' CH. EJAZ YOUSAF, J.---This appeal is directed against judgment, dated 24-8-1995 delivered by ad hoc Sessions Judge Quetta whereby Khan Ali, the appellant, was convicted under section 17(4) of the Offences Against Property (Enforcement of Hudood) Ordinance, 1979 (hereinafter referred to as the Hudood Ordinance) and sentenced to suffer life imprisonment. He was also convicted under section 302/34, P.P.C. (Qisas and Diyat Ordinance) and sentenced to suffer life imprisonment. The sentences were directed to run concurrently. Benefit of section 382-B, Cr.P.C. Was also extended.
2. Briefly stated, the prosecution case as gathered from the record is that on 20-6-1993 at 11.55 a.m., an F.I.R. Bearing No,37 of 1993 was registered under section 17(4) of the Hudood Ordinance read with section 302/34, P.P.C. (Qisas and Diyat Ordinance) with police station Quaid Abad Quetta by one Muhammad Anwar son of Muhammad Ali, wherein it was alleged that he was resident of Jungle Bagh Quetta and sells carpets. On the said date at about 11.10 a.m. When he and his companions namely Shad Muhammad, Talab-ud-Din and Abdul Mannan came to a place known as Talab-e- Khushak situated near the Imam Bargah for the purpose of selling carpets, suddenly four persons appeared on the spot, took them on the gun point asked them to take out all the cash available with them and hand the same over to the culprits. It was further alleged in the F.I.R. That on complainant's refusal to part with their money, one of the accused namely Muhammad Ibrahim took out of a pistol and fired at Shad Muhammad who died instantly whereas, another culprit attacked the complainant with a knife, as a result whereof he received injuries. Talab-ud-Din who also attacked by one of the culprits but he was fortunate enough to defend himself by putting a carpet in front of him.
3. Subsequent to registration of the case, investigation was initiated and injured were referred to the hospital for treatment and medical examination. The dead body of Shad Muhammad was also sent to the hospital for post-mortem. On 26-6-1993 accused/appellant Khan Ali was arrested. From his possession a knife and pistol allegedly used in the crime were recovered and were taken into possession by the Investigating Officer vide recovery memo. Exh.P.5-A. Consequently, a case under section 13 of the Arms Ordinance was also registered against him. His identification parade was also arranged under the supervision of Dr. Muhammad Umar Babar, Assistant Commissioner wherein he was allegedly identified by the witnesses vide identification parade memo Exh.P.8-A.
Two sealed parcels of blood were also sent to the Forensic Science Laboratory for report. On the receipt of Chemical Examiner's Report Exh.P/7-A, medical certificate of the injured Muhammad Anwar Exh.P./2-A and completion of necessary investigation accused/appellant was challaned to the Court for trial. It would be pertinent to mention here that despite efforts, co-accused namely Muhammad Ibrahim son of Ramzan, Ibrahim alias Toni and Sakhi Dad remained at large and could not be apprehended. As such, process was issued against them and they ultimately were declared as proclaimed offenders.
4. Charge was accordingly framed to which the accused/appellant pleaded not guilty and claimed trial.
5. At trial, the prosecution in order to prove the charge and substantiate the allegations levelled against the accused/appellant produced nine witnesses in all. P.W.1 Dr. Muhammad Umar deposed that on 20-6-1993 dead body of deceased Shad Muhammad was brought in the Casualty Department of Sundeman Provincial Hospital Quetta which was attended by Dr. Amin Maighani, the doctor on duty, who noted following injuries on the person of the deceased:-- "No,1 Lacerated wound on laterally right side of chest. 6 inches below the exilla 1/2 inch in diameter, with irregular and inverted edge entrance.
' No,2 Half of the skin of back of chest is abraded."
' He was of the opinion that cause of death, probably was, injury to vital organs, in the chest cavity, and concealed heamorrhage leading to comma, shock and death. In the course of his cross- examination he clarified that two injuries were available on the person of the deceased, one was of a fire-arm and the other was by a blunt weapon and that there was no injury of any sharp-edged weapon. He also disclosed that no post-mortem of the deceased was conducted. He, however, confirmed that Exh.P/1-A, the medical certificate of the deceased, was issued by him and the same bears his signatures. P.W.2 Dr. Manzoor Hussain deposed that on 20-6-1993 he was posted as medical officer in the Civil Hospital Quetta. On the same day, at about 1.15 p.m. Si. Khalil-ur-Rehman brought Muhammad Anwar son of Muhammad Ali to him for examination. He deposed that during his examination he found the following injuries on his person:-- "(1) Incised wound (Stab) on right inguinal region 1 x 1/2 c.m. Muscle deep with bleeding.
