1989 P Cr (PLP)

"Mehar Din Ibrahim Company, Hafizabad runs the rice business. Abdur Rehman P.W. was working as Head Munshi and I was as Junior Munshi tinder him. He used to steal the Bardana and other articles, therefore, I had made complaint against him. Abdur Rehman manoeuvred my termination from the factory and I was employed in Bismillah Rice Factory: Factory owners terminated the services of Abdur Rehman P.W. on my complaint. Abdur Rehman P.W. falsely got me implicated in this case due to that grudge." Following answer was given by Munawar, in answer to the same question:‑ "Rafiq complainant had cut indecent jokes and molested ladies in the cinema house, where I used to sell fruit. Rafique was given beating by the management of the cinema house and I also joined them. Rafique and Abdur Relunan P.Ws. used to collect funds for the Madrassa and misappropriate the funds. My father used to raise voice against them. For the said reason, I have been falsely implicated in this case. Noor Muhammad deceased was suspected of having desecrated the Holy Quran by setting fire to its leaves and was given injuries by an angry mob as a result of which he died:" Both of them made statements under section 340, Cr.P.C. Therein, also, they pleaded innocence and denied to have participated in the occurrence. Appellant Muzaffar examined in defence Muhammad Younas son of Mehraj Din as D.W.1. He stated that Muzaffar had made a complaint to the Factory owners against Abdur Rehman for misappropriating Bardana, but added that the factory owners had not taken any action against him. He admitted that he had not made any complaint against Abdur Rehman for misappropriation.

8. Both the counsel for the appellants contended that the F.I.R. in this case was not recorded on 21‑9‑1985, and was, in fact, recorded on 22‑9‑1985, after deliberations and consultations, that the prosecution have set up a false motive, that both the eye‑witnesses do not appear to have witnessed the occurrence and that the evidence of recoveries of weapons of offence from the appellants was not worth reliance. Learned counsel for Muzaffar Hussain contended that the allegation against Muzaffar Hussain of having caused injuries with the knife is not borne out from the medical evidence, as none of the injuries on the deceased has been described as stab wound. Learned counsel for Munawar Hussain raised the plea that since the doctor, who had performed autopsy, admitted in cross‑examination, that none of the four fatal injuries could have resulted from Kulhari, he cannot be burdened with the responsibility of having caused the death and so he should be dealt with leniently, in case his conviction, under section 302, P.P.C. is maintained and he be awarded lesser sentence of imprisonment for life instead of capital punishment.

9. Learned counsel for the State/complainant defended the judgment of the trial Court and contended that nothing appears on the record to hold that the eye‑wtinesses had made incorrect and false statements and that there is sufficient evidence on record for maintaining the conviction and sentences of the appellants.

10. The contention of the learned counsel for the appellants that the F.I.R. was not recorded on 21‑9‑1985 and that inquest report was also not prepared on that day is based on the fact that the post‑mortem examination was admittedly performed on 22‑9‑1985. Elaborating the point, learned counsel contended that if the occurrence had taken place at 12‑30 p.m. and the same had been reported to the police at 1 p.m., there was no reason that the post‑mortem should not have been performed on the same day. We have considered this contention in the light of the record. No doubt, the matter was reported to the police at 1 p.m. and the Investigating Officer had reached the spot soon thereafter, but it cannot be assumed that the Investigating Officer would have worked mechanically and finished the necessary requirements for despatching the dead body for post‑mortem examination immediately. The occurrence had taken place in a thickly populated city. The deceased was a religious person. It can, therefore, be assumed that a number of persons would have come there. It would have taken some time by the S.I. to complete the necessary investigation and to prepare the necessary documents before despatching the dead body for post‑mortem examination. The post‑mortem, as is known, per rules, is not performed after sunset unless special orders are made by the Government. We, therefore, are of the view that the mere fact of the post -mortem having been performed on the following day early morning, cannot lead to the conclusion that the F.I.R. was not recorded at the time stated at the trial. With regard to the preparation of inquest report, the doctor had been specifically asked during cross‑examination and he had replied that he had received the inquest report along-with the request for performing post‑mortem examination. Some times the Police Officers indulge in delaying the preparation I of inquest reports, but that is done in order to await the result of post‑mortem examination, so that correct position about injuries and their nature is recorded in the inquest report. Herein it was never the case of the appellants that the inquest report had been prepared after the post‑mortem examination. All that was suggested, during trial, was that the inquest report was prepared on the day following the day of occurrence. After analysis of the evidence, we feel no hesitation in saying that the argument is without force.

