NAWAB ALI Versus THE STATE
1. ALLAHDINO G. MEMON, J. ‑‑The appellant was charged alongwith his brother Nawab Ali under section 302 read with section 34, P. P. C. and tried for murder of Muhammad Soomar son of Qaisar, and Mst. Kassari wife of Arbab Ali (appellant) before the learned Second Additional Sessions Judge, Shikarpur, who has convicted and sentenced them to death. They were further sentenced to pay a fine of Rs.5,000 each and in default of payment of fine to undergo R.I. for one year. They were further directed to pay compensation of Rs.5,000 each to the heirs of the deceased and in case of default of payment of compensation they were to suffer further R.I. for six months.
2. The brief facts giving rise to the present appeal are that on 12‑12‑1980 one Qaisar son of Fateh Muhammad lodged a report at P.S. Dakhan inter alia alleging therein that his son Soomar is Darogah in Irrigation Department and is married with Mst. Malookan and resides with him. They have friendship with Nawab Lolai of village Mugheem Lolai, and are on visiting terms with each other. On 11‑12‑1980 Nawab and Arbab both sons of Gulsher Lolai came to them and took him, Muhammad Soomar, Muhammad Saleh and his daughter‑in‑law Mst. Malookan wife of Muhammad Soomar to village Mugheem Lolai on invitation in the evening. After taking night meal they went to asleep under a thatched shade (Mannah) on different cots. On 12‑12‑1980 at about 4 a.m. complainant heard some noise of his son Muhammad Soomar, he, his son Muhammad Saleh and his daughter‑in‑law Mst. Malookan woke up and saw that Arbab son of Gulsher Lolai was sitting on the chest of his son Muhammad Soomar, who was sleeping on the cot, and was gagging him, and Nawab son of Gulsher Lolai was holding hatchet in his hand. They raised cries and tried to get them released, on which Nawab declared that he is their Karo and will be murdered. Due to fear complainant party remained silent thereafter Arbab dragged Muhammad Soomar out of shade while Nawab inflicted 'hatchet blows to Muhammad Soomar on his neck and chin and he died. Thereafter, Arbab got his wife Kassari woke up and brought her near Muhammad Soomar and threw him on the ground by gagging, while Nawab inflicted hatchet blows to her on her chest and other parts of the body and she died. Thereafter, accused alongwith their womenfolk left for unknown place. In the morning complainant left his son Muhammad Saleh and Mst. Malookan over the dead body, went to the police station and lodged the report. According to the complainant the allegation of Karo Kari was false. They had identified the accused in the hurricane lamp. This report was recorded by A.S.I. Gulzar Ahmad and the same has been produced as Exh.
8. After recording the F .I. R A. S. I. P. Gulzar Ahmad proceeded to the place of vardat and prepared mashirnama of the same in presence of mashirs Muhammad Umar and Habib, He found two dead bodies lying at the vardat. He also found blood‑stained Pallal (rice straws) as well as blood‑stained earth. He Pecured blood‑stained earth and sealed them separately. He also secured a lantern lying at the vardat under a mashirnama and the same has been produced as ExhJ9. He prepared inquest reports in respect of the two dead bodies in presence of the same mashirs and the reports have been produced as Exhs.14 and 15. He then despatched the dead bodies through P.C. Ghulam Mustafa for post‑mortem examination‑ He recorded statements of Mst. Malookan and Muhammad Saleh. On 20‑12‑1980 he produced both the above witnesses before Mukhtiarkar and F.C.M., Garhi Yaseen and got their statements under section 164, Cr.P.C. recorded. Thereafter, the res: of the investigation was carried on by S.H.O. Fazal Muhammad Ruk. Him self. On 3‑1‑1981, S.H.O. Fazal Muhammad arrested accused Arbab in presence of A.S.I.P. Gulzar Ahmad and prepared such Mashirnama which has been produced as Exh.16. After necessary investigation the accused were challaned before the Court.
