Principles

·  Criminal Law—Compulsory labour—Judge in native court requires prisoners to work for him—Not an offence

A member of a native court who makes prisoners work for him in his house and farm instead of for the Government is not guilty of unlawful compulsory labour under Penal Code, s. 311.

Judgment

      Advocate: Ali Mahmoud Hassnein . . . for accused.

      Tewfik Abdel Mageed P.J. February, 1964, PC-CR-REV-3-1964: — In this case Shartai Abdulla Ibrahim Daw el Beit has been tried, convicted and sentenced under Sudan Penal Code, ss. 311 and 351, to eighteen months imprisonment and £100 fine.

      The learned advocate for the defence has applied to me for revision of both finding and sentence on the ground that the prosecution failed to prove his cases beyond any reasonable doubt.

      As to a conviction under Sudan Penal Code, s. 351 I am in a position to say that the conviction is positively supported by sufficient evidence.

      It is admittedly proved that the accused tried, in August 1962, a number of accused for gambling and sentenced them to £S.2 fine and in default of payment to one month’s imprisonment. The number of accused are unknown. Even the policeman, Dawa Hamdan, P.W. 2, failed to give the court exact number of accused.

      I would prefer to state the gist of evidence of certain prosecution witnesses.

1. .P.W. 6 did not know whether he paid the fine or not. What he was certain of was that he has been released from the prison.

2. P.W. 7 did not know really to whom he paid the fine of £S.2.

3. P.W. 8 did not know which of his relatives paid the fine and to whom.

4. P.W. 11 stated that he paid the fine of £S.2 but he was not sure to whom he paid it, though the accused was present.

5. . P.W. 13 stated that he paid the fine to the accused but he was not sure whether the accused received it or not.

6. P.W. 14 stated that he paid the fine of £S.2 to a certain All Ahmed who was sitting by the accused.

     

     

I would say with certainty that the evidence of the above P.W.s would not prove the payment of fine to the accused beyond any reasonable doubt. The least doubt should destroy the case of the prosecution to nothing in respect of the above witnesses.

      P.W.s 4 ,5 ,9 and 12 did not say that they paid the fine to accused. They said that they have been released from prison and their employer, Mohamed El Fadl (P.W. 19 did deduct £S.2 from the salary of each one of them in lieu of the fine he paid. P.W. 19 did state in his evidence that he paid the fine of £S.8 to the accused, who visited him in his shop for the very purpose. P.W. 19 did not say that he paid this £S.8 to the accused in the presence of anybody.

      In these circumstances and in the proved bad terms between P.W. 19 and accused, would the court accept his evidence with full weight?

      The accused stated that there was enmity between him and P.W. 19, for he (accused) did agree with the inhabitants of Leit village to form a co-operative society to erect a flour-mill therein, and this, if it would take place, would compete with P.W. 19’s own flour-mill which was already there; and that P.W. 19 brought P.W.s in his own lorry.

      These were the sole reasons asserted by advocate for the defence. The allegation of enmity was denied by P.W. 19 an oath. Further, the evidence of P.W. 19 is well supported by the admitted fact that accused did try P.W.s 4, 5, 9 and 12 a year ago, and they were released from the prison, and that these P.W,s were employees of P.W. 19. P.W.s above did state in their evidence that P.W. 19 did deduct £S.2 from each of them. However, no evidence has been deduced by the defence that accused or anyone on his behalf did ask any one of the above P.W.s to pay the fine since their release from prison, in August 1962. This has been further corroborated with the established fact that the accused did not record these trials in the relevant court books.

      In the presence of the direct evidence, together with the circumstantial evidence supporting it, I do accept the evidence of P.W. 19 with full weight.

      P.W. 10 positively stated that he sold the gold ring of his wife for £S.2 and he did pay the sum ( to the accused himself, who did not give him any receipt in turn.)

      Bakheit Bandas (P.W. 18) did state that he paid £S.10 to accused for his stolen cow and denied that he paid him any money in lieu of fine. He admitted that he has still in his possession £S.11. This evidence, per Se, destroys the case of the prosecution in respect of the case of Adam Ibrahim Zakaria Kobra Abbakar.

      Therefore I do say that accused was no doubt entrusted with collection of fines. He was bound to pay them into the Government chest. He converted £S.18 to his own use, thereby causing wrongful gain to himself

      

 

and wrongful loss to the Government as well. He committed criminal breach of trust under Sudan Penal Code, s. 351.

      In respect of conviction under Sudan Penal Code, s. 311, I do say. that the persons whom the accused sent to work in his farm and house were prisoners. The prisoners have no freedom of choice as such. The words “compel” and “will” in Sudan Penal Code, s. 311, denote free will of the person subject of the crime as well as use of force, pressure or threat. The section necessarily implies a person at large without any restraint on his freedom of choice, a person who fully enjoys his self- determination.