(2) Incised wound on right forearm below elbow joint 4 c.m. x 1/4 c.m. Muscle deep with bleeding."
' He confirmed that as a result of his examination he had issued certificate Exh.P/2-A which bears his signatures. In the course of his cross-examination, he clarified that the injuries were caused by the same weapon. However, he denied this suggestion as incorrect that incised wound and stab wound both, could not have been caused by the same weapon. P.W.3 Muhammad Anwar is the complainant. He, at the trial, reiterated the version contained in the F.I.R. And confirmed that the accused/appellant present in the Court was the same who had attacked him and his companions, at the time of occurrence. He confirmed that subsequent to his arrest, identification parade of the accused/appellant was arranged, in which he had identified him. In the course of his cross- examination, he stated that at the time of occurrence name of the accused/appellant was not known to him but accused Ibrahim was known to him previously. He also admitted this suggestion as correct that in report Exh.P/3-A he had stated that due to firing made by accused Ibrahim, deceased died on the spot. He, however, refuted this suggestion as incorrect that prior to the identification parade accused/appellant was shown to him. He also refuted this suggestion as incorrect that the appellant was not present at the place of occurrence. P.W.4 Talab-udDin is another eye-witness of the incident. He, at the trial, corroborated the statement of P.W.3 in all material particulars and stated that accused Ibrahim had attacked him with Churri whereafter he (Ibrahim) also fired at deceased Shad Muhammad with pistol. He, however, deposed that accused Ibrahim had also attacked Muhammad Anwar with Churri twice whereas, other accused threw punches on them. He confirmed that the deceased died instantly. He further deposed that fifteen days, subsequent to the occurrence, they were called at the police station where the accused/appellant was identified by him as well as, the other witnesses. In the course of his cross- examination he refuted this suggestion as incorrect that no identification parade of the accused was held and that he had not identified the accused therein. P.W.5 Muhammad Yaqoob A.S.I:P.
Deposed that on 26-6-1993 he alongwith Ilaqa Magistrate as well as, police officials had visited the house of the accused/appellant. Appellant Khan Ali was present in the house. His personal search was accordingly carried out and one knife was recovered from his possession vide memo. Exh.P/5- A. He also produced in Court trouser and shirt allegedly produced by the complainant before the police and deposed that the same were taken into possession and sealed in a parcel, in the presence of the witnesses and him vide memo. Exh.P/5-C. P.W.6 Umer Rehman A.S.I.P. Deposed that he subsequent to the occurrence had visited and inspected the place of occurrence. He deposed that blood-stained earth and two empties were taken into possession by him from the place of occurrence vide memo. Exhs.P/6-1 and P/6-B whereas, bicycle was also taken into possession through memo. Exh. P/5-C. He further confirmed that complainant Muhammad Anwar had produced before him a Darri which was taken by him, into possession, vide memo. Exh.P/6-E. The witness further deposed that clothes of deceased Shad Muhammad were produced by Dilbar before him which too, were accordingly taken into possession vide memo. Exh.P/6-F. P.W.7 Syed Abdul Jabbar, Chemical Examiner deposed that he had received two parcels for examination. He had examined both the parcels and found that articles contained therein, were stained with human blood. The witness correctly identified his signatures on Exh.P/7-A. P.W.8 Dr. Umer Babar, Assistant Commissioner deposed that on 5-7-1993 he had supervised identification parade of the accused/appellant wherein, three witnesses namely Muhammad Anwar, Abdul Manan and Talab- ud-Din correctly identified the appellant in his presence. The witness produced identification memo as Exh.P/8-A. P.W.9 Khalil-ur-Rehman, S.I.P., is the Investigating Officer. He deposed that he subsequent to the occurrence, had visited the spot, prepared the site plan, effected the recoveries, sent the injured as well as, dead body of the deceased for medical examination and had conducted investigation in the case. He deposed that in the course of investigation he had also arrested the accused/appellant, recovered crime weapons i.e, knife and pistol from his possession arranged his identification parade wherein, he was identified by the prosecution witnesses, obtained reports from the Chemical Examiner and the doctor and on the completion of investigation had challaned the accused to the Court for trial.