3. A formal charge was framed against the accused to which they pleaded not guilty.
4. At the trial prosecution examined complainant Kaisar Khan P.W.1, he has produced the F.I.R. as Exh.8, Muhammad Saleh an eye‑witness P.W.2, he has produced his 164, Cr.P.C. statement as Exh.10, Mst. Malookan an eye‑witness, P.W.3, she has produced her 164, Cr.P.C. statement as Exh.12, mashir Muhammad Umar P.W.4, he has produced the two inquest reports of Muhammad Soomar and Mst. Kassari as Exhs.14 and 15. Accused Nawab was arrested in his presence and he has produced the mashirnama of arrest as Exh.l6, police had also secured the clothes and hatchet from accused Nawab in his presence under Mashirnama which has been produced by him as Exh.17. He has produced a hatchet as article 1 and so also the clothes. The hatchet and clothes were blood stained. He also acted as Mashir of arrest of accused Arbab and he has produced the Mashirnama as Exh.18. He also acted as mashir of vardat, and the Mashirnama has been produced as Exh.19, Medical Officer Ubedullah P.W.5, he had conducted post‑mortem on deceased Mst. Kassari and Muhammad Soomar. and has produced the two post‑mortem reports as Exhs. 21 and 22, Tapedar Moula Bux P.W.6 had prepared sketch of vardat, and has produced the same as Exh.24. A.S.I.P. Gulzar Ahmad who had recorded the F.I.R. and carried on the major part of the investigation.
5. After the close of prosecution case the statements of the accused were recorded in which they denied the allegations, and no evidence was led by them in their defence.
6. The complainant Kaiser Khan has supported the contents of his F.I.R. and has further deposed that he, his son Muhammad Saleh and daughter‑ in‑‑law Mst. Malookan had gone alongwith accused Arbab and Nawab to their village in a bullock cart while deceased 5oomar went to the village of the accused neparateiy on a bicycle. They reached the village of the accused in the evening. It became dark and they were given night meal. Four cots were lying there. When he got up at 4 a.m. he saw that accused Nawab was armed with a dagger while accused Arbab was armed with a hatchet. Accused apart from throttling his son, they also inflicted dagger blows to him after giving blows to his son they took away his son Soomar by holding his legs and arms. Thereafter, within one hour both the accused brought Mst. Kassari and killed her by throttling. Thereafter, the accused collected their clothes etc. and left the village. He then went to village Dakhan where he met one Ghulam Rasool Lolai and then went, to the P.S. and lodged his report The allegation of the accused that his son Soomar was Karo with, Mst. Kassari was false. He had: shown the place of vardat to the police. In cross‑examination he has deposed that the accused were on friendly terms with them since about three years prior to this incident. They used to visit each other with families as well as. individually. He admitted a suggestion that deceased Soomar also used to visit Lolais sometimes individually. He denied that there were 30/35 houses in the village of Mughreem Lolai. He also denied that there were 5 or 6 houses within the hedge of the accused. He denied that Mashir Habibullah was related to him but he was his class‑fellow. Mashir Habibullah and Umar were residents of Larkana whereas he lived in village Wada Phul. The village of the accused was about 30 miles away from Larkana. Village Wada Phu! was about one and half. miles away from Larkana. He admitted that he had stated in the F.I.R. that Muhammad Soomar atongwith hi‑ wife Mst. Malooka was living in his house at Garhi Yaseen. He had mentioned in his F.I.R. that Mst. Malookan and his son Muhammad Saleh were taken by the accused in their bullock cart, while his son Soomar came to the village of the accused separately on bicycle. He had mentioned in the F. I. R. that accused Nawab had a dagger, while accused Arbab was armed with a hatchet and both had also throttled his son besides inflicting dagger blows. He had mentioned in the F. I. R. that both the accused persons thereafter, took the deceased by his legs and arms. He had stated in his F. I. R. that accused Nawab went on inflicting hatchet injuries on the breast and other parts of Mst. Kassari and she died of the same. He had not stated in the F. I. R. that after taking night meal, they all slept under one Mannah on separate cots. He denied a suggestion that the police had recorded the F. I. R. after visiting the place of vardat. He denied that he had not witnessed the incident and that he was giving false evidence.
