(COURT OF CRIMINAL APPEAL)*

SUDAN GOVERNMENT vs. MAHGOUB OSMAN MOHAMMED
(AC/CCA/3/1957)

Appeal

Principles
· Criminal law — importing currency notes — section 11 of Finance (Exchange Control) Regulations, 1947 — adequacy of fine — sec. 68 of Penal Code.
The accused arrived in Khartoum from Beirut via Jeddah by air. At the airport he was asked to fill in an exchange control form. He declared that he had no money with him. He was subsequently searched and was found in possession of L.E. 2I, The accused pleaded guilty to an offence under the Exchange Control Regulations and was fined L.E.2000 by a Major Court, which ordered the balance of the money to be returned to him. The Attorney General appealed on the ground that the fine was inf. and that the money should have been
(*) Court: MA. Alu Rannat C.J.; M.I. El Nur and M.A. Hassib JJ.
confiscated under sec. 302 of the C.C.P.(1) The case was remitted to the Court of Criminal Appeal which held:
(1) the fine was inadequate in view of the seriousness of the effence. Pickett v Fesk (1949) 2 All E.R. 705 followed.
(ii) Sec. 302 of the C.C.P. was not applicable.
(iii) the Court had no power to order forfeiture of the money under the Exchange Control Regulations.
Sudan Government v El Nayel Omer El Milcashfi (1956) S.L.J.R. 49 followed.
(iv) the Court had power to impose a fine equivalent to the whole amount which had been illegally imported, and was not prevented from doing so by sec. 68 of the Penal Code(2) but in the present case such a fine would be inappropriate.

Judgment
The facts are fully set out in the judgment of the Court.

Advocates Salah El Din Shibeika…………. for the Attorney General, Sudan

Government.

Ahmed Kheir…………………………………… for the accused.

The judgment of the Court was delivered by —

M.A. Abu Rannat C.J. The accused, Mahgoub Osman Mohammed, the editor of El Ayyam newspaper, was charged before the Police Magistrate, Khartoum, with the offence of injurious falsehood under sec. 437 of the Penal Code. The charge framed against the accused was that on 12.6.1957 he published in El Ayyam newspaper an article about the army conspiracy, containing a false statement which he knew or had reason to believe would harm the reputation of the army and thereby offended against the provisions of the above mentioned section. The words which it is alleged constituted the false statement are these — “and certain circles echoed that a shawish amongst the accused was subjected to unlawful practices for the purpose of extracting a confession, and it is learnt that he collapsed physically and is now in hospital (and we request the Defense Minister to make a statement explaining the facts of this situation)”.

On 8.9.1957 the learned Police Magistrate acquitted the accused on the ground that, although the statement was false, yet the way in which it was published was indicative of good faith, and the case there fore fell within the Exception to that section.

On 9.9.1957 the Attorney General applied to the Judge of the High Court for perusal of the record with a view to applying for revision under sec. 257 (1) of the C.C.P. and on 21.9.1957 he submitted grounds for revision. On 30.10.1957 the Province Judge, Khartoum, dealt with the revision and affirmed the finding of not guilty under sec. 437A of the Penal Code made by the Police Magistrate, Khartoum. On 7.1 1.1957 the Attorney General submitted an application to the Chief Justice praying for the proceedings to be called for under sec. 257 (1) of the C.C.P. The ground for the application is that the learned Police Magistrate was wrong in law in finding that the case fell within the Exception, which can only be called into play if there is (a) good

faith, and (b) reasonable grounds for belief in the truth of the statement, arid as the learned Magistrate failed altogether to consider in his findings whether or not the accused had reasonable belief in the substantial truth of the statement published, an acquittal would be erroneous. In view of the importance of the point involved, the Chief Justice remitted the case to this Court of Criminal Appeal.