6. On the conclusion of the prosecution evidence, the accused/appellant was examined under section 342, Cr.P.C. As well, section 340(2), Cr.P.C. In his statements he denied the charge and pleaded that he was innocent. In his statement on oath he though, admitted that he was arrested from his house by the police in the presence of a Magistrate yet, denied that crime weapon i.e, knife was recovered from his possession. He categorically denied that he was responsible for the offence and that no identification parade was arranged or held at the police station. He produced one D.W. Nadir Ali his real brother in his defence who deposed that on 26-3-1993 police had conducted a raid on their house and had recovered one pistol from the room of his father and had also arrested the accused/appellant. In the course of his cross-examination, he admitted this suggestion as correct that he was not aware that as to where the accused remained on 26-6-1993, for the whole day. He further admitted this suggestion as correct that he was not aware as to whether the pistol recovered from the room of his father was a licenced one or unlicenced.
7. After hearing arguments of the parties, the learned trial Court convicted the appellant and sentenced him to the punishment as mentioned in the opening para. Hereof.
8. We have heard Syed Ayaz Zahoor, Advocate, learned counsel for the appellant and Mrs. Ashraf Abbas, Advocate for the State and have also minutely gone through the record of the case.
9. Learned counsel for the appellant has raised mainly, the following four contentions:--
(i) That the learned trial Court in convicting the appellant has primarily relied upon the statement of P.W.3 and P.W.4 which being contradictory to each other on material points, could not have warranted conviction of the accused.
(ii) That since the delay in holding the identification parade had marred its evidentiary value, therefore, the trial Court was not justified to take the same into account.
(iii) That the recovery of crime weapons i.e, knife and pistol does not connect the accused/appellant with the crime.
(iv) That evidence produced by the parties was not properly appreciated by the learned trial Court.
10. Mrs. Ashraf Abbas, Advocate, learned counsel for the State on the other hand, while controverting the contentions raised by the learned counsel for the appellant submitted that guilt of the accused/appellant was subsequently and materially brought home by the prosecution, at the trial. The occurrence had taken place in broad daylight. Specific role was attributed to each of the accused, thus, it was not a case of mistaken identity. She further stated that subsequent to the occurrence crime weapons were also recovered from the possession of the appellant in the presence of the witnesses as well as a Magistrate. Thus, sufficient corroboration to the oral testimony of the P.Ws. Was available. She pleaded that the offence even otherwise, was committed by the appellant and the absconding accused, in furtherance of their common intention. Therefore, notwithstanding the fact that as to who had actually killed the deceased and inflicted injuries to the complainant, all the accused were vicariously liable for the offence. She further argued that the prosecution witnesses, have no enmity with the accused/appellant nor has any motive been shown to falsely implicate the accused, therefore, the trial Court has rightly convicted the appellant for the offence.
11. In order to supplement his first contention that the statements of P.W.3 and P.W.4 being contradictory to each other, on material points, were not worthy of reliance, learned counsel for the appellant vehemently contended that statement of P.W.3 Muhammad Anwar was not only contradictory to the statement of P.W.4 Talabuddin but was at variance, to his own statement recorded earlier, in the shape of F.I.R. He pointed out that the F.I.R. i.e, Exh.P/3-A, it was categorically stated by the complainant that in the fight, a person whose name was subsequently known as Muhammad Ibrahim took out a pistol and fired at Shad Muhammad who died instantly whereas, another person attacked him with a knife and inflicted two knife blows to him and that the same person, also tried to injure P.W.4 Talabuddin subsequently. Learned counsel for the appellant further submitted that the complainant while appearing in Court has taken altogether a different stand and has deposed that it was the present appellant, Khan Ali who had committed murder of deceased Shad Muhammad whereas, absconding accused Ibrahim had attacked the complainant with a knife and inflicted injuries to him. Learned counsel for the appellant pointed out the P.W.4 Talabuddin, at the trial, contrary to the statement of the complainant, had deposed that it was absconding accused Ibrahim who had attacked him with Chhurri and, thereafter, had also fired at deceased Shad Muhammad in order to kill him and that accused Ibrahim had also attacked Anwar with Chhurri twice whereas, the remaining accused had punched them. Learned counsel for the appellant in view of the above, argued that there being material contradictions in the statements of both the eye-witnesses of the occurrence and significant improvements in the statement of the complainant, the trial Court was not justified to record conviction against the accused/appellant. Reliance in this behalf has been placed on the following reported judgments:--
(i) Muhammad Iqbal v. Abid Hussain alias Mithu and 6 others (1994 SCM R 1928) in which case it was held that corroboration is always required with regard to the version of the prosecution and to the identity of each accused and that by suppressing injuries of the accused, eye-witnesses had damaged their veracity besides shaking confidence of the Court. As such, their statements were no more confidence inspiring and acquittal of the accused by High Court was not perverse in the circumstances.
