Mahbub Shah v. Emperor, (1945)
By: Robin Pandey Date: 28/February/2022
The deceased and a few others were going to the Indus River in a boat and collect reeds on the banks of the river. When they had travelled a mile downstream, they saw Mohammed shah, the father of the accused Wali Shah absconder) bathing on the bank of the river. He warned them not to cut reeds from the land belonging to him. The deceased, in spite of this protest, collected reeds from that property. As they were returning with bundles of reeds their boat was noticed by Ghulam Shah, nephew of Mohammed Shah who was standing on the bank of the river. He asked the deceased to hand over the reeds which has been collected from his uncle's land. On his refusal, Ghulam Shah caught the rope of the boat and pushed the deceased, whereupon the latter picked up the bamboo pole used for propelling the boat, about 10 feet long and six inches thick and struck Ghulam Shah. Ghulam Shah shouted for help. Where upon Wali Shah and the appellant/accused Mahbood Shah appeared on the scene with loaded guns. On seeing them, the deceased and his friend, Hamidullah, tried to escape by running. But they were prevented from doing so by Wali Shah and Mahboob Shah. Wali Shah fired at the deceased who died almost instantly. Mahboob Shah fired at Hamidullah causing him slight injuries.
(1) Whether the appellant accused has been rightly convicted of murder upon the true construction of Section 34, IPC?
(2) What do you mean by "Common Intention"? In there any difference between ""Common Intention" and "Same or Similar Intention"?
Trial Court's Decision:
The trial court convicted the appellant accused Mahhoob Shah under Section 302 read with Section 34 for the offence of murder. Wali Shah was also convicted for the same offence as Mahboob Shah, but he was n0t brought to trial as he had absconded.
High Court's Decision:
Wali Shah and Mahboob Shah can certainly be held have a common intention which came into being when Ghulam Shah shouted to E Companions to come to his rescue, and both of them emerged from behind the bush and fired their respective guns. Their Lordships of the High Court observed: “it is difficult to believe that when they fired the shots they did not have the common intention of killing one or more of the complainant party. If so, both of them are guilty of murder notwithstanding the fact that the fatal shot, was fired by one of them, namely, Wali Shah, absconder." So the conviction of Mahboob Shah was upheld. Wali Shah, the real culprit, was absconding. Mahboob Shah went in appeal to the Privy Council against the conviction and the sentence of death passed against him by the Lahore High Court for the murder of the deceased.
Privy Council's Observations
Section 34, IPC lays down a principle of joint liability in the doing of a criminal act. The Section does not say "the common intention of all" nor does it say "an intention common to all". Under the Section, the essence of that liability C Is to be found in the existence of a common intention animating the accused leading to the doing of a criminal act in furtherance of such intention to invoke the aid of Section 34 successfully, it must be shown that the criminal act complained against was done by one of the accused persons in the furtherance of the common intention of all; if this is shown, then liability for the crime may be imposed on any one of the persons in the same manner as if the act were done by him alone. This being the principle, it is clear that common intention within the meaning of the Section implies a pre-arranged plan, and to convict the accused of an offence applying the Section it should be proved that the criminal act was done in concert pursuant to the pre-arranged plan. It is difficult if not impossible to procure direct evidence to prove the intention of an individual; in most cases, it has to be inferred from his act or conduct or other relevant circumstances of the case. Care must be taken not to confuse same or similar intention with common intention; the partition which divides "their bounds" is often very thin; nevertheless the distinction is real and substantial, and if overlooked will result in miscarriage of justice. The inference of common intention within the meaning of the term in Section 34 should never be reached unless it is a necessary inference deducible from the circumstances of the case.
Decision: In the present case, there was no evidence and there were no circumstances from which it might be inferred that the appellant must have been acting in concert with Wali Shah in pursuance of a concerted plan when he along with him rushed to the rescue of Ghulam Shah. There was no evidence to indicate that Ghulam Shah was aware that the complainant party had been cutting needs from his uncle's lands, or that the appellant and Wali Shah had been kept behind the bush to come and help him when called upon to do so. The evidence show that Wali Shah "happened to be out shooting game" and when he and the appellant heard Ghulam's shouts for help they came up with their guns; the former shot the deceased, killing him outright and the appellant shot at Hamidullah inflicting injuries on this person. It is possible to accept that the appellant accused and Wali Shah had the same intention, viz., the intention to rescue Ghulam Shah if need be by using the guns and that, in carrying out this intention the appellant picked out Hamidullah for dealing with him and Wali Shah, the deceased, but there is no evidence of common intention to commit the criminal act complained against, in furtherance of such intention. Evidence falls short of showing that the appellant and Wali Shah ever entered into pre-meditated concert to bring about the murder of the deceased in carrying out their intention of rescuing Ghulam Shah. There was no common intention among the accused and therefore the appellant must be held liable for the act which he himself did. The appellant's conviction for murder is, accordingly, set aside.