' Criminal Miscellaneous No.1 of 2013 ' ALI BAQAR NAJAFI, J.---The petitioner namely, Muhammad Rafique was charged in case F.I.R. No.89 dated 12-2-2009 under sections 320, 279, 427, P.P.C. Registered at Police Station City Depalpur District Okara. After conclusion of the trial the learned Judicial Magistrate Section 30, Depalpur District Okara vide his judgment dated 11-1-2010 convicted the petitioner for committing Qatl-e- Khata of Tasawar Hussain, Husnain Ahmad, Nagina Bibi and Shumaila Bibi under section 320, P.P.C.
And sentenced him to undergo R.I for seven years on four counts for each deceased and with compensation of Rs.11,02,680 to the legal heirs of four deceased. He was also convicted under section 279, P.P.C. And sentenced him to undergo R.I for two years, and also under section 427, P.P.C.
And sentenced to undergo R.I for two years. All the sentences were directed to run concurrently with the benefit of section 382-B, Cr.P.C. Feeling aggrieved, the petitioner preferred Criminal Appeal No.18 of 2011 before the learned Additional Sessions Judge, Depalpur who vide his judgment dated 25-5-2012 dismissed the same. The appellant/petitioner preferred Jail appeal bearing No.10-J of 2013 and during the pendency of this appeal he has filed this petition for suspension of his sentence.
2. The main arguments of the learned counsel for the petitioner is that the offence under section 320, P.P.C. Is bailable; that the nature of offence is still to be considered at the time of hearing of appeal whereas the petitioner continuously remained behind the bar since 16-2-2002 and that there is no likelihood of hearing of the appeal in the near future, therefore, claims the statutory right for the suspension of sentence as prescribed under section 426, Cr.P.C. He also submits that, even otherwise, the petitioner was convicted and sentenced to R.I for 7 years without any evidence on record as the motorbike was driven by a minor having no licence, who hit the tractor trolley due to which the accident had occurred. He further adds that according to the postmortem examination, the minor deceased persons were not dragged by the tractor trolley which does not connect the petitioner with the alleged crime. Places reliance on Makhdoom JAVED HASHMI v. THE STATE (2008 SCMR 165), LIAQAT and another v. THE STATE (1995 SCMR 1819), MASOOD KHAN v. THE STATE (PLD 2004 Karachi 386), SAFDAR ALI SHAH v. THE STATE (1997 MLD 961), ABDUL MANAN v. The STATE and others (2013 YLR Lahore 1175), ZAFAR IQBAL alias MALANGA v. THE STATE (2011 YLR Lahore 1547) and NAVEED alias NAVIDI v. THE STATE (2011 PCr.LJ Lahore 1971).
3. Conversely, learned Additional Prosecutor-General representing the State submits that 4 minor children were killed by the petitioner in brutal and callous manner when while driving the tractor trolley colliding with the motorbike and thereafter he escaped from the spot, whereafter due to the death of minors the complainant is rendered issueless. He further adds that the trial Court in its jurisdiction awarded the maximum punishment to the petitioner, therefore, in the facts and circumstances notice of enhancement be issued to the petitioner. He lastly submitted that case of the petitioner falls within the exception of section 426, Cr.P.C. For the manner in which he has committed the offence.
4. Heard. Record perused.
5. The allegation against the petitioner is that Tasawar Hussain aged 16 years, son of the complainant, was riding motorbike along with his other son namely, Hasnain, aged 10 years, Naila Bibi, his daughter aged 7 years and Shumaila Bibi, his niece aged 13 years, who were going to the school at about 8-40 a.m. When they were hit with the tractor trolley which was being driven by the petitioner rashly and negligently, whereafter he also managed to escape from the place of occurrence. Resultantly, motorbike was totally destroyed. As per the side plan dead bodies were also found lying away from the trolley showing the force through which they were hit. The complainant lost his all children as a result of the incident. No infirmity in the judgment could be pointed out by the learned counsel for the petitioner.
6. Exception under section 426, Cr.P.C. Provides the dismissal of application for suspension on statutory period having been spent if in the opinion of the Court the petitioner is hardened, desperate and dangerous criminal. In the instant case, this Court is of the opinion that the manner in which the offence was committed shows not only callousness but also brutality on the part of the petitioner as the petitioner had taken lives of four minor children due to rash and negligent driving of his tractor trolley in the school timings requiring special case for the time of vehicles.
None of the judgment cited by the learned counsel for the petitioner applies in the present case as statutory period does not apply to the petitioner. The arguments, even otherwise, touch the deepe appreciation of Evidence, therefore, places reliance on MANZOOR AHMED v. FAZAL AHMED and 3 others (2013 SCMR 1403). Resultantly, this petition has no merits and is hereby dismissed.