11. Learned counsel for the appellants while arguing that the prosecution has failed to prove the motive, submitted that since it is on record that the deceased used to reside in the Madrassa, the question of the appellants or for that matter any other person, entering the courtyard of the Madrassa after scaling over the wall for gambling does not arise. We have examined the evidence in this regard. We find that none of the witnesses had conceded that the Madrassa was being used as a residential house. All that has been stated by P. W. 9 is that the deceased after the death of his wife and marriage of his only daughter used to live there, but he made it clear that the deceased used to go to the house of his brother to take food. It is also in evidence that the Madrassa used to function till 9 a.m. in the morning and thereafter, after Zohar prayer for some time in the evening. But for these timings, the Madrassa used to remain closed. In the circumstances, possibility of the courtyard of Madrassa being used by vagabond type of persons for playing cards and gambling cannot be ruled out, as that would be a safe hiding place for such activities. The incident of motive does not appear to have been mentioned after the occurrence. In fact, the back0ound of the incident which motivated this occurrence, had been disclosed by the deceased himself to the informant four days prior to the occurrence and the information criven by the deceased about the incident that had taken place between him and the appellants stood verified from the attitude and replies, with which the informant was confronted by the appellants on his having inquired from them. The contention of the learned counsel for the appellants, that, had such a thing, happened, the complainant or the deceased would have either reported the matter to the police or would have taken the matter to the Punchayat or at least Would have lodged a complaint with the parents of the appellants, in our view, does not negate the statement made by the complainant about the information given to him by the deceased with regard to the conduct and behaviour of the appellants towards the deceased. The informant has very clearly stated that the deceased had informed him, that the appellants had shown abhorrence over his objection to their playing cards and gambling in the courtyard of the Madrassa and had threatened him to be finished. That being the position, the deceased might not have picked up courage to take the matter to the police or to any other person for fear of reprisals at the hands of the appellants. In fact, he appears to have informed his nephew about the manner in which he was dealt with by the appellants by way of taking him into confidence. Since the appellants repeated the threats on being asked by the complainant he might also not have picked up the courage for pursuing the matter. Moreover, the appellants did not give much time to the deceased and his nephew. The threats were issued four days before the occurrence. Thereafter, the nephew of the deceased met and asked them and during a short span the occurrence took place. After having carefully considered all aspects, we do not feel convinced that such a story would have been concocted to set up the motive. The contention of the learned counsel for the appellants, therefore, that the prosecution had set up a false motive, in our view, is without any weight.

