SUDAN GOVERNME v. FARAH EL SAYED ABDEL GADIR AND ANOTHER

(MAJOR COURT CONFIRMATION)

SUDAN GOVERNME v. FARAH EL SAYED ABDEL GADIR AND ANOTHER

AC.CP-446-1966

Principles

· Criminal Procedure taken on oath during police investigation by magis trate in presence of the accused—It is not judicial proceedings” within the meaning of Code of Criminal Procedure. s. 220(1)

· Criminal Procedure-_Statement taken on oath during police investigation by magis trate in presence of the accused—Code of Criminal Procedure, s. 215 (b)— Admissible as best evidence obtainable in the circumustances of the case.

Statement taken by magistrate on oath durirg police investigatj in pre sence of the accused, when it is feared witness might disappear, is not evidence taken in “judicial Proceedings” within the meaning of the Code of Criminal Procedure, s. 220 (1). Such evidence is admissible under Code of Criminal Procedure. s. 215 (b) on the ground that it is the best evidence obtainable in the circumstances of the case during the trial.

Judgment

Salah E. Hassan I. (By authority of the Chief Justice.) September 1, 1966: —These are the facts in brief:

On February 2, I965, while the investigator was passing across Gineid Scheme he was met by Abbakar Saeed (the complainant) who reported that some people beat him and his comrade with sticks. The investigator followed the traces of something being dragged on the ground and he came upon the dead body of complainant’s comrade lying inside one of the small canals. Upon looking aroirndin ‘the vicinity they came across a shepherd whom complainant identified as on f the assailants. He was arrested as accused No. i. Later on another shepherd wasi at his home and complainant identified him as the second assailant—he is accused No. 2. The medical report certified the cause of death as the result of the damage done to the neck bones as a result of repeated blows with a blunt instrument. The complainant Abbakar Saeed is the only witness who links both accused with the killing of his comrade. Unfortunately he disappeared before the magisterial inquiry and has not been heard of since. Luckily enough his statement on oath was taken during the police investigations by a magistrate in presence of accused. This was done because the investigator rightly feared that he might disappear and not be traced again.

There was a controversy and argument during the trial as to the admissibilit) of this stateirient recorded during the police investigation. The President of the Major ruled that it is admissible in accordance with Code of Criminal Procedure, s. 220 (1) and he cited the case of Sudan Gcrvernment v. Ibrahim Humeida and Others (1961) S.L.J.R. 74 in support of his argument per the statement of Chief Just M. A. Abu Rannat which says “The statement made on oath bfSalih Osman was not made in the presence of accused No. 1 and therefore this accused had not the opportunity to cross him. This means that Code of Criminal Procedure, 5. 220 (1), cannot be applied to the facts of this case-”

The learned President followinj the above took it for granted that so long as the witness was heard in presence of the accused on oath with opportunity of cross-examination the statement is admissible in accordance with Code of Criminal Procedure, s. 220 (1). I disagree with this and I hold an entirely different view. Section 220 refers to evidence of witness’s recorded by Magistrates in Magisterial Inquiries in particular; this is apparent from the marginal notes. In adition the section refers to other evidence taken in any judicial proceedings. Judicial proceedings are defined in the Penal Code, s. 13, as “includes any proceedings in the course of which it is lawful to take evidence on oath.” This is further elaborated by Ratartlal, Law of Crimes, 43 (20th ed., 1961), as “a pro ceeding rCgulat& prescrf bed by law inwbich a judicial decision may or must be given.” The italicised words I believe explain the meaning of the word lawful contained in our above-mentioned section of the Penal Code.

According to our Code of Criminal Procedure the taking of evidence by a Magistrate on oath of a witness when it is feared he might disappear is not provided for and so it is not lawful in the very narrow meaning I have attached to the word lawful inthis sedtion

But the practice of recording evidence on oath durihg a police investigation by Magistrates in presence of the accused in the case of Witnesses whom it is feared might not turn up agam, does not conflict with the broad principles of natuni justice and criminal jurisprud And I believe that such statements fall within the ambit of Code of Criminal Procedure, s. 2 (b) and are therefore admissible as such. This section says:

“Evidence shall be admitted in every judicial proceeding under this code in accordance with reason and justice with a view to ascer taining the truth without unfair treatment of the accused or the witiiess and in particular”:

(b) “The evidence produced shall be best obtainable in the circumstances of the case.”

The recorded testimony of Abbaker Saeed corresponds with the requirements of the section and is definitely the best evidence obtainable in the circumstances of this case and therefore it was rightly admitted by the learned president although on different grounds as I have pointed out already.

I agree with the learned president that in a serious charge of this nature there must be independent corroboration and this evidence alone cannot support a conviction especially, this testimony itself is not devoid of defects.

I therefore confirm findings and orders.