Case No.:

AC-CP-594-I961

Court:

The High Court of Justice

Issue No.:

1962

Principles

·  Criminal Law—Murder—Penalty—Suluh and application for commutation by feuding tribes

After blood and killing between the two tribes of Duweih and Bern Gerrar, the prominent members of the two tribes made a suluh, a settlement agreement, in which they applied for commutation of the death sentences in this case in order that the feud stop. In spite of application to the contrary by sons of the deceased, the sentence was commuted.

Judgment

(MAJOR COURT CONFIRMATION)

SUDAN GOVERNMENT v. IDRIS HAMAD EL NIL FADL EL MULA

AND ANOTHER

AC-CP-594-I961

Note on the Sentence by El Mahdi El Fahal, President of the Major Court convened at Ed Dueim, November 1, 1961: —The sentences to be passed against both accused Idris Hamad El Nil FadI El Mula and his brother El Bashir Hamad El Nil are connected with the trial of El Bella El Mahi and Gubart Alla Khamis, MC-87- (Blue Nile), AC-CP-

On March 4, 1961, El Bella EL Mahi and Gubart Alla Khamis murdered Fadi El Mula Hamad El Nil.

On July 24, 1961, the accused Idris and El Bashir, to avenge the killing of their brother, murdered Hassan Eiant Alla who was the maternal uncle of El Bella El Mahi and the paternal uncle of Gubart Alla Khamis.

On July 31, 1961, El Bella and Gubart Alla were tried and sentenced to death.

After this trial the relatives of the deceased and accused persons from both tribes of Diweih and Beni Garrar and the Sheiks, Omdas and Notables of the two tribes submitted a suluh in which they undertook to give up all feuds and live in peace together. Upon this suluh the death sentences were commuted to imprisonment for 14 years for each of the accused, and the Honourable Chief Justice commented that this commutation should also apply to the present case.

So this court recommends the commutation of the death sentences to one of 14 years’ imprisonment as regards accused No. i, Idris, and seven years as regards accused No. 2, Bashir, because of his young age, and because his brother, accused No. i, is also a prisoner and his third brother Fad El Mula is dead. Since this court is sure that this recommendation will be given effect to it has declared it in open court, as such declaration would settle all feuds and prevent any future act of revenge.

M. A. Abu Rannat C.J. January 24, 1962. —The facts set out in the summary of salient facts are supported by sufficient evidence. Accused No. i admits that he struck the deceased with a heavy stick on the head and thereby caused his death. The weapon used and the nature of the wounds indicates that accused No. i must have intended to cause deceased’s death. There is also evidence that accused No. i killed the deceased in revenge for the death of his brother by El Bella El Mahi and Gubart Alla Khamis who are the nephews of the deceased.

There are no mitigating circumstances which reduce the offence of murder to culpable homicide not amounting to murder and I therefore confirm the finding of murder and death sentence passed against accused No. 1,Idris Hamad El Nil Fadl El Mula.

As to accused No. 2, the evidence, which is reliable, shows that he was present when the deceased was killed by his brother, accused No. i. There is some evidence, which is not reliable that he participated in beating the deceased, and in my view this evidence should not be accepted. This shows that he at least abetted the killing of deceased and I therefore alter the finding to one of guilty under Penal Code, ss. 89 and 25 I do not think on the face of the available evidence that accused No. 2 knew that death would be the probable consequence of the act abetted, and consequently accused No. 2 is not liable to be punished with death. Further more, in view of the recommendation made by the court, I agree to the recommended sentence of seven years.

Prerogative of Mercy

This case is connected with another Major Court, which tried El Bella El Mahi and Gubar Alla Khamis on July 30, i96t. The facts of the two cases are these.

On March 4, 1961, El Bella El Mahi and Gubart Alla Khamis Analla killed Fadi El Mula Hamad El Nil, and were convicted by the court of the offence of murder and sentenced to death, but as the members of the two tribes to which the deceased Fadi El Mula Hamad El Nil and the two accused belonged made a suluh, the death sentences were commuted to imprisonment for 14 years.

On July 24, 1961, before the two accused El Bella El Mahi and Gubart Alla Khamis were tried, Idris Hamad El Nil the first accused in this case, and the brother of deceased Fadl El Mula Hamad El Nil, killed Hassan Analla, the uncle of El Bella El Mahi and Gubart Alla Khamis. The second accused in this case, by name El Bashir Hamad El Nil, is the younger brother of accused No. i, Idris Hamad El Nil, and according to the evidence, he abetted his brother in killing Hassan Analla, though he did not take part in beating him to death.

The court sentenced both brothers, Idris and El Bashir Hamad El Nil, to death, but it recommended, according to the suluh, that the death sentence be commuted to imprisonment for 14 years in respect of accused No. i and seven years in respect of accused No. 2. As to accused No. 2 I found that he is not liable to death sentence and passed on him a sentence of imprisonment for seven years.

I beg to invite Your Excellency to read the suluh which is kept with the proceedings of the first Major Court and which is flagged for easy reference.

The suluh was made on August 2, 1961, and it covered the two cases. The two tribes of Duweih and Beni Gerrar made the suluh, which was accepted by the prominent members of the tribe and their Omdas and Nazir, and applied that the death sentences should not be executed, because if carried out, they would lead to further bloodshed. The chairman of the Province Authority also supported the suluh.

After the trial of the present two accused, the two sons of the deceased Hassan Analla applied to me and to Your Excellency saying that they do not accept the suluh, and apply for the death sentence to be carried out.

This application by the two sons is not fair because the members of their tribe, including two of their uncles who are full brothers of the deceased, accepted and signed the suluh. Furthermore, the death sentences on their two cousins were commuted to imprisonment for 14 years because the father and brothers of the first deceased FadI El Mula Hamad El Nil accepted the conditions of the suluh, which covered this case.

The court strongly recommended the commutation of the death sentence, which I fully support.