1. ' NADEEM AZHAR SIDDIQUI, J.---The applicant is facing trial in Crime No,21 of 2005 of Police Station Karampur under section 9 Offences Against Property (Enforcement of Hudood) Ordinance, 1979.
2. ' This allegation against the applicant is that on 10-4-2005 at about 2.00 a.m. He along with others entered the house of complainant and took away one buffalo and one calf buffalo with them. It was stated in the F.I.R. That the complainant noticed aperture measuring 4 x 3 feet in the eastern side of the wall. Bail application was moved before the trial Court which was dismissed on the ground that name of the accused appears in the F.I.R. With specific role. The P.Ws. Have supported the version of the complainant and out of 5 accused only the applicant was arrested and there is every possibility of absconsion of the applicant.
3. ' Learned counsel for the applicant has contended that the case was malafidely registered under the provisions for Hudood Ordinance and this is a case falling under section 380 of Pakistan Penal Code. He further submits that the applicant is in custody since 14-4-2005 and there is no incriminating material available on record to connect the present applicant with the commission of the present offence. Learned counsel for the applicant has relied upon the case of Ghulam Sikander v. Mamaraz Khan (PLD 1985 SC 11) and Mehmood Ahmed v. The State (1995 SCM R 127).
4. ' Mr. Muhammad Ismail Bhutto, learned State counsel has opposed grant of bail on the ground that name of the applicant is appearing in the F.I.R. With specific role has been assigned. He after going through the police papers has submitted that no recovery has been made from the present applicant. The learned State counsel is also of the view that provisions of Hudood Ordinance, and section 458, P.P.C. Are not applicable.
5. ' I have heard learned counsel for the parties, perused the record made available before me and gone through the judgments sited at the bar.
6. In the F.I.R. The complainant states that when he woke up he saw the applicant with gun. In the F.I.R.
7. No specific allegation has been made against the applicant that he has caused any aperture in the wall and has made preparation for causing hurt. From the reading of section 458 it appears that this section only applies to the house breaker who actually has himself made preparation for causing hurt to any person or for assaulting any person or for wrongfully restraining any person and not to his companions as well who themselves have not made such preparation. From the contents of the F.I.R. It is also not clear whether the applicant and other accused persons entered the house of the complainant or they only entered to the courtyard where the buffaloes were tied.
8. In the case reported as Dhano alias Dhani Bux v. The State (1984 PCr.LJ 16), it has been held as under:-- "As pointed out above the accused/appellant was seen andcaught outside the room.
9. Consequently he could not be held to have entered in a building within the meaning of the above section and would not liable for house-trespass in any shape or form. Since he had entered, the compound of the complainant's house he had committed criminal trespass punishable under section 447, P.P.C. The maximum punishment awardable for which offence is three months.
10. ' The applicant is behind the bars since last more than one year but no recovery has been made.
11. The contention of the learned counsel for the applicant that provisions of Hudood Ordinance and section 458 are not applicable and at the best provision of section 318, P.P.C. Will apply and the case is not falling within the prohibitory clause of section 497(i), Cr.P.C. Has to be considered at trial. For want of recovery of any incriminating material from the possession of the applicant, the case of further inquiry has been made out.
12. ' I therefore, allow this bail application subject to furnishing solvent surety in the sum of Rs,100,000 and P.R. Bond in the like amount to the satisfaction of trial Court.