2005 PLP 472 (MLD)

Muhammad Ismail Bhutto for the State. Safdar Ali Bhutto for the Complainant. 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. 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. I have heard Mr. Ahsan Ahmed Memon, learned counsel for the applicant and Mr. Muhammad Ismail Bhutto learned counsel for the State. 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, Cr.P.C. He relied on Dhano v. State (1984 PCr.LJ 16) and Muhammad Yar v. State (1992 PCr.LJ 514). 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 ease 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. 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. 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. H.B.T./K‑41/K Bail application dismissed.