P L D 1975 Lahore 17 5 (PLP)

M. S. H. QURESHI, J.-Munawar Khan, his brother Muhabbat Khan and their maternal uncle Qaim Khan, appellants, were convicted by the Additional Sessions Judge, Campbellpur, under section 302/34, P. P. C. for causing the. death of Karam Khan and Alam Khan deceased and sentenced to death each. In a separate trial, they were again convicted under section 302/34, P. P. C. for the murder of Nur Muhammad deceased and sentenced to death each, under section 307/34, P. P. C. for causing injuries to Mst. Sahib Jan with the intention of causing her death and sentenced to imprisonment for life each; and under section 307/34, P. P. C. for causing injuries to Mst. Wilayat Jan with the intention of causing her death and sentenced to life imprisonment each. They have filed appeals, their appeal from the conviction and sentence for the murder of Karam Kban and Alam Khan being Criminal Appeal No. 563 of 1970, the other appeal being Criminal Appeal No. 564 of 1970. Since the facts and the circumstances of the two cases are connected, we have heard both the appeals together with the connected references, i.e. Murder Reference No. 170 of 1970 and Murder Reference No. 175 of 1970 and proposed to dispose of them all by this judgment.

2. The occurrence took place on the 12th of September 1969 at about 6-30 a.m. in village Kamalpur Muse within Hazro P. S., District Campbell pur. Alam Khan deceased and his brother-in-law Karam Khan deceased having taken tea were at that time going from their house to their Hujra. As they reached near the house of Munawwar Khan appellant, they were attacked with pistol and `chhuri' by Munawwar Khan, Muhabbat Khan, and Qaim Khan, appellants, who were sitting at the grocery shop of Munawar Khan. In the result of the firing, Karam Khan died on the spot. Alam Khan received bullet and `chhuri' injuries. The occurrence was seen by Said Ghulam and Sarwar Khan. The motive for the crime was that Mastan Khan, son of Alam Khan deceased, had murdered Muhammad, the husband of the sister of Munawar Khan appellant.

3. Alam Khan was removed to Civil Hospital Hazro, where he was attended to at 7-45 a.m. and as Dr. Abdul Jabbar four d him in a precari ous condition, he recorded his dying declaration (Exh. P. G.) which incor porates the facts as given in the preceding paragraph. The Medical Officer sent a copy of the statement to the police station on the basis of which: Abdul Khaliq A. S. 1. entered formal F.

1. R. (Exh. P.G./2) at 8 05 a.m. He then proceeded to the hospital and when, on his inquiry, the Medical Officer certified that Alam Khan was in a fit condition to make a statement he examined Alam Khan under section 161, Cr. P. C. vide statement (Exh. P. A.-S). In this statement which is more detailed, Alam Khan stated that his son Mastan Khan had killed Muhammad son of his (Alam Khan's) sister and his attempt at a compromise had been thwarted by Munawwar Khan appellant, and he, Muhabbat Khan and Qaim Khan decided to' avenge the murder of Muhammad. He further stated that on the evening: prior to the occurrence at about Maghrib prayer time Maulvi Abdul Khanan who is brother-in-law of Munawwar Khan led the prayer in the absence of Maulvi Habibur Rehman, Pesh Imam of the mosque, which he (Alam Khan) resented and did not join the congregation. In the meantime as Maulvi Habibur Rehman also came, he (Alam Khan) complained to him that in his absence no one had the right to lead the prayer and that any one who would do so in future, would be treated with disrespect. At this, Munawwar Khan pointed a pistol towards him but the worshippers in the mosque intervened and sent both parties to their respective houses. He gave the time of the: occurrence as 6-00 instead 6-30 a.m. and stated that when the three appel lants attacked with pistols and 'chhuri', he and Karam Khan ran towards their house to save their life but the appellants started firing at them in the gali" near the shop of Ahmad Lobar and that Karam Khan died on the spot but he (Alam Khan) received four bullet injuries, one at the face below the left eye, one on the right side of the chest, one at the right side of the abdomen and one on the right side of the back. He also received one `chhuri' blow inflicted by Qaim Khan. On receipt of the injuries, Alam Khan fell down in the `gali' towards the south from where Karam Khan had fallen. He men tioned the name of Said Ghulam and Sarwar as the persons who had seen the occurrence. He further stated that the appellants thinking him to be dead had, left saying that they had avenged the murder of Muhammad but they had yet to finish Nur Muhammad who was a friend of Karam Khan and Alarm Khan and who had instituted a pre-emption suit against Abdul Dian and had also earlier deposed in favour of Mst. Hawa Jan. Alam Khan further stated that the appellants saying so went towards the house of Nur Muhammad, that Said Ghulam and Sarwar Khan went behind them entreat ing them not to commit cruelty, that in the meantime report of firing was heard from the side of Nur Muhammad's Haveli and that he (Alam Khan was removed by his relatives to the hospital where he came to know that the appellants had killed Nur Muhammad also and injured Mst. Saheb Jan, wife of Nur Muhammad, and Mst. Wilayat Jan.

