' According to the prosecution, the brief facts of the case are that on 14-8-1974, when Shaheen Express (9-UP) after crossing Sangla Hill Railway Station at 9-33 a. m., reached at a distance of about one and a half miles from that Railway Station, it was stopped by Khalil Key-man P. W. Near Mile Stone No, 134/8. The Key-man informed Abdul Majid Rahi, Railway Guard of the train, that 18 fish-plates with bolts had been removed from the railway track in-between Mile Stones Nos. 134/10 to 134/13. The Railway Guard inspected the spot and found 18 fish-plates with bolts missing. He got the fish-plates from the back side of the train removed and put them at the missing places and thereafter the train was allowed to pass from that spot at a very low speed. On reaching next Railway Station, Marh Baluchan, the Railway Guard sent the following Memo. Exh. PA/1 to Muhammad Hussain, Station Master (C. W. 1) who further conveyed the same to the S. H.
0., Police, Station, Sangla Hill (Exh. P. AM:- "No, 44R/74. Train stopped by keyman Khalil by showing Red Hand Signal at Mile No, 134/8 and informed that 18 fish-plates with bolts are missing between Miles Nos. 134/10 to 134/13. Train passed and piloted by keyman Khalil and Inayat Gangman. Wire issue to all concerned for necessary action.
Abdul Majid Rahi, I/C Guard 9-UP, Dated 14-8-1974."
' On the receipt of the said message A. S. I. Muhammad Ibrahim P. W. Recorded the formal F. I. R.
(Exh. PA/3) and reached the spot at 12-15 p. m. On the same day. He prepared rough plan (Exh. P. E) of the spot and handed over the investigation to the S. H.
0. Who further on 18-8-1974, entrusted the same to A. S. Muhammad Rafiq P. W. Of C. I. A. Staff, Sheikhupura, Saddar. He arrested Muhammad Ashraf appellant on 2-10-1974. The appellant pointed out the place of occurrence and the Investigating Officer prepared Memo. Exh. P. B. He further led the police to his shop situated in village Maloowal and after opening the lock of the shop with key, produced ten fish-plates (Exhs. P. 1 to P. 10) from there. These fish-plates were taken into possession vide Memo. Exh. P. C. Khalil, Hadyat and Fateh Din P. Ws. Identified these fish-plates as belonging to the Railway Department. Initially on 18-1-1975, the police submitted the challan before the Magistrate under section 126(b) of the Railways Act and section 379, P. P. C. The Magistrate took cognizance of the case, enlarged the accused on bail and also recorded the statements of some witnesses. Subsequently, the case was entrusted to the Special Court constituted under the Suppression of Terrorist Activities (Special Courts) Act, 1975. The trial was conducted by Mr. Justice Gulbaz Khan who was notified as Special Court under the said Act. The Special Court summoned the accused for 29-8-1975. He appeared in person on that day as he was already on bail. The accused was unable to engage a counsel at his expenses. He requested the Special Court to engage a counsel at State expense. Accordingly, Kh. Shaukat Ali, Advocate was engaged as defence counsel at State expense. The case was adjourned to 8-9-1975 to record the statements of the prosecution witnesses. The appellant again appeared before the Special Court on 8-9-1975 but the statements of prosecution witnesses could not be recorded. Subsequently the accused in spite of personal service, did not attend the Court. Accordingly, his bail was cancelled on 27-10- 1975 and non-bailable warrants of arrest were issued. Sultan Muhammad Detective Foot Constable made a report that the whereabouts of the accused could hot be ascertained as he had left for some unknown place after quarrelling with his brothers and beside he was mentally deranged. The Special Court therefore started the trial in the absence of the accused under section 5(4)(a) of the Suppression of Terrorist Activities (Special Courts) Act, 1975. Even the accusation could not be put to the accused as he was not present and the counsel for the accused was unable to reply the same in the absence of instructions from his client. The prosecution produced seven witnesses in support of its case. On the written request of the Special Public Prosecutor the Special Court also recorded the statement of Muhammad Hussain, Station Master, as Court Witness under section 540, Cr. P. C. The learned trial Judge after accepting the prosecution evidence vide impugned judgment dated 4-12-1975, found the appellant guilty under section 126(h) of the Railways Act, 1890, and sentenced him to transportation for life. It is an admitted fact that subsequently after the announcement of judgment the appellant was apprehended and at present he is in jail undergoing his imprisonmeat. He has challenged his conviction and sentence through the present appeal under section 7 of the Suppression of Terrorist Activities (Special Courts) Act, 1975.
