Mehbub Shah v. King Emperor

SCC Online Web Edition, © 2022 EBC Publishing Pvt. Ltd.
Page 1 Saturday, October 08, 2022

Printed For: Ananya Rajan Singh, University of Petroleum & Energy Studies
SCC Online Web Edition: http://www.scconline.com
© 2022 EBC Publishing Pvt. Ltd., Lucknow.
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1945 SCC OnLine PC 5 : (1944-45) 72 IA 148 : (1945) 58 LW 368 : (1945) 2

Mad LJ 144 : 1945 MWN (Cri) 69 : AIR 1945 PC 118 : (1944) 2 Mad LJ 362 :
ILR (1945) 26 Lah 367 : (1944-45) 49 CWN 678
Reported in Indian Appeals

Indian Appeals being Cases in the Privy Council in Appeal from The East Indies
JUDICIAL COMMITTEE:— LORD THANKERTON, SIR MADHAVAN NAIR AND SIR JOHN BEAUMONT.
MAHBUB SHAH … Appellant;

and
KING-EMPEROR … Respondent
On Appeal from the High Court at Lahore.
Decided on Jan. 31; Apr. 18, 1945
Criminal Law—Common intentions-Principles applicable—Indian Penal Code (XLV. of
1860), s. 34.
By s. 34 of the Indian Penal Code, 1860, as amended by s. 1 of Act XXVII. of 1870:
“When a criminal act is done by several persons, in furtherance of the common intention of
all, each of such persons is liable for that act in the same manner as if the act were done by
him alone.”
The essence of the joint liability under the above section 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. It must be shown that the criminal act was done by one of the
accused persons in the furtherance of the common intention of all. “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. The inference of common intention within the meaning of
the term in s. 34 should never be reached unless it is a necessary inference deducible from
the circumstances of the case. Same or similar intention must not be confused with common
intention.
Judgment of the High Court reversed.
APPEAL (No. 64 of 1944), by special leave, from a judgment of the High Court (March
14, 1944), confirming the conviction of the appellant of the murder of one Allah Dad
and the sentence of, death passed on him by the Sessions Judge, Mianwali (December
20, 1943).
The following facts are taken from the judgment of the Judicial Committee: The
appellant, Mahbub Shah, was aged nineteen. He had been convicted of murder under
s. 302, read with s. 34 of the Indian Penal Code. He was also convicted of the
attempted murder of one Hamidullah Khan, and sentenced to seven years' rigorous'
imprisonment, but that conviction had not been brought before the Board. The main
question raised in this appeal was whether the appellant had been rightly convicted of
murder on the true construction of s. 34 of the Indian Penal Code, which provides:
“When
Page: 149
a criminal act is done by several persons in furtherance of the common intention of all,
each of such persons is liable for that act in the same manner as if the act were done
by him alone.”
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Along with the appellant, his cousin Ghulam Quasim Shah, aged eighteen, was also
convicted under s. 302|34 of the Indian Penal Code and sentenced to transportation
for life. Ghulam was convicted under ss. 307|34 also, and was sentenced to five years'
rigorous imprisonment by the Sessions Judge, but his convictions and sentences had
been set aside by the High Court. The deceased, Allah Dad, died as the result of
gunshot wounds inflicted on him. One Wali Shah, who was said to have fired the shot
that killed the deceased, was a fugitive from justice and had not been so far arrested.
His father, Mohammad Hussain Shah, who was committed to the Sessions Court on a
charge of abetment of murder, was acquitted by the Sessions Judge. The following
table, given in the judgment of the High Court, shows the relationship between the
appellant and the other persons who were alleged to have been concerned in the
crime:—
The prosecution case, as accepted by the High Court, may be briefly stated:—On
August 25, 1943, at sunrise, Allah Dad, deceased, with a few others left their village,
Khanda Kel, by boat for cutting reeds growing on the banks of the Indus river. When
they had travelled for about a mile downstream they saw Mohammad Shah, father of
Wali Shah (absconder), bathing on the bank of the river. On being told that they were
going to collect reeds, he warned them against collecting reeds from land belonging to
him. Ignoring his warning, they collected about sixteen bundles of reeds, and then
started for the return journey. While the boat was being pulled upstream by means of
a rope, Ghulam Quasim Shah, nephew of Mohammad Hussain Shah—acquitted by the
High Court— who was standing on the bank of the river, asked Allah Dad to give him
the reeds that had been collected from his uncle's land. He refused. What happened
subsequently was spoken to by two boys, Nur Hussain, P.W. 10, and Nur Mohammad,
Page: 150
P.W. 11, whose version of the story had been accepted as true by the High Court and
summarized as follows:— “Quasim Shah then caught the rope and tried to snatch it
away. He then pushed Allah Dad and gave a blow to Allah Dad with a small stick, but
it was warded off on the rope. Allah Dad then picked up the lari from the boat and
struck Quasim Shah with it. Quasim Shah then shouted out for help and Wali Shah
and Mahbub Shah came up. They had guns in their hands. When Allah Dad and
Hamidullah tried to run away, Wali Shah and Mahbub Shah came in front of them and
Wali Shah fired at Allah Dad, who fell down dead, and Mahbub Shah fired at
Hamidullah, causing injuries to him.” [Lari is a bamboo pole for propelling the boat,
about ten feet long and six inches thick.]
On the above facts the Sessions Judge convicted the appellant of the murder of
Allah Dad and sentenced him to death. On appeal the High Court (Teja Singh and
Bhandari JJ.) confirmed the conviction and sentence.
1945. Jan. 31. Quass for the appellant. There was a miscarriage of justice here
owing to a misinterpretation of s. 34 of the Indian Penal Code. The essential feature in
an act based on common intention is that the parties must act in concert, pursuant to
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a preconceived plan. The High Court overlooked that last qualification, and, further, it
is submitted that on the facts found by the High Court any possibility of a
preconceived plan was negatived. All that really emerged from the facts was that two
shots were fired at the same time. Common, intention should either be proved directly
or inferred from conduct; it must be a necessary, or, at any rate, a very reasonable
and natural inference to draw from the facts as found that there was a preconceived
intention. It is submitted that there is no justification for the finding of the High Court
that “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 members of the complainant party.” It
is a vital part of this argument to draw a distinction between common intention” and
“similar intention.” Here there is no room for drawing the inference that there was any
preconceived plan, Before the prosecution can succeed they must show either by
inference or by direct evidence—and the latter is not to be expected—that the
intention of the two men,
Page: 151
when the boy cried for help, was that the answer would be given by their coming out
and firing at whoever happened to be there. The sole question is whether a common
intention came into being when Ghulam shouted for help; it must have been
formulated very quickly if in fact there was no preconceived arrangement between the
three at all; there is no room for it.
[He was stopped.]