4. The story of the occurrence in the other case is that the three appel lants, after the firing, went to the house of Nur Muhammad, Munawwar Khan and Muhabbat Khan appellants fired revolver shots at him, at which he fell on the ground, and his wife Mst. Sahib Jan and his brother's wife Mst. Wilayat Jan felled themselves on the body of Nur Muhammad whereupon at the instigation of Qaim Khan, Munawwar Khan and Muhabbat Khan fired at them also, injuring both the women. The occurrence was seen by Phul Nawaz nephew and Mirwal son of Nur Muhammad" deceased who were present in the house, and Sarwar Khan -and Said Ghulam who bad followed the appellants from the first spot. After the three appellants left, Nur Muhammad was found dead on the spot. No formal, F.

1. R. was separately recorded in this case.

5. Raja Musahib Khan, the Addl. S. H. O. who bad gone out in. connection with the investigation of another case, on receipt of a copy of the F. I. R. went to the spot reaching there at 11-30 a,m. From the spot, he recovered three .32 bore empties (Exh. P. 12 to P. 14) about ten feet from where Karam Khan had fallen. He also recovered a blood-stained .32 bore spent bullet (Exh. P. 23) from the other spot where Nur Muhammad had fallen, and from a point twelve feet from there, he recovered two .32 bore empties (Exhs. P. 16 and P. 17). On the same day, he arrested the appellants who were produced by Maulvi Abdul Khanan. Munawwar Khan-appellant brought and produced his licensed .32 bore revolver .:(Exh. P. 18) along with a bandolier containing live bullets and the licence (Exh. P. 9).

6. Dr. Abdul Jabbar who had examined Alam Khan in respect of his injuries at 8-15 a.m. on 12th September 1969, found the following injuries on his person :- "(1) An inlet wound " " x 2 deep on the left side of face, f below left lower eye-lid and from the left nostril; left lower eyelid was swollen. The margins of the wound were inverted, acchymosed and contused. Blackening of the skin around was present. (2) An inlet wound " x "x chest cavity deep on the outer aspect of lower part right side chest, 4 from right nipple at about 8 o'clock position. Margins of the wound were inverted and acchymosed. Blackening of skin around was present. (3) An inlet wound " x " x abdominal cavity deep on the front of right side of abdomen, 4' from the umbilicus at about 8 o'clock position. Margins of the wound were inverted and acchymosed. Blackening of skin around the wound was present. (4) An inlet wound "x " deep at the upper border of right buttock, 5 behind the anterior superior iliac spline and 5 in front of the spine. Margins of the wound were inverted and acchymosed. Blacke ning of skin around was present. (5) A stab wound 1 x " x chest cavity deep on the back of right sid. chest along the inner border of right shoulder blade, 2" from the spine oblique in direction, 5' below the root of neck." Injuries Nos. 1 to 4 were caused by firearm, and injury No. 5 by a sharp edged weapon.

7. Alam Khan succumbed to his injuries on 15th September 1969 at 1 p.m. The autopsy of his dead body held at 4 p.m. the same day con firmed the presence of the aforesaid injuries on his person. In the course of the autopsy, two lead bullets (Exhs P. 24 and P. 25) were extracted from injuries Nos. 1 and

2. Injuries Nos. 2, 3, 4 and 5 were found individually .as well as collectively sufficient to cause death in the ordinary course of nature.