7. P.W. Muhammad Saleh has deposed that the present incident took place on 12‑12‑1980. In those days he, his father, his brother Soomar and his wife used to reside in Garhi Yaseen. Accused Arbab and Nawab came to their house and took them to their village to participate in a marriage ceremony. During night he, his father Kaisar, his brother Soomar and his wife Mst. Malookan were sleeping on separate cots in a portion of the house of accused persons. At about 4 a.m. he saw accused Nawab and Arbab by the side of cot of deceased Muhammad Soomar who was sleeping with his wife. Accused Arbab started throttling Soomar while accused Nawab inflicted hatchet blows to him and his brother received hatchet injuries on his chin. Accused threatened them that if he tried to intervene he will be killed. Thereafter, both the accused took dead body of Soomar and kept it in a portion of their house. After about half an hour accused Arbab brought his wife Mst. Kassari to the same place, she was raising cries as to why she was being killed for no fault on her part. Accused Arbab throttled Mst. Kassari and placed her dead body by the side of dead body of Soomar. After that accused Arbab after collecting his clothes ran away from there. Accused Nawab first went to P.P.Nabi Shah Wagan and thereafter to P.S. Dakhan. He and his sister‑in‑law Mst. Malookan remained by the side of the dead bodies while his father went to lodge the report. Police had recorded his statement. His statement was also recorded under section 164, Cr.P.C. and the same has been produced as Exh.10. The accused had killed his brother and Mst. Kassari without any fault on their part. In cross‑examination he has deposed that he had stated in his 164, Cr.P.C. statement that they were residing at Garhi Yaseen. He admitted a suggestion that in 164, Cr.P.C. statement he has shown his residence at Wada Phul Taluka Larkana. That he had stated in his 164, Cr.P.C. statement that thereafter both the accused took dead body of Muhammad Soomar kept it in a portion of the house. He had stated in his 164, Cr. P. C. statement that Mst. Kassari was raising cries as to why she was being killed. He denied to have stated before police that accused Nawab inflicted hatchet blows on back and other parts of body of Mst. Kassari who died. He denied to have made this statement in his 164, Cr.P.C. also. Wada Phul was about 40 miles away from the village of the ‑accused. Village Wada Phul was about 7 miles away from Garhi Yaseen town. There were about 15 houses in village Mugheem Lolai. There was one house within the hedge of the accused and the other houses were situated outside the hedge. He denied a suggestion that he had not seen the incident and that he was giving false evidence.
8. The evidence of P.W. "Mst. Malookan was almost similar to that of P.W. Muhammad Saleh. She has admitted in cross‑examination that she had stated in her police statement that accused Nawab inflicted hatchet blows on the breast and other parts of Mst. Kassari she had not stated in her 164, Cr.P.C. statement that accused Nawab committed murder of Mst. Kassari by causing hatchet injuries to her. According to her neither her 161, Cr.P.C. statement was recorded by police, nor she made any statement before the Magistrate. The police had prepared these statements themselves and she was examined for the first time in Court. There was no other guest at the house of the accused except her family members. She denied a suggestion that she had not witnessed the incident and that she was giving false evidence.
9. Mashir Muhammad Umar P.W.4 has deposed that he is resident of Taluka Larkana and had come to the village of Lolais near Dakhan village after hearing about the murder of Soomar. The incident took place about 5 years back. The police had come at the vardat at about 10 a.m. Inquest report of the dead bodies of Muhammad Soomar and Mst. Kassari were prepared in his presence, and he has produced the same as Exhs.14 and 15. Police had also made him Mashir of arrest of accused Nawab, and he has produced the Mashirnama as Exh.16. The police had secured blood stained hatchet from the accused and clothes and prepared such Mashirnama which he has produced as Exh.17. Police had also arrested accused Arbab in his presence and prepared such Mashirnama which he has produced as Exh.18. He was also made Mashir of vardat where dead bodies of Soomar and Mst. Kassari were lying. There were blood stains at the place of vardat. The vardat was inside the hedge of the house of accused Nawab, the Mashirnama has been produced as Exh.19. In cross‑examination he has deposed that complainant Kaisar, deceased Soomar, Habibullah co‑mashir are related to him. He admitted that in order to reach Bado from Larkana it is necessary to first go to Dakhan. He admitted that village Dakhan is connected with Larkana as well as with Garhi Yaseen, by mettled road. He has also admitted that there is a Pucca road between Dakhan and Bado. He could not give the distance between Bado and Larkana.. There were 15/16 houses in the village of Lolais. He did not count the houses situated within the hedge of the accused persons. He has admitted that he signed all the Mashirnamas at the police station, again stated that he signed these Mashirnamas at the place of incident. He denied a suggestion that he was giving false evidence and no recovery of any incriminating articles was made from the possession of the accused.