B. MacKenna for the respondent. There was a short time of acting in concert; on the
evidence the court was entitled to infer that a common intention had come into being
between the two men with guns as from the moment when they ran out together from
the bushes and together ran round in front of the two men who were going to be fired
at. A common intention had come into existence as quickly as that. To establish a
common intention within the meaning of s. 34 of the Indian Penal Code you do not
need a preconceived plan to prove it. To establish a common intention it must be
shown either directly or by inference, that the two men at some stage formed the
intention of acting together. There is evidence of the two men having formed the
intention of acting together when they both rose together on the call for help, both ran
forward together, both acted together, barring the path of the two men who were
trying to escape, and then both fired. On the facts here it does not help the appellant
that the wounds which he inflicted were not of the kind which were calculated to cause
death if he was acting together with a man who he knew was going to fire either at the
same man or at some different member of the party. The High Court were entitled to
find a common intention on the facts of this case.
Quass replied. There are authorities in India for the proposition that before there
can be a common intention within the meaning of s. 34 there must be shown a
common intention to commit the actual crime which the one person has committed.
Jan. 31. LORD THANKERTON: Their Lordships have come to the conclusion that this
appeal should be allowed and that sentence should be quashed. The reasons of the
Board will be given later.
Apr. 18. The reasons of their Lordships for allowing the
Page: 152
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appeal were delivered by SIR MADHAVAN NAIR, who stated the facts set out above and
continued: On the above facts, the learned judges of the High Court came to the
conclusion that Ghulam Quasim was wrongly convicted of murder under ss. 302|34
I.P.C. on the following reasoning. Bhandari J., with whom Teja Singh J. concurred, first
held that Ghulam Quasim had no common intention of killing any member of the
complainant party when he went to the bank of the river to demand the bundles of
reeds which had been collected from his uncle's lands. Then the learned judge
addressed himself to the question “whether a common intention” to commit the crime
which was eventually committed by Mahbub Shah and Wali Shah came into being
when Ghulam Quasim Shah shouted to his companions to come to his rescue and both
of them emerged from behind the bushes and fired their respective guns, and this he
answered in the negative, holding that “so far as Quasim Shah was concerned, he did
no more than ask his companions to come to his assistance when he was attacked
with a pole by the deceased,” and that he could not have been aware of the manner in
which assistance was likely to be rendered to him or that his friends were likely to
shoot at and kill one man and injure another.” In the result, he was acquitted of all
offences.
The learned judge then proceeded to examine the case of the appellant and Wali
Shah. He stated that the case of Mahbub Shah, who was armed with a single barrelled
gun, and of Wali Shah, who had a double barrelled gun, stood on a different footing.
He distinguished their case on the following ground:— “As soon as they ran to the
assistance of Ghulam Quasim Shah, they fired simultaneously in the direction of the
complainants killing Allah Dad on the spot and causing injures on the person of
Hamidullah Khan. 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 members of the complainant
party. If so, both of them are guilty of murder notwithstanding the fact that the fatal
shot was fired by only one of them, namely, Wali Shah, absconder.” It will be observed
that according to the learned judge a common intention to commit the crime came
into being when the appellant and Wali Shah fired the shots.
Their Lordships will now proceed to consider whether the above reasoning is correct,
and s. 34 of the Indian Penal Code has been rightly applied to the facts of the case.
Attention
Page: 153
has already been drawn to the words of the section. As it originally stood, the section
was in the following terms:— “When a criminal act is done by several persons, each of
such persons is liable for that act in the same manner as if the act was done by him
alone.” In 1870 it was amended by the insertion of the words “in furtherance of the
common intention of all” after the word “persons” and before the word “each,” so as to
make the object of the section clear. Section 34 lays down a principle of joint liability
in the doing of a criminal act. The section does not say “the common intentions of all,”
nor does it say “an intention common to all.” Under the section, the essence of that
liability 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 s. 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 to their Lordships that common intention within the meaning of
the section implies a pre-arranged plan, and to convict the accused of an offence
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applying the section it should be proved that the criminal act was done in concert
