' MUHAMMAD YOUNIS THAHEEM, J.--Lal Habib, the petitioner, seeks inherent jurisdiction of this court under section 561-A Cr.P.C. r/w section 439 Cr.P.C. Praying: "For the above reasons and any other additional ground, this honourable court may graciously be pleased to determine the Arsh amount payable by the petitioner to the victim. It is further prayed that the execution proceeding in pursuance of the earlier order of this honourable Court dated 31.03.2014 fixed for 16.12.2014 may kindly be suspended till the final decision of this petition. "
2. The brief facts of the case leading to file instant petition is that Lal Habib, the petitioner/ accused in case FIR No, 214 dated 23.09.2008 under sections 324/23/109 P.P.C. At Police Station Latamber, Karak was sent for trial to the learned Additional Sessions Judge-II, Karak and on conclusion of trial, vide judgment dated 23.09.2011 was convicted under section 324 P.P.C. And sentenced for seven years' RI and was further convicted under section 337-A(v) P.P.C. And sentenced to pay Arsh to the tune of 1/3rd of Diyatt.
3. In Cr. A No, 16-B/2011 filed by petitioner and Cr.R No,21-B of 2011 filed by respondent/ complainant Tahir Aziz, before this Court, were adjudicated and vide judgment dated 16.04.2012 the sentence under section 324, P.P.C. Was reduced and petitioner was convicted for five years' RI, while conviction under section 337-A(v), P.P.C. Was enhanced to half of Diyat amount, with fine of Rs,50000/- or in default of payment of fine he would further undergo for six months' SI.
4. The parties approached to the Supreme Court by filing separate criminal petitions, which were disposed of on 19.09.2012 in following terms: "We have found the compromise detailed above to be just and fair in the circumstances of this case and we allow the same. As a consequence of allowing this compromise both these petitions are converted into appeals and the same are disposed of in terms of the compromise noted above. It is, however, clarified that if Lal Habib appellant-convict fails to deposit the requisite amount of Rupees One Million with the learned trial court for its disbursement in favour of the injured victim namely Tahir Aziz within the stipulated period then his petition/appeal shall be deemed to have been dismissed and the judgment of the High Court shall be deemed to have been upheld and maintained by this Court. It is further clarified that in case Lal Habib appellant/ convict deposits the said amount within the stipulated period then his sentence of imprisonment shall be so reduced that he is released from the jail on 30.06.2013. As a final explanation it is also clarified that irrespective of any remission in his sentence earned or to be earned by the convict he shall not be released from the jail in connection with this case before 30.06.2013. These appeals are disposed of with these clarifications.
5. Lal Habib, the petitioner failed to comply with the orders / judgment dated 30.06.2013 of the apex Court by depositing the aforementioned amount of Rupees ten lacs within the stipulated period, therefore, the judgment dated 16.04.2012 of this Court, came into field.
6. The petitioner after serving his sentence invoked the jurisdiction of this Court by filing J. Cr. Misc: No,64-B of 2013 for seeking payment of Arsh amount in installments and releasing him on bail, which was decided on 31.03.2014, the operating Para is as follows: "For the reasons to be recorded later on, the instant J. Cr. Misc: bail application under section 331(2), P.P.C. Is allowed, resultantly, petitioner/convict Lal Habib Khan is granted bail for a period of five years subject to furnishing bail bonds amounting to Rs,3155542/-(thirty one lacs, fifty five thousands five hundred and forty two) as equivalent to full Diyat amount, with two local, reliable and men of means sureties each in the like amount to the satisfaction of trial Court, on condition that petitioner/ convict will earn and arrange for the payment of Arsh Rs,1577771/- (one half of Diyat amount) in 60 equal monthly installments to the injured Tahir Aziz, before the trial court, in case of failure of any installment he will again be taken into custody and put to jail till full payment. "
' Accordingly the Arsh amount was fixed Rs,15,77,771/- as detailed above.
