2010 PLP 1780 (YLR)

ASAD MUNIR, J.

Petitioner seeks bail through this petition in case F.I.R. No.188, dated 29-7-2009-registered under section 322, P.P.C. read with section 101, Railway Act, at Police Station Railway District Rawalpindi.

2. The facts in brief, as narrated in the F.I.R., are that on 29-7-2009 at 5:25 a.m. Train No.105/UH (Night Coach) while going past gate No.25-A, situated near Sihala Bobni Behehs, dragged a jeep upto one furlong due to which one lady lost her life at the spot while one male, one female and two children were severely injured. All the deceased and the injured were travelling in the jeep. The unfortunate accident took place as gate No.25-A was left open at the level crossing when the train was passing. It is alleged in the F.I.R. that the petitioner, being deputed as the gate man, did not close the Railway gate and even did not make any efforts to stop the train.

3. Learned counsel for the petitioner urged that the petitioner is innocent as he was not on duty at the time of occurrence. In this regard he has stated that his shift of duty was from 4-00 p.m., to 12 (midnight) whereafter another gate man had to come to relieve him of his duty. It has also been contended that the punishment for the offence under section 101 of the Railway Act is 5 years while the punishment for the offence under section 322, P.P.C. is of diyat and fine only and that the said offences do not fall within the prohibitory clause of section 497(1), Cr.P.C. In this regard reliance has been placed upon 2000 PCr.LJ 203, 1998 MLD 1537 and PLD 1983 Pesh.

104. It is further submitted that investigation of the case has been completed and the petitioner is no more required by the police and that his further detention in the jail would serve no purpose. It is also claimed that the petitioner has rendered unblemished services to the Railways for more than 25 years and has never been accused of any offence in the past.

4. On the other hand, learned D.P.-G. has opposed the bail on the ground that it is because of the petitioner's criminal negligence of not closing the gate that the accident took place in which one innocent lady was killed and four persons were severely injured.

5. I have heard the learned counsel for the parties and also have perused the record. It is evident from the record that the petitioner was to remain on duty from 4 p.m. to 12 midnight, whereafter he was to be relieved by another gate man who, it appears, never turned up. It may be stated that under the laws applicable in the country in respect of conditions of work, the maximum numbers of hours that a person is supposed to work are not more than 8 hours in a day. "The rationale for the limit of 8 hours of work is obvious as otherwise the performance of a person beyond 8 hours without rest is likely to be affected in the present case it needs to be probed if the petitioner was on duty for 13 hours and 25 minutes continuously. This is because the petitioner commenced his duty at 4 p.m. whereas the accident took place at 2-25 a.m., on the following day. I think the petitioner could not possibly be expected to perform his duties efficiently for such a long period of time. Probably, the accident could have been avoided if the petitioner was relieved, of duty at 12 midnight by the other gate man who being fresh would have performed his duties without any lapse. The case-law cited as to the offence under section 322, P.P.C. also supports the case of the petitioner. I am of the view that this is a case of further inquiry particularly toy find out as to why the gate man for the next shift i.e. from 12 midnight onward did not turn up and as to whether the petitioner was supposed to be on duty for as long as the other gate man did not turn up.

6. Keeping in view the above circumstances. I am of the view that case against the petitioner is one of further inquiry. He is allowed bail in case F.I.R. No.188, dated 29-7-2009 registered under sections 322, P.P.C. and 101 of Railway Act subject to furnishing bail bonds in the sum of Rs. 1,00,000 (one lac) with one surety in the like amount to the satisfaction of the learned Trial Court. H.B.T./M-189/L Bail granted.