      Accused, when he sent prisoners to his farm and house, abused his authority. Accused cannot be convicted under Sudan Penal Code, s. 311, for the mere fact that he made prisoners serve in his house and farm, instead of rendering their services to the Government.

      I therefore confirm the finding under Sudan Penal Code, s. 351, and quash the finding under Sudan Penal Code, s. 311.

      Accused is the President of a branch court with long services to the judiciary. His father is the President of Umkadda main court. Despite the previous convictions proved against accused, I reduced the sentence to four days’ imprisonment as from January 8, 1964, and to a fine of £S.50 (in default of payment four months’ imprisonment).

      M. A. Abu Rannat C.J. June 25, 1964: —Conviction and Sentence under Sudan Penal Code, S. 351.

      The above-named accused was convicted and sentenced by Police Magistrate, Fasher, on January 8, 1964and given eighteen months’ imprisonment and a fine of £S.50 in default of payment to imprisonment for six months.

      On application for revision, His Honour the Province Judge confirmed the finding, but he altered the sentence to imprisonment for four days, and a fine of £S.50 or imprisonment for four months. This decision was on January 11,1964.

      On February 23, 1964, advocate El Hag El Tahir, who was authorised by the Attorney-General to prosecute the case, applied for the revision of the sentence. The papers were called for by me on March 3. 1964. and the papers were supposed to be sent on March 11, 1964, the date on which His Honour the Province Judge signed the letter. I did not see these proceedings until a week ago as the papers were only received here on June 8, 1964.

      However, I think the sentence as altered by the learned Province Judge is out of proportion, as the accused had had a previous conviction before this case.

     

     

     

I therefore send the case back to the Province Judge for increasing the sentence. He should not receive a substantive sentence of less than six months.

      This type of person should not hold a public office and I am pleased that he has been dismissed from his office as President of a branch court.

      The prosecution also applied for revision of the finding of the Province Judge of not guilty under Sudan Penal Code, s. 311. The learned Province Judge found that accused abused his authority rather than compelling the prisoners to work in his farm. I do not want to intervene with this decision, as cases under Sudan Penal Code, s. 311. require a more positive act by the accused.

SUDAN GOVERNMENT v. SHARTAI ABDULLA IBRAHIM DAW EL BelT

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Case No.:

AC-CR-REV-71-1964

Court:

Major Court Confirmation

Issue No.:

1965

 

Principles

·  Criminal Law—Compulsory labour—Judge in native court requires prisoners to work for him—Not an offence

A member of a native court who makes prisoners work for him in his house and farm instead of for the Government is not guilty of unlawful compulsory labour under Penal Code, s. 311.

Judgment

 

(MAJOR COURT CONFIRMATION)

SUDAN GOVERNMENT v. SHARTAI ABDULLA IBRAHIM DAW EL BelT

AC-CR-REV-71-1964

 

 

      Advocate: Ali Mahmoud Hassnein . . . for accused.

      Tewfik Abdel Mageed P.J. February, 1964, PC-CR-REV-3-1964: — In this case Shartai Abdulla Ibrahim Daw el Beit has been tried, convicted and sentenced under Sudan Penal Code, ss. 311 and 351, to eighteen months imprisonment and £100 fine.

      The learned advocate for the defence has applied to me for revision of both finding and sentence on the ground that the prosecution failed to prove his cases beyond any reasonable doubt.

      As to a conviction under Sudan Penal Code, s. 351 I am in a position to say that the conviction is positively supported by sufficient evidence.

      It is admittedly proved that the accused tried, in August 1962, a number of accused for gambling and sentenced them to £S.2 fine and in default of payment to one month’s imprisonment. The number of accused are unknown. Even the policeman, Dawa Hamdan, P.W. 2, failed to give the court exact number of accused.

      I would prefer to state the gist of evidence of certain prosecution witnesses.

1. .P.W. 6 did not know whether he paid the fine or not. What he was certain of was that he has been released from the prison.

2. P.W. 7 did not know really to whom he paid the fine of £S.2.

3. P.W. 8 did not know which of his relatives paid the fine and to whom.

4. P.W. 11 stated that he paid the fine of £S.2 but he was not sure to whom he paid it, though the accused was present.

5. . P.W. 13 stated that he paid the fine to the accused but he was not sure whether the accused received it or not.

6. P.W. 14 stated that he paid the fine of £S.2 to a certain All Ahmed who was sitting by the accused.

     

     

I would say with certainty that the evidence of the above P.W.s would not prove the payment of fine to the accused beyond any reasonable doubt. The least doubt should destroy the case of the prosecution to nothing in respect of the above witnesses.

