' MRS. SYEDA TAHIRA SAFDAR, J.---Through this judgment we proposed to review judgment dated 11th April, 2012 passed by this court in 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) Pakistan 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 simultaneously awarded two punishments for one and the same offence i,e, murder.( Ay ). 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 query 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 order 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 replied 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 sentences 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 competent 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 altered/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 imprisonment 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 conceded 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 permissible under the law. Since the question of payment of Diyat by a person who was not capable to pay the same owing to poverty 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 extent 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) punishment 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 punishment 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 abuse 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 competence 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, relying 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 the 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 State reported in 2014 SCM R 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 petitioner 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 under 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 reviewed, 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 criminal 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 the 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 had 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 trial 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 lqbal 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 applies 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 the 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 is 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 may 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 manifest injustice."
' In case titled Nazak Hussain v. The State reported in PLD 1996 'SC 178, it was held: "ln 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 above 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, which 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 maintained by us vide judgment dated 1 1 th 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, thus 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 result 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 undergoing his sentence, and also to the trial court.