Case No.:

AC-CP-8o-1959

Court:

Major Court Confirmation

Issue No.:

1961

Principles

·  Criminal Law—Penal Code, s. 251—Death penalty—Convict became insane after judgment

Accused was convicted of murder and sentenced to death. He became insane and was so certified after judgment, sentence and confirmation by the Chief Justice. The Governor asked advice of the Acting Chief Justice on the matter of execution.

Judgment

(MAJOR COURT CONFIRMATION)

SUDAN GCVERNMENT v. GALTAN BASHIR GONG

AC-CP-8o-1959

On receipt of the order of the Chief Justice and the President of the Supreme Council of the Armed Forces, and before advice was received from the Acting Chief Justice on the question of accused’s insanity and execution, accused was executed. The Acting Chief Justice subsequently wrote this note: when a man becomes insane after judgment and before execution the Chief Justice will recommend to the President to exercise his powers of commutation under Penal Code, s. 277, in spite of no special provision in law to this effect.

M. I. El Nur, Acting C.J. May 16, 1959:—There is nothing in the Sudan laws which justifies the suspension of the execution of a sentence of death if the convict contracted insanity after judgment was pronounced against him and the warrant for the execution of that sentence was issued

Code of Criminal Procedure, s .. 265 provides for the case of a woman sentenced to death and found, after judgment was pronounced against her and confirmed by the Chief Justice, to be pregnant. In such case the cxecution of the sentence had to be postponed and the matter reported tr, the Chief Justice. Throughout the history of this country no woman

has been executed: therefore Code of Criminal Procedure s. 265, h never been applied.

Blackstone, Commentaries on the Laws of England, Fourth Book, states:

“Another cause of regular reprieve is, if the offender becomes no corn pos. between the judgment and the award of execution: for regularly as was formerly observed (see page 24), though a man be compos when he commits a capital crime, yet if he becomes non corn pos, after, he shah not be indicted; if after incident, he shall not be convicted; if after conviction, he shall not receive judgment; if after judgment, he shall not be ordered for execution: “turiosus solo furore punitur,” and the law knows not but he might have offered some reason, if in his sense to have stayed these respective proceedings. It is therefore an invariable rule, when any time intervenes between the attainder and the award of execution, to demand of the prisoner what he hath to allege, why execution should not be awarded against him: and, if he appears to be insane, the judge in his discretion may and ought to reprieve him. Or,. he may plead in bar of execution; which plea may be either pregnancy, the King’s pardon, an act of grace, or diversity of person, viz., that he is not the same that was attainted, and the like. In this last case a jury shall be impanelled to try this collateral issue namely the identity of his person and not whether guilty or innocent for that has been decide4 before. And in these collateral issues the trial shall be instanter and no time allowed the prisoner to make his defence or produce his witness ,unless he will make oath that he is not the person attainted: neither shall any peremptory challenges of the jury be allowed the prisoner; though formerly such challenges were held to be allowable, whenever a man’s life was in question.”

If such a circumstance as this arises, when accused ‘becomes insane after trial and before execution of the death sentence, the procedure in the Sudan would be for the Chief Justice, having already confirmed the death sentence, to recommend to the President to exercise his powers under, Code of Criminal Procedure, s. 277, for the commutation of the death sentence into any sentence allowed by law.