(MAJOR COURT CONFERMATION)

SUDAN GOVERNMENT v. IBRAHIM MOHAMED FA1

AC-CP-209-1966

 Advocate: Rabei Hassan Ahmed for Attorney General for prosecution

Abdel Magid Imam J. September 3, 1967: —In this case the accused was convicted for murder under Sudan Penal Code, s. 251, and sentenced to death. He died a natural death while in custody of Port Sudan Prison. Prior to that he had lodged an appeal against his conviction. His death raises the point whether the confirmation proceedings abate because of the death of the convicted prisoner or not.

The issue put for consideration was therefore as follows:

Does the death of a convict cause confirmation proceedings to abate.

The Advocate-General was called upon to put forward his submission in writing, and he did so.

After giving due consideration to this question, I think these proceedings should come to an end. The Code of Criminal Procedure does not contain any provision to meet such a situation. But the Indian Criminal Procedure Code expressly provides that any such appeal shall finally abate on the death of the appellant; the only exception made is where the sentence contains an order to pay fine.

I agree with the Advocate-General on the reasons submitted. The main reason, I think, is that penal laws are primarily made for the punishment of offenders. If there is none, then the machinery of the criminal law stops; for it cannot operate in a vacuum. The exception where the sentence entails an order to pay a fine is understandable.

For the above the appeal abates and the case is to be filed.

Abdel Rahim J. December 29, 1966: — In my opinion this application should be filed for the death of accused. There is no section fl the Code of Criminal Procedure, which shows the procedure to be followed when the accused dies before confirmation of the finding and sentence. Neither accused nor his agent can be heard in this case and the sentence cannot possibly be executed against an accused who passed away. In this respect I should refer to Salmond, jurisprudence, where he said:

The received maxim was (Actio personalis moritur cum persona). A man cannot be punished in his grave; therefore it was held that all actions for penal redress, being in their time mature instruments of punishment, must be brought against the living offender and must die with him.”

Salah E. Hassan. J. December 29, 1966: —In my opinion the confirmation proceedings are part and parcel of the Major Court proceedings which are considered as its conclusion. But in such a case where the accused dies before confirmation, the confirming authority should do nothing other than to order the proceedings to abate with the result that the findings and sentence are not confirmed.

ORDER: Abdel Magid Imam J. September 3, 1967: —The appeal abates arid the case is to be filed.

* Court: Osman El Tayeb J. and El Fatih Awouda J.

* Court: Osman El Tayeb J. and Salah Eddin  Hassan J.

* Court: Osman El Tayeb J. and El Fatih Awouda J.

* Court: Osman El Tayeb J. and El Fatih Awouda J..

* Court: Osman El Tayeb J. and El Fatih Awouda 1.

* Court: Osman El Tayeb J. and El Fatih Awouda J

* Court Babiker Awadalla C.J.and Osman El Tayeb J.

* Court: Babiker Awodalla CJ. Osman El Tayeb J. and El Fatih Awouda J.