Fact of the case :

Allah Dad and few others were trying to collect reeds from the bank of Indus river. They were warned by Mahboob Shah against collecting reed from lands belonging to him. Ignoring the warning the deceased collected reeds but was stopped by Qasim Shah, nephew of Mahboob Shah while he was placing them on boat. Qasim Shah was hit by the victim by a bamboo pole. 

On hearing Qasim Shah’s cries for help, Mahboob Shah and his son Wali Shah came armed with their guns. Wali Shah fired at the victim who died instantly and Mahboob Shah fired at other persons causing him some injuries. 

In the initial trial, the Sessions Court convicted Mahboob Shah and Ghulam Shah under Sections 302 (murder) and 34 (common intention) of the IPC. Mahboob Shah was sentenced to 7 years  of rigorous imprisonment. Lahore High Court sentenced Mahboob Shah with murder of victim under s. 302 (now Section 103 of BNS) read with s. 34(now Section 3(5) of BNS). But on appeal Privy Council set aside the conviction for murder.

 Issue Involved 

Whether Mahboob Shah and Wali Shah had a pre-planned murder of Allahabad and Hamidullah?

Whether the concept of ‘same intention’ and ‘common intention’ are equivalent under the law?

The court held that common intention implies a pre-arranged plan, prior meeting of minds or prior consultation between all persons constituting the group. 

“The court laid down the following principles under Section 34 (3(5) of BNS):-

1. Essence of liability under Section 34 (now section 3(5) of BNS) is found in ‘common intention’

2. To invoke Section 34 (now section 3(5) of BNS) it must be shown that act was done in furtherance of common intention;

3. Common intention implies pre-arranged plan and it must be proved that criminal act was done in concert pursuant to pre-arranged plan;

4. For intention to be common it must be known to all members and must also be shared by them”. 

Held :  It held that there was no evidence that Mahboob Shah and Wali Shah had any pre-planned agreement to murder Allahdad. According to the Privy Council, both may have had the same goal rescuing Ghulam Shah but they did not share a common intention to kill Allahdad. Since this key requirement under Section 34(now Section 3(5) of BNS).  was missing, the section could not be applied. The Privy Council acquitted Mahboob Shah of all charges.