P L D 2015 Balochistan 62
Before Muhammad Noor Meskanzai, C.J. and Mrs. Syeda Tahira Safdar, J
MUHAMMAD LAL ---Appellant
versus
THE STATE ---Respondent
Criminal (CNS) Jail Appeal No.24 of 2011, decided on 12th January, 2015.
(a) Penal Code (XLV of 1860) ---
----S. 302(c) ---Criminal Procedure Code (V of 1898), Ss.369 & 561 -A---Qatl-i-amd---Review ---
Inherent jurisdiction of High Court ---Accused was convicted by Trial Court under S.302(c),
P.P.C. and sentenced to imprisonment for ten years and also to pay Diyat amount to legal heirs of
deceased ---Conviction and sentence awarded by Trial Court was maintained by High Court ---
Validity ---Judgment passed by Criminal Court could not be reviewed, altered or varied, except
having been passed beyond jurisdic tion, or suffered from a patent illegality rendering the
judgment void or passed behind the back of a party by way of having been condemned unheard --
-Object of initiating criminal proceedings by prosecution against accused was to establish his
guilt and ge t him convicted and sentenced by a court of competent jurisdiction in accordance
with codified law and observance of law was the primary consideration in the process ---In the
present case, punishment not contemplated by law was awarded by Trial Court and m aintained
by High Court and the same fell within the purview of patent injustice, absolute illegality which
necessitated its review because an illegality could not be allowed to be perpetuated ---Judgment
passed by Trial Court and maintained by High Court w as illegal, unlawful and without
jurisdiction to the extent of liability of Diyat ---Judgment was reviewed in circumstances
Muhammad Lal v. The State 2012 YLR 1771, held no more a good law.
Muhammad Yaqoob v. The State 1997 PCr.LJ 1979; Muhammad Sharif v. The State
2014 SCMR 668; Aftab Iqbal Khilji v. The State 2013 PCr.LJ 518 and Nazak Hussain v. The
State PLD 1996 SC 178 ref.
(b) Criminal Procedure Code (V of 1898) ---
----S. 561 -A---Inherent jurisdiction of High Court ---Scope ---High Court can corr ect an error of
its judgment apparent on face of it but without going into re -examination of facts or making an
attempt to arrive to any other conclusion, which may be possible on the basis of facts and
circumstances of the case ---No one should suffer on a ccount of an act of court.
(c) Precedent ---
----Review of judgment ---Effect ---When judgment is reviewed, it is no more an authority on the
subject hence may not be referred to and relied upon to such extent.
Abdul Karim Yousafzai for Appellant.
Ms. Sarwar Hina, Addl. P.G. assisted by Haji Liaquat Ali for the State.
Date of hearing: 3rd December, 2014.
JUDGMENT
MRS. SYEDA TAHIRA SAFDAR, J. ---Through this judgment we proposed to review
judgment dated 11th April, 2012 passed by this court i n Criminal Appeal No. 24 of 2011, to the
extent of sentence pertains to payment of Diyat. The judgment passed by the trial court was
maintained, whereby the appellant was sentenced in the terms:
"The accused is hereby convicted under Section 302(c) Paki stan Penal Code and
sentenced to undergo rigorous imprisonment for 10 years. He shall also liable to pay Diyat
amount to the legal heirs of the victim. Benefit of Section 382 -B Cr.P.C. was also extended in
favour of appellant."
The appellant was simulta neously awarded two punishments for one and the same
offence i.e. murder ( ). While hearing Criminal Appeal No.183 of 2014, titled as Masood Ahmed
v. The State, wherein the appellant was sentenced to life imprisonment and directed to pay the
Diyat, upon qu ery as to whether such a sentence is sustainable, the learned Additional Prosecutor
General answered in affirmative at the strength of the judgment reported in 2012 YLR 1771, the
judgment of this court in appeal in hand. As such on 23rd October, 2014 an or der was passed,
operative portion thereof reads as under:
"During the course of arguments, upon a query whether the sentence of imprisonment
and Diyat can simultaneously be awarded in an offence under sections 302(b) and 302(c), P.P.C.
The query was rep lied in affirmative by the learned DPG at the strength of judgment rendered by
this Court (i.e. by this Bench reported in 2012 YLR Quetta page - 1771). We have gone through
the judgment which was rendered by us, prima facie it appears that both the sentence s do not find
mention in the sections 302(b) & 302(c), P.P.C. We are conscious of the legal proposition. Stare
decisis, a doctrine of common law and, well conversant with the sanctity of finality attached to
the judgment delivered by a criminal court of co mpetent jurisdiction within ambit of section 369,
Cr.P.C, nevertheless, we are also cognizant of the legal proposition that a judgment if suffers
from a patent injustice or is without jurisdiction or has been passed in absence of a party is open
to be alte red/amended/reviewed. Analyzing the reported case at such touchstone, we would like
to issue notice to the parties in Criminal Jail Appeal No. 24 of 2011 decided on 11th April, 2012
why not to revisit the judgment to the extent of the imposition of impriso nment as well as
payment of Diyat simultaneously. Hence, we direct that the matter be also taken up along with
this appeal and be fixed for 31 -10-2014. Notice to appellant and his counsel be also issued.
