SUDAN GOVERNMENT v. MOHAMED KHEIR SAEED
(MAJOR COURT CONFIRMATION)
SUDAN GOVERNMENT v. MOHAMED KHEIR SAEED
AC-CP-636-1966
Principles
Criminal Procedure—Joint trial—May be stayed and accused tried separately—Code of Criminal Procedure, s. 238 not imperative
Evidence—Persons in the nature of accomplices—Witnesses who happen to be cognizant of a crime, who muke no attempt to prevent it or who do not disclose Its Commssion —Not accomplice
Criminal Law Screening harbouring or failing to inform the police--—Offences as allegedly screened, harboured or failed to he informed must he established first
(i) When several accused are being jointly tried together it is not imperative under Code of Criminal Procedure, S. 238, that the joint trial be stayed and accused he tried separately. The procedure of conducting separate trials is completely within the discretion of the court.
(ii) Witnesses who happen to be cognisant of a crime, who make no attempt to prevent it or do not disclose its commission to the police, although they are persons in the nature of accomplices, do not become accomplices in law.
(iii) Ofienders who are accused of screening, harbouring or fai]ing to inform the police; cannot be tried unless and until the crime, the subjcct.rnatter of their screening, harbouring or failing to inform has been established first.
Judgment
Advocate: Abdel Haljm El Tahir……………………………. for accused
Galal Ali Lutufi J. July 28, 1967 : —The facts of this case as set out by the trial court are supported by adequate evidence and they are briefly as follows:
In the early morning of July 2, 1965, a policeman found a dead body near to the Watania Cinema of Omdurman. It was later identified as of one Musa Bilal and medical evidence showed that his death was caused by a deep wound in his stomach. The killer was unknown and so several persons who were in the habit of being at the premises were arrested and interrogated. They all denied at first knowing anything about the incident with the exception of P.W. Hamid Shams El Mursaleen who disclosed all that had happened.
On the night of July 1, 1965, the accused, Mohamed Kheir Saeed, deceased Musa Bilal, P.W.3 Humieda Beshir Saeed, P.W.10. El Tayeb Awad El Karim and P.W.7 Mustafa Beshir were sitting near the bar of one Sidaris drinking and chatting with each other. The bar is also near the premises where deceased used to work as a cobbler.
They sat up to a late hour. The first to leave were El Tayeb Awad El Karim and his friend Mustafa Beshjr. The accused, the deceased, and Humjeda Beshir Saeed continued to drink, doing and saying funny things which drew the attention of P.W.4 El Tayeb El Sharif the pastry seller, who was sitting near by and his friend and colleague in the same trade P.W.6. Hamid Shams El Mursaleen. P.W.3 Humieda Beshir Saeed then left the place after he failed to persuade the accused to accompany him home. Accused and deceased were left alone talking to each other, but their talk was not a friendly one. Each one demanded from the other to leave the premises and go away. They were both drunk. Both parties then came in contact with each other. The accused took a flick-knife out of his pocket and stabbed the deceased in the stomach. He (deceased) staggered
For a few steps. Struck a Nim tree and then fell on the ground near to the two pastry sellers, who became so frightened that they immediately put off their lights and left the plare together with a third friend of theirs by the name Kamal El Wasilla (P.W.6.). They did render any help to the deceased who was still alive when they left and they did not inform the police until they were arrested and the whole matter was disclosed by Hamid Shams El Mursaleen. Accused did not turn up on the next day and after a great deal of inquiries and search he was found on July 5, 1965, hiding in his uncle’s house at El Ushara, He denied everything.
In spite of the fact that the accused denied knowing the deceased, and denied stabbing him, I am of the opinion that the trial court had arrived at the correct findings, and that the evidence adduced before it was quite sufficient to enable it to reach such a conclusion.
The learned Advocate for the defence (Abdel Halim El Tahir) has raised several points of interest which—he contends—are sufficient to nullify the whole proceedings. I regret that I do not agree with what he has submitted.
In the first place he submits that the evidence of P.W.4. El Tayeb El Sharif and P.W. 5 Hamid Shams El Mursaleen is inadmissible because they are accomplices and they are therefore incompetent to testify against the accused with whom they are to be jointly tried
In my view these two witnesses are not accomplices in the strict sense of the word. It is true that they will be tried for failing to inform the police of the serious offence committed, for omission to assist an injured person and for screening but this does not make them participants in the commission of the offence for which the accused is being tried. In actual fact they are accused in the nature of accomplices. Sarkar, Evidence (toth ed. 1958) p. 1116 states:
“There is nothing in law to justify the proposition that evidence of a witness who happened to be cognisant of a crime or who made no attempt to prevent it, or who did not disclose its commission would only be relied on to the same extent as that of an accomplice. It may not be possible to place much reliance on the evidence of such persons, but they are not accomplices and it leads to confusion of thought to treat them as ‘practically accomplices’ and then apply the rule as to their credibility, instead of judging their credibility by a careful consideration of all the particular facts of the case affecting the evidence.”
