INTRODUCTION
The case of Mahboob Shah v. Emperor[1] was a landmark pronouncement of the Privy Council in the pre-constitutional era relating to the concept of same intention under and differentiating it from the concept of common intention as given under the Indian Penal Code, 1860. Certain indispensable legal principles were laid down in this case that would set the course for the criminal law jurisprudence in India.
FACTUAL MATRIX
On the 25th August 1943, one person named Allahdad i.e., the deceased in the present case, along with few others left their village and took a boat to go to the bank of the river Indus to cut and collect reeds on the bank of river Indus. When they had travelled for about one mile down the stream of the river, they came across Mohammad Hussain Shah bathing on the bank of the river. Hussain Shah was the father of Wali Shah. Hussain warned Allahdad and his companions against collecting reeds from the land that belonged to them. Despite the warning, Allahdad and his companions collected the reeds and commenced their return journey carrying with them the bundled of collected reeds. On their way back they came across Ghulam Shah who was the nephew of Hussain Shah. Ghulam Shah asked them to return the reeds collected from the land of his uncle but they refused to return the reeds.
They started arguing and then Ghulam Shah got hold of the rope of the boat and pushed Allahdad and gave him blow with a stick which warded off. Allahdad then picked up a bamboo pole from the boat and struck Ghulam Shah. Ghulam Shah then shouted for help. After this, both Wali Shah and Mahboob Shah came with loaded guns. On seeing them, Allahdad and his friend Hamidullah started running away. Then, Wali Shah fired at Hamidullah who died instantaneously and Mahboob Shah fired at Allahdad who suffered several injuries. Wali Shah absconded. Mahboob Shah and Ghulam Shah (nephew of Hussain Shah) were tried under Section 302 read with Section 34 of the Indian Penal Code for the murder of Allahdad (later succumbs to injuries suffered).
Mahboob Shah was sentenced to seven years’ rigorous imprisonment for attempt to murder. Further, on appeal, Lahore High Court sentenced him to death under Section 302 read with Section 34 of the Indian Penal Code for murdering Allahdad. Mahboob Shah appealed to Privy Council against his conviction. His appeal was allowed by Privy Council.
ISSUES INVOLVED
The two prime issues that were involved in the case are as follows:
- Whether Mahboob Shah (Appellant) and Wali Shah ever entered into a pre-mediated concert to bring about the murder of Allahdad?
- Whether there is any difference between the same intention and common intention?
PRONOUNCEMENT AND PRINCIPLES ENUNCIATED BY PRIVY COUNCIL
The Privy Council set aside the appellant’s conviction for murder and laid down several principles to expound upon the intent behind the incorporation of Section 34 in the Indian Penal Code. The Privy Council held that there were no circumstances in the given case from which it could be inferred that there was an existence of a pre-arranged plan between Mahboob Shah (Appellant) and Wali Shah to murder Allahdad. The principles laid down are as follows:
- The essence of liability under Section 34 is to be found in the existence of a common intention leading the accused to commit an offense in furtherance of such intention.
- To connect several accused together under Section 34, it must be shown that one of the accused committed an offense in furtherance of the common intention and only then liability for the crime may be imposed on any one of the persons in the same manner as if the acts were done by him alone.
- Common intention pre-arranged plan and to convict the accused of an offense applying the section it should be proved that criminal act was done in concert according to the pre-arranged plan.
- In most cases it is very difficult, if not impossible, to procure direct evidence to prove the intention of the person and it has to infer from the conduct of the person and other relevant circumstances of the case.
- The inference of a common intention as provided under Section 34 of the Indian Penal Code should never be reached unless there exist such compelling circumstances and such common intention is a necessary inference deductible from the circumstances of the case.
- Care must be taken not to confuse same intention with common intention, even though the line separating the two is very thin, but yet they are two different concepts and for attaching liability under Section 34 of the Indian Penal Code, the common intention is a necessary pre-requisite along with committing an offense in furtherance of such common intention.
Privy Council further held that Mahboob Shah (Appellant) and Wali Shah had the same intention to rescue Ghulam Shah, and they intended only to carry out the rescue operation of Ghulam Shah even if they needed the guns to do the same. It was in furtherance of this same intention to rescue Ghulam Shah that Mahboob Shah picked Hamidullah and Wali Shah picked Allahdad and shot them. There was no existence ever of a common intention or a pre-arranged plan to murder Allahdad.
IMPACT
It laid a path for the courts in the new constitutional India to tread on and further added onto the rich corpus of the criminal law jurisprudence in the country.
Author(s) Name: Rahil Setia (Army Institute of Law)
[1] 72 I.A. 148 (P.C.).
