Judgement 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 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." 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. 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— Mohammad Shah | | | | Mohammad Sharif Shah Mohammad Hussain Shah Abdullah Shah | | | | | | Alam Shah Wali Shah Ghulam Quasim | (absconder) Shah (accused) | Mahbub Shah (accused) 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 uncles land. He refused. What happened subsequently was spoken to by two boys, Nur Hussain, P.W. 10, and Nur Mohammad, 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. 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 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, 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 eidence 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. 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 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 uncles 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. 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 injuries 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 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 “a person 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. 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 prearranged 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. 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.II. There was no evidence to indicate that Ghulam Quasim was aware that the complainant party had been cutting reeds from his uncles 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. There was no evidence to indicate that Ghulam Quasim was aware that the complainant party had been cutting reeds from his uncles 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 be out shooting game," and when he and the appellant heard Ghulams 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 LP.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. 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. 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 n, 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 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.