12. It is of course on record that P. W. 9 is nephew of the deceased while P. W. 10 is Pir Bhai of the deceased. The criticism of the learned counsel for the If appellants to that extent is undeniable. However,, merely these connections cannot be considered enough to discard their testimonies. They had no enmity with any of the appellants. Apart from the fact that P. W. 9 had categorically denied the suggestion that he had teased any girl in the cinema or that Munawar and others had given him beating, the other important aspect is, that it was never made clear as to when such an incident had taken place. Moreover, if such a, thing had happened, the grievance of the informant would have been more directed against the relatives of that girl or the management of the cinema, in whose premises he had been insulted and beaten. He, instead of having brought in Munawar would have named those persons or at least would have reported against Munawar alongwith them. After all why should he have picked up Munawar alone? Similarly P. W. 10 denied that any complaint was made by Muzaffar against him for misappropriation of Bardana of the factory, where he was serving. In fact, he denied the suggestion of having been dismissed on that account or having got Muzaffar appellant dismissed from service. Above all, there is the statement of D.W.1 that the factory owners had not taken any action against Abdur Rehman P.W. and that he had left the service of his own accord. The defence witness also claimed that he had also made a complaint of misappropriation against Abdur Rehman. If Abdur Rehman P.W. was to bargain with the complainant, to involve a person at his asking for enlisting his support as P.W., he would not have spared this D.W. What appears is that the whole story has been manufactured to set up a plea for discarding the testimony of Abdur Rehman. Still another aspect is that if Abdur Rehman had been dismissed by the factory owners and that had aggrieved him, he could then have named one of them as well, but it is obvious that he did not do any such thing. The motives attributed to these witnesses, therefore, appear to be baseless. Their presence at the spot does not appear to be unnatural. The complainant being nephew had gone to talk to the‑deceased about private family affairs, hearing which the deceased decided to go home with him. The presence of Abdur R.ehman with the deceased can also not be termed as unnatural because it is appellant's own case that he was Pir Bhai of the deceased and used to collect Chanda also for the running of the Madrassa. The witness, therefore, for obvious affinity reasons could have gone to meet the deceased. The houses of both the witnesses were not far away from the Madrassa nor were the seats of their business far away that they could not have gone to the deceased. In the circumstances, we do not find anything on record to hold that the two witnesses, who gave the ocular account, might not have witnessed the H occurrence and might have made incorrect statements. Their statements find corroboration from the evidence of recoveries of weapons of offence, which, in turn were found stained with blood.

13. The contention of the learned counsel for Muzaffar Hussain that since none of the injuries has been defined to be stab wound, the statements of the eye witnesses that he had caused the injuries with the knife is, therefore, contradictory to the ocular account, is based on incorrect reading of the medical evidence. Merely doctor's mentioning the injuries to be incised wounds and not stab wounds does not rule out, of their having been caused by a knife. The dimensions of the injuries and the damage done has to be a test for determining as to whether the injuries could have been caused with the weapons alleged to F have been used. The damage that occurred beneath the seats of injuries Nos. 3, 11 and 12, which had proved fatal, alongwith injury No.9, and the damage that had occurred beneath injury No. 10 clearly speak that they were penetrating wounds. Penetrating wounds could have only been caused by a sharp‑edged pointed weapon. The knife surely is a sharp‑edged pointed weapon. The argument advanced in this regard for Muzaffar appellant, therefore, does not advance his case in any manner.

14. As a result of the above discussion and enunciation of the evidence, no doubt is left in our mind that the prosecution has been able to prove the case, G against the appellants. their conviction under section 302/34, P.P.C. is, therefore, maintained.

15. We, however, feel that the case for awarding lesser penalty of imprisonment for life in the case of Muzaffar Hussain appellant is made out, for the reasons that even according to the ocular account he had not caused any of the injuries which proved fatal, i.e. 3, 9, 11 and 12, and the doctor, who performed autopsy also stated during cross‑examination that injuries Nos. 3, 9, 11 and 13 could not have been caused by a hatchet. The sentence of death awarded to him, therefore, is not confirmed. He is instead sentenced to undergo imprisonment for life. The sentence of fine and the direction for payment ‑of compensation is, however, maintained The sentence of death awarded to Munawar Hussain is confirmed. The sentence of fine and the direction for payment of compensation is also maintained. Mushtaq Raj for Appellant (in Criminal Appeal No. 266 of 1986). Yusuf Ali Khan for Appellant (in Criminal Appeal No. 270 of 1986). AA.‑G. with Aslam Shahid for the State. Criminal Appeal No. 266 of 1986 filed by Munawar Hussain and Criminal Appeal No. 270 of 1986, filed by Muzaffar Hussain, against the judgment, dated 5‑4‑1986 of Sessions Judge, Gujranwala, were heard together and disposed of on 30‑1‑1989. The judgment was announced in the presence of the learned counsel for the parties, i.e. Ms. Mushthaq Raj, Advocate, for Munawar Hussain appellant, Sardar Muhammad Latif Khan Khosa, Advocate, for Muzaffar Hussain appellant and Mr. Aslam Shahid, Advocate, for the State. Both the appeals were dismissed but the sentence of death of Munawar Hussain was altered to imprisonment for life. The sentence of death of Muzaffar Hussain was confirmed.

