Case No.:

AC-CP-37- I 959

Court:

Major Court Confirmation

Issue No.:

1961

Principles

·  Criminal Law—Penal Code, s. 251-Murder Circumstance for passing death sentence

Some time after a quarrel accused stabbed deceased in the back and was sentenced to life imprisonment for murder.
Obiter dictum : The passing of a sentence of death for murder is a legal decision to be made only when the murder is accompanied with premeditation, robbery or brigandage. resistance to authority, or peculiar atrocity

Judgment

)MAJOR COURT CONFIRMATION)

SUDAN GOVERNMENT v. ISAGHA MUSA SOLIMAN

AC-CP-37- I 959

.

Gala) Ali LutIi P.1. January 17, 1960:—The facts of this case as found by the court are as follows:

About six years ago accused, lsagha Musa Soliman, and deceased, Abu Mohamed Abda went to Khartoum to work. One day they visited a house of prostitution and deceased was rejected by the woman whom he had chosen, for having no shoes. After they came back to their home at Babanousa village (Geneina district) the accused told his friends how the prostitute rejected the deceased. Deceased was angry for he did not want the people in his village to know that he was not accepted by a prostitute.

On December 20, 1958, the people of the village gathered together to thresh their dura. Accused and deceased were there. The accused again repeated the story of the prostitute at Khartoum. Deceased got angry an insults were exchanged. Then the accused in defiance said to deceased If you are a man follow me” and then he left the place. After some time deceased together with some other people from the village started on their way back to their homes. The accused met them on the way and he was about to quarrel with deceased but they were separated. The deceased and the people with him went on their way home again. The accused stayed back and did not go with them.

After some time he followed them and he stealthily thrust his kiufe in the deceased’s back and then ran away. The deceased was then taken to Silaia dressing station and then to hospital where he expired, after 22 days, as a result of the injury inflicted. Police investigation followed and a magisterial inquiry was held which resulted in comniittal of the accused for trial by a Major Court. The trial started on Novembet 30. 1959. and on December 17. 1959. accused was found guilty under Penal Code, s. 251, and sentenced to life imprisonment.

These are the facts as proved and admitted and so let us see how the case was handled.

It is really deplorable to note that this case was not Property turd and the condign sentence was not passed. The court has erred itself in the following:

1. The charge was framed in the alternative, i.e., murder (Penal Code, s. 251) or culpable homicide not amounting to murder (Penal Code, s. 253). When the accused was asked by the co to plead he pleaded that he was guilty. But of what offence it is not shown. It is not clear whether the plea is in respect of murder or culpable homicide not amounting to murder. Two mistakes are committed by the court in this connection:

(a) The facts of this case are very clear and there is nothing equivocal to allow an alternative charge under Penal Code, 5. 253. In such cases unless there is evidence to justify an alternative charge, it is the duty of the inquiring magistrate to see that the proper charge is properly framed under t appropriate section. In this case Penal Code, s. 251 is the appropriate one and no alternative charge ought to have been framed.

(b) In recording the accused’s plea the court did not show under what section he pleaded guilty. He is charged under two sections, sections 251 and 253. and his plea is not shown as regards each of them.

When an alternative charge is framed the court ought to record clearly the accused’s answer under each charge.

. 2The court wrote its judgment in a form of an y which is an improper way to adopt In such a serious offence under Penal Code, s. 251. criminal Court Circular No. 11 must be adhered to. The court ought to have asked itself the usual questions dealing with the following:

(a) The cause of death.