8. The same doctor conducted the post-mortem examination on the dead body of Karam Khan deceased on 12th September 1969 at 4-30 p.m. The examination disclosed the presence of the following injuries on his person :- "(1) An inlet bullet wound " x " x bone deep on the left side of head front part, 1 " from middle line of head, 4 above the left ear. Blackening of the skin around the wound was present. The margins of the wound were inverted and ecchymosed. (2) An inlet bullet wound " x " x through and through the right upper arm through the muscles, 6" below right shoulder on outer aspect of right upper arm then appeared in the inner aspect of right upper arm making a circular hole ". " x and then entered the right side of chest , outer aspect by making a circular hole "x " x chest. Chest cavity deep by fracturing the fourth right rib, then entered the chest cavity by puncturing right pleura, right lung, heart and left lung and pleura and had embedded itself into the substance of 6th left rib which was fractured. (3) An inlet bullet wound " x " x bone deep on the front of left elbow. The margins of the wound were inverted and ecchymosed. Blackening of skin around was present. It had pierced through the left humerus bone underneath which was fractured into pieces and had made exit at the outer aspect of left upper arm 4 below left shoulder, the exit wound being 1 " x 1 . (4) An inlet bullet wound with inverted and ecchymosed margins " x " on the back of right shoulder, 1" above the right armpit and it had run obliquely through the muscle of back of chest and the bullet had embedded itself under the skin on the back of right side chest 3 below and to the inner side of tip of right shoulder blade. (5) Minor abrasions on the forehead between the two eye-brows and upper part of front nose." Three lead bullets (Exhs. P. 19 to P. 21) and one lead piece (Exh. P. 22) were extracted from injuries Nos. 1, 2 and

4. Except for injury No. 5 which was caused by blunt weapon, the other injuries had been caused by bullets. Injuries Nos. 1 and 2 had been responsible for the death.

9. On 13th September 1969, at 7 a.m. the doctor also held the post mortem examination of Nur Muhammad deceased and found the following injuries on his person :- "(1) An inlet bullet wound " x " x chest cavity deep on the front of right side chest, from the right nipple at about 8 o'clock posi tion. The margins of the wound were inverted and ecchymosed. No blackening of skin around was present. The bullet had pierced through the chest cavity by fracturing 5th rib underneath. (2) An inlet bullet wound x " x chest cavity deep on the outer aspect of right side chest, 2 " below the lower border of right, armpit, at a distance of 6' from the right nipple. The bullet had pierced through the right side of chest into the chest cavity by puncturing right pleura, right lung, pericardium, heart, left pleura and left lung and had made an exit wound on the front of left side of chest, x " x chest cavity deep at a distance of 1" below and to the left side of exit wound of injury No. 1. (3) An inlet bullet wound with inverted and ecchymosed margins 3/4" x x chest cavity deep on the front of left side chest in its lower part, in the middle line of left side of chest. It had pierced through the left side of chest into the left pleura, left lung and right pleura and right lung. (4) An inlet bullet wound " x " x abdominal cavity deep on the back of right lumber region, 1 above the upper margin of right hip bone. The margins of wound were inverted and ecchymosed. No blacken ing of skin around was present. The bullet had pierced through the abdomen and punctured on its way the stomach, the large intes tines, the liver and the peritonivm." One lead bullet (Exh. P. 15) was extracted out of injury No.

3. All the injuries had been caused by bullets and the death had been the result of shock and haemorrhage caused by all the injuries which were sufficient to cause death individually as well as collectively.

10. Lady doctor Mrs. Riffat Sajjad examined Mst. Wilayat Jan in respect of her injuries on 12th September 1969, at 9-LO a.m. and found the following injuries on her person- "(1) One round wound x with inverted and ecchymosed edges and blood oozed from the wound at the lower edges of the back of chest, 4" from the midline on the right side. (2) Wound on the front of chest was 1" edges overted, irregular 3" from the midline and the line of the first wound on the right side." The injuries had been caused by a firearm, injury No. 1 being the inlet wound while injury No. 2 the outlet wound.

11. On the same day at 1-45 p.m. the lady doctor also examined Mst. Sahib Jan and found the following injuries on her person :- "(1) One round wound " x " with inverted and ecchymosed edges with blackening around the wound and blood oozed from the wound on the back in middle 2 away from the midline on the right side. (2) 2" away from the first wound slightly at high level 1" x 1/6 with, everted irregular margins on the right side." The wound was skin deep and injury No. 2 was the outlet of injury No.

1. The injuries were simple in nature.

12. The crime empties and the lead bullets recovered from the spot and from the bodies of the deceased were sent to the Forensic Science Laboratory, Lahore, and in the result of the test conducted there all the five crime empties, i.e., Exhs. P-12 to P-14 and P-16 and P-17, and the lead bullets (Exhs. P-15, P-19 to P-21, P-23 and P-24) were found to have been fired from .32 bore revolver Exh. (P. 18).

13. There had been one committal proceeding and both the cases. had been sent up under one commitment order. The learned trial Judge, however, found that the motive for the first occurrence involving the murder of Karam Khan and Alam Khan was different from the motive for the crime resulting in the murder of Nur Muhammad and injuries to the two women. He also found that the places of occurrence were different and so also the ocular witnesses except for two. He therefore split them into two cases for the trial.

