P L D 1967 Dacca 595 (PLP)

The accused pleaded not guilty to the charges. His case was that he had received the line clear tablet No. 24 and the signals were lowered down at both Block Hut and Akhaura Station. His further case was that when his train reached Block Hut Station, P. W. 1 Shamsuddin, the Station Master was asleep, Golam Rasul, porter handed over the tablet No. 24 to him. Besides, no signal for diversion was given by the Cabin S. M., Akhaura. Hence he was not responsible for the accident and the consequences thereof. It has been contended before me by Mr. Shahudul Huq, the learned Advocate appearing for the petitioner that number of very material points in the case have been excluded from the Judicial consideration of both the Courts below. Besides, a lot of material exhibits have been withheld by the prosecution without any explanations. The defence side of the evidence has, according to the learned Advocate, not been considered. There is no basis for the conviction of his client who is in no way res ponsible since he proceeded normally and passed through all the station with observations of signals and having had line clear tablet No. 24 up to Line No. 3 which was a direct line from the Block Hut Station. Any Train would normally proceed from the Block Hut Station to Line No. 3 unless the Train is diverted by the Station Master by his mechanic signal. Here in the present case, as no such signal or indication for diversion was given, his client was entitled to proceed to Line No. 3 which has been actually done. It was no fault of his. It would be fault on the part of the Cabin Station Master who had the power and authority to give signals for diversion which was not done in the present case. This is supported by Mr. M. A. Jalil, A. S. M. Akhaura Cabin Station on duty at the time of the accident (P. W. 10). After going into a fairly long judgment of the lower appellate Court and some material‑ portion of the evidence, it became evident that the judgment is far from satisfactory. It contains a very superficial discussion of large volume of evidence and it becomes very difficult to find the basis of the decision without reference to the evidence itself. Normally, a Court of revision would only enquire about the illegality and would not go into evidence. But in a case, where the judgment is defective and does not give the full picture about the case by a proper discussion of evidence, this Court will go into the facts and find whether rules of evidence have been legally applied. As a matter of fact, after having noticed exclusion from judicial consideration number of material exhibits and considerable volume of oral evidence, I thought it was a case for remand. But having considered that the case has been dragging on since 1959 and the accused petitioner must have been suffering from serious anxieties because of his fate remaining undecided, I thought, in the interest of justice, to finally dispose of this matter, even by necessity, on consideration of the evidence in the case. Altogether 48 witnesses have been examined on the side of the prosecution. Large majority of the witnesses are not necessary for consideration on the point involved in the present case, since it is not disputed that the accident took place at the alleged place and time and that 5 lives have been lost. The question to decide in tile present case is whether the rash and negligent driving of the Train by the present accused, petitioner has caused the deaths of so many persons and whether he has done it in violation of the rules framed under the Railways Act. Regarding the question of speed, it has been stated by a number of witnesses without reference` to any books of record that the accused was driving the goods Train in a very high speed beyond the limit fixed by the Railways Act and the Rules thereunder. On the other hand, this could have been correctly ascertained by mere production of speed record‑meter box which is attached to every train. It is most surprising that this very important material evidence has been withheld by the prosecution without any explanations whatever. P. W. 23, who is a technical Expert, deputed by D. M. E. to inquire into the matter and report, stated that the speed recorder‑meter box was very authentic instruments for recording correct and positive evidence of speed. Once the record of speed recorder‑meter box has not been produced, not only the alleged high speed fails but it goes long way against the prosecution case that such a very essential record has been withheld without giving any reasons. In such a situation, it is impossible .for the Court to accept the high speed as alleged by the prosecution. There is no other reliable evidence to establish the negligent driving in any other way. Once that part of the element of the charge fails, there only lesser element of it remains. It has been alleged that the accused‑petitioner in violation of the rules proceeded up to the Line No. 3 without even having line clear authority, namely, tablet No. 24 and it is said that not only he proceeded without the said authority, but even he disregarded the danger signal, namely, red‑light signal which is said to have been given by the Guard (P. W. 7) and one points man. On this point, the Guard of the Train went beyond any limit of falsehood. Great importance, however, has been attached on the evidence of this particular witness by the Courts below. But I find that under any consideration of any rules for assessment of evidence or appreciation of facts. I cannot attach any import ance whatever on the evidence of this man who cannot be given any credence or reliance as a witness. While, C. W. 1, Inspector, Government of Pakistan Railways an authoritative and authentic witness in the case was holding enquiry about the present accident, this very guard, namely, P. W. 7 had stated that things were perfectly normal and that there was nothing wrong. But the same witness subsequently deposed in Court stating that there was everything abnormal, even the red‑light signal which was given by himself, was also disregarded by the accused‑driver. It also appears to be not only highly improbable but inconceiv able that a trained and experienced driver of a Train could possibly disregard such a danger signal. Besides, the Exhs. 15‑20, the registers maintained by the Guards and the Exhs. 8‑11‑27, the Train Signal Registers of these Station did not record any thing unusual. So far as this point is concerned, there is no other reliable evidence in the case. Such being the position, I cannot possibly accept the prosecution case that the driver after having disregarded even red‑light signals proceeded to Line No. 3 at Akhaura. It is also seriously alleged that the driver without having received the authority, namely, the tablet No. 24 proceeded to Akhaura direct to Line No.

3. According to prosecution, this tablet was missing since a month before the incident. It has actually been produced and accepted as material Exh. II here in this case. It was produced by the accused‑petitioner when the enquiry was going on before C. W. 1 and taken by the Police under seizure list and later on produced in Court and marked as material Exh. Il. The explanation of the defence as to why he did not produce it earlier has been given. It is the defence case that he could not dare to produce it before anybody else on the fear that it might be lost or stolen. In such a case, he could not defend himself. When he found an opportunity to produce it before a High Official in the Railway Administration, namely, C. W. 1, he produced it and it is not challenged by the pro secution up to the present time that it is not the identical and genuine tablet No.

24. Besides, it was used and returned by the driver of Up 43 Train on 23‑6‑1959, vide evidence of P. W.

3. The defence case with regard to this tablet has not been accepted by the Courts below merely on the ground that it has been produced not immediately but sometime after the occurrence. They do not appear to have considered the circumstances in which it was produced and the reasons for late production. Even immediately after the occurrence, when the Executive Engineer (P. W. 40) went to the scene of occurrence, on being asked about the tablet, the Driver accused had stated to him that he had received it before he proceeded from Block Hut Station to Akhaura. P. W. 29 A. K. M. Shawkat Ali Loco foreman, another high technical Authority in the Railway Administration, is the person who would receive the first Information of loss of any such tablet. Although it has been the case of the prosecution that this tablet No. 24 was missing since before one month of the accident, yet, according to his evidence, he received no such information. According to the rules of the Railways Act, such information of loss must be sent to this witness and thereafter the witness would proceed with issue of circulars and other actions. No such information was ever given to this witness before the accident. In the face of such authentic evidence, it became really impossible to accept the prosecution case that this tablet No. 24 was actually lost and the driver accused proceeded from Block Hut Station to Akhaura Line No. 3 without any authority. On broad lines, I have dealt with the essential and decisive points in the case for my decision. It is not necessary for me to discuss all minor details of the case which also essentially go against the prosecution. In view of what has been expressed by me in the judgment, I will accept this application. The Rule is accordingly made absolute. The orders of con victions and sentences against the petitioner are set aside. He is acquitted of the charges. K. B. A. Rule made absolute.