(i) Exceptions to rule of granting bail in non-prohibitory clause offences (ii) Gravity of the offence of housebreaking by night, highlighted.

.........................

Even otherwise, we are of the view that the facts alleged in the FIR prima facie constitute the offence of house-breaking by night after preparation for causing hurt, punishable under Section 458 of the PPC, instead of Section 452 of the PPC. The petitioner and his accomplices allegedly committed house-breaking, that is, trespassed into the complainants’ house by scaling over the wall of the house, as defined in clause 2 of Section 445 and that housebreaking was also committed by night, that is, after sunset and before sunrise, as defined in Section 446, PPC. The offence under Section 458 of the PPC being punishable with imprisonment upto fourteen years falls within the prohibitory clause of Section 497(1) of the CrPC. Therefore, even, if the actual role of the petitioner is considered, his case also falls within the prohibitory clause.

We may observe here that it is the sanctity and privacy of home, as guaranteed by Article 14 of the Constitution of Pakistan, that the offences of house-breaking committed after having made preparation for causing hurt or fear of hurt have been categorised by the legislature as grave offences under Section 455 (when committed at daytime) and Section 458 (when committed at night), punishable with imprisonment upto ten years and fourteen years respectively. It is said that ‘the house of everyone is to him as his castle and fortress as well as for his defence against injury and violence as for his repose’. It would be the worst position of a society if its people do not feel safe and secure even within their houses. Failure to provide protection to its citizens in their houses would amount to the failure of the State. All the organs of the State, including the judiciary, should therefore enforce the laws protecting the privacy of home strictly in letter and spirit.

Crl.P.461/2023
Hilal Khattak v. The State through Attorney General for Pakistan and another
Mr. Justice Syed Mansoor Ali Shah
24-05-2023