Mahbub Shah vs Emperor on 31 January ,1945
Citation- (1945) 47 BOMLR 941
ACCUSED – Ghulam Qasim Shah,Wali Shah (absconder) , Mahbub shah (Appellant) & mohmmad Hussain Shah(Father of Wali Shah)
VICTIMS – Allah Dad (Deceased) , Hamidullah Khan
Appellant was convicted by session court on both Section 307 & 302 and also 34(Common Intention)
The main question in this case is related to whether the appellant(Mahbub Shah) has been rightly convicted of murder upon the true construction of Section 34 of the IPC?
You will understand it better when you read facts of the case given below.
Mohammad Hussain Shah was acquitted by Session Court .
Wali Shah , Qasim Shah and Mahbub Shah were convicted of 302 , 307 ,34 .
FACTS of the case accepted by High Court are as follow :
1. Wali Shah , Ghulam Qaim Shah , Mahbub Shah and Mohammad Shah were charged under section 302 , 307 , 34. Wali Shah was absconding .
2. Mohammad shah (Father of Wali shah) was bathing on the bank of the river.The victims were collecting the reeds from the land belonging to Accused.Mohammad Shah even warned them.
3. Ghulam Qasim Shah comes into picture now , He asked Allah Dad to give back reeds that they had been collected from his uncle’s land. Which they refused.
4. Nur Shah & Nur Mohammad (Prosecution Witness) explained that Qasim Shah then caught the rope and tried snatch it away. He then pushed allah dad and gave a blow to Allah dad. Allah Dad then took up lariand struck Ghulam Qasim Shah.Qasim Shah then shouted out for the help.
5. So now Wali shah and Mahbub Shah comes into picture after listening the voice of Qasim Shah. They jumped infront of Allah Dad and Hamidullah Khan.
6. Wali shah and Hamidullah khan were carrying the Guns. Wali Shah then shot dead Allah Dad and Mahbub Shah shot Hamidullah Khan , who flew away with injuries.
JUDGEMENT OF BOMBAY HC :
Related to Ghulam Qasim Shah –
1. HC said in the light of the above facts he is wrongly convicted of murder under section 302, 34 IPC.
2. Ghulam Shah 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 bundles of the reeds which had been collected from his uncle’s lands.
3. Qasim Shah just shouted to rescue himself, he did not knew that wali shah and mahbub shah will kill Allah Dad or not. He did no more than ask his companions to come to his assistance.
4. Hon’ble Court ordered acquittal of all offences of Ghulam Qasim Shah based on these facts.
Therefore , He was Acquitted .
Related to Mahbub Shah -(Appellant)
5. Court based on the above facts said for section 34 there should be concert pursuant to the pre-arranged plan.
6. The Lordship (Justice) said that Wali Shah and Mahbub Shah had the same intention, the intention to rescue Qasim Shah. And in carrying out this intention Mahbub Shah picked out Hamidullah for dealing with him and Wali Shah , the deceased.
7.The Lordship (Justice) find no evidence falls far short of showing that the Mahbub Shah and Wali Shah ever entered into a pre-mediated concert to bring about the murder of Allah Dad in carrying out their intention of rescuing Qasim Shah.
8. The LORDSHIP also stated that Care must be taken not to confuse same or similar intention with common intention. If overlooked will result in miscarriage of justice.
9.Lordship ordered —- Mahbub Shah (Appellant) his appeal should be allowed and his conviction for murder and the sentence of death be set aside
IMPORTANT POINTS to be noted in this case :
1. Court has considered that whether section 34 of IPC has been rightly applied to the facts of this case.
2. The basic principle of the Section 34 IPC is thatcriminal act was done in concert pursuant to the pre- arranged plan.
*** MOST IMPORTANT CASE RELATED TO COMMON INTENTION i.e., SECTION 34 OF IPC***
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