Notice to learned PG also be issued and the copy of this order must accompany the notice."
2. Consequent upon the above order, notices were issued to the counsel, appointed for the
appellant at State expenses while hearing of the appeal, and the Prosecutor General. The learned
counsel for the appellant co nceded that he was not able to assist this court properly, as he failed
to point out that awarding of the double punishment was not permissible under the law. Since the
question of payment of Diyat by a person who was not capable to pay the same owing to p overty
was also in question, therefore, this aspect lost the sight at the relevant time. Similarly, the
learned Additional Prosecutor General also conceded to the proposition that the judgment passed
by the trial court and maintained by this court to the e xtent of liability of Diyat was in violation
of law, thus not sustainable and required to be reviewed.
3. Section 302, P.P.C. contained the sentences that can be awarded for the offence of
murder, but the liability of Diyat no where provided therein. For the sake of convenience section
302, P.P.C. is re -produced, which reads as under:
"Section 302. Punishment of qatl -i-amd. --Whoever commits qatl -i-amd shall, subject to
the provisions of this Chapter be;
(a) punishment with death as qisas;
(b) pun ishment with death or imprisonment for life as Ta'zir having regard to the facts
and circumstances of the case. If the proof in either of the forms specified in section 304 is not
available; or
(c) punishment with imprisonment of either description for a term which may extent to
twenty -five years, where according to the injunctions of Islam the punishment of qisas is not
applicable;
Provided that nothing in this clause shall apply to offence to qatl -i-amd if committed in
the name or on the pretext of honour and the same shall fall within the ambit of clause (a) or
clause (b), as the case may be."
4. The plain reading of the Section leaves no room for the doubt that if an accused guilty of
the offence of Qatl -i-amd he would be liable for the punishmen t in the terms of either of the three
clauses, but there shall be no order for payment of Diyat simultaneously in addition thereto. In
view thereof we are, clear in our minds that the judgment passed by the trial court, and
maintained by us, to such extent was absolutely void, patently illegal, and without jurisdiction,
thus not sustainable. However, the questions that cannot be left unattended are:
(A) Whether in absence of any review petition this court can exercise suo motu review
powers?
(B) Whether a judgment passed by a criminal court exercising either original or appellate
jurisdiction could be reviewed?
So far as question (A) is concerned, there is no cavil to the fact that the Legislature in its
wisdom has bestowed vast and adequate powers on a High Court as contained by Section 561 -A
Cr.P.C. The Section conferred inherent powers to this Court, in exercise whereof it is empowered
to make such orders as may be necessary to give effect to any order under Criminal Procedure
Code, or to prevent ab use of the process of any court, or otherwise to secure the ends of justice.
Keeping in view the principle as contained in the referred provision, we do not feel hesitation to
hold that the judgment to the extent of sentence of Diyat was void, beyond compe tence and
contrary to the codified law, thus must be reviewed. Reliance is placed on the judgment titled as
Muhammad Yaqoob v. The State reported in 1997 PCr.LJ 1979, wherein it was held:
"Therefore, the Court had recalled the said order of compromise -composition vide its
order, dated 13 -10-1996, while holding that the criminal appeal shall be deemed to be pending
by invoking its jurisdiction under the provisions of section 561 -A, Cr.P.C., as the order of
acquittal had been obtained fraudulently, thus, r elying upon the settled principle of law that fraud
vitiates the most solemn transaction and proceedings and no party is to be allowed to take
advantage thereof; that the fraud cannot be sanctified or protected and every Court, Tribunal or
Authority has th e inherent jurisdiction to review the record to undo the cases of fraud; and that
the Courts are competent to Suo Motu recall orders obtained by fraud."
