' MUHAMMAD YUNUS SURAKHVI, C.J.--- The above titled both the appeals have been preferred against a consolidated judgment of Shariat Court, dated 25-4-2002, whereby the revision petition filed by complainant, Muhammad Aslam, against the judgment of District Criminal Court, Kotli, dated 3-11-1999 was accepted and the bail granted to the present appellants by the District Criminal Court, Kotli was cancelled.
2. The necessary facts, giving rise to the above appeals, are that complainant, Muhammad Aslam, made a written application before the Police Station Fatehpur Thakiyala, District Kotli, on 31-7-1997 at 5-00 O'Clock in the morning alleging therein that Muhammad Ayub son of Lal Hussain, caste Gujjar, resident of Anderlah Nar, is the younger brother of the complainant who lives in his neighbourhood. On 13-7-1997 at 8-00 O'Clock in the morning, Mst. Noor Jahan, wife of Muhammad Ayub, told the complainant that on 9-7-1997 (Wednesday) at 5/6 O'Clock, his brother Muhammad Ayub went to the house of Abdul son of Mangta, caste Gujjar, resident of Roli Baidhara, for obtaining some loan but today despite 5 days he did not turn up upon which the complainant's family became worried and tried to search him in the houses of the relatives but could not get any clue about him. During this period on 28-7-1997 Muhammad Naseer son of Fateh Muhammad, resident of Soban Roli, came at the shop of the brother of complainant, namely, Allah Dad, who had a Unani medicines shop at Fatehpur Thakiyala Bazar, and gave him the identity card, one key, one eye-glass one Jantri, papers (four in number), upon which some transaction had been written and a small handkerchief and told him that these articles were traced by his neighbourer, Muhammad Israr, son of Muhammad Nisar, resident of Sobar Roli, yesterday in the jungle near Peer Kalanjer Forward Post. Aftet the tracing of the aforesaid articles, the complainant and his brother, also made searches around the Peer Kalanjer, Forward Post but could not verify the coming up of Muhammad Ayub in that area. Under these circumstances a doubt was created in the mind of complainant that his brother Muhammad Ayub was murdered.
3. The motive behind the occurrence was stated that the deceased Muhammad Ayub, his wife, Mst.
Noor Jahan, and his sons, were not on good terms with each other and they often used to quarrel with each other. After the disappearance of Muhammad Ayub neither his wife nor his sons ever tried to trace Muhammad Ayub, therefore, the complainant had strong apprehension that Mst.
Noor Jahan and sons, either themselves or through some other persons with conspiracy killed Muhammad Ayub. In these circumstances, the complainant prayed that necessary action under law may be taken. On this application the police registered a case vide Illat No,112/1997 and started the investigation.
4. After the completion of investigation, a report under section 173, Cr.P.C. Was submitted before the District Criminal Court, Kotli. The accused-appellants alongwith one Mst. Noor Jahan applied for their release on bail before the District Criminal Court, Kotli who vide its order, dated 3-11-1999 released the accused-appellants, Muhammad Shafat, Muhammad Ashfaque and Muhammad Rashid, on bail but refused the concession of bail to Mst. Noor Jahan, widow of deceased Muhammad Ayub, on the ground that her conduct and role had been heinous and deplorable for which she was not entitled to concession of bail and, she was prima facie connected-, with the commission of offence alleged and furthermore she was entitled to be sentenced for the alleged offence by way of "Tazir" the punishment for which could be imprisonment for life as well as the death. So far as the rest of the accused were concerned, they were released on bail on the ground that one of the heirs of deceased had abandoned his right of "Qisas" and had pardoned the accused, therefore, the sentence of "Qisas" could not be awarded to the accused. Thus, the only punishment which could be awarded was the payment of Diyyat. In these circumstances the rest of the accused were released on bail by the District Criminal Court.
5. Mst. Noor Jahan, the other co-accused, whose bail was refused by the District Criminal Court, again moved for her release on bail on the statutory grounds and she too was released on bail vide the order of District Criminal Court, Kotli, dated 11-3-2000. This order was never challenged by the complainant or the State before the Shariat Court, therefore, the same remains intact so far.
6. The order dated 3-11-1999 passed by the District Criminal Court, Kotli, on the basis of which Muhammad Shafat, Muhammad Ashfaque and Muhammad Rasheed, accused-appellants, were allowed the concession of bail, was challenged by complainant, Muhammad Aslam, in the Shariat Court and the Shariat Court vide its impugned order, dated 25-4-2002 by accepting the revision petition cancelled the bail granted to accused-appellants Muhammad Shafat, Muhammad Ashfaque and Muhammad Rasheed. Hence these two appeals on behalf of accused; one by Muhammad Shafat and Muhammad Ashfaque and the other by Muhammad Rasheed for their bail, which are being disposed of by this single judgment.
7. Arguing the case on behalf of accused-appellants Mr. Muhammad Yunus Tahir, the learned counsel, vehemently contended that the accused-appellants have been enroped in a false case.
