(MAJOR COURT CONFIRMATION)

SUDAN GOVERNMENT v. SULEIMAN MAHMOUD HASSAB EL RASOUL

AC-CP-739-1969

Principles

  Criminal Procedure—Powers of Confirming Authority—Code of Criminal Procedure, s. 256-Difference between revision of the finding and retrial or fresh trial

  Criminal Law—Grave and sudden provocation—Penal Code, S. 249 (1)—Slap on the face coupled with abusive words from a woman to a man amounts to a provocative act

(i) In case of sending the proceedings for revision of the finding, the court is not allowed to hear additional evidence unless expressly authorized; but should bring the accused before it and after putting his arguments, then make up its mind on the finding and reasons thereof. This is to be made on the same record of the trial.
In case of sending the proceedings for retrial when the Confirming Authority has refused to confirm the finding, the court can hear fresh evidence, make a new finding, new reasons and new sentences in a separate record.

(ii)A slap on the face coupled with abusive words from a woman to a man constitutes a provocative act under Penal Code, s. 249 (1)

Judgment

Osman El Tayeb C.J. November 24, 1969:—Accused was tried by Major Court at El Nuhud, on June 8, 1967, on a charge of causing the death of Amna Ahmed Babiker, under the Sudan Penal Code, s. 251. He was found not guilty under this section, but guilty under the Sudan Penal Code, s. 253, and sentenced to imprisonment for life.

Exercising its powers of confirmation the former Supreme Court decided that the finding was wrong, that the conviction should be under the Sudan Penal Code, s. 251, and ordered a return of the proceedings for revision of the finding. A new Major Court was convened and a fresh trial was held on September 17, 1969, and the accused was retried. He was found guilty under the Sudan Penal Code, S. 251 and sentenced to death. The latter proceedings are coming now for confirmation.

To start with, I have to observe the considerable delay that occurred between the return of the proceedings and the holding of the second trial. The proceedings were returned in March 1968, and the second trial was held on September 17, 1969, about a year and a half later. There must be some explanation by the Resident Magistrate to explain the reasons for all this delay.

The second more important point to be observed is that of holding a new trial or in other words of holding a retrial of the accused, in which all the evidence was reheard, the accused was examined or re-examined again; new reasons for findings were discussed and recorded and finally a new sentence was imposed in a totally separate record. This is obviously wrong. The procedure relating to this point is clearly laid down in the provisions of the Code of Criminal Procedure, s. ç and it only deserves that the attention of both the Resident Magistrate and the Province Judge be drawn to it. In the case of sending back the proceedings for revision of the finding the duty of the court is to sit, bring the accused before it, explain to him the opinion of the Confirming Authority, invite him to put forward any argument relating to that opinion, and then make up its mind on the finding and the reasons thereof, and bring the accused and explain to him the revised finding. This is to be made on the same record of the trial filing at the end of it the Note on Confirmation containing the order of the Confirming Authority, placing after it the record of anything that might have been said by accused, then the rest of trial form starting with the page for the finding up to the sentence. Of course the revised reasons for finding must be limited and restricted to that part of them on which the return of the proceedings for revision was based, and which was virtually reversed by the Confirming Authority. It is important to emphasize that the court following the above procedure is not allowed to hear additional evidence unless expressly authorized by the Confirming Authority. The Code puts it stronger by saying ."

it shall not be lawful for any court on revision to receive any additional evidence unless expressly authorized See the Sudan Penal Cede, 5. 256 (e).

In this case, the court that retried it was newly constituted by a new convening order; the president and members being different magistrates from those who first tried it. This might have influenced or misled the court to hold a retrial. The rule is that the same court that tried the case should undertake the revision of the finding, or sentence, and when that same court could not be reconstituted owing to death, or transfer or other cause, the convening authority should nominate another magistrate or magistrates to fill the vacancy or vacancies: see the Cede of Criminal Procedure, s. 262. This rule equally applies, when the three magistrates who constituted the original court were unavailable—a new court, with new president and members has to be constituted especially for the revision of the finding or sentence under the latter section but not under the Cede of Criminal Procedure, s. I 2 (A).

Retrial or fresh trial can only be conducted when the Confirming Authority has refused to confirm the finding, and directs that there should be retrial or fresh trial by the same court or by another court, on the

same charge or a new charge. Subject to that direction the court can hear fresh evidence or the evidence previously heard, and make a new finding, new reasons, and a new sentence.

The order of sending back the proceedings for revision or reconsideration of the finding or sentence is a matter of frequent occurrence, but that of refusal to confirm a finding coupled with an order for retrial is a matter of rare occurrence. Province Judges and Resident Magistrates have to be careful not to be confused about the two cases.

Now we return to the merits of the case. Fortunately the salient facts, as supported by the evidence in the two trials, are substantially the same. They are as follows: Accused was in charge of the cultivation of the village’s Sheikh, which was in the neighborhood of the cultivation of deceased. Accused found some water-melons were severed and removed from that cultivation, he suspected that they were stolen by deceased. Accused divulged his suspicion to deceased’s aunt, and the latter brought it to the knowledge of deceased.

On the next day accused and deceased met, deceased inquired about what accused said to her aunt, and when he confirmed what he said, deceased insulted him by saying that he was “firga” and “hawan.” These words mean “a man of bad reputation” and “a man of no merits,” respectively. Then she slapped him on his cheek with her hand, and further she pushed him against a sarif, until the sarif fell down, and accused fell down on it. He stood up, drew his knife that was on his arm, and stabbed deceased on the right side of her chest above her bosom which penetrated through and injured the lung and the heart, and lastly caused her Instantaneous death.

There is no doubt about the knowledge of accused that death would be the probable consequence of that hard stab that he dealt on deceased.

The difference of opinion is about whether accused was the subject of grave and sudden provocation that caused to him loss of self-control, so that he may have the benefit of the Sudan Penal Code, S. 249 (1). The first Major Court found on this point in favour of accused. The opinion of the Confirming Authority differed, they thought that the insults were not grave and that the slap on the face was a slight thing and that both of them did not amount to grave provocation. The second Major Court followed this opinion. Had the court followed the correct procedure as explained above, for the revision of the finding, I, as a Confirming Authority, would have been restrained from holding or expressing an opinion other than that before expressed. A fresh trial altogether has actually been held and so I can express my own opinion on it.

I think that the abusive words uttered by deceased coupled with the slap on the face, and moreover pushing accused until he fell down on the sarif all taken together, are too much, and especially when emanating

from a woman. In the society of accused the woman is looked upon as a person of lower grade than that of a man, and any insult by words or other acts to a man is considered as condemnation to that man. The slap on the face is universally taken as a serious provocative act, and it was not alone; it was preceded by abusive words, and succeeded by a push onto a sarif. And all that was done by a weak woman. Accused was subjected to great humiliation and contempt. In these circumstances, I am of opinion that there was grave and sudden provocation in this case, entitling the accused to the benefit of that subsection, and so his conviction has to be reduced from murder to culpable homicide not amounting to murder.

In such cases the reasonable sentence is between 14 and 10 years’ imprisonment, it may be aggravated in this case because the victim was a woman. Twelve years may be fair.

I alter the finding to be under the Sudan Penal Code, s. 253 and sentence the accused to imprisonment for twelve years as from the date of his arrest.