose. In all these documents working system of signals and system of receiving a train at Sangi Railway Station has been discussed in detail. From the perusal of this material it is clear that system available at Sangi Railway Station was fool proof system, it was in proper working condition and was effectively connected/linked with telephone and microwave communication system with both side Railway Stations.
16. Reverting to the other prosecution evidence about the role of the appellants at the time of incident reference may be made to the .Evidence of P.W. Zafar Iqbal (Exh.8), P.W. Piyara Mashi (Exh.12), P.W. Muhammad Attaullah (Exh.13), P.W. Moula Dino (Exh.17) P.W. Anwarul Hassan (Exh.21), all these witnesses in their evidence have categorically stated about the acts and omissions of the appellants and their negligence resulting in this disastrous accident. In addition to this the two voluminous and exhaustive Exh.25/A and Exh.39/A also speak volumes about the acts, omissions and negligence of the appellants and their responsibility towards this incident. Thtus, from the perusal of these pieces of evidence and the other material available on the trial Court record, it is clear that for completing the process of allowing a train to enter at the Sangi Railway Station a team work was needed and things were to be performed in sequence by many persons specially the Station Master/Assistant Station Master and the cabinmen. In the irritant case each one of the appellants participated in the act of receiving 26 Down liahauddin Zakria Express at line No,3 knowing it very well that already Larkana Down Special train was available at line No,3 of the station. They gave clearance to the ill-iated train for the same line and lowered signal for this purpose. Not only this but after the accident attempt was made by them to manipulate the relevant record, which fact is also established from the evidence of prosecution witnesses as well as from page-55 of the Report Exh.25-A and also pages 17 and 18 of the Commission Report Ddi.29- A. Obviously all this could have not been done without intention and without guilty mind of the appellants. There is also sufficient evidence available on record which indicates that tail lamp of Larkana Down Special was not letting up and such information was conveyed to appellant No,1 but no care or caution was taken by shim in this regard. From the evidence of the prosecution witnesses it is also established that the signal system available at Sangi Railway Station was a system requiring physical and mental involvement of the appellants with necessary check and countercheck system to avoid any risk of accident but all this was frustrated by the appellants with their acts and omissions which cannot be termed as a case of mere negligence.
17. The contention of the learned counsel that the Report of the Commission Exh.29/A cannot be looked into for any purpose may have some legal force but at the same time this report cannot be brushed aside as a waste piece, of paper for the reason that at the time when it was produced in Court no objection was raised from the defence side and further authenticity of this report has not been questioned by any one. The other contention of Mr. Palego that the trial Court has not considered the possibility of accident due to the negligence of driver of 26 Down Bahauddin Zakria Express has also no force. As there is ample evidence on record to show that at the time of accident the train was within the prescribed speed limits. Not only this but the engine of the train was also equipped with an automatic mechanical device to check crossing of maximum speed limit. Reference in this regard may be made to page 60 of report Exh.25/A, pages 15 and 16 of report Exh.29/A and evidence of other prosecution witnesses examined before the trial Court.
18. The contention of Mr. M.A. Rashid the learned counsel for appellants Nos.2 and 3 that the case of the appellants was distinguishable from the case of the appellant No,1 and that they were only liable to be punished for offence under sections 101 and 128 of the Act has no force, in this regard we are also unable to subscribe to the concession extended by thee learned A.A.-G. In favour of the appellants Nos.2 and 3. The perusal of the evidence adduced by the prosecution in this case makes it crystal clear that these two appellants were not expected to work in a mechanical manner at the dictate or directions of the appellant No,1 but they had their independent physical and mental role and responsibility in the whole process, which they had failed to perform properly.
