KAMAL vs THE STATE
This bail application arises from a criminal case registered at Police Station, Mian-jo-Goth, District Shikarpur, involving allegations of theft and lurking house trespass. The applicant, Kamal Mirbahar, was apprehended at the scene by the complainant and neighbors while allegedly committing theft of bullocks during the night, armed with a pistol. The core legal question was whether the offense constituted lurking house trespass by night, thereby invoking the prohibitory clause of Section 497, Code of Criminal Procedure 1898, given the defense's argument that the house was enclosed by a hedge rather than a wall. The Court held that the entry into the enclosed area during the night satisfied the requirements for lurking house trespass. Consequently, the Court dismissed the bail application, noting that the applicant was caught red-handed with the stolen property and a weapon, and that the prosecution's version was supported by witnesses. The principle established is that an enclosed area, even if defined by a hedge, can constitute a dwelling for the purposes of lurking house trespass by night.
- Does entry into a house enclosed by a hedge during the night constitute lurking house trespass?
- Is an offense punishable under Section 457 of the Pakistan Penal Code 1860 subject to the prohibitory clause of Section 497 of the Code of Criminal Procedure 1898?
- Can bail be denied where the accused is apprehended at the scene with stolen property and a weapon?
- Section 380, Pakistan Penal Code 1860
- Section 457, Pakistan Penal Code 1860
- Section 34, Pakistan Penal Code 1860
- Section 14, Offences Against Property (Enforcement of Hudood) Ordinance 1979
- Section 497, Code of Criminal Procedure 1898
ORDER
1. ' Applicant Kamal Mirbahar has sought bail in a case registered at police Station, Mian-jo-Goth, District Shikarpur for an offence punishable under sections 380/457/34, P.P.C. Read with section 14 of Offences Against Property (Enforcement of Hudood) Ordinance, 1979.
2. ' It is alleged that applicant Kamal armed with country made pistol and two others namely Kashmir armed with hatchet and Ghulam Hussain armed with Lathi entered the house of complainant Naban during night hours (4-00 a.m.) and committed theft of bullocks of the complainant, which were tethered in his house. The complainant woke up on the barking of dogs and challenged the culprits. The neighbours Piaro and Altaf Hussain also reached the scene. The complainant grappled with Kamal while the other accused ran away. Kamal was apprehended and pistol was secured from him and the bullock was also retrieved.
3. ' I have heard Mr. Ahsan Ahmed Memon, learned counsel for the applicant and Mr. Muhammad Ismail Bhutto learned counsel for the State.
4. ' Mr. Memon argued that this is not a case of lurking house trespass, as the house was surrounded by a hedge and not a wall, the offence would, therefore, not fall under the prohibitory clause of section 497, C.r.P.C. He relied on Dhano v. State (1984 PCr.LJ 16) and Muhammad Yar v. State (1992 PCr.LJ 514).
5. ' Mr. Safdar Ali Bhutto, learned counsel for the complainant opposed the bail on the grounds that second part of section 457, P.P.C. Is attracted to this case as such the offence is punishable with 14 years; the applicant was apprehended on the spot with stolen bullock; and a pistol was secured from him. Mr. M.I. Bhutto, learned State counsel adopted the same arguments.
6. ' The facts of the case indicate that the hedge was closed and that the accused made entry during night time, the offence would, therefore, fall within the ambit of lurking house trespass by night. The authorities cited by learned counsel are quite distinguishable .On facts. In the last cited case the accused entered a shop which had no door, while in the first case the incident had taken place out side the house.
7. Since according to the case of prosecution, in the instant case the applicant was seen committing theft and the complainant grappled with him just at the entrance of the house and he was apprehended soon after the theft along with stolen bullock and pistol was secured form him; and the co-villagers have also supported the version of the complainant, the bail plea cannot be sustained. The bail application is, accordingly, dismissed.