Case No.:

AC-CP-61-1957

Court:

Major Court Confirmation

Issue No.:

1961

Principles

·  Criminal Law—Penal Code, ss. 82 and 84-Abetment of murder—In felonious attack by three, resulting in death—Companions of killer charged

The three accused Hawawir rode out to investigate a rumour that a Kababish had killed a Hawari. They met three Kababish cooking and milking and attacked them. Accused No. s shot and killed one Kababish, while Accused No. 2 and Accused No. 3 seriously injured another. Accused No. I was charged and found guilty of murder. Accused No. 2 and Accused No. 3 were charged with abetment of murder.
Held : Because the three accused had a common object in their felonious attack at least to inflict serious injury. Accused No. 2 and Accused No. 3 are guilty of aiding and abetting murder committed by Accused No.1.

Judgment
 

(MAJOR COURT CONFIRMATION)

SUDAN GOVERNMENT v. SAEED AHMED NAYIR AND OTHERS

AC-CP-61-1957

Advocate: El Hag El Tahir Ahmed ……… for accused

M. A. Abu Rannat C.J. April 24, 19 facts set out in the Summary of Salient Facts are supported by sufficient evidence.

As this case is of great importance, I wish to restate the facts which were proved beyond reasonable doubt.

A few days before this incident there was a rumour that the Kababish killed a Hawari. On the day of the incident, at midday, the three accused proceeded to the place of the incident. They found three Kababish on the spot. The deceased and his brother were cooking their food. The third Kababish by name El Khidir Mohamed El Faki was milking one of his sheep. At that moment the three accused attacked them. Accused No.1 was carrying a rifle, and with that he shot down the deceased, and caused his instant death. Accused No. 1 denies that he was carrying a rifle, and said that the deceased was shot by mistake by El Khidir Mohamed El Faki who was carrying a rifle. There is no evidence besides that of the accused that El Khidir was carrying any rifle. It is proved by the evidence of the deceased’s brother and El Khidir, and also by the statement of Accused No. 2, Mohamed All El Mamur, and Accused No. 3, Ahmed Hamid Kheirella, that Accused No. 1 was carrying a rifle (“ Abu Khamsa").

Therefore, it is proved beyond reasonable doubt that Accused No. i shot the deceased with a rifle and caused his death. It is also proved that Accused No. z must have intended to cause the death of the deceased. The evidence given by the two Kababish who were at the time with the deceased shows that the three accused were the attackers.

The three accused alleged that they peacefully inquired about the death of a Hawari, and that the deceased and his companions attacked them and caused some slight injuries to them.

The court rightly found that the slight injuries caused to the companions of the deceased were due to the fact that they were defending themselves against the two other aggressors.

On these facts it is very difficult to plead that there was a sudden fight. But even if it could be conceded that there was a sudden fight, the fact that the first accused was carrying a rifle and used it against a man or group of men who were not carrying such weapons, amounts no doubt to taking undue advantage.

In my view murder is proved and I confirm the finding of murder and death sentence of Accused No. 1, Saeed Ahmed Nayir.

As to Accused No. 2, Mohamed Au El Mamur, and Accused No. 3, Au Mohamed Kheiralla, the court found that they were guilty of abetment of murder.

It is clear from the evidence that the three accused had a common object when they rode their camels and proceeded to the place ‘where the deceased and his companions were camping. When the fight ensued, both Accused No. 2 and Accused No. 3 fought on the side of Accused No. r and inflicted serious injuries on Hassan Babikir, the brother of the deceased. They were also present when Accused No. 1 shot the deceased. This amounts to aiding. Their presence at least encouraged Accused No. 2 to do his unlawful act.

I therefore think that Accused No. 2 and Accused No. 3 committed abetment of murder and I confirm the finding and death sentence passed on them.

The sentences of the two found guilty of abetment were commuted to life imprisonment by the Chief Justice