(MAJOR COURT CONFIRMATION)

                         SUDAN GOVERNMENT v. HASHIM OSMAN MIRGHANI

                                                        AC-CP-96-I 966

Principles

  Criminal Procedure—Fine—It is part of the sentence Criminal Procedure—Payment of compensation out of fine—Code of Criminal Procedure, 5. 311 (1) (b)—Not part of the sentence—Abandonment of compensation does not alter the fine

Fine is part of the sentence; but according to Code of Criminal Procedure, S. 311 (1) (b), order of payment of compensation out of fine is not part of the sentence. Thus if the person compensated relinquishes his claim for compensation, this does not alter the sentence.

Judgment

M. E. Mobarak 1. July 28, 1968:—On January 27, 1966, Al Hashim Osman Mirghani was convicted under Sudan Penal Code, s. 78/396, and sentenced to imprisonment for five years as from December 24, 1964, and to a fine of £S.971.360m/ms. (and in default of payment to imprisonment for a further term of two years). The court ordered that this fine, if collected, be paid to the informant El Khaleefa Mohamed Ahmed in compensation. This order for compensation was clearly made under Code of Criminal Procedure, s. 311 (1) (b). On August 16, 1966, the Chief Justice confirmed the finding, sentence and order in respect of this accused.

The informant El Khaleefa Mohamed Ahmed has now submitted an application (dated June 2, 1968, and addressed to the Resident Magistrate, Merawe) in which he states that he relinquishes his claim for compensation. On the strength of this application the prisoner is applying to have his sentence of imprisonment for two years in default of payment of fine quashed.

As I see it neither of these two applications can be acceded to. The fine of £S.971.360m/ms (and the term of imprisonment for two years in default of payment thereof) is part of the sentence passed by the Major Court on convicting this accused. The finding and the whole sentence (including the sentence of fine) have been confirmed by the Chief Justice. The order of payment of compensation was made under Code of Criminal Procedure, s. 311 (1) (b) and is not part of the sentence. This order can only be carried out after the fine has been paid or collected. The person to whom compensation is payable (viz: El Khaleefa Mohamed Ahmed) can reject the compensation and refuse to take it after it has been paid into the Government chest. He can not alter the sentence passed by the court by applying now to relinquish his claim in respect of compensation.

For the reasons stated above, I think we should not alter the sentence of imprisonment and fine (and imprisonment in default of payment of fine) as passed by the trial court and confirmed by the Chief Justice. Our decision in this respect should, of course, be conveyed to both the informant El Khaleefa Mohamed Ahmed and the prisoner Al Hashim Osman Mirghani.

Abdel Magid Imam J. August 3, 1968:—I agree

Galal Ali Lutfi 1. August 4, 1968 :—I agree.

ORDER: M. E. Mobarak 1. August 4, 1968 :—Application by informant Khaleefa Mohamed Ahmed is hereby rejected.