(MAJOR COURT CONFIRMATION)

SUDAN GOVERNMENT V. ADAM OSMAN MOHAMED

AC-CP-496-1967

Principles

Criminal Law—Grave and sudden provocation— Sudan Penal Code, s. 249 (1)—It is judged by the reasonable man in the locality

Criminal Law—Grave and sudden provocation—Sudan Penal Code, s. 249 (1)— Gravity of the act alleged to be provocation must be considered in relation to what preceded it

(i) Provocation depends on how the reasonable man in the locality in question treats the matter.

(ii) In order to plead provocation it is not necessary that the accused must have acted immediately after the first act alleged to be provocation; The gravity of provocation must be considered in relation to what has preceded such act.

Judgment

Galal Ali Lutfl J. April 13, 1968: —The facts of this case are briefly as follows:

For a long time the accused Adam Osman Mohamed was not happy about the behaviour of the deceased Balla Adam Hassan towards his wife Fatma Abdalla Adam. He suspected that there was some sort of illicit relation between them. He questioned his wife about it and she denied such immoral connections. She admitted that the deceased was continuously asking her to have sexual intercourse with him and that she refused and rebuked him for that. The accused could not tolerate the deceased’s defiance any longer and he faced him with his accusations in the presence of the wife’s uncle. The deceased did not deny them and refused to make any promise to refrain from trying again.

On the date of occurrence the accused’s wife went on her donkey to the Mushra to bring water. After a while her husband followed her on his camel and when she was within his sight he saw someone on a donkey riding by her side and talking to her. It was the deceased. When the deceased saw the accused he urged his donkey and drove quickly leaving the accused’s wife behind him. The accused called him back and then asked him the question: “Shall I leave this woman to you? or what do you advise?” The deceased did not reply but he got down from his donkey and tightened his “tobe” round his body ready to fight. The accused also alighted from his camel. Each of them was carrying an “okaz “. With a quick pace the deceased walked towards the accused who was ready to meet him. A fight took place between them. A few blows were exchanged and then the deceased’s okaz was broken into two pieces. He continued to fight with one half of his okaz. Then the deceased fell on the ground. He was unconscious. His skull was broken and he passed away on the same day.

The accused was tried and convicted under Sudan Penal Code, s. 251 and sentenced to death without recommendation to mercy.

In my opinion the finding under Sudan Penal Code, S. 251, is wrong.

The facts proved show that there is very clear provocation, which led to the fight in which the deceased was killed. I do agree with the court that provocation depends upon how the reasonable man in the locality in question treats the matter but I do not endorse the conclusion reached which is to the effect that because the accused has several times seen the deceased with his wife and did not do anything he is estopped from pleading later on that he was provoked by the same act. In order to plead provocation it is not necessary that the accused must have acted immediately after the first act. In the case of The Sudan Government v. Adam Salih Tibin (1957) S.L.J.R. 73, the Honourable Chief Justice, Abu Rannat made this clear by saying:

“When it is said that the provocation must be sudden, it is not implied that it should have all immediately preceded the homicide in point of time, for a person may be inflamed by repeated or continuous provocation to a state of mind such that the provocation immediately preceding the act is only the last straw. In such a case the gravity of the provocation must be measured by what preceded it and not merely by what it amounted to itself.”

Time for reflection is a matter of degree, and in cases similar to the one before us the courts have already established the law that it is not proper to find the accused guilty of murder. In the case of: The Sudan Government v. Gadeen Ragab All (1962) S.L.J.R. 126—128 the Confirming Authority quoted with approval the following passage from Gour, Penal Law of India (7th ed. 1961) p. 1417.

“It has been sometimes said that, if a person had time to reflect, he could not avail himself of this exception (Penal Code, S. 249 (1)). But the question is one of degree. A person may suffer from a provocation so grave that he may brood over it, but may refrain from acting. He may, again, suffer a provocation which may completely throw him off his balance.”

In this case the accused was so worried and provoked about the deceased’s behaviour towards his wife and requested him to promise not to contact her again. He even went to the extent of obtaining the consent of his wife’s uncle, with whom they were living, to remove her to another village away from the deceased. His omission to act since the first time he discovered the deceased’s immoral advances does not show that he was not provoked but it shows that he wanted to solve the matter peacefully. The evidence adduced points at sufficient accumulated provocation and the last incident was in fact the last straw.

                                          In the circumstances therefore, the finding under the Sudan Penal Code,

s. 251 must he altered to a finding under Sudan Penal Code, s. 253, and in my opinion a term of five years’ imprisonment commencing from the date of the arrest of the accused will be an adequate sentence in this case.

Abdel Magid Imam J. April 15, 1968: —I agree

Abdel Mageed Hassan J. April 15, 1968: —I agree.

ORDER: Galal Ali Lutfi J. April 17, 1968: —The finding under Sudan

Penal Code, s. 251 is altered to a finding under Sudan Penal Code, s. 253,

and a term of five years’ imprisonment commencing from July 21, 1966,

is entered instead of the death sentence.