2011 P Cr. L J 463
[Quetta]
Before Jamal Khan Mandokhail and Muhammad Noor Meskanzai, JJ
KARIM BAKHSH and others ---Appellants
Versu s
THE STATE ---Respondent
Criminal Appeals Nos. 80, 81 and 88 of 2006, decided on 3rd February, 2010.
(a) Railways Act (IX of 1890) ---
----S. 101(c) ---Endangering the safety of persons by any rash or negligent act or omission ---
Appreciation of evide nce---F.I.R. revealed that a train had derailed and in that accident 8
persons died and about 114 injured ---Accused person and two others, being Railway
employees, were held responsible and case was registered against them ---Act of accused
would come withi n the definition of clause (c) of S.101 of Railways Act, 1890 and they were
liable to be dealt with accordingly ---Apart from act of accused, the Trial Court had not
considered the fact that accused alone were not responsible for the accident ---Railway woul d
take upon itself an obligation to carry passenger safely to his journey; and to cause him no
injury by way of wilful or careless act or omission ---Since the Railway was governed and
being run by its employees, it was equally responsible for any damage ca used to the life and
property of passenger by the negligence of any railway servant --Inspector of Railways had
submitted his detailed report, wherein he had concluded that the accident was a result of
negligence of accused persons', being employees of the railway, the department was equally
responsible for the said act ---In the present case Railway had not only accepted the report of
Railway Inspector, but had also strongly relied upon the same ---Railway, in the report, was
found to compensate the passenger s who either died or injured ---While deciding, the present
case, Trial Court failed to consider such fact ---Since sentence could not be awarded to the
employees, Railway was bound to compensate the deceased as well as injured of the accident,
who were its passengers.
(b) Railways Act (IX of 1890) ---
----S. 101(c) ---Penal Code (XLV of 1860), Ss. 318, 319, 324, 337 & 427 ---Endangering the
safety of the persons by any rash or negligent act or omission ---Qalt-e-Khata ---Appreciation
of evidence ---After con sidering statements of witnesses, the documents, especially the report
of Railway Inspector, nothing had come on record which could suggest that the incident had
taken place due to mala fide intention on the part of accused persons ---Such was a matter of
responsibility, which accused should have performed properly, but their negligence and
omissions resulted into an unwanted incident, causing heavy loss in the shape of death of
eight persons and also damage to the Railway Department, which could have been a voided, if
they had been vigilant ---Trial Court though had considered the evidence and material
available before it; and had rightly found the accused responsible for the incident due to their
negligent act, but, while reaching to the conclusion, accused h ad wrongly been charged and
sentenced under S.302(c), P.P.C. and S.324, P.P.C. ---Once it had been found that offence was
a result of negligence and recklessness on the part of accused, then the intention for
committing murder, was not established ---Act of accused persons would come within the
definition of 'qatl -e-khata' as defined in S.318, P.P.C. as well as S.101 of the Railways Act,
1890 ---Punishment awarded by the Trial Court under S.302(c), P.P.C., was converted into
S.319, P.P.C. being qatl -ekhata ---Accused were convicted and sentenced for a period of 5
years R.I. as Tazir ---Prosecution having failed to prove the factum of injuries to the injured,
no offence under S.337, P.P.C. was made out --Intention of accused being not to kill some
one, and no elem ent of sabotage or terrorism was found on the part of accused, S.324, P.P.C.
also did not attract ---However, sentence awarded by the Trial Court under S.427, P.P.C. was
upheld ---In view of the provisions of S.101 of Railways Act, 1890, Railway department
would also compensate each of the deceased to the tune of Rs.5,00,000 to legal heirs of each
of the deceased ---All sentences would run concurrently.
1995 MLD 2271 ref.
Syed Iqbal Shah, Farrukh M. Malik and Waseem Jadoon for Appellants.
Naseer Ahmed Bangulzai for the State.
Date of hearing: 8th October, 2009.
