Facts

On August 24, 1943, Allahdad, a resident of village Khandakel, went to the Indus riverbank along with Hamidullah and a few others by boat to collect reeds. When they arrived at the site, they saw Mohammad Hussain Shah (the father of Wali Shah) bathing nearby. Hussain Shah objected to their activity, claiming that the land belonged to him and warned them not to cut the reeds. Despite his protest, Allahdad and his companions went ahead and gathered 16 bundles of reeds. While returning, they were stopped by Ghulam Shah, Hussain Shah’s nephew, who demanded that they return the reeds. The group refused to comply. A scuffle broke out — Ghulam Shah attempted to strike Allahdad with a stick, but missed. In retaliation, Allahdad struck Ghulam Shah with a bamboo stick, after which Ghulam Shah called out for help. Hearing his cries, Mahboob Shah and Wali Shah came rushing to the spot, both carrying loaded guns. Seeing them arrive, Allahdad and his companions tried to flee. During the chase, Wali Shah fired at Allahdad, killing him on the spot. Mahboob Shah fired at Hamidullah, who was critically injured. Following the incident, Wali Shah escaped, but Mahboob Shah was arrested by the police.

In the trial before the Court of Session, both Mahboob Shah and Ghulam Shah were held guilty under Sections 302 and 34 of the Indian Penal Code (now section 103 and 3(5) of BNS respectively), 1860, for the murder of Allahdad, on the reasoning that they had acted with a common intention. Mahboob Shah was sentenced to seven years of rigorous imprisonment. Dissatisfied with this judgment, both accused appealed to the Lahore High Court. Upon re-examination, the High Court acquitted Ghulam Shah, concluding that he had not fired any shot and therefore could not be held responsible for the killing. However, the High Court took a harsher view of Mahboob Shah's involvement, finding that he had acted with common intention alongside Wali Shah, who had absconded. Accordingly, Mahboob Shah’s sentence was enhanced to death under Section 302 read with Section 34 IPC.

Aggrieved by the judgement Mahboob Shah further appealed to Privy Council.

Issues

i. Was there any prior planning between Mahboob Shah and Wali Shah to kill Allahdad and Hamidullah?

ii. Are ‘same intention’ and ‘common intention’ the same in the eyes of law, or is there a distinction between the two?

Analysis

• The Privy Council held that ‘common intention’ requires a prior meeting of minds. It emphasized that to invoke Section 34 IPC (section 3(5) BNS), there must be a pre-arranged plan or meeting of minds between the accused persons. Merely acting together or being present at the scene does not automatically establish common intention.

• The Court made a clear distinction between the ‘Same Intention’ and ‘Common Intention’. It held that ‘Same intention’ implies similar goals but formed individually whereas ‘Common intention’ implies a shared plan, formed jointly, which leads to a joint liability for the crime committed. Hence, two people may act with the same motive, but unless there is proof that they coordinated their actions, Section 34 cannot apply. In the present case, Mahboob Shah (appellant) and Wali Shah (absconder) had a similar intention of rescuing Gulam Shah but did not have common intention of killing Allahdad.

• The court further held that mere presence or participation is not enough. The judgment stressed that even if an accused is present at the crime scene or participates in some form, that alone doesn't prove shared intent. The prosecution must show active participation in furtherance of a pre-conceived plan.

• In Mahboob Shah’s case, the Privy Council observed that there was no clear or direct evidence of a prior arrangement or common understanding between him and Wali Shah to commit murder. The suddenness of the events, starting with the quarrel and escalating into shooting, did not support the inference of common intention.

• The Court reminded that Section 34 IPC involves constructive liability, and therefore, its application must be strict and cautious. The burden is on the prosecution to clearly establish the accused’s mental alignment with the principal offender at the time of the crime.

• Without clear proof of a shared design, Mahboob Shah could not be held vicariously liable for the act of firing done by Wali Shah. Just because both had guns and came running to the scene did not prove a joint criminal plan.

Judgement

The Privy Council acquitted Mahbub Shah, holding that the prosecution failed to prove that he shared a common intention to commit murder with the other accused. The Court reiterated that Section 34 requires a prior concert or pre-arranged plan, and this must be established clearly from the facts. The presence of a person with a weapon does not automatically mean he shared the same criminal intent. Hence, in the absence of conclusive proof of shared intent, vicarious liability could not be fastened on Mahbub Shah under Section 34 IPC.

Conclusion:

This case is a foundational judgment on the interpretation of Section 34 IPC (Section 3(5) BNS) and is frequently cited in both academic and judicial contexts. It clarified the distinction between Similar intention (independent but parallel thinking), and Common intention (a shared purpose and understanding to commit a criminal act). The ruling emphasizes that criminal liability under Section 34 must be based on evidence of a shared design, not just joint presence or participation. The case also highlights the principle that criminal law must be interpreted strictly, and presumptions should not take the place of proof.