2026 P Cr (PLP)

MUHAMMAD SALEEM JESSAR, J.

Applicant Shahnawaz son of Fateh Sher Shar, has been booked under Crime No. No.64/2023 registered with Police Station Railway Rohri, District Sukkur, for the offences punishable to sections 379, 411, 34, P.P.C, read with Section 126 of Railways Act, 1890.

2. The applicant attempted successive request before the Court below as well as this Court yet could not succeed to get himself released on bail during pendency of the trial.

3. Since the case has been challaned which is now pending for trial before the Court of learned Sessions Judge (trial Court), Sukkur, vide Sessions Case No.342/2024 Re. The State v. Manthar and others. Hence instant bail application has been maintained.

4. The details and particulars of the FIR are already available in the bail application and crime report, same could be gathered from the copy of FIR attached with the bail application, hence need not to be reproduced hereunder.

5. Learned counsel for the applicant submitted that accused was not nominated in the FIR and the allegation against him is that he allegedly purchased the stolen property i.e. leads/wires of T/motors Nos.4, 5, 6, cut off from traction motor channel, which according to him, did not constitute the offence in terms of Section 126 of Railways Act, 1890, as mere possession of such property which has been presumed or stolen one, is yet to be established by the prosecution with actual offence of theft. No direct or circumstantial evidence has been brought on record to show that the accused actually removed or stolen the subject property from the Railway track or the Engine. Learned counsel further went on to say the accused was not a member of any political party or any association with certain group believing in ideology and program of subversive activities. Hence submitted that application of Section 126 of Railways Act, 1890, has wrongly been applied and is not applicable to the extent of case of the present applicant, therefore, case against him at the most would fall under section 411, P.P.C, only for which the prosecution has to establish its charge against the accused at the time of trial. Hence the case against him requires further enquiry and pray for grant of bail. In support of their contentions, learned counsel relied upon the cases of Rizwan v. State (2022 MLD 716), Shahid Ahmed v. The State (2022 PCr.LJ Note 89), Muhammad Tanveer v. The State (PLD 2017 SC 733) and Arsalan Masih and others v. The State and others (2019 SCMR 1152).

6. Learned Assistant Attorney General for Pakistan, opposed the application on the ground that prior to this the attempts made by the applicants were declined by the Court below as well as by this Court and no solid ground has been urged, therefore, he is not entitled for the bail. In support of his contention, he relied upon the case of Muhammad Shoaib v. The State and another (2022 SCMR 326).

7. I have heard learned counsel for the applicant, learned Assistant Attorney General for Pakistan and perused the material made available before me on the record.

8. Per prosecution case, the applicant had purchased stolen property i.e. leads/wires of T/motors Nos.4, 5, 6, cut off from traction motor channel from co-accused Manthar alias Mantho Mirani, which belongs to Pakistan Railways and since such act on the part of the co-accused was to be the humans endanger, therefore, after thorough investigation, the police had reached to conclusion that the accused had committed the offence in terms of Section 126 of the Pakistan Railways Act, 1890. Evidence collected during investigation, reveals that the applicant had not removed or stolen the property in question nor was the member of such gang who actually had committed the offence. Mere allegation against the applicant that he allegedly purchased said stolen property from co-accused and after recording evidence, if prosecution may succeed to prove would fall within compass of section 411, P.P.C