7. The petitioner, Lal Habib challenged the aforementioned Judgment dated 31.03.2014 before the Hon'ble Supreme Court through Cr.P. No,277 of 2014, which was decided vide judgment dated 10.07.2014, as under:- 'After arguing the matter at great length the learned counsel for the petitioner wishes to withdraw this petition, so as to advise the petitioner to approach an appropriate forum for determination of the amount due from the petitioner for payment to the victim in the first instance. This petition is, therefore, disposed of as having been withdrawn.
8. After withdrawal of criminal petition from the apex Court, the petitioner Lal Habib approached learned Sessions Judge, Karak through Cr. Misc: Application for the determination of Arsh amount, whereas the respondent also approached the same court by filing application for cancellation of bail granted to petitioner on the ground of willful default in payment of installments of Arsh amount, as determined by this Court vide judgment (supra). Both the petitions were dismissed vide order dated 06.11.2014, the operative Para of the order is as under: "While so far the Cr. Misc: Bail cancellation application of the petitioner/complainant is concerned, at this stage also no case for cancellation of bail of the respondent/ convict is made out because although, the respondent/convict had not deposited the installments after the month of May 2014, but from the available record it is very much clear that despite the fact that accused/respondent was directed for payment of Arsh amount in 60 monthly installments, but accused/ respondent had deposited Rs, 551340/-in lump sum on 07.04.2014 and this fact is categorically brought on record vide order sheet No,2 dated 15.04.2014 of the instant case, file maintained in respect of deposit of monthly installment by convict of the above Arsh, as a result of which the accused/ respondent is entitled for leniency, hence, the instant Bail Cancellation Application is hereby disposed of accordingly with the observation /direction to the convict (respondent) that onward before 15th of each month, the convict will positively deposit the monthly installment of Rs,27000/- for each month in respect of the determined Arsh amount payable to the injured complainant and in case of failure on the part of accused/ convict, he would be taken into custody and put to jail till full payment in accordance with the worthy judgment of the Peshawar High Court Bannu Bench dated 31.03.2014. "
9. The petitioner being aggrieved from the judgment/order dated 06.11.2014 approached this Court by filing instant Cr. Misc: Q.P. No,69-of, , 2014 contending therein that the order/judgment dated 31.03.2014 is per incuriam as this court had not determined the half of Diyat amount as Arsh according to the fiscal year when occurrence took place i.e, 2008.
10. Learned counsel for petitioner in support of his contentions advanced following arguments.
(a) That fixation of amount of Arsh or Diyat is the job of the trial court which has not done by the trial court and Federal Government's: notification No, F8 (3)1-F-IV/91-536 dated 01.07.2008 for the purpose of section 323 P.P.C. The value of 30630 grams of silver is Rs,1,102,683/- and its half becomes Rs,55134.50 which amount has been paid.
(b) That the learned counsel elaborated the very concept of punishment in criminal jurisprudence and in this regard referred section 53 of Chapter III, P.P.C., wherein the kinds of Islamic System of punishment has been incorporated and the provisions regulating the value of Diyat are given in section 323 of P.P.C., according to which the Federal Government through notification fixes the value of Diyat amount for 30630 gram of silver according to prevailing per Gram value of silver. In this regard he relied upon 1992 PCr.LJ 1583 (Supreme Appellate Court); 2003 YLR 1779 (Karachi).
(c) That the learned counsel referred the relevant Article 12 (b) of the Constitution of Islamic Republic of Pakistan. The amount of Arsh, according to Article 12 (b) of the Constitution can be awarded which can be determined according to year of occurrence, hence, the command of constitution cannot be defied. Reliance placed on 2012 SCM R 437; 2006 PCr.LJ 80 FSC, 2014 PCr.LJ 165 (Sindh).
(d) That in view of above notification the amount of Diyat comes to 1102680/-, whereas half of which comes out to be Rs,551340/-, because the occurrence took place on 23.09.2008, while the petitioner Lal Habib deposited an amount of Rs,578340/- (451340+ 100000+ 27000), hence, the total amount deposited is in excess to the amount of Arsh payable by the petitioner in view of notification pertaining to fiscal year 2008 (supra).
