Sir Madhavan Nair:-

This is an appeal by special leave against a judgment of the High Court of Judicature at Lahore dated 14th March 1944, confirming on appeal 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, on 20th December 1943. The appellant Mahbub Shah is aged 19. He has been convicted of murder under S.302, read with S. 34, Penal Code, He was also convicted of the attempted murder of one Hamidullah Khan and sentenced to seven years' rigorous imprisonment; but that conviction has not been brought before the Board. The main question raised in this appeal is whether the appellant has been rightly convicted of murder upon the true construction of S.34, Penal Code. Section 34 runs as follows:

"When a criminal act it 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 it were done by him alone."

Along with the appellant, his cousin Ghulam Quassim Shah, aged 18, was also convicted under S. 302/34, Penal Code, and sentenced to transportation for life. Ghulam was convicted under S. 307/34 also, and was sentenced to five years rigorous imprisonment by the Sessions Judge, but his convictions and sentences hare been set aside by the High Court. The deceased Allah Dad died as the result of gunshot wounds indicted on him. One Wali Shah, who is said to have fired the shot, that killed the deceased, is a fugitive from justice and has not been so far wrested. 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 are alleged to have been concerned in this crime.

The prosecution case as accepted by the High Court may he briefly stated:-On 25th August 1943, at sunrise, Allah Dad, deceased, with and few others left their village Khanda Eel 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 16 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 Huisain 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 P.W.11, whose version of the story has been accepted as true by the High Court and summarised 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, larl from the boat and struck Quadra Shah, 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 find at Allah Dad who fell down dead and Mahbub Shah And at llah, causing injuries to him." [Lari is a bamboo pols for propelling the boat, about ten feet long and six inches thick.

On the above facto, the leaned Judges of the High Court came to the conclusion that Ghulam Quasim was wrongly convicted of murder under S. 302/34, Penal Code., 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 in order to demand the b