JUDGMENT
JAMAL KHAN MANDOKHAIL, J .---Through this common judgment, we intend to
dispose of Criminal Appeals Nos. 80, 81 and 88 of 2006, filed against the impugned
judgment dated 30 -11-2006, passed by Additional Sessions Judge -I, Sibi whereby; the
appellants have been convicted and sentenced under section 302(c), P.P.C. to suffer fourteen
(14) years' R.I. each and fine of Rs. 100,000 (one lacs only) each, in default whereof, they
have to further undergo for one year S.I. Appellants are further convicted under section 324
Q and D for seven (7) years' R.I. and fine of Rs. 50,000 each, in default whereof, they further
have to suffer six (6) months' S.I. Due to negligence of appellants, railwa y has sustained loss
of Millions, so they are also convicted under section 427, P.P.C. for two (2) years' R.I. and
fine of Rs. 10,000 each, in whereof, they have to further undergo to two (2) months' S.I. For
their act, they endangered the lives of passeng ers, so they are also held responsible and
convicted under section 101 of Railway Act for Four (4) years' R.I. and to pay fine of Rs.
10,000 in default whereof; to furtherundergo for two months' S.I. with benefit of section 382 -
B, Cr.P.C.
2. Briefly stat ed facts as per contents of F.I.R. are that on 26 -9-2002 the 24 Up (Quetta
express) had derailed by eight coaches, out of which, five (5) had capsized near Bridge No.
130/B. In the incident, eight (8) persons were died and about 114 persons were injured. O n
the said information, inquiry was conducted by Abdul Ghaffar, Federal Government
Inspector of Railway, on the basis of which, the appellants and two others, being railway
employees, were held responsible, as such, case was registered against them.
Chal lan in the case was submitted before the Court of Additional Sessions Judge -I, Sibi. On
conclusion of the case and after hearing the parties, the trial Court has convicted and
sentenced the appellants as mentioned hereinabove.
3. M/s. Syed Iqbal Shah, Fa rrukh M. Malik and Waseem Jadoon, Advocates, learned counsel
for the appellants have submitted that the appellants are innocent of the charge and have not
committed any offence. They have performed their duty strictly in accordance with rules and
no any vi olation has been done, while on their routine checking of the railway line, they did
not find any fault in the same. According to them, drivers of other trains had not reported any
complaint regarding fault in the track, which passes through the place of o ccurrence. They
submitted that it was a result of sabotage, which might have been occurred after their
inspection, as such, they are not responsible for the same. Even otherwise, there was no
intention for committing such offence.
4. Learned Assistant Ad vocate General has vehemently opposed the contention of counsel for
appellants and has strongly relied upon the report of Federal Government Inspector of
Railway. He has submitted that the trial Court, after considering all the material, as well as,
the re port has come to a correct conclusion.
5. We have considered the respective contentions put forth by learned parties' counsel and
have gone through the record, as well as, the impugned judgment.
The case is of technical nature, therefore, the cause of incident has to be considered. In this
behalf, the competent authority had appointed Mr. Abdul Ghaffar, Federal Government
Inspector of Railway who has submitted his detailed report, which has been produced before
the trial Court as Exh.P/XII. In his repor t, he had inspected the track, where the incident had
taken place and has observed as under:
"Before the location, where the left side rail joint fish plates broke, no marks were
found on the track or formation indicating that a wheel had derailed the ra il or that an
equipment failure, such as, a broken wheel or axle had caused the derailment."
The department of railway has its rules, wherein, job description of every official is specified.
In view of paras 1.3 (a) and (e), 1.4 (a); 1.5 (a) and (b) (i), 4.4, 4.6, 5.1(a), 5.2, 5.3 and 5.4 of
Way and Works Manual, 1969, the duties of Permanent Way Inspector, Mates Keymen,
Gangmen and Gatemen, Engineering Officers, etc, have been defined. According to their job
description, their duties are to inspect the t rack and to maintain. the same. Whenever, there is
any fault in the track, they should have to inform their superior and the nearer Station Master.
