(MAJOR COURT CONFIRMATION)

SUDAN GOVERNMENT v. EISA ISAGHA ISMAIL AND OTHERS

AC-CP-107-1969

Principles

  Criminal Procedure—Persons accused of offences committed during a fight or series of fights—Code of Criminal Procedure, S. 206 (h)—Joint trial procedure is illegal unless sanctioned by Province Judge

Procedure of a joint trial of two sides to a fight or series of fights one arising out of another, is illegal unless the Province Judge gives his sanction according to code of Criminal Procedure, s. 206 (h), because the omission to obtain such sanction is not a mere formality.

Judgment

Mahdi El Fahal J. December 30, 1969 : —In the afternoon of June 25, 1967 a fight broke out between some westerners on the one side and some Arabs on the other at Zayadiya Village in the Managil extension as a result of which one of the latter group was stabbed to death.

A Major Court sitting at Dueim and presided over by Magistrate Mahoud Mohammed Said found that although one of the westerners did actually stab one of the Arabs he was acting in self-defence and acquitted him as well as the other three accused of his group. The three Arabs of the other group were found guilty of rioting and causing hurt by dangerous weapons. It is shocking that the court remarked when sentencing them that it took judicial notice that the Arabs in that area hurry to support each other against strangers even if there was no cause to justify such blind support.

Although this is a tribal fight, no sanction for a joint trial by the Province Judge was obtained. This is no mere formality and justifies vitiating all the proceedings. The convening order signed on December 2, 1968 does not sanction a joint trial. It is laid down in the Code of Criminal Procedure, 5. 206 (h) that:

“Persons accused of offences committed during a fight or series of fights one arising out of another, and persons accused of abetting any of these offences provided that the previous sanction of the Province Judge has been given may be charged and tried together.”

It is stated in para.3 of the Criminal Court Circular No. 5, that if such sanction was not obtained then the trial is illegal. The justification given for such restrictions against joint trials is that there should be no embarrassment or prejudice by bringing evidence together relating to a group of accused—see Ratanlal and Thakore, The Criminal Procedure Code (11th ed., 1969), p. 265. Hence confirmation has to be refused and a retrial ordered after a sanction for joint trial is obtained. Although it is a cumbersome job to regather the accused and witnesses from all four corners of the Gezira that is inevitable as the prior trial was an illegal one.

It is noted that the Court compiled one single record and hence these proceedings are of a single Major Court. This is wrong. It is suggested in para. 3 of the Criminal Court Circular No. that there should be two sets of records. I would not have quashed the proceedings had this been the only defect but it is the lack of obtaining a sanction for a joint trial that made all the difference. Anyhow, at the retrial this method should be adopted. The four accused of the A. group who were charged with murder should be rearrested under the Code of Criminal Procedure, s. 258, pending retrial.

Ergo, I refuse to confirm findings or sentences and order retrial on the lines indicated in my note.