Case No.:

AC-CP.261 1958-

Court:

Major Court Confirmation

Issue No.:

1961

Principles

·  Evidence—Privilege against s cannot be asked a self- incrimination- Wittness cannot be asked a self-- incrimination question

·  Evidence—Confessions- must admit whole or exclude whole confession

Held: (i) It is error to admit into evidence the answer to an incriminating question to a witness.
(ii) It is error to admit into evidence part of a confession: the confession must be received in toto or excluded in to.

Judgment

(MAJOR COURT CONFIRMATION)

SUDAN GOVERNMENT v. OMAR SAAD HAMID

AC-CP.261 1958-

M. I. El Nur, Acting C.J. September 8. 1958 : —The facts of this case as proved on evidence are briefly as follows:

Accused, Omar Saad Hamid, and P.W. 4. Massad El Tigani . the medical assistant of Shurkaila, are married to the daughters of Audoon Hamid, the President of Shurkaila Native Court. Deceased, Mohamed Omer Dabi El Lail, worked as a Farrash of Shurkaila, under P.W. 4.

It was natural, therefore, for accused’s wife to go to the house of her sister frequently and it was also natural for deceased on account of his being the Farrash working under P.W. 4, to enter his house from time to time.

It happened about three months before this incident t as a result of some misunderstanding between accused• and h wife the latter went to stay with her sister. The following day accused followed his wife there to make amends with her. When he entered the house he found his wife sitting with her sister, Um Bashayer (P.W. ( 5. and her mother-in law, Haleema Massad (P.W. 6). He found deceased inside that house too. Accused, who already suspected deceased was playing with his wife, went straight to P.W. 4 and told him that he suspected that deceased had illegitimate relations with his wife and demanded that deceased should not be allowed to enter P.W.4’s house again so long as his (accused’s) wife was bound to come there. P.W. 4 told accused it was impossible for him to prevent deceased coming to his house both because he worked with him and was also a relative of his wife (and accused’s wife as well ).

Consequently accused brought some ajaweed who made sulh between him and his wife.

On the day of this incident there was a Nuggara dance in front of accused house on the occasion of the marriage of the brother of accused’s wife. Accused was in that dance and so was deceased. After the dance was over, the gathering started to disperse. And , according to accused, hr saw his wife and deceased in a distant corner standing close to each other to the extent that his wife’s hair was falling on deceased’s shoulder, and were whispering.

So accused went to them and started to fight with deceased. They grappled and used their hands against each other and at last accused drew his knife and stabbed deceased once on the back and again on the hest After that they separated and each went to his own house. After a short while accused, having heard Wailing in deceased’s house, realised he had died and then he, with his knife still in his hand, went and surrendered himself to the President of the native court (his own father-in-law) and said he killed deceased. (See confession by accused n pages 12 —14 of the Case Diary ).

On the medical evidence it was proved that deceased died, affected

the two fatal stab wounds inflicted on him, by accused.

On the above evidence the court found that accused did cause deceased’s death by inflicting on him two fatal wounds, intending thereby to cause his death, and, disbelieving accused’s statement on confession, found that he was not covered by any of the exceptions to Penal Code,  s, 249and therefore convicted him of the offence of murder under Penal code, s. 251, and sentenced him to death.

I do not think I can agree to this finding for the following reasons:

1. There was no eye-witness in this case, and the court accepted the part of accused’s confession which was disfavourable to him and convicted him on it and rejected the other part which was in his favour.

2. It is an established rule of evidence that a confession should be either received as a whole or rejected as a whole.

3. In rejecting the part of accused’s confession which explained how the fight between him and deceased started, the court was influenced by the evidence of accused’s wife. Fatma Audoon (P.W.7 ), who denied having been found by accused standing with deceased after the dispersal of the dance in the position described by accused in his confession.

Surely P.W. 7 cannot admit she was surprised by accused in that amorous position with deceased, otherwise she would be admitting her illegitimate relation with deceased of which accused had always been accusing her. As a rule of evidence a witness cannot be asked’ a question the answer to which would incriminate him.

It is. Clear  that accused did not stab deceased as the dance was go

on. Otherwise, he could have been seen by the gathering who were there This makes accused’s statement more feasible.

It is clear from the evidence as a whole that accused had been for a long time labouring under a disturbing suspicion that deceased was play with his wife. Those suspicions were confirmed when he surpr1 deceased and his wife in the position he describe Naturally , he provoked by that, and started to fight with deceased. Even if it be said that his provocation was not so grave as to bring him with the orbit of Penal Code, s. 249 (1), it at least led to a sudden quarrel followed by a sudden fight, in the course of which he stabbed deceased In the circumstances his case is covered by Penal Code, s. 249 (4).

For all the above reasons I hold the opinion that the offence comrnitted by accused was not murder under Penal Code, s. 251 but culpable homicide not amounting to murder under Penal Code, S. 2 I therefore alter the finding by the court accordingly.