2. The accusation recorded against Muhammad Ashraf appellant in his absence on 2-12-1975 was that on or about 14-8-1974, he removed 18 fish-plates and bolts from railway track belonging to the Railway Department, between Miles Nos. 134/10 to 13443 near Railway Station Marh Baluchan, with intent or knowledge that he was likely to endanger the safety of any person travelling or being upon the railway and out of 18 fish-plates and bolts, he produced 10 fish-plates from his shop situated in village Maloowal on 2-10-1974 and thereby committed an offence under section 126(b) of the Railways Act, 1890. Clause (b) of section 126 of the Railways Act, is reproduced below- "126. Maliciously wrecking or attempting to wreck a train.-If a person unlawfully- (a)
(b) takes up, removes, loosens or displaces any rail, sleeper or other matter or thing belonging to any railway ; or (c)
(d)
(e) ' with intent, or with knowledge that he is likely, to endanger the safety of any person travelling or being upon the railway, he shall be punished with transportation for life or with imprisonment for a term which may extend to ten years."
3. A mere perusal of the above-quoted section shows that before securing conviction against the appellant, the prosecution was required to prove that the appellant not only removed the said 18 fish-plates but he did so with particular intent or knowledge that thereby he would endanger the safety of persons travelling by train on that track. In other words, in addition to the actual removal of the said fish-plates, the prosecution had to prove the requisite intent or knowledge on the part of the appellant that thereby he was likely to endanger the safety of any person or persons travelling on that track. Mere removal of the said fish-plates would not be sufficient to prove the guilt of the appellant under clause (b) of section 126 of the Railways Act, 1890 unless the prosecution further proves by evidence, direct or circumstantial, that the appellant did so with the intent or knowledge that he was likely to endanger the safety of persons travelling by train on that track. Thus in addition to the actual removal of the said fish-plates, such intent or knowledge on the part of the accused is an important ingredient of section 126 of the Railways Act. The ultimate aim of the accused to commit such offence under the said clause of section 126 is to commit an act of sabotage or subversion resulting in derailment of the train and thereby endangering the safety of the persons travelling in the train on that track. A person accused for an offence under section 126(b) of the Railways Act will not be interested in mere removal of such fish-plates and carrying them away but his main object would be to wreck the train and thereby to endanger the safety of persons travelling by it. This object also fits in with the preamble of Suppression of Terrorist Activities (Special Courts) Act, 1975, which has been enacted for the purpose of suppressing acts of sabotage, subversion and terrorism. It was for this reason that present section 126 of the Railways Act was also included in the Schedule of that Act. Mere removal of 18 fish-plates from the railway track would not bring the case within the mischief of the Suppression of Terrorist Activities (Special Courts) Act, 1975 or 'section 126(b) of the Railways Act unless the prosecution further proves the intent or knowledge of the accused that thereby he was likely to endanger the safety of persons travelling by train on that track. In the instant case, the prosecution has produced Khalil Key-man (P. W. 1), Abdul Majid Rahi, Guard (P. W. 2) and the Investigating Officer A. S. I. Muhammad Rafiq (P.
W. 7) in support of this part of the case. Khalil, Keyman and Abdul Majid Rahi, Guard have deposed that at the relevant time they found 18 fish-plates and bolts missing from the place of occurrence.
They have not said a word as to who removed the said fish-plates. After minute scrutiny of their statements we find that these witnesses do not, in any way, connect the appellant with actual removal of the said fish-plates. In other words, it is an admitted fact that there is no material available on the record to establish that the present appellant was either actually seen by any one removing the said fish-plates or seen in suspicious circumstances near the place of occurrence carrying the said fish-plates immediately after the occurrence. The result is that the prosecution has neither proved the actual removal of the said fish-plates by the appellant nor any intent or knowledge on his part that thereby he was likely to endanger the safety of persons travelling by train on that track.. Both the ingredients of section 126(b) of the Railways Act, therefore, have not been established against the appellant.