(ii) Haroon alias Harooni v. The State and another (1995 SCM R 1627) in which case it was held that the statement of a witness must be in consonance with the probabilities fitting in the circumstances of the case and also inspire confidence in the mind of a reasonable prudent' man.
F.I.R. Showed that three persons including the one who had sustained injuries during the occurrence, had seen the occurrence, but none of them had been produced by the prosecution.
Complainant was the real brother of the deceased whose enmity with the accused was a proven fact. Another eye-witness, although an independent witness, had shown reckless disregard for the truth by falsely involving two acquitted accused in the case. Thus, independent corroboration of the ocular testimony qua the accused was not available."
' Mrs. Ashraf Abbas, Advocate, learned counsel for the State when confronted with the above proposition, though candidly conceded that both the eyewitnesses of the occurrence i.e, P.W.3 as well as P.W.4 have contradicted each other at the trial yet, she attempted to argue that it was not a case of false accusation but was of a bona fide mistake. She submitted that both the eyewitnesses might have been confused as to the names and roles attributed to both the accused, in the crime, therefore, the contradictions appeared to have occurred due to a bona fide mistake. In order to substantiate her arguments, she stated that the appellant was correctly identified by both the eye- witnesses not only in the course of identification parade but at the trial as well, to be one of the culprits, therefore, his presence and participation in the crime cannot be doubted.
' In order to ascertain as to whether there is substance in this contention of the learned counsel for the appellant, we have ourselves minutely gone through record of the case. It is apparent from the record, that in the F.I.R., the complainant had attributed killing of deceased Shad Muhammad to the absconding accused Ibrahim whereas, in his statement before the Court he has substituted him with the present appellant and has deposed that it was the appellant Khan Ali who had killed the deceased by firing at him with the pistol. The other eye-witness of the occurrence P.W.4 Talabuddin at 'the trial, has introduced altogether a different story. He has deposed that it was the absconding accused Ibrahim, who had fired at deceased Shad Muhammad in order to kill him. He has further deposed that the same accused had also attacked him with Chhurri, besides, inflicting two knife blows to the complainant. P.W.4 Talabuddin, as such, has completely exonerated the present appellant. It would be pertinent to mention here that P.W.3 Anwar in the course of his cross- examination, too, has admitted this suggestion as correct that in' the report Exh.P/3-A he had stated that it was the absconding accused Ibrahim who had murdered the deceased Shad Muhammad. In the course of his cross-examination, he has also admitted this suggestion as correct that at the time of occurrence, he did not know about the appellant Khan Ali but absconding accused Ibrahim was known to him previously. In view of above admission of the appellant, we do not feel persuaded to agree with this contention of the learned counsel for the State that the P.Ws. Have committed mistake in describing names and roles in crime, of the culprits. It would also be worth while to mention here that P.W.4 has attributed no overt act to the present appellant, therefore, after taking out his statement from consideration we are left with the statement of P.W.3 only which too, being contradictory to his earlier statement recorded in the shape of F.I.R. Does not appear to be confidence inspiring, so far as it relates to the murder of the deceased Shad Muhammad, by the present appellant. A careful perusal of evidence, as a whole, would suggest that the complainant's plea regarding murder of the deceased by absconding accused Ibrahim given in the F.I.R. Was perhaps true and the same has been rightly corroborated by P.W.3 at the trial. It appears that since other accused persons including Ibrahim, except the present appellant, could not be apprehended, therefore, the complainant in order to settle the score, has falsely attributed the factum of killing of the deceased Shad Muhammad to the appellant and in doing so, the complainant has also changed his stance with regard to the infliction of injuries upon his person as well. As stated above, it was categorically stated by the complainant in the F.I.R. That Ibrahim had killed the deceased whereas, "another person" had inflicted knife blows to him. It appears that by attempting to substitute the real culprit with the accused/appellant, P.W.3 in his overzealousness, has not only compromised his credibility but has also damaged veracity of his statement, to this extent.
