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. 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

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Mohammad Sharif Shah Mohammad Hussain Shah Abdullah Shah

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Alam Shah Wali Shah Ghulam Quasim

| (absconder) Shah (accused)

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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. 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 D