10. Medical Officer Ubedullah P.W.5 had carried on post‑mortem on the dead bodies of Mst. Kassari and Muhammad Soomar. On external examination of the dead body of Mst. Kassari he found the following injuries: ‑‑
(1) Multiple abrasions varying from 2 c.m. x 4 c.m. in length and 1/2 c.m. x 1 c.m. in breadth on the front of neck.
(2) Multiple parallel abrasions on the left scapular region varying from 10 c.m. to 5 c.m. in length and 1/2 c.m. in breadth.
(3) Abrasion 8 c.m. x 2 c.m. on the back of neck left side.
(4) An abrasion 2 c.m. x 3 c.m. on the left shoulder.
(5) Multiple abrasions on the left side of neck.
(6) An abrasion 2 c.m. x 2 c.m. on the right cheek.
(7) An abrasion 2 c.m. x 2 c.m. on the left side of mandible.
11. Face was synosed, neck swollen, conjective ecchymosed, tongue was bitten.
12. On internal examination he found the following damage: ‑‑
13. Brain was congested, both pleurae congested, lyranx and trachea were congested and there was haemorrhage in the mucus membrane of the larynx, right and left lungs were congested, there was sub‑pleural haemorrhage and were congested with dark blood. Left side of the heat was empty while right side was full of dark blood. Blood vessels were engroged, stomach was empty, liver, spleen, kidneys were congested.
14. From external as well as internal examination of the dead body he was of the opinion that the death had occurred due to asphyxia on account of throttling. Time between injuries and death was few minutes to 15 minutes, and time between death and post‑mortem was about 14 hours. He has produced the post‑mortem report as Exh.21.
15. On external examination of dead body of deceased Muhammad Soomar he found the following injuries on his person: ‑‑
(1) Incised wound 8 c. m x 2 c. m. x bone deep on the chin with fracture of the mandible.
(2) Incised wound 15 c.m. x 21 c.m. x muscle deep on the front of neck.
(3) Incised wound 1 c.m. x 1 c.m. x muscle deep below the left clavicle on the chest.
(4) Multiple ligature marks parallel to each other and interlecing over each other 8 c.m. x 14 c.m. in length and half an inch in breadth over the front of neck lower part with swelling of neck.
(5) Abrasion 7 c.m. x 10 c. m. on the left shoulder.
(6) Abrasion 6 c.m. x 2 c.m. on the left shoulder.
(7) Abrasion 8 c.m. x 5 c.m. on the chest left side.
(8) Burn wound 15 c.m. x 6 c.m. on the back of left upper arm and left forearm, superficial burn.
(9) Abrasion 2 c.m. x 2 c.m. on the right thigh.
(10) Burn wound 7 c.m. x 5 c.m. on the right hand.
(11) Two parallel ligature marks on the back of right shoulder.
(12) Two parallel ligature marks on the back right shoulder.
16. On internal examination he found the following damage: ‑‑-
17. Brain and brain‑membrane were congested. There was sub‑pleural haemorrhage on both sides and trachea was congested, haemorrhage in the muscus membrane of the layrnx, right and left lungs were congested and contained dark blood. Left side of the heart was empty while right side was full of dark blood. Blood vessels were congested, stomach was found empty. Liver, spleen and kidneys were congested and all other internal organs were found empty. All injuries were ante‑mortem in nature.
18. From the external as well as `internal examination of the dead body, he was of the opinion that the death had occurred due to asphyxia on account of strangulation. Time between injuries and death was within 5 to 15 minutes, and between death and post‑mortem was between 14 hours to 18 hours. He has produced the post‑mortem report as Exh.22. In cross‑examination he has deposed that it was correct that throttling is carried out with the help of hands on the neck, while strangulation is carried out by means of a rope, lathi or any hard blunt substance excluding human hands.
