P L D 1952 Lahore 560 (PLP)

MUHAMMAD SHARIF, J.‑This is a petition by the Advocate -General, Punjab, under section 369, Criminal P. C., for the cor rection of an alleged "clerical error". On the 15th June 1948, one Chiragh, a Pakistani Christian, was killed. Three persons, i.e., Saidu, Makhan and Shahru were tried for the murder by the learned Sessions Judge, Lahore. By his order of 12th January 1949, he gave the benefit of doubt to Shahru and convicted Saidu and Makhan under section 302, Indian P. C., and sentenced each of them to death subject to confirm ation by the High Court. It was not mentioned, as required by section 368 of the Criminal P. C., that he "be hanged by the neck till he is dead". The death sentence was sent up for confirmation to this Court under section 374 and an appeal against the conviction and sentence was preferred by the convicts. This appeal was decided on 11th of May, 1949. It was dismissed and the sentence of death was confirmed. The convicts appear to have taken up the position that, as it was not mentioned in the judgment that they are to be hanged by the neck till they are dead, they could not be hanged. The learned Advocate‑General has, therefore, put in this petition with the prayer that the omission which he calls a clerical omission" be supplied. Notice was issued to the convicts. They were present in Court and were not represented through a counsel. The learned counsel for the Crown dealt at length with the petition and various aspects were duly considered. Two questions naturally arise : (1) whether it was a "clerical error" and (2) whether it could be corrected by this Court. The case, as already mentioned, was tried in the first instance by the Sessions Judge, Lahore. He passed the sent ence of death and under section 368 of the Cr. P. C., it was his duty in the case of a sentence of death to direct that "he be hanged by the neck till he is dead". This mode of executing the sentence of death as prescribed in the Code of Criminal Procedure was not specified. On appeal under section 423, Criminal P. C., the duty of the appellate Court was, after hearing the accused and the Public Prosecutor, to decline to interfere if there was no sufficient ground and to dismiss the appeal. The appellate Court was under no obligation to define the mode in which the sentence was to be executed. That was the function of the trial Court. The Court in appeal was simply to see whether the judgment of the first Court was or was not to be maintained or was or was not to be altered in any respect. Where the appellate Court agreed with the con clusions of the trial Court, an order dismissing the appeal was sufficient. The judgment of the High Court, therefore, was not deficient in any respect. Section 374, Criminal P. C., says : "When the Court of Session passes sentence of death, the proceedings shall be submitted to the High Court and the sentence shall not be executed unless it is confirmed by the High Court". Under section 376 Criminal P. C., the High Court may confirm the sentence, or pass any other sentence warranted by law. The confirmation by the High Court under section 376, Criminal P. C., would mean only this: that the death sentence awarded by the trial Court was, in the view of the High Court, an appropriate sentence and should be allowed to stand. In con firming the sentence of death, it is nowhere prescribed that the High Court should clearly state that the sentence was to be executed by hanging as prescribed in the Code. It was vehemently contended by the learned counsel for the Crown that Saidu and Mukhan were given the death sentence which was confirmed by the High Court. They are under sentence of death and that sentence has to be carried out and the only way in which it could be done, was that prescribed in section 368 of the Criminal P. C. The life of a person could not be taken away, say, by poisoning, electrocu tion or any other way and the only way of taking away the life recognised in this country, is that contained in section 368 of the Criminal P. C. The contentions of the learned counsel are all right and there is no dispute about the fact that the sentence of death could only be executed in the manner prescribed in section 368 of the Code of Criminal Procedure. But who is to supply that mode if it was not already entered in the judgment? It has already been mentioned above, that it was the business and the function of the Sessions judge in this case and the appellate Court was not at all concerned with this aspect of the case. It is another matter, that if this defect had come to light at the time of the hearing of the appeal in this Court, some way could be found to correct the omission and to remove the defect. Section 369. of the Code of Criminal Procedure is as follows :‑ "Save as otherwise provided by this Code or by any other law for the time being in force or, in the case of High Court established by Royal Charter, by the Letters Patent of such High Court, no Court, when it has signed its judgment shall alter or review the same, except to correct a clerical error." The High Court has no special powers under Letters Patent to alter the judgment. The judgment therefore, cannot be altered or reviewed. It is only where some "clerical error" is to be corrected, that it might be done. The expression "clerical error" has been explained in Wharton's Law Lexicon, Fourteenth Edition, as "an error in a document 'Which can only be explained by considering it to be a slip or mistake of the party preparing or copying it". The "clerical error," if any, was that of the Sessions Judge who failed to direct that the sentence was to be carried out by hanging by the neck. The High Court could only correct its own error and not that of any other Subordinate Judge. On reference to sections 374, 376 and 423, Criminal P. C., it has been made clear that the High Court was not required to specify in its judgment dismissing the appeal and confirming the sentence of death, the precise manner in which the sentence of death was to be executed. There was, therefore, no omission on the part of the High Court which could be made up. It is also doubtful whether the correction which is required to be made would be a mere "clerical error". It was not a mistake or slip made in the preparation. or the copying of the judgment. So far as the judgment of the High Court is concerned it was never the intention nor was it at all necessary that in dismissing the appeal and confirming the sentence of death the manner of the execution of the death sentence in accordance with section 368, Criminal P. C., should have been indicated. For the reasons given above we dismiss the petition and refuse to mike any alteration in our judgment of 11th May, 1949. K. M. A. Petition dismissed.