SUD GOVERNMENT vs. BABIKIR MOHAMMED MABLOUL

(AC-CP-306-1956)

Principles

Criminal Law : murder section 251 S.P.C. — provocation-Section 249 (1) S.P.C. — culpable homicide not amounting  to murder, Section 253 S.P.C — Evidence : of divorce in Sharia before Criminal Court

The accused had been married to one Um Kheir Fadl el Seed. He suspected the deceased of having relations with his wife. One night the accused found the deceased and his wife in a bed and stabbed both of them. The deceased  died of his injuries. Evidence was adduced that accused had prior to the incident divorced his wife in accordance with the Moslem Law which was applicable to both of them. 
Hold: (1) The question of proof of divorce is governed by the Sharia.
(2) The divorce not being proved there was here sufficient provocation to reduce the finding to culpable homicide not amounting to murder. Findings not confirmed.
Judgment

Reference  for confirmation under Section 257 Sudan Code of criminal Procedure The facts are fully stated by Abu Rannat C.J.: It is not denied that the accused went to the cottage where the deceased and his wife

were found lying on one bed at midnight. The accused stabbed the woman and then he stabbed the deceased. The deceased ran and accused followed him immediately and inflicted more injuries. The deceased died on the spot. The medical report shows that five injuries were caused of which three were superficial, one fatal and the fifth serious.

It s clear that the accused caused deceased’s death and that he intended to cause his death. Prima facie accused committed murder.

The only appropriate defence applicable to the facts of this case is that accused had lost his self-control by reason of grave and sudden provocation.

The set of facts by which the accused is pleading this defence are these: -

The accused was lawfully married to Um Kheir Fadl El Seed (PW. 2). A few months before this incident the deceased was seen by the accused in his house. He had suspicions of adultery, and it is alleged that the deceased told him that he would give up going to his wife.

It is proved also in the Magisterial Inquiry that Um Kheir had complained in the absence of the accused, that accused’s brother was visiting her house. The accused’s brother told the Omda that he had suspicions that the deceased had indecent relations with his brother’s wife.. The Omda warned accused’s wife not to admit the deceased  her house.

The wife .admits that she committed adultery with the deceased several times, and that in fact the accused found her and the deceased lying on one bed at midnight at the time of the incident, but she alleges that she was divorced by the accused, several months before this incident. Her mother and step-father support this allegation. No strict proof of the divorce was adduced. The question of proof of divorce is governed by the Sharia. According to Sharia, two male witnesses are required to establish divorce, and it is also by law of evidence in Sharia, that the mother’s evidence is not to be accepted. Strictly speaking the divorce, which is denied by the accused, is not proved.

On looking into the sketch I find that the distance between accused’s house and the house where the deceased and accused’s wife were found is only 15 paces.

the Court found that the accused went deliberately in search of the deceased.

I think this finding is mere conjecture. Conjectures are not facts,

and Courts must be very careful not to treat them as such.

I agree that the accused was suspicious,. and that he went to the house where his wife was staying in order to confirm his suspicions. In this respect I refer to the case of Sudan Government vs. Fadl El Mula Kheiralla. This case was tried by me at AbuGuta on 7.6.1944, and it is similar to the case before me now. In that case the Court rejected the plea of grave and sudden provocation, but the Confirming Authority altered the finding to one of culpable homicide not amounting to murder.

I beg to refer to the note made by the then Chief Justice, Mr. Bennett. On this particular point he said : “In my opinion, the act of the deceased in entering the house of accused’s ex-wife for the purpose of adultery following accused’s warning and following the deceased’s acceptance of the warning and his lying explanation, constituted grave and sudden provocation of a kind calculated to make a reasonable man of the type and class of the accused lose his self-control to the degree and in the manner exhibited by the accused. I think also that deceased knew it and ran the risk.

The Court rejected the plea of provocation firstly because it said that though there was provocation it was not sudden because the accused went deliberately in search of the deceased and secondly because it apparently considered that the provocation was not grave enough because it said that in law and following the dissolution of the marriage, the ex-wife was entitled to receive any one at her house.

I disagree on both points.

I have already stated that there was no evidence that the accused went deliberately in search of the deceased and I am unable to agree that The fact that the accused was suspicious operates to prevent the provocation from being sudden. The provocation in this case is the sudden confirmation of the suspicion.

In this case where the question of divorce or marriage is at issue, the President of the Court ought to have gone carefully into the evidence and asked for detailed explanations from the accused. There are many witnesses who were heard at the Police Investigation and some of them at the Magisterial Inquiry who ought to have been called by the Court. If these witnesses were called by the Court the decision of the Court might have been different.

For all these reasons I think the offence committed is culpable homicide not amounting to murder, and I alter the sentence to 14 years imprisonment.