4. Mr. Nemat Khan, the learned counsel for the State has frankly admitted before us that there is no direct or circumstantial evidence available on the record to connect the appellant with the actual removal of the said fish-plates, with requisite intent or knowledge but he vehemently contends that since subsequently ten out of eighteen fish-plates have been recovered from the possession of the appellant, presumption should be drawn against him under clause (a) of section 114 of the Evidence Act and section 8 of the Suppression of Terrorist Activities (Special Courts) Act, 1975 that the appellant himself removed the said fish-plates from the spot with the said intent or knowledge that he was likely to endanger the safety of the public travelling by train. Let us first consider whether prosecution has established the recovery of the said fish-plates from or at the instance of the appellant and, if so, what presumption can be raised against him.
5. As mentioned above, the occurrence took place on 14-8-1974 while the appellant was arrested on 2-10-1974 and on the same day he led the police to his shop in village Maloowal. The lock of that shop was opened by a key produced by the appellant. From inside that shop he produced 10 fish- plates Exhs. P. 1 to P. 10 which were taken into possession vide memo. Exh. P. C. Attested by Muhammad Hussain (P. W. 3) and Nawab Din (P. W. 4) in addition to the Investigating Officer A. S. I.
Muhammad Rafiq (P. W. 7). We have minutely gone through the statements of these witnesses and find that they had no enmity or motive to falsely implicate the appellant in this case. The defence has not even suggested any such allegation against them either in cross-examination or during arguments. Muhammad Hussain, Nawab Din and A. S. I. Muhammad Rafiq P. Ws. Are quite independent and disinterested witnesses and have been rightly believed by the trial Court. The appellant has not claimed the ownership of the said fish-plates. As mentioned earlier, his statement could not be recorded by the trial Court as he was not traceable at that time and even his counsel had no instruction to make any such statement on his behalf. There is, therefore, nothing on the record to show whether the appellant has admitted or denied the charge leveled against him. However, as the trial was held in his absence under subsection (4) of section 5 of the said Act, the appellant can be deemed not to have admitted the commission of the alleged offence as provided under subsection (5) of section 5 of that Act. So we proceed as if the appellant denied the recovery of the said fish-plates from him. After going through the relevant material available on the record, we are convinced that the prosecution has satisfactorily proved the recovery of 10 fish-plates (Exhs. P. 1 to P. 10) from the possession of the appellant.
6. After believing the recovery of the said 10 fish-plates from the possession of the appellant, the next question which falls for consideration is as to what offence has been committed by him.
According to the learned State Counsel mere recovery of 10 fish-plates from the appellant is sufficient to raise presumption against him under illustration (a) of section 114 of the Evidence Act that he is the thief and himself removed the said fishplates from the place of occurrence.
According to illustration (a) of this section if a person is found in possession of stolen goods, presumption can be raised against such person that either he himself is a thief or he has received those articles or goods knowing them as stolen property. Thus this presumption is not of one definite offence but of an alternative offence. However the mere possession of stolen property by itself, is not C sufficient to prove participation in the offence of theft. The onus will still be upon the prosecution to prove by evidence-direct or circumstantial, that the possessor of such property, was also connected with the actual offence of theft. In other words, apart from mere possession of such stolen articles, there must be some further evidence available on the record in one form or the other to support and corroborate the inference that the possessor of such property was also connected with actual offence of theft. Thus no general principle can be laid down that a person in possession of stolen goods should be presumed to be a thief. Each case depends on its own facts.
In certain cases the possessor of such stolen articles can be held a thief while in others only guilty under section 411, P. P. C. Being in possession of stolen property. In the instant case, it is an admitted fact that there is no direct or evidence material available on the record to show that the appellant actually removed the said fish-plates from the railway track. On the other hand, there are circumstances enumerated below which tend to support the defence suggestion that the appellant himself did not commit the offence of theft of the said fish-plates but was only found in possession of 10 fish-plates which may be stolen property.
' The occurrence took place on 148-1974. The exact time of occurrence is not known. According to Khalil P. W. It was at about 8-00 a. m. On that day that he found 18 fish-plates missing. It was at about 9-33 a. m. That he stopped the railway train coming from Sangla Hill side. On the day of occurrence the sunrise time was 5-25 a. In. If the removal of fish-plates took place after sunrise, the appellant could easily be seen by someone as it must have taken considerable time to remove the said fish-plates. If it had taken place earlier before sunrise, then some train must have passed on that track during this interval as there is frequent movement of trains on this line as the place of occurrence is on the main line between Lahore and Faisalabad and Lahore and Sargodha.
