3/14/24, 11:02 AM 2011 P Cr

2011 P Cr. L J 420

[Lahore]

Before Ijaz Ahmad, J

DILAWAR HUSSAIN---Petitioner

Versus

THE STATE and another-Respondents

Criminal Miscellaneous No. 2373-B of 2010, decided on 27th July, 2010.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), S. 436/34---Mischief by fire or explosive

substance with intent to destroy house, etc.---Bail, grant of---Putting a hut
(jhuggy) on fire is a mischief, but it does not come within the ambit of S. 436,
P.P.C.---Case against accused, therefore, did not fall within the prohibitory clause
of S. 497(1), Cr.P.C.---Accused and his co-accused were only seen fleeing away
from the place of occurrence---Nobody had seen the accused putting the hut
(jhuggy) on fire---Question whether the accused had acted in furtherance of
common intention of other co-accused and his vicarious liability in the matter,
was yet to be determined by Trial Court---Accused was admitted to bail in
circumstances.

Muhammad Javed Iqbal Thaheem for Petitioner.

Tahir Mehmood for the Complainant.

Syed Mukhtar Masood Bukhari, Learned DPG and Asghar S.I. along with record for
the State.

ORDER

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

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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.

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