pursuant to the pre-arranged plan. As has been often observed, 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.
On careful consideration, it appears to their Lordships that 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 Quasim. The
exaggerated circumstances alleged by the prosecution to invoke the aid of s. 34 I.P.C.
have been found against by the High Court, who have acted solely on the evidence of
P.W.10 and P.W.11. There was no evidence to indicate that Ghulam Quasim was aware
that the complainant party had been cutting reeds 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 on to do so. The evidence shows that Wali Shah “happened to
Page: 154
“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 Khan, inflicting injuries on his person. Indeed,
the High Court negatived the existence of a “common intention” at the
commencement in the sense in which their Lordships have explained the term by
stating— in considering the application of s.. 34 I.P.C. to the case of Ghulam—what
has been already quoted, namely: that “the sole point which requires consideration
now is whether a common intention to commit the crime. . . . came into being when
Ghulam Quasim Shah shouted to his companions to come to his rescue and both of
them emerged from behind the bushes and fired their respective guns.”
Having answered the above question in the negative as regards Ghulam Quasim,
the learned judges thought, as Bhandhari J. has expressly stated, that with respect to
the appellant and Wali Shah, it must be held that the common intention of killing one
or more of the members of the complainant party came into being later, when they
fired the shots. Their Lordships cannot agree with this view. Their Lordships are
prepared to accept that the appellant and Wali Shah had the same intention, namely,
the intention to rescue Quasim 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 where is the evidence of common intention to commit the criminal
act complained against, in furtherance of such intention? Their Lordships, find none.
The evidence falls far short of showing that the appellant and Wali Shah ever entered
into a premeditated concert to bring about the murder of Allah Dad in carrying out
their intention of rescuing Quasim Shah. 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. In their Lordships' view, the inference of common
intention within the meaning of the term in s. 34 should never be reached unless it is
a necessary inference deducible from the circumstances of the case. That cannot be
said about the inference sought to be deduced from the facts relied on by the High
Court in distinguishing the case of the appellant from that of Ghulam Quasim.
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Page: 155
Mr. MacKenna, the learned counsel for the Crown, besides supporting the judgment of
the High Court on the grounds mentioned in it, called their Lordships' attention to the
following additional circumstance in further support of it. Reference was made to the
concluding portion of the evidence of P.W.'s. 10 and 11, where it is stated that “when
Allah Dad and Hamidullah tried to run away. Wali Shah and Mahbub Shah came in
front of them. . . .” and fired shots. This circumstance is stated more definitely in the
evidence of P.W.6. He stated “. . . . .we then tried to run away, but Mahbub Shah and
Wali Shah coming in front of us prevented our escape” and fired shots. It was argued
that the attempt of the appellant and Wali Shah to prevent the escape of the
complainant party shows that they were actuated by a common intention to commit
the crime, and that from that moment the court is entitled to infer a common intention
to commit the crime even though there was no pre-concerted plan to shoot till then.
This additional circumstance does not, in their Lordships' view, advance the
prosecution case any further, and, moreover, the learned judges of the High Court do
not rely on it. In the circumstances, their Lordships are not satisfied that the appellant
was rightly convicted of the offence of murder under s. 302 I.P.C. read with s. 34. His
conviction for murder and the sentence of death passed on him should therefore be
quashed. In this view, the further question raised in the appeal, whether, in the event
of his conviction being confirmed, the sentence of death passed on him should not,
having regard to the circumstances of the case and his age, be commuted to one of
transportation for life does not arise for consideration.
For the reasons indicated above their Lordships have humbly advised His Majesty
that the appellant having succeeded in his appeal, his appeal should be allowed and
his conviction for murder and the sentence of death set aside.
Solicitors for appellant: Douglas Grant & Dold.
Solicitor for respondent: The Solicitor, India Office.
———
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Mehbub Shah v. King Emperor

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Mehbub Shah v. King Emperor

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SCC Online Web Edition, © 2022 EBC Publishing Pvt. Ltd.

Page 1 Saturday, October 08, 2022

1945 SCC OnLine PC 5 : (1944-45) 72 IA 148 : (1945) 58 LW 368 : (1945) 2

Reported in Indian Appeals

MAHBUB SHAH … Appellant;

[He was stopped.]

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