The articles belonging to deceased were found out to the complainant on 28-7-1997 near Peer Kalanjer Forward Post but despite that the complainant did not lodge any report till 31-7-1997 nor any explanation for delay in lodging the F.I.R. Has been given by the complainant or the State. In this view of the matter, according to the learned counsel, the story of prosecution becomes doubtful. The learned counsel also contended that the occurrence is unseen and the corroboratory evidence is so weak and untrustworthy that it cannot remove the inherent defects in the story of prosecution. The learned counsel contended that the Shariat Court without any justifiable reason has cancelled the bail granted to the accused-appellants whereas once the bail is granted by a Court of competent jurisdiction, very strong reasons are required to cancel the same. The learned counsel also contended that the confessional statements of accused-appellants do not in any way link the accused with the commission of offence. The learned counsel also pressed into service the submission that a legal heir of deceased has pardoned the offence of murder to the accused- appellants, whereas the remaining heirs of deceased are minors, therefore, the sentence of "Qisas" cannot be awarded to the accused-appellants; the only sentence that can be awarded to the accused-appellants is "Diyyat" which is in the shape of compensation to be paid to the legal heirs of deceased. In this view of the matter, the learned counsel submitted that the accused-appellants may be released bn bail.
8. On the other hand Sardar Abdul Razik Khan, the learned Additional Advocate-General, strongly defended the impugned judgment passed by the Shariat Court. He submitted that prima facie the accused-appellants are connected with the commission of offence alleged. So far as the bail of other accused Muhammad Rasheed is concerned, he cannot be released on bail even otherwise because his appeal for bail is barred by limitation of 16 days, therefore, his appeal is liable to be rejected summarily on the basis of limitation without entering into the merits of the case.
9. We have given our due consideration to the arguments advanced by the learned counsel for the parties and perused the relevant record with the assistance of the learned counsel. At the very outset it may be pointed out that the occurrence in this case took place in an unknown manner and prima facie the case is based on circumstantial evidence. In a case of circumstantial evidence, every chain of evidence of prosecution must be linked with the other chain of evidence of prosecution. If one chain is broken, then the case of prosecution automatically falls on the ground.
At this stage of bail we do not want to express our opinion on the merits of the case and the evidence of the prosecution brought on record cannot be appreciated deeply as in that case it is likely to prejudice the case of either of the parties. However, it may be observed that Muhammad Banaras, the son of deceased has pardoned the accused-appellants, therefore, the question of "Qisas" does not arise in the instant case. When the sentence of "Qisas" cannot be awarded then the only punishment to which the Court could advert is the sentence of "Diyyat" which already pointed out is in the shape of compensation amount to the heirs of deceased. The other heirs of deceased are admittedly minors, so they cannot pardon the accused-appellants. The prosecution mainly relies upon the evidence of confessional statements and other recoveries. Whether the confessional statements of the accused-appellants inspire confidence and the other recoveries are sufficient and are of the probative inspire force to connect the accused with the commission of offence is yet to be looked into and requires further inquiry.
' Therefore, the accused-appellants Muhammad Shafat and Muhammad Ashfaque sons of Muhammad Ayub are entitled to the concession of bail and their bail was illegally cancelled by the Shariat Court. It is an accepted principle of criminal jurisprudence that once a bail is granted to an accused by a Court of competent jurisdiction, the same cannot be rejected unless the discretion exercised by the Court granting the bail is either perverse, capricious or arbitrary. There seems to be nothing on record to point out that the discretion exercised by the District Criminal Court in allowing the bail to the accused-appellants Muhammad Shafat and Muhammad Ashfaque was perverse, capricious or fanciful.
10. In the light of what has been stated above, by accepting the appeal filed by Muhammad Shafat and Muhammad Ashfaque, sons of Muhammad Ayub, caste Gujjar, residents of Anderlah Nar, Tehsil Fatehpur Thakiyala, District Kotli, we set aside the impugned judgment of the Shariat Court to their extent and order that these accused may be released forthwith on the surety bonds and personal bonds furnished by them on the order of District Criminal Court, provided they are not wanted in any other offence or case.
' So far as the plea of bail of accused-appellant Muhammad Rasheed is concerned, his case cannot be considered on merits as his appeal is barred by limitation of 16 days. The period of limitation prescribed for lodging an appeal before the Supreme Court is 60 days against the judgment of the Shariat Court. The judgment of the Shariat Court in the instant case was announced on 6-5-2002, whereas the appeal was filed on 22-7-2002, i,e, after 77 days. One day was spent in obtaining the copy of relevant judgment; if the same is excluded, the appeal was filed after 76 days which becomes late by 16 days, therefore, the appeal filed by accused-appellant Muhammad Rasheed is dismissed as being barred by limitation. He may renew his prayer for bail on merits before the trial Court on the ground of consistency or any other ground available to him.
The file shall be sent back to the District Criminal Court, Kotli for proceeding in accordance with law.