Case No.:

AC-CP-365-1957

Court:

Major Court Confirmation

Issue No.:

1961

Principles

·  Criminal Law—Penal Code, ss. 82 and 91-Abetment - Abettors of those attempting murder should be charged with abetting murder, not abetting attempted murder

·  Criminal Law—Penal Code, s. 82—Abetment—Not necessary in Sudan for act abetted to be committed to charge abettor—Penal Code, s. 83: explanation 1

A group of Yazeed nomads attacked a of Fadnia. In the fight which followed, many were injured. Some of the attackers used knives and were charged and found guilty of attempted murder. Their Yazeed companions were charged and convicted of abetment of an attempted murder.
Obiter dictum: (1) When a group makes an attack together and some attempt murder, their companions should properly be charged with abetting n not committed under Penal Code, ss. 91 and 251. not with abetting attempted murder.

(2) Unlike the law, of England. to constitute the act of abetment, the act abetted need not be committed. Penal Code, s. 83: explanation 1, and s. 91.

Judgment

(MAJOR COURT CONFIRMATION(

SUDAN GOVERNMENT v. ALl ABDEL GADIR MOHAMED HASSABALLA AND OTHERS

AC-CP-365-1957

Advocate: Mubarak Zarroug…………. for the accused

Opinion of Osman El Tayeb J., President of the Major Court convened at Shendi, December’22, 1957:—The Yazeed and Fadni Nomad tribes have their Fangs scattered in the distance near each other. The people of one Fang of El Yazeed (“A “s) engaged in a tribal fight with a Fang Of the Fadnia (“B “s). It happened that about two years before the Present incident, some of the same Fang of El Fadnia killed one of this Same Fang of El Yazeed. The deceased was the father of Accused No. 5 and relative of the others.

On the date of occurrence, in the morning, Accused No. iB, Ahmed Abdulahi and his mother discovered that one cow of their herd of cattle had disappeared. They went out in search for it. They passed by the hafir by which the cattle . They found Gibril (P.W. 8), one of EL Yazeed Tribe, they inquired from him about the lost cow, and about the from which the cattle came to the hafir. According to his

and Mohamed Ahmed Mukhtar (P.W. 11) and El Sheikh Mohamed Zarroug, Accused No. 2B, on the other side, including the foreigners (P.W.s 6 and 7) and the Ombashi. It appears that this was acceptable at first. These people started to walk, following a track, Ahmed Abduflahi, Accused No. 1B, was with them, probably to show them the tracks.

The tracks of cows on the ground were many, and the commission was turning this way and that in order to satisfy themselves which tracks they had to follow. In doing that they turned towards the houses of accused. At this, accused felt something and they could not stand quiet. They ran towards the commission. Accused No. 1, Ali Abdel Gadir Mohamed, faced the Omda. Unexpectedly, he assaulted him, and Accused No. 1 stabbed the Omda twice on. his back. The court believes, relying on the evidence of the Ombashi, that this was the start of the fight. This was immediately followed by an assault on Mohamed Ahmed Mukhtar (P.W. 11) by Accused No. 2, Ahmed Mohamed Ahmed, and also by Accused No. 5, Abdel Gadir Ali. At this the crowd of El Fadnia seeing that their Omda and, other men of their tribe were being assaulted by. El Yazeed, broke out from the police and ran to the others, and a fight ensued in which many of both sides took part, and many received injuries.

Accused No. 1 and Accused No. 3 are each found guilty of attempted m under Penal Code, s. 259, in respect of P.W. 10 and’ P.W. 11. respectively , Accused No. 2, Accused No. 4 and Accused No.5 are found guilty of abetting the two above under Penal Code, ss. 84/259, and sentenced as follows:

To imprisonment for five years, four years. two years. three years and six months respectively

The two other women, Accused No. 6 and Accused No. 8 are found not guilty.

Accused No. 1B and Accused No. 3b are found guilty of causing grievous hurts with dangerous weapons to “A “s under Penal Code, s. 279 (2). and sentenced each to imprisonment for one year.

Accused No. 2B, Accused No. 4B and Accused No.5B are found not guilty.

Babikir Awadaila J. March 2, 1958 :—By authority of the Chief Justice, I am confirming all findings and sentences.

The case was in my view very well tried and the sentences imposed bear a more or less accurate relation to the degree of culpability f each accused.

I only have one thing to say as regards the case of Accused No. 3 and Accused No. 8, against whom the correct charge ought to have been one of abetment of murder rather than one of abetment of an attempt. When several persons embark on an affray of this sort and some of

them only were more unlucky and caused injuries which in the usual course of events would have resulted in murder, then the proper charge against the abettors is one under Penal Code, s. 91/251 or s. 91/253, even though no human life was lost in the affray. This is because culpability in case of abetment has always no relation with the act which is in fact committed.