DILAWAR HUSSAIN vs STATE etc.
The petitioner sought post-arrest bail in case FIR No. 254 of 2010 registered under Section 436 read with Section 34 of the Pakistan Penal Code 1860 at Police Station Dera Ghazi Khan. The core legal question was whether a makeshift hut (jhuggi) falls within the definition of a 'building' under Section 436 of the Pakistan Penal Code 1860 so as to attract the prohibitory clause of Section 497 of the Code of Criminal Procedure 1898. The Lahore High Court held that a makeshift hut does not constitute a permanent structure or building as contemplated by Section 436 PPC, and therefore the offence did not fall within the prohibitory clause of Section 497 Cr.P.C. The court laid down the principle that a temporary structure like a jhuggi cannot be equated with a building under Section 436 PPC, making the case one of further inquiry under Section 497(2) Cr.P.C., and accordingly granted post-arrest bail to the petitioner.
- Whether a makeshift hut or jhuggi falls within the definition of a building under Section 436 of the Pakistan Penal Code 1860?
- Does setting fire to a makeshift hut attract the prohibitory clause of Section 497 of the Code of Criminal Procedure 1898?
- When can a case be considered one of further inquiry for the grant of post-arrest bail under Section 497 of the Code of Criminal Procedure 1898?
- Section 436, Pakistan Penal Code 1860
- Section 34, Pakistan Penal Code 1860
- Section 497, Code of Criminal Procedure 1898
ORDER
The petitioner seeks post-arrest bail in case FIR No, 254/2010 dated 18.4.2010 under Section 436 PPC read with Section 34 PPC registered at Police Station Dera Ghazi Khan.
2. The allegation narrated in the FIR is that on the night of occurrence, the complainant woke up to see his but (jhuggi) ablaze. He recognized the offenders in the light of the electric bulb.
3. It is contended by the learned counsel for the petitioner that the instant case has been registered against the petitioner on account of ulterior motives and malice borne by the complainant against the petitioner; that the story of FIR is totally false and fabricated one; that the provisions of Section 436 PPC are not attracted in the instant case.
4. On the other hand, the grant of bail is opposed by the learned law officer and the learned counsel for the complainant. It is contended that the offence under Section 436 PPC is punishable with imprisonment for a period of 10 years and therefore falls within the Prohibitory Clause of Section 497 Cr.P.C.
5. I have heard the learned counsel for the parties and have also gone through the record.
6. According to the contents of FIR, the complainant along with his witnesses saw the petitioner and two others fleeing away from the house of the complainant. No witness has seen anybody setting the but (jhuggi) on fire. It would be determined during the trial of the case as to who set the (jhuggi) on fire and, whether the accused had acted in furtherance of common intention of all and therefore were vicariously liable for the acts of others or not. Section 436 specifies the mischief resulting in the destruction of any "building" used as a place of worship or as a human dwelling or as a place for the custody of property. A but (jhuggi) which is a 'makeshift arrangement, cannot be termed a building. In the Concise Oxford English Dictionary it is ascribed the meaning "a structure with a roof and walls". This indicates a permanent structure. The contents of FIR do not disclose that these (jhuggies) are ordinarily used as the place for custody of property. Putting a but (jhuggi) on fire is a mischief but it does not come within the ambit of Section 436 PPC, so it cannot be said to fall within the Prohibitory Clause of Section 497 Cr.P.C. The petitioner and the co-accused were only seen, fleeing away from the place of occurrence. No one has seen the petitioner putting the but (jhuggi) on fire, it is yet to be determined whether the petitioners had acted in furtherance of common intention of all and were vicariously liable for the acts done by the others or not.
7. For what has been discussed above, the petitioner is granted post-arrest bail subject to his furnishing bail bond 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.