2. After the signed judgment was sent to the office, it transpired that for alteration of sentence of death 'to life imprisonment, the name of Muzaffar Hussain has been typed while for confirmation of sentence of death, the name of Munawar Hussain has been typed.

3. On coming to know of this error, the judgment was sent for, the intimations sent in this regard to the Jail Superintendent and the Sessions Judge were also sent for. The appeals were directed to be reset, with notice to the counsel for the parties to consider the situation that had arisen due to the said error/mistake.

4. Mr. Mushtaq Raj, Advocate, appeared for Munawar Hussain appellant, Sardar Muhammad Latif Khan Khosa, Advocate, who had argued the appeal of Muzaffar Hussain appellant, however, on appearance stated, that he, no more represents Muzaffar Hussain and that the party had engaged Mr.. Yusuf Ali Khan, Advocate. The matter was adjourned on the request of Mr. Yusuf Ali Khan, Advocate. Learned Advocate‑General was also asked to assist the Court.

5. The arguments were heard in detail. Learned counsel for the parties also referred to certain authorities. It may be noted at the very outset that Sardar Muhammad Latif Khan Khosa, Advocate, who had appeared and argued for Muzaffar Hussain, Mr. Mushtaq Raj, Advocate, for Munawar Hussain and Mr. Adam Shahid, Advocate, for State in both the appeals reiterated the fact that while dismissing the appeals, the sentence of death of Muzaffar Hussain was confirmed and the sentence of death awarded to Munawar Hussain by the trial Judge was altered to imprisonment for life.

6. The question posed is, (a), whether substitution of names of the two appellants, in the matter of confirmation of death sentence and alteration of death sentence to life imprisonment was an error, a typographical mistake, a slip or a complete judgment in itself; (b), If it was a judgment, whether this Court has power to alter the same; and (c) If it was a typographical mistake, or an error, or a clerical error, or a slip, can then it be corrected by resorting to the provisions of section 369, Cr.P.C. or deriving powers from section 561‑A, Cr.P.C.

7. We have gone through the citations; referred to by the learned counsel for the parties as well as the ones we could lay hands ourselves. Some of the cited judgments, i.e. P L D 1958 AJK 6, 1971 S C M R 618 and 789, 1979 S C M R 200 and P L D 1979 SC 741 cited by the learned Assistant Advocate‑General and P L D 1974 Karachi 22, 1974 P Cr. L J 95, P L D 1984 Lah. 461 and P L D 1987 Lah. 31, cited by Mr. Mushtaq Raj, Advocate, counsel for Munawar Hussain in our view, are not helpful to the problem being faced. We, therefore, do not consider necessary to make any detailed reference to these citations. Learned counsel for Munawar Hussain argued that it was an error of the type of typographical mistake and can, therefore, be rectified. Learned Advocate‑General contended that this Court has no power to review or alter the judgment after signing the same. He, however, stated that typographical mistakes and the clerical errors can be corrected by resorting to inherent powers conferred on this Court by section 561‑A, Cr.P.C. On going through the operative part of the judgment, he expressed the opinion that the name of Muzaffar Hussain errorneously seems to have been typed for Munawar Hussain while altering the sentence of death to imprisonment for life and name of Munawar Hussain was erroneously: substituted for Muzaffar Hussain for confirming the sentence of death. This, he stated after going through the reasonings noted for the conclusions drawn. Mr. Yusuf Ali Khan, Advocate, who appeared for Muzaffar Hussain took up the stance that the Court after having signed the judgment has become functus officio and cannot make any alteration or correction even.

