(MAJOR COURT CONFIRMATION)

SUDAN GOVERNMENT v. OMER ADAM SOLLMAN

AC-CP- 154-1966

Principles

·  Criminal Law—Detention in reformatory—Penal Code, s. 67 cannot be awarded in default of payment of fine. It is a distinct punishment

·  Criminal Procedure—Power to pay compensation out of fine—Code of Criminal Procedure. s. 311--It is wrong to award compensation out of fine to deceased’s father

i. Detention in reformatory for juvenile offenders is a distinct punishment and cannot be substituted for imprisonment in default of payment of fine according to Penal Code. s. 67.

ii. According to Code of Criminal Procedure, s. 311, it is wrong to award compensation out of fine to deceased’s father

Judgment

M. E. Moba’rak 1. June 4, 1966: —It has been established by sufficient evidence that the accused deliberately stabbed deceased with the latter’s knife in the abdomen left hand side (see answer to Q.i at pp. 3 1—32 of the Record). The medical report on the deceased shows that the wound inflicted was one-and-a-half inches long and that the knife went deep inside until it reached the abdominal cavity. This is enough by itself to establish that death is probable and not only likely. I wonder how the court in its judgment (pp. 32—33) arrived at the conclusion that death was not even likely. The court convicted the accused under Sudan Pena1 Code, s. 254 (causing death while intention is to cause hurt). This finding is not supported by evidence. There are three possible defences for the accused in mitigation of tbe offence under Sudan Penal Code, s. 251, to the lesser offence under Sudan Penal Code, s. 253,

(a) Provocation;

(b) Self-defence; and

(c) Sudden fight.

The court considered none of these even though there is some evidence in the Record to suggest one or all of them.

The court sentenced the accusedto £S.100.000m/ms. fine and in default of payment to detention in a reformatory for five years. The court ordered that the whole fine, if collected, be paid to the father of the deceased. This sentence is wrong in at least two ways:

(a) a sentence of detention in a reformatory under Sudan Penal Code, s. 67, cannot be awarded in default of payment of fine. Detention in a reformatory can be substituted for imprisonment in default of payment of fine. Imprisonment and detention in a reformatory are two different punishments under Sudan Penal Code (see s. 64 thereof).

(b) the awarding of compensation out of the fine to the deceased’s father is wrong under Code of Criminal Procedure, 5. 311. This is not one of the cases carried by Code of Criminal Procedure, s. 311 (1). Code of Criminal Procedure, S. 311 (1) (c), was repealed long ago.

For all the reasons stated above I refuse confirmation of finding and sentence and return proceedings for reconsideration of both on the lines stated in this Note.

The proceedings of your Major Court/5/1966 (presided over by Pro vince Judge Tawfig Abdel Mageed) and all the other papers are returned herewith. All the papers are to be sent back to me after reconsideration of finding and sentence.