(e) The determined half of Diyat amount as Arsh is against the provisions of section 323 P.P.C. And the Article 12 (b) of the Constitution and unfortunately the Diyat amount has been calculated according to the year 2014 during hearing of bail petition and at that time base year was not taken 2008 which is the result of deviation from the concrete provisions of law, hence, the judgment of this court dated 31.03.2014 is per incuriam and thus this court has ample powers to rectify and review the same judgment by deciding the petition under inherent powers under sections 369 and 561-A Cr.P.C. Reliance in this respect is placed on 1995 M LD 610 (Karachi); 1996 MED 502 (Peshawar); 1996 M LD 786 (Lahore); 2001 YLR 536 (Karachi).
(f) That by wrongly determining Arsh amount to the tune of Rs, 15,7771/- has no binding effect upon the petitioner and that after decision of apex court, the determination of Arsh has been left open, which this Court now seized of the matter can decide afresh the Arsh amount according to the notification pertaining to fiscal year 2008.
(g) That the petitioner moved application for release on bail along with 'payment of Arsh amount through installments only and this Court could not had determined the Arsh, during disposal of bail petition hence, this determination vide judgment dated 30.03.2014 is per incuriam and if Arsh amount was to be determine then it was to be determined according to the fiscal year 2008, i.e, from the year of occurrence.
(h) Lastly, that the order of this Court dated 31.03.2014 has not attained finality, as his Criminal Petition No,277 of 2014, was not dismissed and was withdrawn, hence, the venue remained open for re-determination of Arsh amount and prayed that this Court can redetermine the Arsh amount according to the fiscal year 2008 by itself or after accepting this petition send to the trial court to determine it afresh taking 2008 as base year according to the year of occurrence.
11. Conversely the learned Asstt: A.G for State, supported by learned counsel for respondent/victim controverted the arguments advanced by learned counsel for petitioner in a following way:
(a) That the petitioner after release from jail on bail by this Court vide order dated 31.03.2014, despite lapse of nine months has not deposited a single penny in shape of monthly installments and is reluctant to pay further amount, thus, is defaulter, hence, he failed to comply with the direction of this court and in such a situation, the petitioner violated the conditional part of the judgment dated 31.03.2014, so deserves no more leniency and the bail order may kindly be recalled.
(b) Responding to the petitioner's arguments for redetermination of half of Diyat amount as Arsh according to the fiscal year 2008, the learned counsel for respondent submitted that this court vide order dated 31.03.2014 has determined the half of Diyat as Arsh amount. The petitioner filed criminal petition against the same order/judgment before the Hon'ble apex Court which was withdrawn and consequently the order dated 31.03.2014 has attained finality and this court cannot redetermine the Arsh amount, as the said order has attained finality and this Court has become functus officio.
(c) That the conduct of respondent fully falls within the definition of 'abuse' and 'misuse' of the concession extended by this Court.
(d) In the criminal procedure Code there is no any provision for the review of earlier order/judgment.
(e) That the amount of Diyat as Arsh is to be determined according to fiscal year at the time when execution commences and further added that it increases or decreases according to the value of silver till payment of last installment.
(f) Lastly, that the petitioner's petition for redetermination of half of Diyat amount as Arsh according to fiscal year 2008 be dismissed. Learned counsel relied on 1965 PLD (W.P) Lahore 570; 1971 SCM R 789; 1971 SCM R 618; 1976 PCr.LJ 747 Lahore; PLD 1996 Supreme Court 178; 1996 PCr.LJ 119 Lahore: 2001 PCr.LJ 1634 Peshawar; 2001 PCr.LJ 222 Lahore; 2012 PCr.LJ 164 Baluchistan; 2013 PCr.LJ 767 Peshawar.
Peshawar.
12. I have heard valuable arguments of learned counsel for the parties and Asstt: A .G for the state and perused the record.
13. Perusal of the record reveals that initially the petitioner after serving sentence filed J.Cr. Misc: Petition No, 64-B of 2013 for seeking release on bail allowing payment of Diyat in installments under section 331, P.P.C. Spreading over five years, which petition after hearing was allowed vide order/ judgment dated 31.03.2014 and it was directed to make payment according to said Arsh in 60 equal monthly installments to the injured Tahir Aziz, before the trial court, in case of failure of any installment he/petitioner will again be taken into custody and put to jail till full payment.