8. Before thrasing out, whether it was a typographical mistake or not and whether the same can be corrected, without hitting the relevant provisions of Cr.P.C. which bar the alteration of judgment, after having been signed: we would like to refer to certain cases, which can be helpful to form an opinion in this regard. In Crown v. Habibullah etc. P L D 1952 Lah. 587, the High Court while accepting the petition of the Government for enhancement of the sentence of the respondents from imprisonment for life to death, had not expressly directed in terms of section 368, Cr.P.C. that the accused be hanged by the neck till they are dead. The objection was raised on behalf of the accused‑respondents that the omission was not a clerical error. Reliance for raising that objection was mainly placed on the fetters laid in Cr.P.C. that judgment once announced and signed cannot be altered. Their Lordships before coming to the conclusion had noted and taken into consideration the dictums given in Mahadya v. Crown A I R 1931 Nag. 101, Ghansham Das Birla v. Surai Bhan A I R 1940 Lah. 192, Vyankappa Sali v. Emperor A I R 1934 Bom. 529; Emperor v. Rashbehari Singh A I R 1934 Pat. 551, Raju v. Emperor A I R 1928,Lah. 462, Nafar Chandra Pal Chowdhry v. Siddhartha Krishna Mazumdar I L R 47 Cal. 974 and Crown v. Ata Muhammad I L R 1944 Lah. 391 (FB). Reference was also made to the law with regard to the correction of clerical errors in England. In a recent judgment of this Court by S.B. in Muhammad Jamil v. State 1985 P Cr. L J 1263, the sentence of Rs.10,000 mentioned in the order, was altered to Rs.3,000 on an application submitted and statement made at the Bar by the counsel for the appellant that at the time of announcement of the judgment, the sentence of the appellant was altered from three years R.I. to fine of Rs.3,000 and not Rs.10,

000. In that case also, the judgment had been signed and sent to the office. In two other judgments of this Court, i.e. Rukan Din etc. v. Hafizuddin etc. P L D 1962 Lah. 161 and Ghulam Hussain etc. v. The State 1984 P Cr. L J 1807, not only corrections were made in the judgment already announced but they were altered also after hearing the arguments, with notice to the parties. But those, in our view, do not strictly help in the solution of the problem in hand, as in both the cases although the judgments had been announced but the same had not been signed when they were set for rehearing.

9. In section 201, at page 348 of the Constitution of the Statutes by Crawford 1940 edition, it is recorded as under:‑ "As we have indicated in the preceding section, if the true meaning of the Legislature appears from the entire enactment, errors, mistakes, omissions and misprints may be corrected by the Court, so that, the legislative will, may not be defeated. As a result, spelling, grammer, numbers and even words, may be corrected. This, as already stated, is simply making the strict letter of a statute yield to the obvious intent of the legislators. But it must clearly, or at least with reasonable certainty, appear that the error is in fact one before the Court will be justified in making the proper correction or amendment ... But when satisfied of the error, the Court may make the necessary correction. 1n accordance with the principle, an erroneous description' may be made to describe the thing actually intended or a misnomer made to name the thing really meant .... " In Halsubury's Laws of England, third edition (Vol. 22), in the Chapter of Judgments and Orders, the following is incorporated in Para. 16fiCi, at page 786:‑ "After the judgment or order has been entered or drawn up there is power, both under the Rules of the Supreme Court and inherent in the Judge‑‑who gave or made the judgment or order, to correct any clerical mistake or some error arising from any accidental slip or omission, or to vary the judgment or order so as to give effect to his meaning and intention. The power applies to the case of mistake or accidental slip made by the officer of the Court ...."