According to the recovery memo the weight of each fish-plate was about 14 seers, thus making the total weight as about 6 maunds 12 seers. It is not explained by the prosecution how the appellant single-handed could carry such heavy weight without assistance of either some other person or conveyance like cart or rehra. According to the Investigating Officer the distance between the place of occurrence and the shop of the appellant from where recovery has been affected, is about 10 miles. It is not clear how the appellant covered this long distance with such a heavy load.
Moreover, if the object of the appellant had been as required under section 126 of the Railways Act or the Suppression of Terrorist Activities (Special Courts) Act, to endanger the safety of persons travelling on the track by causing derailment of the train, then there was no need for him to carry these fish-plates to his village at a distance of 40 miles. His object would have been achieved by mere removing these fish-plates from the track and leaving them there. Thus the carrying of such fish-plates to such a long distance is circumstance which goes against the prosecution. According to the prosecution 18 fishplates were found missing but only 10 have been recovered from the appellant and there is no explanation whatever available on the record regarding the remaining 8 fish-plates. The fish-plates were not recovered immediately after the occurrence but after 49 days of their actual removal from the place of occurrence. Another serious circumstance which goes against the prosecution is that it failed to establish that the fish-plates recovered from the appellant are the same which were found missing from the place of occurrence. The prosecution has only proved that the fishplates recovered from the appellant belong to Railway Department but witness has deposed that the recovered fish-plates are the same which were earlier found missing from the track. It is not denied that such plates are generally kept at every railway station to utilise them in case they are urgently required for repairs etc. It is also admitted that such old fish-plates are available in the market with the junk dealers who either purchase them direct in the railway auction or through some other source. In these circumstances the possibility that the recovered fish-plates P. 1 to P. 10 may be some other fish-plates of the Railway Department and the appellant may have purchased or otherwise obtained them from some other source, cannot therefore be ruled out. Another most damaging circumstance, which goes against the prosecution, is that there is no material available on the record or even an allegation that the appellant was a member of any political party or association believing in the ideology and programme of subversive activities. On the other hand, the Investigating Officer has clearly admitted in the cross- examination that it did not come to his notice that the appellant was a member of any political party or that he removed the said fish-plates at the instigation or persuasion of some political party. He has further admitted that the name of the appellant did not figure that he ever took active part in politics. In these circumstances the mere recovery of 10 fish-plates from the appellant and in the absence of any corroborative evidence, it can safely be held that the offence committed by the appellant falls under section 411, P. P. C. And not under section 126(b) of the Railways Act, 1890. Consequently, it will be latter part of illustration (a) of section 114 of the Evidence Act, which could be attracted to the instant case. The only presumption which, therefore, can be raised against the appellant is that he was found in possession of stolen articles which he must have received knowing them to be stolen as such fishplates are not generally available in the market. Consequently the safer course would be to hold him guilty under section 411, P. P. C. For possessing stolen fish-plates and not under section 126(b) of the Railways Act, 1890 for actually committing the offence of theft by removing 18 fish-plates from the track.
7. As mentioned earlier the learned State Counsel is also relying upon presumption under section 8 of Suppression of Terrorist Activities (Special Courts) Act, 1975, which is reproduced below :- "8. Burden of proof.-Where any person accused of having committed a scheduled offence is found to be in possession of, or to have under his control, any article or thing which is capable of being used for, or in connection with, the commission of such offence, or is apprehended, in circumstances which tend to raise a reasonable suspicion that he has committed such offence, he shall be presumed to have committed the offence unless he can prove that he had not in fact committed the offence."
' The main object of this section is that in certain circumstances the burden of proof shifts from the prosecution to the accused. Generally, the burden of proof in criminal cases is always upon the prosecution but under this section if certain conditions are fulfilled, the burden can shift from the prosecution to the accused who can be presumed to have committed that offence unless he can prove that he had, in fact, not committed the same. There are two ingredients of this section. Firstly, if a person is found in possession of, or to have under his control, any article or thing which is capable of being used for, or in connection with, the commission of such offence, burden of proof will shift from the prosecution to the defence and he can be presumed to have committed the offence unless he can prove that he had not, in fact, committed the same. In the instant case however there is no material on record or even an allegation that Muhammad Ashraf appellant was in possession of or had under his control any article or thing which could be used for removing the said fish-plates from the railway track. It is not denied that if there had been any such article or instrument either in possession of or under the control of the appellant, which possibly could be used in the commission of the offence, the same should have been recovered by the Investigating Officer. In the absence of any such recovery or even any such assertion in the accusation or in evidence it is not possible to raise any such presumption against the appellant to maintain his conviction.