They have to protect the railway track and also to safeguard it from any act of terror, as well
as, to infor m the authorities about fault or damage in the track in time so as to avoid the train
from any sort of incident.
The appellants have raised a plea that, the damage to the track has been caused due to
sabotage, after their inspection, but this has been re plied by Federal Government Inspector of
Railway,, in his report, which is reproduced as under: --
"5.1. I having considered the evidence, relevant record, joint certificate of senior
subordinates and observations during site inspection, it is concluded t hat derailment of
24 up Quetta Express at km. 195/7 -B between Damboli and Dingra stations on.
Jacobabad -Sibi section at 10/05 hours on 26 -9-2002 took place due to breakage of
both fish plates of left side rail. One of the fish plates (inside) had an old cr ack (30%).
The fresh breakage had also taken place much before the derailment of 24 up as both
rail ends of the broken joint have hitting/rubbing marks. The derailment had occurred
at the broken fish -plated joint as the sleeper fittings gave way due to loo se packing
under the sleepers resulting in the spread of gauge. The locomotive and one coach
passed safely but the front trolley wheels of second coach from the locomotive
derailed inside the track followed by the derailment of seven other coaches also."
From the above conclusion, it is proved that one of fish plates inside had an old crack (30%)
and the fresh breakage had also taken place before the arrival of 24 up Quetta Express. Had
the appellants located the said fault in the fish plate and got it re placed in time, the accident
could have been prevented, but by not performing their jobs, the present incident has
occurred. The Inspector has fixed responsibility of the appellants as under:
(1) Mr. Shah Muhammad, Permanent Way Inspector/Bakhtiarabad Do mki.
1.1 He is held responsible for gross negligence, slack supervision over his workers
and careless working as he failed to maintain the track of his section to the required
standard and trolley his section twice a week. He is thus responsible for viol ating the
rules/instructions contained in G.Rs.195, 196(a) and S.R. 198/3 of the General .and
Subsidiary Rules Book and Paras 1.3(a) and (e), 1.4 (a), I.5(a) and (b) (i) and 5.1 (a)
of the Way and Works Manual, 1969.
3. Mr. Karim Bux son of Shandad, Gang Mate Gang No. 38 under
P.W.I/Bakhtiarabad Domki.
3.1 He was responsible to maintain the track safe in his beat. He was also responsible
to check the staff under his control. His Keyman and Patroller failed to 'patrol the
track. He is thus held responsib le for violation for Paras 4.4, 4.6 and 5.3 of Way and
Works Manual.
5. Mr. Fazal Muhammad son of Naseer Khan, Gangman (Patroller), Gang No. 38
under P.W.I/Bakhtiarabad Domki .
5.1 The hitting marks on both rail ends of the broken fish plated joint indi cate that it
was two/three days old. Had he been vigilant this accident could have been averted.
As the permanent Way Inspector, Assistant Way Inspector and Gang Mate were
engaged to Km. 203/ - for changing the joints sleepers, he failed to perform his duty
properly. He thus violated Paras 4.4 and 5.3(d) of Way and Works Manual and. S. R.
198/2 of General and Subsidiary Rules Book.
Apart from report of Inspector, the prosecution has also, produced nine (9) witnesses,
including the officials of Railway depa rtment. The witnesses have categorically explained the
cause of accident and have held the appellants responsible for the same. The witnesses have
thoroughly been cross -examined, but nothing favourable to the appellants has come on
record.
It is importan t to mention here that it is a case pertains to the accident of train, whereas, there
is a complete Act known as Railways Act, 1890. In this Act, penalties and offences have
separately been defined which could be awarded to the accused, whose act comes wit hin the
previsions of said section. One of the relevant sections of the Act is section 101, which is
reproduced as under: -
"101. Endangering the safety of persons .---If a railway servant, when on duty,
endangers the safety of any person...