14. After withdrawal of Criminal Petition No,277 of 2014 from the Hon'ble Supreme Court of Pakistan, the order of this Court dated 31.03.2014 has attained finality. The petitioner would have agitated the contention of wrong determination of Arsh or its redetermination according to the fiscal year 2008 i.e, the year of occurrence, instead the petitioner withdrew his petition and afterward for seeking relief for redetermination of Arsh amount filed Cr. Misc Application 10 of 2014, before the learned Sessions Judge, Karak which was dismissed and rightly so, because the learned Sessions Judge, Karak having no jurisdiction to take cognizance on the matter which has already been decided by this Court.
15. The law has provided specific procedure for a specific remedy and if that in the relevant time is not invoked then the law helps no one. The petitioner though had challenged the order dated 31.03.2014 of this Court, before the Honourable Supreme Court, but instead of agitating these contentions there during hearing he opted to withdrew the same and by doing so he put full stop to avail further remedy.
16. The contention of learned counsel for the petitioner that the judgment dated 31.03.2014 of this Court being per incuriam, this court can take cognizance of the matter and can redetermine the Arsh amount is misconceived. To dilate upon the instant contention it would be appropriate to comprehend the very import and meaning of this legal term i.e, Per incuriam, in Blacks Law Dictionary Ninth Edition the phrase "per incuriam" meaning as " Adj. (of judicial decision) wrongly decided, usu. Because the judge or judges were ill-informed about the applicable law " As a general rule the only cases in which decisions should be held to have been given per incuriam or those of decisions given in ignorance or forgetfulness of some inconsistent statutory provision or of some authority binding on the court concerned, so that in some cases features of the decisions or some steps in the reasoning on which it is based is found on that account to be demonstrably wrong".
17. This court is of the opinion that judgment dated 31.03.2014 is according to law and is not per incuriam and if this judgment was per incuriam, then it was duty of the petitioner to agitate the same proposition before the august Supreme Court at the time of hearing of the said Cr. Petition No, 277 against judgment dated 31.03.2014.
18. By taking cognizance or rehearing of the same matter would result in conscious violation of universally recognized principle that "It is in the interest of the state that there should be an end to litigation." In this respect this court lends support from the wisdom in case PLD 1970 Karachi, 737, wherein it has been held that: "In view of finality attaching to judgments of the High Court pronounced on the criminal side, in appellate or revisional jurisdiction, it is impossible to conceive of the High Court making more than one order, in respect of the same case and in relation to the same question arising there out. "
19. The contention of learned counsel for the petitioner was that as the judgment dated 31.03.2014 of this court is per incuriam, therefore, under section 369, Cr.P.C. This court can take the cognizance of the matter and correct the error. For resolving this question section 369, Cr.P.C. Is produced for convenience.
5.369. Court not to alter judgment. Save as otherwise provided by this Code or by any other law for the time being in force or, in case of a High Court by the Letters Patent of such High Court no court when it has signed its judgment, such alter or review the same, except to correct a clerical error.
20. This Court is of the firm view that no specific provision of review exists in Criminal Procedure Code and provision of section 369 can only be invoked for clarifying or correcting the existing clerical errors in the judgment. The instant petition has no legal footing and is in violation of section 369 Cr.P.C. If any action in form of redetermination of Arsh amount is taken by this Court, it would amount to. Review of the previous order / judgment of this Court which is not provided in the law.
The criminal courts are not vested with power to alter, modify, reopen or review a criminal case after its final decision. Wisdom can be derived from the case titled "Dr. A Basit v. Deputy Registrar (Judicial) and others" (PLD 2001 SC 1028), wherein the honourable Supreme Court of Pakistan held.
"We hold that while exercising jurisdiction under Article 184 (3) of the Constitution the findings recorded by this Court in aforesaid criminal appeal cannot be set aside/ modified, nor any portion of it can be expunged or substituted. "
21. The upshot of the above discussion is that the instant petition is not maintainable and is thus dismissed.