10. The word error has been defined/interpreted in the Shorter Oxford English Dictionary (third edition) as, something incorrectly done through ignorance or inadvertence. A miscarriage‑mistake‑something different from the approximate result. The word slip in the same dictionary has been defined, to pass over without adequate attention or notice to neglect overlook. 10‑A. Coming to facts of the case in hand, Muzaffar Hussain, according to the evidence, was armed with a knife while Munawar Hussain was armed with a hatchet. The reasons recorded in Para. 13 of the judgment, that injuries Nos. 3, 9, 11 and 12, which had proved fatal, could have been caused by a sharp‑edged pointed weapon and the fact of Muzaffar Hussain having mentioned therein as author of these injuries concludes the point that he was being held liable specifically for having caused the actual death of the deceased. After holding that, his sentence of death would not have been altered to imprisonment for life, as typed in Para. 15 of the judgment. Instead reasons given in Para. 15 for awarding lesser penalty of imprisonment for life clearly pertain to the appellant, who had not caused the fatal injuries i.e. 3, 9, 11 and

12. It is clear from the evidence that it was Munawar Hussain, who was armed with a hatchet and he had not caused those injuries. After noting these‑facts, sentence of death awarded to him would not have been confirmed, as typed in the last sub‑para. of the judgment. The benefit of the opinion given by the doctor that fatal injuries could not have resulted from hatchet, also, had to go to Munawar Hussain because it was he who was stated to be armed with a hatchet.

11. The approximate result from the facts and reasons noted in Paras 13 and 15 can be clearly guaged, that the intention was to award lesser penalty of imprisonment for life to Munawar Hussain and passage of order of confirmation of sentence of death to Muzaffar Hussain. One of the meanings of the word error in the Shorter Oxford Dictionary i.e. somthing different from the approximate result also leads to hold that the substitution of the names for two different sentences had resulted due to an error. The last fact, we would like to mention in support of the argument that the names of the two were substituted in typing due to mistake, in our view, must have been due to similarity of names as well. In that one of the appellants is named as Muzaffar Hussain while the other is named as Munawar Hussain. Not only the last parts of the names of the two are common but the pronunciation of the earlier parts of their names is also somewhat similar. As a result of the above discussion, We are clear in our mind that it was by an error/mistake/slip that the substituted names were typed for awarding the sentence. Here, we would like to refer to the provisions of section 561‑A, Cr.P.C., which read as follows:‑ "Nothing in this Code shall be deemed to limit or affect the inhcreni 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." The powers given by the above section are wide enough to give effect to any order under this Code or otherwise to secure the ends of justice. The order passed and the judgment announced undisputedly in this case was that the sentence of Munawar Hussain was altered to imprisonment for life while the sentence of death awarded to Muzaffar Hussain was confirmed. As a result of the above discussion, we are of the view that we can lawfully and justifiably correct the error/mistake/slip that has crept in the judgment. One of the impelling reasons for doing that, is, that if the error is allowed to stand, Munawar Hussain appellant, who had earned the benefit of being awarded lesser sentence would continue to remain as condemned prisoner, as a result of which he can be hanged too unless of course he files an appeal and earns some favourable order. The correction to that extent, therefore, in our view, was a judicial requirement also.

12. We are conscious that the correction will also lead to‑ specifying that the sentence of death awarded to Muzaffar Hussain stands confirmed, which will be something adverse to him. But in that respect, his position is not different from the appellants in the case reported as Crown v. Habibullah etc. P L D 1952 Lah.

587. In that case if the honourable Court had not added the words, `the accused be hanged by the neck till they are dead', they could not have been hanged, per position taken by the learned counsel for the State, who had moved the petition for the said correction. (In that the learned counsel for the State had made statement that in case the desired correction is not made, the Government will have to alter the sentence of death to imprisonment for life, per earlier such precedents.) Moreover, correction would not be different from the announced judgment.

13. We are clear in our mind that it was by an error/mistake/slip that the name of Muzaffar Hussain was typed for being awarded lesser punishment of imprisonment for life and the name of Munawar Hussain was typed erroneously/mistakenly for confirmation of sentence of death. The Court judgment is that sentence of Munawar Hussain stands altered to imprisonment for life, for reasons noted in the judgment, while the sentence of death awarded to Muzaffar Hussain is confirmed, for facts mentioned therein. The vice versa typed a: pages 2073 and 22074 shall be deemed to have been corrected as above. N.H.Q./M‑1349/1 Order accordingly.