(a) by disob eying any rule made, sanctioned, published and notified under this :Act, or
(b) by disobeying any rule or order which is not inconsistent with any such general rule,
and which such servant was bound by the terms of his employment to obey, and of
which h e had notice, or
(c) by any rash or negligent act or omission;
[or]
(d) by tampering with, railway's equipment, machinery or installation or misuse or non -
use thereof.]
he shall be punished with imprisonment for a term which may .extend to [five y ears,
imprisonment of either description] or with fine which may extend to [ten thousand]
rupees, or with both."
The act of appellants also comes within the definition of sub -clause "C" of section 101 of
Railway Act, 1890, therefore, they are also liable to be dealt with accordingly. Apart from act
of appellants, the trial court has not considered the fact that the appellants alone were not
responsible for the accident. When the railway company invites and receives a person as
passenger by its train, it t akes upon itself an obligation to carry such person safely to his
journey and to cause him no injury by way of wilful or careless act or omissions, since the
company is governed and being run by its employees, therefore, it is equally responsible for
any d amage caused to the life and property of passenger by the negligence of any railway
servant. In present case, the Pak Railway has not only accepted the report of Federal
Inspector, but has also strongly relied upon same, therefore, the railway is bound to
compensate the passengers, who either died or injured.
While deciding case, the trial Court has not considered such aspect. As has been discussed
above that the Inspector of Railway has submitted his detailed report, wherein, he has
concluded that the ac cident was a result of negligence of appellants, therefore, being
employees of railway, the company is equally responsible for said act. Since sentence cannot
be awarded to the employees, therefore, it is bound to compensate the deceased, as well as,
injur ed of the accident, who were its passengers.
After considering statements of witnesses, the documents, especially report of Inspector,
nothing has come on record, which could suggest that the incident had taken place due to
mala fide intention on the par t of appellants. It is a matter of responsibility, which the
appellants should have performed properly but their negligence and omissions resulted into
an unwanted incident, causing heavy loss in the shape of death of eight persons and also
damage to the r ailway department, which could have been avoided, if they had been vigilant.
Though the trial Court has considered the evidence and material available before it, and has
rightly held the appellants responsible for the incident due to their negligent act, but, while
reaching to the conclusion, the appellants have, wrongly charged and sentenced under
sections 302(c), P.P.C. and 324, P.P.C. Once it has been held that the offence is a result of
negligence and recklessness on the part of appellants, then, the intention for committing
murder was not established.
In view of the fact discussed above, the act of appellants comes within the definition of Qatl -
e-Khata as defined in 318, P.P.C., as well as, section 101 of the Railway Act, 1890. Reliance
has been pla ced on judgment reported in "1995 MLD 2271".
Since the act of appellants amounts to negligence in their duty, therefore, punishment
awarded by the trial Court under section 302(c), P.P.C. is converted into section 319, P.P.C.
being Qatl -e-Khata, thus, th ey are convicted and sentenced for a period of five (5) years' RI
as Tazir and are also liable to pay an amount of Rs. 100,000 as fine, in default whereof, they
have to further suffer one (1) year SI. The sentence awarded by the trial Court to the
appellan ts under Section 101 of the Railway Act shall remain intact.
As far as allegation of injuries caused to the injured are concerned, though medical
certificates have been produced, but neither the doctor concerned, nor any injured, appeared
before the Cour t to prove the same, therefore, in such view of the matter, it can not be said as
to which offence is made out? Hence, the prosecution has failed to prove the factum of
injuries as such, no offence under section 337, P.P.C. is made out.
As far as, sectio n 324, P.P.C. is concerned, as has been held above that the intention of
appellants was not to kill someone and, also, there is no element of Sabotage or
Terrorism on their part, therefore, section 324, P.P.C. also does not attract, however,
sentence award ed by t trial Court under section 427, P.P.C. is upheld.
6. In view of what has been discussed herein and with above modification, the
impugned judgment is upheld by dismissing these appeals. Similarly, keeping in view
the provisions of section 101 of Ra ilways Act, 1890, Pakistan Railway shall also
compensate each of the deceased to the tune of Rs. 500,000 to legal heirs of each of the
deceased. All the sentences shall run concurrently.
H.B.T./1/Q Order accordingly.This judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
let us know.