The second ingredient of section 8 of this Act is that if an accused person is apprehended in circumstances which tend to raise a reasonable suspicion that he has committed such offence then he shall be presumed to have committed that offence unless he can prove that he had not in fact committed that offence. In the instant case the appellant was arrested after about 49 days of the occurrence at a distance of 40 miles from the place of occurrence. Arrest of the appellant after such a long time and at such a great distance from the place of occurrence, would not in any I manner justify the presumption under this section. If on the other hand the appellant had been arrested immediately after the occurrence at or near the place of occurrence, in circumstances making his presence suspicious, then onus could be on the defence to show that he bad not committed that offence. After proper analysis of section 8 we are clearly of the view that section 8 of the Suppression of Terrorist Activities (Special Courts). Act, 1975 is not applicable to the facts of the present case.
8. The learned defence counsel tried to argue that the appellant did not have adequate opportunity to defend himself as the entire evidence was recorded in his absence. In other words, it is contended that the trial of the appellant in his absence was not legally justified. We, however, find no substance in this contention. As mentioned above, the appellant after personally appearing before the trial Court on 29-1-1975 and 8-9-1975, absented himself without any sufficient cause. On 14-10-1975 the appellant was summoned for 27-10-1975 but in spite of service he failed to appear before the trial Court on the said date. Accordingly, his bail bond was cancelled and non-bailable warrants of arrest were issued against him. But even the warrants could not be executed as his S whereabouts could not be ascertained. The trial Court was, therefore, satisfied that the absence of the accused was deliberate and brought about with a view to impeding the course of justice and accordingly decided to proceed with the case in the absence of the accused. We have examined the record and the relevant provisions of law. We are convinced that in the circumstances of the case the trial Court was fully justified to hold the trial in the absence of the appellant. Subsection
(4) of section 5 of the said Act fully covers such a trial. The appellant has placed no material whatever on the record to explain his absence for such a long period. In the absence of any such material it was rightly held by the trial Court that the absence of the appellant was deliberate with a view to impede the course of justice. In the circumstances of the case, we are therefore satisfied that the trial of the appellant in his absence was rightly held and no exception can be taken against it.
9.
9. The trial Court after believing the recovery of 10 fish-plates from pot the appellant, also found that his leading the police party to the occurrence was a material circumstance connecting him with the actual commission of the offence. We, however, do not attach any importance to this circumstance which would not advance the case of the prosecution as the said place of occurrence was already known to all concerned including the Investigating Officer. As mentioned earlier immediately after the occurrence Khalil Keyman and Abdul Majid Rahi Guard (P. Ws.) saw the place of occurrence and then A. S. I. Muhammad Ibrahim not only inspected the place of occurrence but also prepared rough plan Exh. P. E. Of the same. Thus the place of occurrence was known to everyone from the very beginning. Leading the police party to the said place of occurrence by the appellant after 49 days of the occurrence, lost all significance. It is well settled that where the place of occurrence is already known to the prosecuting agency, the subsequent pointing out of the same, by the accused does not advance the case of the prosecution as it is not a discovery of any new fact or circumstance supporting the prosecution version. We, therefore, feel that the said circumstance has been erroneously used by the trial Court in favour of the prosecution.
10. The upshot of the above discussion is that we set aside the conviction and sentence of the appellant under section 126(b) of the Railways Act, 1890 and hold that, in the circumstances of the case, the offence committed by the appellant clearly falls under section 411, P. P. C. Which is not a scheduled offence under the Suppression of Terrorist Activities (Special Courts) Act, 1975, and therefore not triable by the Special Court under the said Act but is triable by ordinary criminal Court. However, no useful purpose will be served by sending the case to the ordinary criminal Court, at this stage, for fresh trial of the appellant under section 411, P. P. C. As the appellant has already undergone imprisonment for more than 2 years which, in the circumstances of the case, is sufficient to meet the ends of justice. Accordingly, holding the appellant guilty under section 411, P.
P. C. And considering the period of imprisonment already undergone by him as sufficient, we direct that he shall be released forthwith if not required in connection with any other case.