Similarly, the honorable Supreme Court in the judgment in case tilted as Muhammad
Sharif v. The Stat e reported in 2014 SCMR 668, reviewed its own judgment, as a material aspect
of the case escaped notice at the time of deciding the appeal, can well be cited as an authority on
the subject whereby their lordships held:
"The offences committed by the pet itioner in respect of murder, wrongful confinement
and abduction were parts of the same transaction and, thus, ordinarily the sentences passed for
such offences ought to have been ordered to run concurrently to each other. It appears that in the
judgment u nder review this aspect of the matter had escaped the notice of this Court. The Suo
Motu Review is, therefore, allowed and it is ordered that all the sentences of imprisonment
passed against the petitioner shall run concurrently to each other. Disposed of"
5. As far question of review with regard to reduction or enhancement is concerned, we are
conscious of the constraints contemplated by section 369, Cr.P.C, and cognizant with the legal
proposition that a judgment passed by a criminal court cannot be rev iewed, altered or varied,
except having been passed beyond jurisdiction, or it suffers from a patent illegality rendering the
judgment void, or passed behind the back of a party by way of having been condemned unheard.
Obviously, the object of initiating c riminal proceedings by the prosecution against an accused is
to establish his guilt, and get him convicted and sentenced by a court of competent jurisdiction in
accordance with the codified law. Thus the observance of law would be the primary
consideration in the process.
6. The judgment to the extent of liability of Diyat, besides awarding sentence of 10 years
imprisonment, passed by the trial court and maintained by us, if analyzed at such touchstone,
there can be no other opinion except to hold that th e judgment to the extent of liability of Diyat is
void, illegal, and also unjust. Of course, we are surprised for the grave error and shocked for our
oblivion. The situation aggravated further when we were informed that the judgment was not
assailed and ha d already attained finality. Though the judgment by nature is per incuriam but
after having been reported, thus as a precedent may mislead the criminal courts, as well as, the
litigants. Since a punishment not contemplated by law has been awarded by the tr ial court and
maintained by us, the same falls within the purview of patent injustice, absolute illegality which
necessitated its review, because an illegality cannot be allowed to be perpetuated. Reliance is
placed on judgment in case titled as Aftab lqba l Khilji v. The State reported in 2013 PCr.LJ 518.
It was observed:
"The perusal of section 369 of the Cr.P.C. clearly demonstrates that no Court, when it has
signed its judgment, shall alter or review the same, except to correct a clerical error. It ap plies to
the judgments given by any Court, including the High Court, in exercise of criminal jurisdiction.
The words "alter or review" connote reversing an order of allowing the appeal or dismissing the
same would also include reduction or enhancement of t he sentence ordered in the judgment
sought to be reviewed. When attention of the learned counsel for the petitioner was drawn to this
aspect of the matter, he submitted that the High Court possess jurisdiction to review its own
order and the jurisdiction i s not ousted under exceptional circumstances. Section 561 -A Cr.P.C.
reads as under: -
"561 -A. Saving of inherent power of High Court. --- Nothing in this Code shall be
deemed to limit or affect the inherent power of the High Court to make such orders as m ay be
necessary to give effect to any order under this Code, or to prevent abuse of the process of any
Court or otherwise to secure the ends of justice."
8. Though there is no provision for review of any judgment or order under the Cr.P.C.
yet, while exercising inherent jurisdiction under section 561 -A of the Cr.P.C, this court has
power to correct its own orders or to recall an erroneous order. The criminal Court can only
review or recall their judgments and orders, if it is satisfied that the earlier order/judgment is
either without jurisdiction or against the mandatory provisions of law and has been delivered
inadvertently and out of oblivion of the provision of law and if such order/judgment is left intact,
it would result in perpetration of manifes t injustice."
In case titled Nazak Hussain v. The State reported in PLD 1996 SC 178, it was held:
"In criminal proceedings review of an order is possible only when an error is apparent on
the face of the record and on no other grounds."
7. The abov e discussion made it clear that with the mandate of Section 561 -A Cr.P.C. this
Court can correct an error of its judgment apparent on face of it, but without going into re -
examination of the facts or making an attempt to arrive to any other conclusion, whi ch may be
possible on basis of the facts and circumstances of the case. In addition no one should suffer on
account of an act of a court.
8. In the light of above, the judgment dated 28th April, 2011 passed by the learned Sessions
Judge, Zhob and maintai ned by us vide judgment dated 11th April, 2012 was illegal, unlawful
and without jurisdiction to the extent of liability of Diyat, thus stands reviewed. The judgment
impugned, to the extent of liability of Diyat is declared beyond competence, and void, thu s set
aside. Needless to observe that the judgment reported in 2012 YLR (Quetta) 1771 to the extent
of liability of Diyat having been reviewed thus no more an authority on the subject, hence may
not be referred to and relied upon to such extent. With the r esult the sentence of ten (10) years'
rigorous imprisonment awarded to the appellant Muhammad Lal shall remain intact with the
benefit of Section 382 -B, Cr.P.C. Copy of this judgment be sent to the appellant through
Superintendent Jail, where he is undergo ing his sentence, and also to the trial court.
MH/20/Bal. Order accordingly.This judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
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