CRIMINAL LAW — Assault to deter public servant from discharge of his duty — Penal Code. s. 298 — Resisting illegal arrest — Not “in the execution of his duty.”

A policeman stopped accused, who was legally walking along a public road at night, and ordered him back whence he came. When accused refused, the policeman attempted to arrest accused, who resisted with force and escaped with his companion, who carried away the policeman’s rifle. Accused was convicted of assaulting a public servant in the execution of his duty under Penal Code, s. 298.

Held: Since the policeman was not making a legal arrest under Code of Crimi nal Procedure. s. 25, the force used against the policeman was not to a “public servant in the execution of his duty” and the conviction is quashed.

El Fatih Awouda, Acting P.J., September 18, 1961: - A policeman, P.W.3, was at the material time on night duty at Wau market area. The three accused, accompanied by Accused No. 2’s wife and child, came some time between 9.45 p.m. and 10.45 p.m. crossing the market. Accused No.1 lives within the market area and works as night watchman of a certain Meki’s shop. The other accused and lady were guests in his house. He was seeing them off for part of the road. They were stopped by P.W.3 and in reply to his question they explained  who they were and where they were going. P.W.3 ordered them to return, saying it was forbidden to walk

in the market area at that hour. Accused No.1 would not obey. There upon P.W.3 slapped him on the face. They grappled and P.W.3 threw Accused No.1 to the ground and wanted to tie him up. He delivered his rifle to Accused No. 2 to hold for him meanwhile. He started beating Accused No.1. Accused No. 2 said he would escape with the rifle, if P.W.3 would not stop beating Accused No. 1. After a hot wrestle Accused No. 1 freed himself and ran away. Accused No. 2 followed suit with the rifle. On reaching the house Accused No. 2 gave the rifle to Accused No. 1. Meanwhile the police came, arrested accused and recovered the rifle.

To begin with, I have no reason to disturb the findings of facts as nar rated by the trial magistrate. The court was not bound to believe the sworn statement of the allegedly assaulted and robbed policeman nor was it obliged to disbelieve the unsworn statements of the three accused, which were sufficiently cogent. The court that tries the case is in a better position than the appellate authority as far as the weighing of evidence is concerned. The appellate authority does not interfere with the question of facts unless the decision thereof is against the weight of evidence.

The three accused were charged and convicted under Sudan Penal Code, s. 298 and awarded various sentences. The Commandant of Police was not satisfied with the sentences passed and added that accused should have been charged with robbery as well. Hence came this application in further-ance of which I called for the trial proceedings.

Was the policeman acting in accordance with law when he stopped them and consequently moved to arrest and tie up Accused No. 1 ?

The part of the law by virtue of which the policeman did what he did is probably Code of Criminal procedure, s.25, which reads

“Any policeman ... may arrest ... sixthly — any person found taking precautions. to conceal his presence in suspicious circumstances or who being found in suspicious circumstances has no ostensible means. of subsistence or cannot give a satisfactory account of himself.”

The three accused were accompanied by a woman carrying her child. One of the accused was actually living within the market area. They were going along a main lit road. None of them was found taking precautions to conceal his presence in suspicious circumstances. They were stopped by the policeman and they gave a satisfactory account of themselves and their destination. Could it be said in those circumstances that the police man was Justified in his attempt to arrest the accused? I think not. I an assuming that there is no local order absolutely forbidding any person to use the market roads after a certain hour of the night. Policemen are given wide powers because to give them those powers is necessary for the maintenance of order and the well-being of the community. But they should not be allowed to please themselves with those powers. Abuse of power leads to a disregard of the law of the state, and disregard of the law leads to a state of chaos.

The police man in question pulled or slapped accused who refused not to follow a certain road. They grappled and during the scuffle the police man sustained minor injuries in the knees when he threw Accused No. I to the ground and rolled over him. The learned magistrate did not think that accused caused hurt to a public servant in the discharge of his duty, but held that accused assaulted a public servant in the discharge of his duties, presumably on a finding of fact that those injurjes were not caused by accused. I agree with him, but I do not agree that accused committed an offence under Sudan Penal Code, s. 298 in that assuming the policeman was assaulted, he was not assaulted in consequence of anything done or attempted to be done by such person in the lawful discharge of his duty as such public servant, as the wording of Sudan Penal Code, s. 298 runs. I accordingly refuse the confirmation of the finding in respect of Accused No. 1.

There is no evidence whatsoever to prove that either Accused No. 2 or Accused No. 3 participated in this particular affair, and I accordingly refuse confirmation of the findings.

As to the question of robbery, it is completely out of place, and I need not copy down the ingredients of that offence to show that no such offence was committed in the light of the evidence tendered