(CRIMIL RIVITION)

SUDAN GOVERNMENT v. OSMAN HAG AHMED

AC-CR-REV-456-1967

Principles

Criminal Procedure—Offence committed outside the Sudan—Code of Criminal Procedure, s. 125—” Found” means found by court—How accused got to court is immaterial

“Found” in Code of Criminal Procedure, s. 125 means found by the court at the time when the matter comes for trial, that is to say any competent court can take seisin the moment the accused appears in its presence. It does not matter whether the accused comes to court voluntarily or otherwise.

Judgment

M. E. Mobarak J. December 11, 1967: —On May 8, 1967, the applicant Modawi Mohamed Abdel Gadir (Inspector of Accounts, Ministry of Finance and Economics) submitted Pet/580/1967 to police magistrate alleging that one Osman Hag Ahmed (a Sharia Kadi now in Port Sudan) went to his office at Jeddah while both were in Hag and caused him simple hurt. The petition was seen by second class magistrate, Kamal Basyouni, who recorded a very brief statement from the complainant on oath. The magistrate then ordered that the substance of the complaint be conveyed to the Grand Kadi through the Sharia High Court Judge. I cannot see any reason why such an order was passed. The fact that the person complained against is a Sharia Kadi does not make any difference at all for such an action. As stated in the Sudan Transitional Constitution (Amended 1964) Art. 4 (1), “all persons in the Sudan are free and are equal before the Law.” Worse than that the magistrate ordered that the matter be investigated by the police before a First Information Report be lodged and he directed that the person complained against (the Kadi) be summoned and interrogated first. Again this is a contravention of the right to equality. The magistrate, on the whole, dealt with the complaint in the most improper manner. The person complained against refused to make a statement to the police at Port Sudan. On July 26, 1967 (more than two- and-a-half months after the complaint was submitted to him), the magistrate, Kamal Basyouni, approved that a First Information Report be lodged; (page of the Case Diary) and so F.I.R./609/1967 was lodged the same day (July 26, 1967) at Khartoum Western Police Station.

The Case Diary (already almost complete) was submitted to this magistrate the same day. He recorded a note at the bottom of page 5 and top of page 6 thereof stating that the alleged offence under the Sudan Penal Code, 5. 298, took place at Jeddah in Saudi Arabia, that the F.I.R. was lodged in the Sudan under the provision of the Sudan Penal Code, s. 4, and then referred to Code of Criminal Procedure, s. 125, as regards offences committed outside the Sudan and specially to the words “may be dealt

with as if it had been committed at any place in the Sudan at which the offender may be found” as regards the place of inquiry or trial. The magistrate continued his note by stating that as the accused resided in Port Sudan it is then the Port Sudan Criminal Court which has jurisdiction and so the magistrate directed that all the police papers be referred to Port Sudan (for disposal of the case). The complainant was not satisfied with this order and so he petitioned the Judge of the High Court, Khartoum, against it on or about August 7, 1967. On September 29, 1967, the Judge of the High Court (Sayed Gassouma) made an entry at page 6 of the Case Diary to the effect that he saw no reason to intervene as regards the application by the complainant because Code of Criminal Procedure, s. 125 is clear on the matter that the place of trial is the place where the accused resides (HC-CR-REV-1119-1967). This decision was conveyed to the complainant (informant) and hence his application to us. In his application to us, as well as in his previous application to the Judge of the High Court, he stated that he and all his witnesses in respect of his complaint against the accused lived in the Three Towns (one in the M.T.D., another in Passports Office Khartoum and others in Omdurman) and that the only person who resides in Port Sudan is the accused himself.

The Sudan Criminal Procedure Code, s. 125 is based (to some extent at least) on the Indian Criminal Procedure Code, s. 188, which deals with the “liability of Indian citizens for offences committed out of India.” I need not embark on a long comparison and constrast of the two sections. It is to be noted, however, that the words “may be dealt with as if it had been committed at any place in the Sudan in which the offender may be found” are very similar to the words in the Indian section “may be dealt with in respect of such offence as if it had been committed at any place within India at which he may be found.” It is to be noted neither of the two sections referred to the place where the accused is residing. The material words in the section are the words “may be found.” Vol. 1, Sohoni, The Code of Criminal Procedure (15 ed. 1960) pp. 901—2, when dealing with the matter wrote:

“‘May be found ‘—This expression must be taken to mean, not where a person is discovered but where he is actually present. ‘Found’ in section 188 found by the Court at the time when the matter comes up for trial, that is to say, any court which is otherwise competent to try the offence can take seisin the moment the accused appears in its presence. How the accused gets there is immaterial. It does not matter whether he comes voluntarily or in answer to a summons or under illegal arrest. It is enough that the court should find him present when it comes to take up the matter. An accused person is ‘found’ wherever he is actually present whether or not he has been brought there against his will”

In this case the complaint was lodged before a magistrate in Khartoum. He dealt with it and referred the matter to the police in Khartoum who investigated the matter. The complainant and all his witnesses live in the Three Towns. The accused alone resides in Port Sudan and can easily (through summons or even, if need be, arrest) be brought to Khartoum for trial of the case. Even if he is brought to Khartoum in the manner then, according to the interpretation referred to in the last preceding paragraph, he is said to be found in Khartoum. It will be absurd under all these circumstances and for the convenience of the accused alone and with grave inconvenience (and perhaps hardship) to the complainant and all his witnesses to transfer the case to Fort Sudan for trial. The magistrate by accepting the complainant’s petition submitted to him on May 7, 1967, and dealing with it must have believed that he had jurisdiction in Khartoum in the matter, otherwise he would have rejected or dismissed the petition. To come now after the lapse of so many months and assert that it is the Port Sudan Criminal Court which has jurisdiction to deal with the trial is merely shaking off responsibility.

For all these reasons, I think that we should set aside the order of the magistrate dated July 26, 1967, referring the case to the Criminal Court Port Sudan for trial together with the order by the Judge of the High Court, passed on September 29, 1967, and affirming the first order referred to above or substitute therefore an order that the case be dealt with by the Criminal Court in Khartoum.

Galal Ali Lutfi J. December 20, 1967: —I agree.

Abdel Magid Hassan J. December 24, 1967: —I agree.

ORDER: M. E. Mobarak J. January 11, 1968: —We set aside the order by the magistrate dated July 26,1967 referring the case to the Criminal Court, Fort Sudan, for trial together with the order by the Judge of the High Court, Khartoum passed on September 29, 1967, and affirming the order by the magistrate and substitute therefore an order that the case be dealt with by the Criminal Court in Khartoum.