      P.W.s 4 ,5 ,9 and 12 did not say that they paid the fine to accused. They said that they have been released from prison and their employer, Mohamed El Fadl (P.W. 19 did deduct £S.2 from the salary of each one of them in lieu of the fine he paid. P.W. 19 did state in his evidence that he paid the fine of £S.8 to the accused, who visited him in his shop for the very purpose. P.W. 19 did not say that he paid this £S.8 to the accused in the presence of anybody.

      In these circumstances and in the proved bad terms between P.W. 19 and accused, would the court accept his evidence with full weight?

      The accused stated that there was enmity between him and P.W. 19, for he (accused) did agree with the inhabitants of Leit village to form a co-operative society to erect a flour-mill therein, and this, if it would take place, would compete with P.W. 19’s own flour-mill which was already there; and that P.W. 19 brought P.W.s in his own lorry.

      These were the sole reasons asserted by advocate for the defence. The allegation of enmity was denied by P.W. 19 an oath. Further, the evidence of P.W. 19 is well supported by the admitted fact that accused did try P.W.s 4, 5, 9 and 12 a year ago, and they were released from the prison, and that these P.W,s were employees of P.W. 19. P.W.s above did state in their evidence that P.W. 19 did deduct £S.2 from each of them. However, no evidence has been deduced by the defence that accused or anyone on his behalf did ask any one of the above P.W.s to pay the fine since their release from prison, in August 1962. This has been further corroborated with the established fact that the accused did not record these trials in the relevant court books.

      In the presence of the direct evidence, together with the circumstantial evidence supporting it, I do accept the evidence of P.W. 19 with full weight.

      P.W. 10 positively stated that he sold the gold ring of his wife for £S.2 and he did pay the sum ( to the accused himself, who did not give him any receipt in turn.)

      Bakheit Bandas (P.W. 18) did state that he paid £S.10 to accused for his stolen cow and denied that he paid him any money in lieu of fine. He admitted that he has still in his possession £S.11. This evidence, per Se, destroys the case of the prosecution in respect of the case of Adam Ibrahim Zakaria Kobra Abbakar.

      Therefore I do say that accused was no doubt entrusted with collection of fines. He was bound to pay them into the Government chest. He converted £S.18 to his own use, thereby causing wrongful gain to himself

      

 

and wrongful loss to the Government as well. He committed criminal breach of trust under Sudan Penal Code, s. 351.

      In respect of conviction under Sudan Penal Code, s. 311, I do say. that the persons whom the accused sent to work in his farm and house were prisoners. The prisoners have no freedom of choice as such. The words “compel” and “will” in Sudan Penal Code, s. 311, denote free will of the person subject of the crime as well as use of force, pressure or threat. The section necessarily implies a person at large without any restraint on his freedom of choice, a person who fully enjoys his self- determination.

      Accused, when he sent prisoners to his farm and house, abused his authority. Accused cannot be convicted under Sudan Penal Code, s. 311, for the mere fact that he made prisoners serve in his house and farm, instead of rendering their services to the Government.

      I therefore confirm the finding under Sudan Penal Code, s. 351, and quash the finding under Sudan Penal Code, s. 311.

      Accused is the President of a branch court with long services to the judiciary. His father is the President of Umkadda main court. Despite the previous convictions proved against accused, I reduced the sentence to four days’ imprisonment as from January 8, 1964, and to a fine of £S.50 (in default of payment four months’ imprisonment).

      M. A. Abu Rannat C.J. June 25, 1964: —Conviction and Sentence under Sudan Penal Code, S. 351.

      The above-named accused was convicted and sentenced by Police Magistrate, Fasher, on January 8, 1964and given eighteen months’ imprisonment and a fine of £S.50 in default of payment to imprisonment for six months.

      On application for revision, His Honour the Province Judge confirmed the finding, but he altered the sentence to imprisonment for four days, and a fine of £S.50 or imprisonment for four months. This decision was on January 11,1964.

      On February 23, 1964, advocate El Hag El Tahir, who was authorised by the Attorney-General to prosecute the case, applied for the revision of the sentence. The papers were called for by me on March 3. 1964. and the papers were supposed to be sent on March 11, 1964, the date on which His Honour the Province Judge signed the letter. I did not see these proceedings until a week ago as the papers were only received here on June 8, 1964.

      However, I think the sentence as altered by the learned Province Judge is out of proportion, as the accused had had a previous conviction before this case.

     

     

     

I therefore send the case back to the Province Judge for increasing the sentence. He should not receive a substantive sentence of less than six months.

      This type of person should not hold a public office and I am pleased that he has been dismissed from his office as President of a branch court.

      The prosecution also applied for revision of the finding of the Province Judge of not guilty under Sudan Penal Code, s. 311. The learned Province Judge found that accused abused his authority rather than compelling the prisoners to work in his farm. I do not want to intervene with this decision, as cases under Sudan Penal Code, s. 311. require a more positive act by the accused.