12. It appears that the learned trial Court was also cognizent of the fact that the appellant was not directly and principally reasonable for the murder of deceased Shad Muhammad but was vicariously liable for the offence. That is why, the learned trial Court had formulated and put the following questions to the appellant, in the course of his statement recorded under section 342, Cr.
P . C . : ' "Q.No,l. It is correct that, on 20-6-1993 at about 11.00 a.m: you alongwith Ibrahim son of Ramzan and Ibrahim son of unknown and Sakhi Dad with consultation with each other near Khushk Tallab near Imam Bargha Agha Gul, you all attacked on Shad Muhammad, Talib Din, Abdul Manan and Muhammad Anwar. During fight your companion Muhammad Ibrahim took out pistol from his trouser and fired on Shad Muhammad. Due to firing he died on the spot. Besides that, you took out knife attacked on Muhammad Anwar. Due to your hitting he received grievous injuries. After committing offence you all ran away to mountain side. The reason of offence was that you tried to snatch cash from Shah Muhammad, Talabuddin, Abdul Manan and Muhammad Anwar. What have you to say?"
13. It would also be pertinent to mention here that the learned trial Court, while saddling the responsibility of murder, as well as the other offences, has not convicted the accused/appellant as a principal offender but has held that since he was sharing common intention with the other accused for the offence, therefore, he was also liable for the offence in the same manner as if it was committed by him, alone. Relevant portion of the judgment reads as follows:-- ' "P.W.4 Talabuddin stated that Ibrahim fired with pistol on deceased Shad Muhammad. In this case there is not question who firing to fired on deceased and murdered him but in this case accused Khan Ali, Muhammad Ibrahim, Ibrahim alias Tonny and Sakhi Dad came with common intention to commit offence therefore, everybody was responsible for act done by his companions. All the accused came with common object, intention to commit robbery. Bare readitig of section 34, P.P.C.
It is clear that everybody was responsible for act of other."
It is well-settled that once commonalty of intention is established, then the question of fatality of injuries would be wholly irrelevnt. The above view finds support from the case of Noor Muhammad v. The State (PLD 1997 SC 508) (relevant at Page 511). Further, in the case of Muhammad Akbar and 2 others v. The State (PLD 1991 SC 923). It has been laid down that common intention generally, inter alia, precedes by some or all of the following elements, namely, common motive, pre-planned preparation and oncert pursuant to such plan. However, common intention may develop even on the spur of moment or during the commission of offence.
14. Therefore, while applying the above principle to the instant case, we find that appellant as well as, other culprits being armed, had attacked the complainant and his companions, and on their refusal to part with their money, had also killed deceased Shad Muhammad besides inflicting knife blows to P.W.3, therefore, even if the present appellant had not killed the deceased Shad Muhammad, yet, he definitely was sharing common intention with the other accused to commit Harabah. The first contention, therefore, is of no avail to the appellant.
15. In order to supplement his next contention that since delay in holding the identification parade had diminished its evidentiary value, therefore, the trial Court ought to have discarded the same, the learned counsel for the appellant contended that appellant was arrested on 26-6-1993 whereas, his identification parade as per Exh.P/8-A, was carried out on 5-7-1993, therefore, the delay of nine days, which otherwise remained unexplained at the trial, had greatly marred its evidentiary value. In this regard, it may be noted that though, at the trial, the defence has neither challenged the holding of identification parade nor has sought any sort of explanation regarding the delay from the Investigating Officer, yet, in our opinion, the delay in holding the identification parade, in the circumstances of the present case, was not inordinate as the Investigating Officer in the meantime, was busy in effecting the recoveries from the appellant and searching out of the other culprits. Even otherwise, the delay in holding the identification parade is always not fatal to the case of the prosecution and it depends upon a host of circumstances including the type of witnesses, the manner in which the identification parade was carried out including proportion of innocent persons to be mixed with the suspects and the fact as to how and in what manner and circumstances the prosecution witnesses came to pick out particular accused and the details of the part which that accused had, in fact, taken in the crime. In the instant case, the prosecution witnesses, at the very out set, have not only confirmed the presence of the accused/appellant at the place of occurrence but have also explained that he in furtherance of common intention with other accused had also attacked them, in order to commit Harabah, therefore, there is no reason as to why their testimony qua identification of the accused may be discarded, particularly when neither any enmity has been alleged against them nor any motive for false implication has been attributed.Even otherwise, it has been repeatedly laid down by the Superior Courts that the delay simplicitor in conducting the identification parade would not prejudice capability, if otherwise enough, of eye-witnesses, to identify culprits. Reference in this behalf may be made to the observations of the Hon'ble Supreme Court of Pakistan in case of State v. Ghulam Hussain reported as 1995 SCMR page 1834. This contention raised on behalf of the appellant, therefore, also has no force.