This position is confirmed from the report of the P.W.17 Abdul Razzak (Exh.25). He in Chapter-IV pages 63 to 65 of his report has elaborately discussed the role and negligence of the appellants with reference to the relevant rules. In addition to this the conclusion of commission about fixing the responsibility of this accident, at pages 26 and 27 of the report Exh.29/A, is also relevant for this purpose the same is reproduced as under:-
(i) Mr. Zahoor Ahmed, Relieving Station Master Sangi is mainly responsible for the collision. He could arrange run through of 26 Down Bahauddin Zakaria Express from the vacant line which was the available i,e,, Down Loop Line No,4. Zahoor Ahmed gave wrong Slot for the down Main Line No, III, which was already occupied. It happened due to his failure to perform his duties properly as he failed to ensure that the line selected for passage of 26 Down was clear of any obstruction and that the signal of correct line were lowered for its passage. Moreover, the private number supposed to be exchanged for reception of train between him and the Cabinman after setting the required route before arrival of train, were exchanged after the occurrence of the accident and that the same were shown at exchanged for line No,IV in Cabinman's Register, whereas overwriting in. His private Register number exchange clearly indicates that the reception of 26 Down Zakria Express was arranged wrongly on Down Main Line No,II1 instead of Down Loop Line No,4 Furthermore, from the evidence of Rafiq Ahmed, North Cabinman (W.2) and Attaullah, Divisional Signal Engineer (W.15) it has also come in evidence that after the accident had taken place the Relieving Station Master, Zahoor Ahmed tried to temper with the private Register number by overwriting at Main Line No,IV in place of Down Main Line No, III which was already written by him in the Register.
Furthermore, he also asked Rafiq Ahmed, North Cabinman to change the interlocking position by unlocking the face point lock-bar, but the interlocking position could not be changed as the load of 26 Down on the line prevented the operation of locking-bar.
(ii) Cabinman on South, Mr. Inayatullah is also responsible for setting route of 26 Down via Down Main Line No,III already occupied by Down Larkana Goods Train, without exchanging the private number and accepting wrong slot of Relieving Station Master for lowering of signals for Main Line No, III, which was further conveyed by him to cabinman North Mr. Rafiq Ahmad. Had he pointed out the mistake of Relieving Statior 'laster, the terrible collision of 26 Down could have been averted.
(iii) Cabinman, North, Mr. Rafiq Ahmed is also responsible for setting and locking the points of already occupied line No,3 as indicated by position of levers without exchanging private number and accepting wrong slot for lowering of signals. Had he been vigilant, he could have averted the precious lives and huge financial losses by pointing out the mistake of Relieving Station Master and South Cabinman. Both the Cabinmen in collusion with the Relieving Station Master tried to conceal their mistake by writing loop line No,4 in their private number Register, after the accident, which was contrary to fact, as the points and interlock bars were found set for Main Line No,3.
' It, therefore, seems evident that the Relieving Station Master and the two Cabinmen violated G.R- 31(b), which reads that- "Signals shall not taken 'off' for a running train until the following provisions have been complied with--
(i) the line over which the train is to pass is clear and free from obstructions:"
19. Thus, from the evidence of the prosecution witnesses and other material placed on record it is clear that the appellants Nos. 2 and 3 were also guilty for offence punishable under section 126 of the Act.
20. The case-law referred by the learned counsel for the appellants is on different premises and has no relevancy to the facts and circumstances of this case.
21. Besides, there are also confessional statements of all the three appellants on record wherein they have clearly admitted their guilt resulting in this accident. Similar admissions about their guilt made by these appellants have also been discussed in the Report of the Commission Exh.29/A.
22. From the above discussion we have reached to the conclusion that the tragic accident of 26- Down Bahauddin Zakria Express occurred due to the intentional acts, omissions and negligence of the appellants. The judgment of the trial Court is based on proper appreciation of evidence, it covers each and every material aspect of the case, the trial Court has rightly held the appellants guilty for the offences under sections 126 and 128 of the Act. Considering the facts that due to this accident valueable lives of 238 passengers of 26-Down Bahauddin Zakria Express were lost, injuries were caused to 340 other passengers and financial loss estimated in the sum of Rs,2,13,52,000 was caused to Pakistan Railways in the shape of damages, the trial Court was justified in awarding maximum sentence to the appellants. The judgment of the trial Court, thus, needs no interference, the same is maintained and this appeal is accordingly dismissed. However, as the appellants, during the course of proceeding before the trial Court have remained in custody for certain period, the benefit of section 382-B, Cr.P.C. Is extended to them,