There is no doubt of the falsehood of the statement, for it was established by reliable evidence at the trial. In fact the accused admitted to the police (arid his admission was proved in Court) that he doubted the truth of the statement when he published it. Before us it was argued by the defense that the first part of the news concerning the arrest of certain army officers arid other ranks should be read with the second part complained of, and that as the first part was true, the whole statement was substantially true. We hasten to say that although the two statements were published under the heading “Arrests in the Army”, nonetheless they are different and have no relation to each other. One speaks about the arrest of army officers, and the other about unlawful practices used against a shawish in the army.

To contend that a person can publish a true statement of fact and append thereto a statement which is false, arid then avoid responsibility by pleading substantial t would mean that people could commit this crime with impunity. The “substantial truth” referred to in the Explanation is the substantial truth of the statement complained of, not of the whole article or publication. The learned Police Magistrate came to the same conclusion, and there is no appeal against his finding in this respect.

It is for us now to consider whether the learned Police Magistrate applied the law correctly to the findings of fact. Before an accused can avail himself of the saving grace of this Exception, he has first to prove that he had reasonable grounds for believing it to be true, and it is then and only then that the question of good faith can come in. In other words if the statement was published with a belief in its falsehood the accused can. only escape liability if the falsehood was not injurious. In this case it was proved by the police investigator that the accused stated that he doubted the truth of the statement when he published it. That being the case we are of opinion that the learned police Magistrate was wrong in law in dealing with the question of good faith.

But even assuming that the accused had reasonable grounds for believing this statement to be true, can it be said that the publication

was made in good faith? The words “good faith” are negatively defined in sec. 37 of the Penal Code as follows

“Nothing is said to be done or believed in good faith which is done or believed without due care and attention.”

The learned counsel for the defense contends that there is evidence that the accused acted in good faith. He submits that this evidence consists of the facts that the news was spreading in the three towns, that the accused tried in vain to contact the Kaid, and that he contacted a senior officer in the army, who denied not only that the shawish was in hospital but also the news about the arrests of the army officers. We are going to assume for the sake of argument that these items of evidence are true and then consider to what extent they conform to the formula of “due care and attention”.

Ratanlal, (I9th. ed.) p. 2 says that the phrase “due care and attention” implies a genuine effort to reach the truth, and not the ready acceptance of an ill-natured belief. The accused is a responsible journalist who knows that the publication of such a statement would do great damage to the reputation of the army authorities. This is not denied. In fact it was admitted even by the witness for the defense, Sayed Beshir Mohammed Saeed. There is no doubt that hundreds of readers of this newspaper who read the statement might have been assailed with doubts about the case of the accused officers, thinking that the army authorities were concocting a case against them, and that the charges were a frame-up. At least that statement was liable to mislead the public into a belief which was detrimental to the army authorities, and a responsible journalist who published it after taking only the lukewarm precautionary measures adopted by the accused cannot say that he was acting with due care and attention.

It is a matter of common knowledge in the Sudan that the Press has exercised a freedom in canvassing the merits and measures of government and public men to an extent which has not been confined to the strict limits of the law, but we also realise that on this footing the freedom of the Press has always stood, and that some degree of abuse is inseparable from the rights of the Press, even with responsible newspapers. This may be tolerated in order to encourage a vigilant press to do its duty but it cannot be allowed to amount to a license to publish any sensational piece of news irrespective of its truth and effect.

In our view the statement complained of was not published in good faith, and the accused had no reasonable grounds for believing

it to be substantially true. We therefore order that the case be sent back to the Police Magistrate, Khartoum for revision of his findings under sec. 256 (1) (d) of the C.C.P.

M.I. El Nur, J.: I concur.

B. Awadalla, j.: I concur.

Appeal allowed
it to be substantially true. We therefore order that the case be sent back to the Police Magistrate, Khartoum for revision of his findings under sec. 256 (1) (d) of the C.C.P.

M.I. El Nur, J.: I concur.

B. Awadalla, j.: I concur

Appeal allowed

.