19. Tapedar Moula Bux P.W. 6 had prepared the sketch of vardat and the same has been produced by him as Exh.24.
20. A. S. I. P. Gulzar Ahmad has deposed that he had recorded the F.I.R. of this case which has been produced as Exh.8. The remaining details of the investigation carried on by him have been mentioned in the earlier part of this judgment. In cross‑examination he has deposed that the place of incident was about 20 killometres away from the police station. The complainant has not stated in his F.I.R. that Muhammad Soomar and his wife used to reside with him in Garhi Yaseen. He has not stated in the F.I.R. that accused took him, Muhammad Saleh and Mst. Malookan in the bullock cart, and Soomar went to their village on a bicycle. He has not stated in F.I.R. that Nawab was armed with a dagger. He had not stated in the F. I. R. that both the accused took deceased Soomar by his legs and arms. He has not stated in his F. I. R. that after taking meals they all slept on separate cots. He had stated in his F. I. R. that accused Nawab went on inflicting hatchet blows on the chest and other parts of Mst. Kassari who died later on. The complainant has shown his place of residence in F.I.R. as Wada Phul taluka Larkana, so also Mst. Malookan in her 161, Cr.P.C. statement. Mst. Malookan had further stated before him that after taking meals they slept in eastern Mannah on separate cots. She had stated before him that accused Nawab inflicted hatchet blows on the back and other parts of Mst. Kassari who died later on. P.W. Muhammad Saleh had stated before him that accused Nawab inflicted hatchet blows on the back and other parts of Mst. Kassari. Mst. Malookan did not state before him that the accused had taken away her three pairs of clothes and a Burqa. He denied a suggestion that no recovery had been made from the accused.
21. After close of the prosecution case the statements of the appellants were recorded under section 342, Cr.P.C. in which they denied the allegations. They have further stated that the case against them was false and they were innocent. However, they did not examine themselves on oath as envisaged by section 340(2), Cr.P.C., nor any evidence was led in their defence.
22. The learned trial Judge while relying upon the above evidence convicted the appellants as described above and the present appeal is directed against the said judgment of conviction, dated 4th; March, 1986. The case is also before us for confirmation of death sentence.
23. It may be stated here that the appellants were confined at Central Prison, Sukkur and during the jail break which took place on 23‑3‑1986 both the appellants escaped from jail. However, appellant Nawab Ali was killed in encounter while the present appellant Arbab Ali was arrested later. The appeal as far as appellant Nawab Ali was concerned had, therefore, abated and we are concerned with the appeal of appellant Arbab Ali only.
24. We have heard Mr. Muhammad Hayat Junejo learned counsel appearing for the appellant, Mr. Akhlaq Ahmad Siddiqui learned counsel appearing for the State and have also gone through the R&P of the case.
25. It was contended by Mr. Muhammad Hayat Junejo learned counsel appearing for the appellant that the ocular evidence was interested, contradictory, unreliable and was in conflict with the medical evidence, therefore, the learned trial Judge had erred in relying upon the same. That the recoveries allegedly made were from appellant Nawab Ali since deceased and that the same could not be used against the appellant. That there was no corroboration of the ocular evidence and, therefore, the conviction of the appellant was liable to be set aside. In the alternative he has contended that it was a case of grave and sudden provocation.
26. Mr. Akhlaq Ahmad Siddiqui learned counsel appearing for the State has contended that the complainant, and P.Ws. Muhammad Saleh and Mst. Malookan had no enmity with the appellant and their evidence was straightforward, natural and reliable. He further contended that the incident took place on 12‑12‑1980 while the witnesses were examined in May and September, 1985 i.e. about four and half years after the incident and, therefore, the contradictions if any were natural. He has further contended that the fact that the two dead bodies were recovered from the house of the appellant and he was found missing from his house alongwith his brother after the incident corroborates the prosecution case.
27. We have considered the contentions of the learned counsel. Of course it is an admitted position that complainant Qaisar is father of deceased Muhammad Soomar, P.W. Muhammad Saleh is his brother while Mst. Malookan is his wife. There is also no doubt that there are contradictions in the evidence of the witnesses with regard to the manner in which the two deceased were given hatchet blows
28. However, in the case of deceased Mst. Kassari it was deposed that she was given hatchet blows by accused Nawab, but there is nothing to show that the blows were given with a sharp side of the hatchet. The Medical Officer has found seven injuries on her person which were abrasions and appeared to have been caused with blunt weapon. However, injury No. 1 was described as multiple abrasions varying from 2 c.m. to 4 c.m. in length and J c.m. to 1 c.m. in breadth on the front of neck. Of course complainant had also stated in the F.I.R. that she was given hatchet blows, but in the Court his case was that she was throttled and made no allegation regarding hatchet injury. In the F. I. R. the case of the complainant was that Arbab had throttled Muhammad Soomar while Nawab had given him hatchet blows, but in the Court his case was that accused Nawab was armed with a dagger and accused Arbab was armed with a hatchet. The accused besides throttling his son had also caused him dagger blows. It was also stated by the complainant in his F. I. R. that all of them had gone together to the village of the accused, but in the Court he has deposed that deceased Muhammad Soomar had gone on bicycle. The evidence of Medical Officer shows that the deceased died due to asphyxia on account of strangulation. In cross‑examination he has stated that throttling is carried out with the help of hands on the neck. He also admitted that the strangulation is carried out by means of a rope, lathi or any hard substance excluding human hands. In the case of Mst. Kassari he was of the view that the death had occurred on account of throttling. However, we have given our anxious thought to this aspect of the case, and. we are of the conaidereu view that the complainant and P.W. Muhammad Saleh and Mst. Malookan had witnessed the incident due to the following reasons: ‑‑
(1) The complainant is father of the deceased, P.W. Muhammad Saleh was his brother, while Mst. Malooan was his wife There were no reasons for them for leaving 'the actual culprits and implicating the appellant falsely.
