Case No.:

AC-CR-REV-1 75-1958

Court:

Court of Criminal Appeal

Issue No.:

1961

Principles

·  Criminal Procedure—-Code of Criminal Procedure, s. 162 (1)—” Sufficient grounds” means conviction possible not probable

The inquiring magistrate must commit under Code of Criminal Procedure s. 562 (1), unless in his opinion conviction on the evidence before him s impossible. “Sufficient grounds” means a prima facie case indicating that conviction is possible, not necessarily probable.

Judgment

(CRIMINAL REVISION)

SUDAN GOVERNMENT v. ABDEL HAMID ABU EL GASIM

AC-CR-REV-1 75-1958

M. A. Abu Rnnnat C.J. November 19, 1958 :-  l have read the note made by the learned judge of the High Court, dated September 30, 1958.

The committing magistrate committed accused, Abdel Hamid Abu El Gasim, for trial on the ground that a prima facie case was made against him, but the learned judge of the High Court reversed the order of committal and ordered that the accused be discharged.

It is a fundamental principle of the law of criminal procedure that if a prima facie case is made against a person. the inquiring magistrate must commit him for trial by a higher court.

The law on the point is contained in Code of Criminal Procedure, s. 162 (1). The section reads:

“If, after such evidence and examination (if any) have been taken and ‘made, the magistrate being a magistrate of the first or second class is satisfied that there are sufficient grounds for committing the accused for trial, he shall frame a charge under his hand declaring with what offence the accused ‘is charged.”

The words “sufficient grounds” do not mean sufficient grounds for conviction, but for committing The magistrate should consider whether conviction is possible and not whether it is probable, and in a case of conflicting and doubtful evidence, he ought to commit it for trial, however unevenly the evidence is balanced; but if the magistrate finds the evidence against the. accused totally untrustworthy, and a conviction is impossible then he is bound to discharge the accused. See Sastry..and Kharbanda Code of Criminal Procedure 220 (3rd ed., 1956). In this case there was a prima facie case ‘against Abdel Hamid Abu El Gasim and he should be committed for trial by major court. We leave it to the major court to weigh the evidence and make its own finding.

I direct that the order of commitment of Abdel Hamid Abu El Gasim be restored -

I hope that this case be given top priority and the two accused be tried as soon as possible.

(MAJOR COURT CONFIRMATION)

SUDAN GOVERNMENT v. MUKHTAR HUSSEIN IDRIS

(AC-CP-382.1958)

Criminal Law—Penal Code, s. 251 of murder committed in drunken frenzy

Accused murdered his friend in a drunken brawl. The Chief Justice confirmed the finding and commuted the sentence to life imprisonment.

Advocate: Mohamed Youssef Mohamed ……….. for the accused

M. I. El Nur 1. December 21, 1958 facts of this case as set out in the Summary of Salient Facts are supported by sufficient evidence.

On the evidence before it the court found that accused did cause the death of deceased by hitting him on the head by an iron bar, weighing 3 ½  rottles, which was 21 inches long, thereby fracturing his skull, and causing haemorrhage in the brain. The court, came to the conclusion from the nature of the instrument used and the position of the hit that accused must have either intended to cause deceased’s death or at least knew that death would be the probable consequence of his act.

It was pleaded on behalf of accused that the hit by accused on deceased’s head was inflicted by the torch and not by the iron bar and therefore the said hit though fracturing the head was, judging by the lightness of the torch, neither inflicted with the intention to cause death or knowledge that death would probably thereby be caused.

I cannot agree to this contention by and on behalf of accused for the following reasons:

(a) Deceased said to the police a moment after the hit: “Accused hit me with this iron bar on the -head and fell me to the ground” (Case Diary, page 11).

(b) Accused said both to police and magistrate taking down ,his confession that he hit deceased with the torch on his face. He did not say by what instrument he hit deceased on the head (see Case Diary, pages 2 and 4).

(c) The allegation by ‘accused that he hit deceased with the torch on the head was not made by him until after nearly two months from the incident when he was examined by the committing magistrate (see page 40 of the trial ).

It was most unfortunate that the medical report by the medical officer who made the post-mortem was most incomplete; in the interest of justice the said medical officer ought to have been called as a witness and examined on the subject. Criminal Court Circular No. 25, Part 2.

The medical report (page to) shows that the hit on deceased’s head was caused by a solid instrument such as an ukkaz or pipe.” The other evidence shows that the hit was by a solid iron bar. There is nothing in evidence to show whether the hit broke the skin above the bone which was fractured, and if not whether it was possible for a hit by a solid iron bar on a bare head, assuming deceased was not wearing an umma at the time of the hit, to break the bone without breaking or at least bleeding the skin over it. The injury left by the hit on deceased’s head was described nowhere throughout the whole proceedings.

However, the hit which fractured deceased’s skull was there anyway, and was no doubt caused by accused, and having excluded the possibility of its having been caused by the very light and tin made torch, the only alternative is that accused had hit deceased on the head by either the iron bar or by deceased’s own ukkaz which accused admitted to have used against him.

Even if accused were to be given the benefit of the doubt in this circumstance, and that ,he -is to be taken as having caused deceased’s death by hitting him on the left side of his head, thereby fracturing ti’e bone and c’ausing haemorrhage, still it cannot be said, judging by the nature of the instrument used (the ukkaz), the position of the hit, and the severity whereby it was inflicted (it broke the bone) that accused did not know at the time he inflicted that hit that death would not be a probable consequence of his act.

I therefore agree with the finding by the court that accused committed murder and that his act is not covered by any of the exceptions to Penal Code, s. 249.

On the sentence

The court having found accused guilty of murder had no alternative but td sentence him to death.

The court refrained from recommending accused to mercy and the Governor went further to recommend the death sentence should be executed.

With respect to both the court and the Governor. I do not think this is a hanging case for the following reasons:

(a) It was a mere drunken brawl between two friends neither of whom had any bad feeling or grudge against the other.

(b) It was deceased who was the more aggressive and who stirred

up the trouble after an innocent comment by accused that his stomach trouble was due to drinking.

(c) It was deceased who defied accused and taxed his courage by challenging him to follow him in the road to Gallabia village.

(d) There is nothing on evidence from which it can be infered that accused intended to cause deceased’s death.

For these reasons I respectfully suggest that the death sentence passed on accused be commuted into an imprisonment for life.

M. A. Abu Rannat C.J. December 21, 1958:—I agree that murder is proved beyond reasonable doubt.

The difficult question is whether the death sentence should be commuted or not. In their report on capital punishment the Royal Commission in England made the following observation:

“We found, as indeed was expected, that the grounds on which reprieves are granted do not admit of exhaustive categorisation. All the circumstances of each case are carefully weighed, and as we have seen the circumstances in which murder is committed vary infinitely. The decision depends on a full review of a complex combination of circum stances and often on the careful balancing of conflicting consideration.”

The report also refers to the established practice of recommending commutation of death sentence in certain types of murders including the following cases: unpremeditated murders committed in some sudden excess of frenzy, where the murderer has previously had no evil animus towards his victim; murders committed without intent to kill, especially when they take place in the course of a quarrel; murders committed in a state of drunkenness short of legal defence especially if the murderer ‘is a man of hitherto good character.

If I apply these tests to the particular facts of this case, I feel that there is room for commutation of death sentence. Both accused and deceased were drunk; they were friends and the killing took place in the course of a quarrel. Accused had no previous convictions and is deemed to be of good character.

Taking a these facts into consideration, I confirm the finding of murder, but commute the death sentence to imprisonment for life.