(CRIMINAL REVISION)

SUDAN GOVERNMENT v. EL TAHIR EL JACK EL NASRI

AC-CR-REV-14-1966

Principles

· Criminal Procedure—Case thary—Code of Criminal Procedure, s. 116 (2)—Neither accused nor his advocate is allowed to peruse the case diary—There are certain exceptions to this section

· Criminal Procedure—Trial record—Advocate is entitled to peruse the whole record at any stage of the trial

(i) As the case diary is a confidential record, neither the accused nor his advocate is allowed to have access to it according to Code of Criminal Pro cedure, s. 116 (2). There are certain and limited exceptions to this restriction.

(ii) An advocate is entitled to peruse the whole trial record taken by the judge, at any stage of the thaI when he comes to represent his client. Such perusal will enable the advocate to defend his client properly.

Judgment

Advocate: Ahmed Hakim for the accused

M. E. Mobarak J. May 31, 1966: —On January 10, 1966, Abdel Aziz Osman Abul Naja lodged Police Report No. 1904/1966 at Kassala police station against El Tahir El Jack El Nasri under Sudan Penal Code, s. 34ç, in respect of £S. Investigation of the case was concluded and the papers were sent to the Resident Magistrate on January 29, 1966. The trial was commenced on February 24, 1966, by Magistrate Beshir Mohamed Salih of the first class. He gave a list of his witnesses defence and the case was adjourned to March 17, 1966. On March 16, 1966, Advocate Ahmed Hakim (who then appeared for the first time to defend the accused) applied to the Magistrate for perusal of the Record. The Magistrate made an entry in the application that the advocate was allowed to peruse the Case Diary only and ordered that the said Diary should be made accessible to him if he applied for perusal of it. The advocate was not satisfied with the decision and applied to Province Judge, Kassala (Hashim Mohamed Abul Gasim) against it. On April 10, 1960 (vide K.C./Cr.Appl. /108/1966) decided that he saw no reason to intervene. Hence the application to the Chief Justice.

Both the Trial Magistrate and the Province Judge are wrong in their decisions for the reasons to be stated hereinafter. I therefore annul the orders passed by both of them and direct that Advocate Ahmed Hakim be allowed to peruse the Trial Record before any further action is taken in the case. He is not to be allowed to inspect the Case Diary save to the extent allowed by Code of Criminal Procedure, s. 116 )2(.

The order by the Trial Magistrate allowing the advocate for the accused to peruse the Case Diary is wrong.’ I refer in this respect to Code of Criminal Procedure, s. 116 (2), which reads:

“Save to the extent to which the Case Diary is used for the purposes set out in paragraphs (b) and (c) of subsection (i) of this section, the accused or his agent shall not be entitled to call for or inspect such Diary or any part thereof.”

It is an elementary principle of the Code of Criminal Procedure that the Case Diary is a confidential record, which is accessible to advocates within certain limits. The magistrate was absolutely wrong in allowing the advocate access to it.

In his application to me the advocate stated that the Magistrate had stated that the record of the trial is to be considered as personal notes of the judge and as such it is not to be treated as accessible to the advocate for the accused. This is wrong. The advocate is entitled to peruse the whole record of the trial to enable him to defend his client. The Magis trate is bound to allow him to peruse it, no matter what was the stage of the trial. In this case the advocate may wish, for instance, to recall some or all of the prosecution witnesses for further cross-examination.

I do not know how the Province Judge decided that he saw no reason to intervene. The question was whether the advocate for the accused was or was not allowed to peruse the trial record. The Magistrate refused to allow perusal. The advocate applied against the decision. As stated before, the advocate for accused was entitled to punise the Trial Record and so I cannot see how the Province Judge stated that he saw no reason to intervene.

The Province Judge in his decision stated that the appearance by the advocate for the accused at this stage of the case was in contravention of the Advocates Ordinance, s. 11. I cannot see how the Province Judge arrived at this conclusion. Section 11 (1) reads:

“It is the duty of an advocate to act in the best interests of his client and to accord the fullest respect to any Court, Tribunal, Judge or Magistrate before whom he appears: . . . etc.”

There is nothing in the proceedings now before us to prove or even suggest that there was any contravention by the advocate of this section of the Ordinance.

As stated before, the advocate for the accused is entitled to peruse the whole record of the trial. He is entitled to refuse being furnished with only a summary of it.

The Trial Record and Case Diary are returned herewith.