(MAJOR COURT CONFIRMATION)

SUDAN GOVERNMENT v. EL DEIG ADAM ABBAS

AC-CP.346-1968

Principles

  Criminal Law—Payment of Dia (blood-money applicable when accused is sent to reformatory school—1t amount is determined by local custom and agreement of the parties

(i) Payment of Dia (blood-money) is not applicable in a case where the accused is ordered to be sent to reformatory school. It is only applicable when the accused is sent to prison.
(ii) The amount of Dia is determined by the local customs and the agreement of the parties, i.e., the relatives of the accused and deceased.

Judgment

M. E. Mobarak J. October 6, 1968 :—The accused was convicted by a Major Court sitting at Zalingi and presided over by Bakri Mohamed Au Baldo the Province Judge. The conviction was under the Sudan Penal Code, s. 253, and the sentence passed by the court was detention in a reformatory for five years as from December 8, 1965, the date of arrest. The court ordered that if the relatives of the accused deliver six cattle to the relatives of the deceased Ishag El Nur the period of detention be reduced to three years.

It having been established that the accused had stabbed and caused the death of the deceased, the magistrate holding the inquiry ought to have charged him under Sudan Penal Code, s. 251.

Despite the difference between the first statement of accused to the police (page 2 Case Diary), and his subsequent statements, I am satisfied that he was acting in self-defence but he exceeded his limits. The finding in my view, is correct.

The sentence of detention in a reformatory is the only possible and reasonable one to be passed by the court. The order of reduction of sentence on payment of Dia is in my view, unsuitable. The object of detention in a reformatory is not the punishment of the accused, but his reformation. The object will be frustrated by the reduction of the term awarded. I refer in this respect to Judiciary/General/Circular/2/1958. It is all right to have a term of imprisonment (which is entirely a punishment) reduced on payment of Dia. Detention in a reformatory is a totally different matter. One other thing—the court’s order in respect of Dia is normally put in the following words:

"If Dia is agreed to between the parties and is duly paid the court recommends that the sentence passed against the accused be reduced to — years.”

The amount of  Dia is left for the local custom and the agreement of the parties, i.e., the relatives of the accused and deceased. Payment of Na is recommended and not ordered.

For the reasons stated above, I think that we confirm the finding and the sentence of detention but quash the order in respect of the payment of Dia.

Abdel Magid Imam J. October 7, 1968 :—I agree.

Abdel Magid Hassan J. October 8, 1968 :—I agree.

ORDER: M. E. Mobarak J. October 8, 1968:—We confirm the finding and the sentence of detention in a reformatory but quash the order in respect of the payment of Dia.