14. The first case (Sessions Case No. 18 of 1970) related to the murder of Karam Khan and Alam Khan. The motive for these murders was that Mastan Khan, son of Alam Khan deceased, murdered Muhammad, the brother-in-law of Munawar Khan and Muhabbat Khan appellants, and that Munawwar Khan had resented Alam Khan's attempt at a compromise. The case against the appellants rested on (1) ocular testimony, (2) dying declarations of Alam Khan deceased, and (3) circumstantial evidence connecting Munawwar Khan's revolver (Exh. P. 18) with the crime empties and the lead bullets. Both the ocular witnesses, namely, Sarwar Khan (P. W. 6) and Said Ghulam (P. W. 7), had resiled from their previous statements and as such their statements made before the committal Court in which they had supported the prosecution case, were transferred under section 288, Cr. P. C. Munawwar Khan had in his statement under section 342, Cr. P. C. admitted the motive and alleged that he had been falsely involved because' he had not permitted Alam Khan to comprise the murder of Muhammad He had dubbed the dying declarations of Alam Khan as false and fictitious. The other appellants had taken a similar stand. As regards the recovery of revolver (Exh. P-18), Munawwar Khan admitted its ownership but denied its recovery. He stated that he had given the revolver to Rafiz Khuda Bakhsh for protection who had produced the same before the Investigating Officer. The appellants led no defence. The learned trial Judge did not rely on that part of the prosecution evidence as related to the linking of the crime empties with the revolver on the ground that the investigating officer had for no ostensible reason kept the same and the recovered revolver with him till 14th September 1969. He however, felt satisfied with the evidence connecting the recovered lead bullets with the revolver and the ocular testimony transferred under section 288, Cr. P. C. as well as the dying declarations and sentenced the appellants as aforesaid. This has given rise to their Appeal No. 563 of 1970.

15. The other case (Sessions Case No. 26 of 1970) related to the murder of Nur Muhammad deceased and the murderous assault on Mst. Sahib Jan and Mst. Wilayat Jan. The motive for the occurrence was that the deceased had filed a pre-emption suit to challenge the sale of some land by his uncle Abdul Khanan to Abdul Dian, Abdul Manan and Abdul Wahid, the brothers of the wife of Munawwar Khan appellant. The other motive was that deceased Nur Muhammad had appeared as ,a witness in the complaint case filed by Dil Nawaz, a step-brother of Munawwar Khan, against Munawwar Khan, his father Azad, and Muhammad for fictitiously transferring in their favour the land of Mst. Hawajan, mother of said Dil Nawaz. In this case, too, the prosecution had relied on (1) ocular testimony, (2) dying declarations of Alam Khan deceased, and (3) circumstantial evidence connecting Munawwar Khan's revolver (Exh. P-18) with the crime empties and the lead bullets recovered from the spot and from the person of the deceased. All the six ocular witnesses examined in the case, namely, Sarwar Khan (P. W. 12), Said Ghulam (P. W. 13), Sahib Jan (P. W. 14), Mst. Wilayat Jan (P. W. 15), Phul Nawaz (P. W. 16) and Mirwal (P. W. 17), had resiled from their earlier statement, and the learned trial Judge transferred under s: ction 288, Cr. P. C. their statements made before the committal Court. Munawwar Khan in his statement admitted that Nur Muhammad had filed the pre-emption suit but denied that the same was reason for him to feel aggrieved. He also admitted that Dil Nawaz had filed a complaint in which Nur Muhammad had appeared as a prosecution witness but added that he (Munawwar Khan) and others had been acquitted. Muhabbat Khan and Qaim Khan had taken the same stand. The appellants had led no defence. For similar reasons as already discussed in the first case, the learned trial Judge found the appellants guilty of murdering Nur Muhammad and of making attempt on the life of Mst. Sahib Jan and Mst Wilayat Jan and convicted and sentenced them as aforesaid. The resulting appeal is Criminal Appeal No. 564 of 1970.

16. The two appeals had been beard by a Division Bench of this Court on 12-7-1972 and the judgment had been reserved, but as one of the learned judges of that Division Bench fell ill and a long time elapsed, the appeals were relisted for a fresh hearing before this Bench. We have accordingly heard these appeals in the presence of Mr. A. K. Brohi, Advocate for the appellants and Mr. M. Akbar, Advocate for the State.