(2) The complainant and witnesses had no enmity with the appellant, nor any enmity was alleged by the appellant.
(3) That the incident took place at 4 a.m. while the report was lodged at P.S. Dakhan at 9 a.m. and the distance being 20 killometres, it can be said that the F.I.R. was lodged promptly,
(4) That the appellant and his brother had abandoned their house' immediately after the incident as deposed to by the complainan~ and P. Ws.
(5) That the dead bodies were secured from the house of the appellant and his brother. '
(6) That in villages people avoid to cite their ladies as witnesses but the fact that Mst. Malookan has been examined lends further assurance.
29. In view of the above finding the next important question which requires consideration is the nature of offence committed by the appellant. Admittedly, there was no enmity between the parties an they were on visiting terms. Even they used to visit each other with their families. It has been admitted by complainant Qaisar in his cross‑examination, that deceased Soomar also used to visit Lolais some times individually". Even on the day of incident it is the case of the complainant that they were invited by the accused alongwith Mst. Malookan. Till the night of incident neither accused had shown any suspicion in the deceased Muhammad Soomar nor the complainant party had any knowledge about the illicit connections between the two R deceased. It is possible that the two deceased were found while making love by the side of Pallal (which is kept in the shape of heap for fodder of the cattle) and when spotted deceased Soomar might' have rushed towards his cot while Mst. Kassari might have gone to her own cot and thereafter they were taken to the place where they were killed. Of course the appellant and his brother did not take the plea of grave and sudden provocation in their statements under section 342, Cr. P. C. but this fact would not be fatal to their defence. In Jumma v. The State 1968 Pakistan Criminal Law Journal page 352 it was observed that: ‑‑
30. "It is well‑settled that if a reasonable possibility of such a plea could be spelt out from the circumstances of the case, the omission on the part of the accused person to raise the same or to take an inconsistent position would not be fatal to his defence."
31. From the above circumstances and the background of relations between the parties the only logical conclusion can be that the two deceased were killed due to grave and sudden provocation, and, therefore, the case is covered by Exception I to section 300, P.P.C. which reads as under: ‑‑
32. "Culpable homicide is not murder if the offender, whilst deprived of the power of self‑control by grave and sudden provocation, causes the death of the person who gave the provocation or causes the death of any other person by mistake or accident."
33. The above Exception is subject to the following provisions:‑‑
34. First:
35. That the provocation is not sought or‑voluntarily provoked by the offender as an excuse for killing or doing harm to any person.
36. Secondly:
37. That the provocation is not given by anything done in obedience to the law, or by a public servant in the lawful exercise of the powers of such public servant.
38. Thirdly:
39. That the provocation is not given by anything done in the lawful exercise of the right of private defence.
40. From the above discussion we are of the considered view that the appellant and his brother had committed the murder of the two deceased due to grave and sudden provocation and, therefore, the conviction of the appellant is altered from section 302, P.P.C. to section 304(1), P.P.C. and the substantive sentence is reduced to R.I. for five years. The sentence of fine is maintained and in default the appellant shall suffer further R.I. for one year. However, looking to the circumstances of the case that the appellant had committed the above murders due to grave and sudden provocation, the order regarding payment of compensation is set aside. The appellant will be entitled to the benefit of provisions of section 382‑B, Cr.P.C. With this modification the appeal is dismissed. The reference made b the learned trial Judge for confirmation of sentence stands rejected.
41. M. Y. H. /N‑74/ K Appeal partly allowed.