9. A bare perusal of above quoted section of law shows that before securing involvement against the applicant, the prosecution was required to prove that the applicant not only found in possession of the stolen property belonging to Pakistan Railways but he did so with particular intent or knowledge that thereby he would endanger the safety of the persons travelling by train on particular track. In other words in addition to the actual removal or theft of certain property, the prosecution had to prove the requisite intent or knowledge on the part of the applicant that thereby he was likely to endanger the safety of any person or persons travelling by train on particular track. Mere purchase of said property from co-accused would not be sufficient to prove the guilt of the applicant in terms of the provision contained under Pakistan Railways Act, 1890 unless the prosecution may further proves it by way of evidence. As per available direct or circumstantial material, no evidence has been brought on record that the applicant did so with intent or knowledge that he was likely to endanger the safety of the persons travelling by that particular train. Thus in addition to the actual removal of the said property, such intent or knowledge on the part of the accused is an important ingredient of Section 126 of the Railways Act, 1890. The ultimate aim of the accused to commit such offence under 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 particular date. Mere purchase of stolen property in good faith or otherwise would not bring the case within mischief of section 126 of the Pakistan Railways Act, 1890, unless the prosecution further proves the intent or knowledge of the accused that thereby he was likely to endanger the safety of the persons travelling by that train. It is an admitted fact of the evidence that said property was removed/stolen away by the co-accused, namely, Manthar alias Mantho Mirani and not by the present applicant. The Prosecution Witnesses in their respective statements under section 161, Cr.P.C had not, in any way connect the applicant with actual removal/theft of the property. In other words, it is an admitted fact that there is no material available on the record to establish that the applicant was either actually seen by any one in removing the said property or seen in suspicious circumstances near the place of occurrence carrying such stolen property immediately after the occurrence. The upshot of the discussion is that the prosecution has neither proved the actual removal of property by the applicant nor any intent or knowledge on his part that thereby he was likely to endanger the safety of the persons travelling by the train. Hence both basic ingredients of section 126 of the Railways Act, therefore, are yet to be established by the prosecution against the applicant. Per learned Assistant Attorney General for Pakistan, mere recovery of stolen property from the applicant is sufficient to believe that either he himself is a thief or he has received those articles or goods knowing it as stolen property. In my view, this presumption is not of one definite offence but of an alternative offence; however, mere possession of stolen property by itself, is not sufficient to prove participation in the offence of theft. The onus will still be upon the prosecution to prove it by evidence through direct or circumstantial; that the possessor of such property, was also connected with the actual offence of theft. Apart from mere possession of such stolen articles, there must be some further evidence available on record in one form or the other to support and corroborate the inference that the possessor of such property was also connected with the 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 because, each case depends on its own facts. In certain cases the possessor of stolen property can be held thief while in others only guilty as is embodied under section 411, P.P.C being in possession of stolen property. In instant case, it is an admitted fact that there is no direct evidence or material has been made available on the record to show that the applicant actually removed or stolen the said property from the Railways track or engine etc. On the other hand, there are circumstances which tend to support the defence suggestion that the applicant himself did commit the offence of theft but was only found in possession of such property which may be the stolen one. It is worth to mention that the applicant is not nominated in FIR as an accused; however, he was implicated in this case on disclosure made by the co-accused Manthar alias Mantho Mirani, during investigation. Upon recovery of alleged stolen property from his shop he was arrayed as an accused. Under the circumstances, mere recovery of stolen articles from the applicant and in absence of any corroborative piece of evidence, it can safely be held that the offence committed by the applicant falls under section 411, P.P.C and not under section 126 of Pakistan Railways Act. The only presumption which, therefore, can be raised against the applicant is that he was found in possession of stolen articles which he must have received knowing them to be stolen or otherwise and same is yet to be proved by the prosecution whether the applicant had received or purchased knowingly or in good faith. Since the applicant was not participant of co-accused while committing the offence of theft; however, was found in possession of certain stolen goods and such accusation against him is yet to be established by the prosecution by recording evidence of its witnesses and then the trial Court has to determine the same against him whether he would be tried for both Sections of law or only for the offence of receiving stolen property.

10. Under the circumstances and in view of discussion made hereinabove, the applicant has successfully made out a good prima facie case for his release on bail in terms of sub section (2) of Section 497, Cr.P.C. Consequently, by short order dated 11.11.2024, the application in hand was allowed and the applicant was directed to be released on bail subject to his furnishing solvent surety in the sum of Rs.100,000/- and P.R bond in the like amount to the satisfaction of learned trial Court. These are the reasons of said short order.

11. Needless to mention here that the observations made herein-above are tentative in nature, which shall not prejudice the case of either party at trial. JK/S-16/Sindh Application allowed.