(b) Whether the accused intended to cause deceased death or knew at the time when he acted that death would be the probable and not only a likely consequence of his act

If the answer to the above is “Yes” then the a would be guilty under Penal Code, s. 25!. . If these is any evidence to suggest a. right of private defence or provocatoin or a sudden fight, then the court must ask itself the question to this meaning as set out In the aforesaid Circular. However simple and straightforward the facts might be the t mud not mite its judgment in the manner it has done

.3 The court pa a sentence of imprisonment where it ought to have p a death sentence. It Is true that Penal Cade, s, 251)

allows an alternative sentence but this matter has been extensively discussed and circulars, directions, instructions and explanatory notes, were issued to show that a sentence of imprisonment must not be inflicted under Penal Code, s. 251, except in certain cases. This is clearly shown in the following:

(a) Legal Circular No. AC/GEN/2-6-9-1, issued on Novemher 19 1938.

(b) Criminal Court Circular No. 26 which explains clearly that the discretion in passing a sentence of imprisonment is a judicial and not an absolute one and so directs that the

° individual conscience of members of the court must not be taken into account in arriving at the proper sentence,” It also sets out the cases where the court on conviction of murder may pass the alternative sentence of imprisonment which do not include this particular case.

(c) Sudan Government v. Atak Akot, AC-CP-284-1947 and Sudan Government v. Pin Aco, AC-CP- 91-1950, where reasons were shown why a death sentence must be passed in case of a conviction of murder The following is an extract from a note written by the Honourable Chief Justice Lindsey in Sudan Government V. Piny Aco, AC-CP-91-1950, which is a very good survey of the legal position in this respect:

"In India on a conviction for murder the court may pass either the sentence of death or transportation for life The court has to record its reasons for awarding the alternative sentence. It i well settled, and has, so f as I know, never been questioned. in India that the alternative sentence is awarded in the exercise of a judicial discretion which may not be arbitrary but must follow accepted principles, and is liable to correction by the Court of Appeal.

"The wording of the relevant sections of. the Indian law are as straightforward, and as unqualified as the corresponding sections of the Sudan law, namely, Penal Code, s. 251, and Code of Criminal Procedure, S. 244. My predecessors in the Sudan followed a similar line to India as in fact they were judicially bound to do.

“From an early date ‘Appellate. Revising, or Con firming Authority’ in Khartoum has corrected any detected abuse of the exercise of a judicial discretion by the courts.

“The exercise of a judicial discretien is obviously

not always synonymous for the exercise of an unfettered and arbitrary discretion in conformity with the individual conscience of a magistrate. Where there is a conflict between the two, the former in the courts must prevail.”

The right and proper thing which the court ought to have done in this case is to pass a death sentence and then record its recommendation to mercy which of course will not be disregarded. The Honourable Chief Justice Bell laid down the principles to be followed in confirming a sentence of death and assured magistrates to the recommendations they make. The following is the relevant extract:

“The law, however, is not administered harshly when a man has been properly convicted of murder and sentenced to death. Generally speaking a death sentence is confirmed only when murder is accompanied with:

)a) premeditation;

)b) robbery or brigandage;

)c) resistance to authority;

)d) circumstances of peculiar atrocity.

"Even when one or other of these circumstances exist, the state of civilisation and the customs of the people concerned and other relevant matters are taken into consideration.” (See Sudan Government v. Atak Akot, AC-CP-284-1947).

Paragraph 7 of the Criminal Court Circular No. 26 shows what must be. included in the said recommendations.

As I see it the finding of the court is correct under Penal Code. s. i, because it is a clear case of murder accompanied by premeditation, but the sentence is not the proper one which ought to have been passed in such cases.

Accordingly may I suggest:

(a)  Confirmation of finding.

(b) Refusal to confirm sentence.

(c) The returning of papers to the court to pass a death sentence and to state if there are any reasons to show by way of recommendation to mercy.

(d) To inistruct the magistrate who presided over the said Major Court to pay special attention to the procedure to be followed in such cases and to see that the Criminal Court Circulars are strictly adhered to.

M. A. Abu Rannat C.J. January 28, 1960:—I agree with the note written by Judge Galal All Lutfi. but as the court had passed the alternative

sentence of imprisonment for life, and a long time has row passed. 1 shall confirm both the finding and sentence.

A copy of this note should be sent to the presiding magistrate for his information and future guidance.