2011 P Cr (PLP)

IJAZ AHMAD, J.

The petitioner seeks post-arrest bail in case F.I.R. No.254 of 2010 dated 18-4-2010 under section 436, P.P.C. read with section 34, P.P.C. registered at Police Station Dera Ghazi Khan.

2. The allegation narrated in the F.I.R. is that on the night of occurrence, the complainant woke up to see his hut (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 F.I.R. is totally false and fabricated one; that the provisions of section 436, P.P.C. 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, P.P.C. 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 F.I.R., 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 hut (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 hut (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 F.I.R. do not disclose that these (jhuggies) are ordinarily used as the place for custody of property. Putting a hut (jhuggi) on fire is a mischief but it does not come within the ambit of section 436, P.P.C., 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 hut (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. N.H.Q./D-15/L Bail allowed.