17. The case against the appellants, as already mentioned, rests on the evidence of motive, the dying declarations of Alam Khan deceased, the ocular testimony and the circumstantial evidence. The facts constitu ting the motive in both the cases have in substance been admitted except for the quarrel in the mosque, which finds mention in the second dying declaration (Exh. PA-S). This incident of the mosque had neither been proved through substantive evidence nor was the same put to the appellants under section 342, Cr. P. C. and as such can be discarded.

18. Mr. A. K. Brohi, learned counsel appearing for the appellants,, pointed out certain discrepancies in the two dying declarations. Alam Khan had given the time of the occurrence as 6.30 a.m. in the first statement as against 6.00 a.m. in the second one. He had not specifically mentioned in the first statement as to who had been armed with `chhuri or who had inflict ed the `chhuri' blow to him, as he had done in the subsequent statement. Alam Khan had also not mentioned in the first statement that the appellants had, after the first incident, gone to Nur Muhammad's house nor had he mentioned of the quarrel in the mosque in that statement. Learned counsel further pointed out that the fact that Alam Khan had in the subsequent statement spoken of the appellants having committed the murder of Nur Muhammad, showed that he had been in communication with, his relatives. He referred to the statement of Dr. Abdul Jabbar to the effect that Alam Khan had been brought to the hospital by 4/5 persons. On the basis of these facts, learned counsel argued that both the state ments had been tutored and that the improvements made by Alam Khan in his subsequent statement were on account of prompting by his relatives. No doubt, the discrepancies as enumerated above are present but the same are not material .because the subsequent statement only contains some more details which had not been mentioned in the first one, which is not unnatural. We also see no reason to believe that the statements made were under the influence of any of the relatives of Alam Khan. About the first declaration, the doctor had clearly stated: "The dying declaration of Alam Khan was recorded in the operation theatre. The persons who had accompanied Alam Khan were not allowed to enter the operation theatre. But for my dispenser Abdur Razzaq none else was present when I recorded the dying declaration of Alam Khan." Similarly, Abdul Khaliq A. S. I. who recorded the second dying declara tion, stated : "I recorded the statement of Alam Khan under section 161, Cr. P. C. when he was still in the operation theatre". There is nothing to show that any of Alam Khan's relatives had been present in the operation theatre at the time of the recording of the second statement. Learned counsel then urged that the occurrence had taken dace while it was still dark and that the identification of the appellants by Alam Khan was, as such, not possible. Reference in this connection was made to the evidence of the doctor and of Fazal Rahim (P. W. 11) in the case relating to the murder of Nur Muhammad. The doctor who had: first examined Alam Khan at 8.15 a.m. had given the duration of the injuries as "within three hours". Fazal Rahim had stated: "I came to know about the occurrence at my well before day-break and when it. was still dark". The doctor had given the duration only approximately, while Fazal Rahim was only a formal witness. The time of sunrise on the day of occurrence for Lahore was 5.43 a.m. The time of sunrise at the place of occurrence would be a few minutes later and as such there is no reason to believe that the occurrence had taken place when it was still so dark that identification was not possible. In any case, no question had been put to the witnesses to suggest that there had been any difficulty in identifying the assailants. Learned counsel lastly urged that the dying declaration was like any other statement of an interested witness and as such should not be accepted without independent corroboration. For this, he relied on Abdul Razik v. The State P L D 1965 S C 151 and Tawaib Khan and another v. The State P L D 1970 S C

13. With this proposition there can be no dispute.

19. The ocular testimony in both the cases, as already mentioned, was the statements made by the witnesses during the commitment proceedings, which had been transferred under section 288, Cr. P. C. on account of the fact that all the ocular witnesses in both the cases had resiled from these statements during the trial. A statement made during the inquiry and transferred to the Court of Session is substantive evidence and the Court is at liberty to act on such evidence, if it is satisfied that the statement is true. Section 288, Cr. P. C. itself does not lay down that there should be independent corroboration of such statement. The words "for all purposes" which occur in the section are very significant and show that once a statement has been transferred, it is evidence for all purposes without any limitation. The question, however, remains whether it would be safe to place implicit reliance on such statement when its maker has gone back on it and had in fact perjured himself. It is for this reason that the courts have been applying the rule of caution by looking for corroboration from some independent source even though the law does not require such corroboration (see Muhammad Ahmed alias Mahanda v. The State PLD 1970SC72.