16. In order to elaborate the third contention that the recovery of crime weapons i.e, knife and pistol did not connect the accused/appellant with the crime, learned counsel for the appellant vehemently contended that the alleged recoveries were effected from a house which was not in exclusive possession of the appellant as his other family members were also residing therein. It is also his case that nothing was recovered from the personal possession of the appellant. He has further argued that even otherwise, the allegedly recovered weapons were not sent to the Chemical Examiner for Report, therefore, the same were of no help to prosecution. Obviously, after holding that the appellant was not directly responsible for the murder of deceased Shad Muhammad, the learned trial Court could not have sought corroboration from the recovery of pistol in deciding guilt or innocence of the accused as none of the witnesses except the complainant had stated that it was the appellant who had used the pistol. However, we are not convinced by this argument of the learned counsel for the appellant that since knife was not recovered from the personal possession of the appellant, therefore, it does not connect him with the offence, in fact, reeord belies his stand, reference in this behalf may be made to the statement of P.W.5 who had categorically stated that the knife in question, of search, was recovered from the personal possession of the appellant. Relevant portion of his statement reads as follows:- {{URDU TEXT}} ' Further, as is evident from the record, the recovery in question was effected in the presence of the Magistrate, therefore, the same cannot be doubted.
17. As to the second limb of his argument in this contention, that since the crime weapons were not sent to the Chemical Examiner for examination, therefore, recovery thereof cannot be taken into consideration, it may be observed that omission so made by the prosecution cannot, in any way, benefit the accused as if sent, Report of the Chemical Examiner would have only rendered additional corroboration to the prosecution version.
18. A careful perusal of the evidence reveals that presence of accused/appellant, on the spot, alongwith other culprits, and his participation in the offence of Harabah has been proved by both the eye-witnesses i.e, P.W.3 as well as P.W.4 Factum of the identification of the appellant after his arrest, by both these witnesses also lends further corroboration to the prosecution version in this regard. The recovery of crime weapon i.e, knife from the person of the appellant as well as the empties from the place of occurrence also support the prosecution case. Though, as stated above, we have disbelieved statement of the complainant qua murder of deceased Shad Muhammad by the appellant, yet while reading the evidence as a whole we are of the opinion that prosecution has been successful in establishing its case against the appellant on the charge of Harabah as both the eye-witnesses of the occurrence have not only confirmed presence of the appellant at the place of occurrence, but have also verified his participation in the crime by correctly identifying him. In our view, statement of the complainant, so far as it relates to the charge of Haraba, can also be taken into consideration against the appellant, especially as a piece of corroborative evidence and the mere fact that he did not in the zeal come out with all the truth regarding one fact of the incident, would not render rest of his statement as false, when no dent in this respect has been found even in the cross-examination, as the Courts of law in order to ensure safe administration of Criminal Justice have always endeavoured to sift the grain from the chaff. This view receives support from the following reported judgments:-
(1) State v. Mushtaq Ahmad (PLD 1993 SC 418) and
(2) Ahmad v. The State (1968 PCr.LJ Lahore 386).
19. In view of the foregoing discussion this appeal is partially allowed and the conviction and sentence awarded to the appellant under section 302, P.P.C. Vide the impugned judgment is set aside and maintaining the conviction and sentences of the appellant under section 17(4) of the Offences Against Property (Enforcement of Hudood) Ordinance, 1979 read with section 34, P.P.C., the appeal is dismissed. The benefit of section 382-B, Cr.P.C. As allowed by the learned trial Court shall remain in tact.