20. It is, therefore, incumbent on the prosecution to provide the necessary independent corroboration to the dying declarations as well a the ocular testimony transferred under section 228, Cr. P. C. before the same can be made the basis for convicting the appellants on the capita charge. Such corroboration is available ..only against Munawwar Khan appellant whose licensed revolver was found by the Ballistic Expert to have been connected with all the five empties recovered at the two spots and the lead bullets (Exhs. P-15, P-19 to P-2l, P-23 and P-24). Learned counsel could point out only to the discrepancy in regard to the person who had produced the revolver. According to Banaras Khan P. W., it had been produced by Hafiz Khuda Bakhsh, but according to the police officer, Munawwar Khan appellant had brought it and produced it before him. Munawwar Khan, under section 342, Cr. P. C., stated that he had kept the revolver with Hafiz Khuda Bakhsh who had produced it before .the police officer. It is however, significant to note that he had in his statement before the committing Magistrate admitted that he had himself produced the revolver before the police. Since the revolver is admittedly his own property, the discrepancy in regard to who actually produced it before the police, is of no significance. The learned trial Judge had not relied upon the linking of the crime empties with the revolver for the reason that the same had been retained by the investiga ting officer till 14th September 1969. The officer had explained: "I went to the spot on 12th September 1969 and remained there investigating the case and returned to the police station on 14th September 1969". On that date, he bad handed over the parcels to A. S.

1. Abdul Khaliq. The explanation appears to be reasonable and we are not satisfied that there were good grounds to reject the relevance of the crime empties. In any case, there is no such difficulty in the matter of the lead bullets. The lead bullets connected with the revolver are Exhs. P-19 to P-21 which had been recovered from the body of Karam Khan deceased, Exh. P-24 which was recovered from the body of Alam Khan deceased, Exh. P-15 which was recovered from the body of Nur Muhammad deceased, and Exh. P-23 which was recovered from the place where Nur Muhammad had fallen. The required corroboration is therefore available as regards Munawwar Khan appellant against whom the charges in both the cases are thus fully established. No such corroboration is, however, available against Muhabbat Khan and Qaim Khan, and since the evidence against them, in the absence of the required corroboration, is not sufficient to sustain their conviction, they are entitled to an acquittal on the benefit of .doubt.

21. In the result, the appeals as regards Muhabbat Khan and Qaim Khan are accepted, their conviction and sentences in both the cases are set .aside and they are acquitted. Muhabbat Khan and Qaim Khan shall be released forthwith, if not wanted in any other case. The appeals as regards Munawwar Khan are dismissed, and his conviction and sentence in both the cases are maintained. The death sentences awarded to him in both the cases are confirmed. The death sentences passed against Muhabbat Khan and Qaim Khan are not confirmed. At the conclusion of the arguments in the two appeals, on 5-4-1974, ,we had announced our decision in open Court in the two appeals. Munawar ,Khan's appeal (No. 563 of 1970) was dismissed. In the other appeal, i.e. Appeal No. 564 of 1970, the conviction and the sentence of death recorded .against Munawar Khan were maintained but his conviction and the -sentences recorded against him under section 307/34, P. P. C., on both .counts, were set aside. The reason being that none of the two injured, namely Mst. Sahib Jan and Mst. Walayat Jan., had in their evidence .attributed the injuries received by them to Munawar Khan specifically; and that co-accused Muhabat Khan and Qaim Khan having been acquitted by us, Muhabbat Khan could not be held vicariously liable for the .same. Short Orders were prepared and issued accordingly on the same date. Release Orders were also issued in the light of the short Orders. In the detailed judgment, which was recorded later, the acquittal of Munawar Khan on the two counts under section 307, P. P. C. did not, however, find mention and the discrepancy has been pointed out by the Office. The slip was on account of the two appeals being before us in one of which the conviction and the sentence had been maintained in entirety. The omission is clerical inasmuch as the judgment has to conform to the decision reached at and duly announced in the presence of the counsel for the parties at the conclusion of the hearing. As the rectification is not adverse to Munawar Khan, we did not feel it necessary to give notice to his counsel. We have however, heard Mr. M. Akbar learned counsel for State and he submits that the rectification being of a clerical nature, the same can be ordered under section 369 and also under ,section 561-A, Cr. P. C. We accordingly clarify that in Appeal No. 564 of 1970 (corresponding ,to M. R. No. 175 of 1970), while the conviction of Munawar Khan under section 302, P. P. C. is upheld and the consequent death sentence awarded to him is confirmed, his conviction and sentences under section 307/34, P. P. C., on both the counts, stand set aside. S. A. H. Orders accordingly.