It is not upon the testimony of these two witnesses alone that the court convicted the accused, but there is other corroborating evidence which enabled it to arrive at such conclusion; such as his confession to his relative Humaida Beshir Saeed that he stabbed somebody; his presence at the scene of the offence; his disappearance after the incident; and his insult to Humaida when seeing him coming with the policeman detailed to arrest him. So even if they are considered to be accomplices their statements are corroborated by independent evidence.
The learned advocate for the defence further argues that it is contrary to the Code of Criminal Procedure, s. 238, to hear the evidence of the accomplices before they are being tried. I am afraid I do not agree with this argument because it is based on the wrong interpretation of the law and contrary to precedents in this country.
It is clear from the Note to the Code of Criminal Procedure, s. 238, that in case of stay of a joint trial for the purpose of using the evidence of one of the co-accused against another, the court should if possible acquit or convict the accomplice whose evidence is desired before his statement is taken.
I need not repeat that the two witnesses mentioned above are not practically accomplices. But even if they are accomplices the above quoted section (Code of Criminal Procedure, s. 238) does not make it imperative that the court must convict or acquit before hearing their evidence. It provides that this should be done in cases where it is only possible to do so. In this case I entirely agree with the committing Magistrate and the Trial Court that it is not possible to do so because nobody can be tried for screening or harbouring or for failure to inform the police, when he is under a legal obligation to do so, before the offence itself is proved to have been committed. The Honourable the Chief Justice M. A. Abu Rannat in the famous case of the Iron Trunk, Sudan Government V. Siddig Abdalla Sid Ahmed (1963) S.L.J.R. 106, made it clear that in order to prosecute the persons accused of screening the crime screened must be proved first to have been committed.
It is obviously clear therefore that the court was not wrong in hearing the two witnesses before being tried.
It is further submitted by the advocate for the defence that the doctor who made the report on the deceased was not called as a witness in spite of the fact that the Criminal Court Circular No. 25, provides that the court should do so. I am afraid I also do not agree with this contention. When the doctor’s report is so clear; and when there is no doubt or dispute as to the cause of death there is no reason to call for medical evidence. The doctor should not be called in every case, but only when he is required to explain or clarify certain ambiguous or technical points in his report. In this case before us, which is a simple one, the accused thrust his flick-knife deep into the deceased’s stomach and the doctor’s report is very clear that the death was the result of the injury which caused profuse internal haemorrhage.
The place where the accused inflicted the injury is a vital one, the injury itself is also a fatal one and it cannot be argued that he did not Intend the deceased’s death or does not know that death is the probable consequence of such an act. Mayne Criminal Law of India states:
“For an accused to say that he intended to do a particular act but did not intend that the ordinary consequences should follow from it is merely to say that he expected that the laws of nature would be suspended in the particular instance for his convenience.”
In the particular case where a lethal weapon is used and a vital part of the body is being forcibly penetrated, the accused cannot say that he did not intend to cause death or did not know that death would be the probable consequence of his act.
It is also alleged by the defence that the court did not give the accused the benefit of the exceptions of the Sudan Penal Code, s. 249, although there was a quarrel and a sudden fight. As I see it, the court did not discuss that in the trial, because the accused flatly denied everything. Moreover, there is no evidence to support this allegation and even if we accept that there was a sudden fight the accused will not be entitled to the benefit of this exception, because he has taken undue advantage of the deceased. It is proved that he was armed with a knife and he was threatening to use it all the time before the actual incident.
In the circumstances, therefore, I am of opinion that both finding and sentence be confirmed. But owing to the fact that the court has recommended the accused to mercy I shall, if you agree, recommend the commutation of the death sentence to life imprisonment as per attached note.
Abdel Magid Imam j. September 6, 1968: —The finding of guilty under Sudan Penal Code, s. 251, reached by the trial court against accused Mohamed Kheir Saeed for murdering deceased, Musa Bilal, by stabbing him with a flick-knife, was supported by sufficient legal evidence.
The advocate for the accused in his petition of Appeal attempted to attack the prosecution evidence on one ground or another but all these cannot be sustained. These grounds may be summarised as follows:
(a) That because El Tayeb El Sharif, P.W.4 and Hamid Shams El Mursaleen, P.W.5 were accomplices, the trial court was wrong in admitting their evidence against the accused because of the operation of the Code of Criminal Procedure, s. 238, which it is alleged, makes it imperative upon a court to try accomplices first, with a view to their acquittal or conviction, before hearing their evidence against another accomplice.
(b) Being accomplices the evidence of these witnesses ought to have been rejected because of lack of corroboration.
(c) That the report of the medical witness ought not to have been accepted by the court because he was not called as a witness proper by the court to give his statement on oath.
(d) That the court failed to give the accused the benefit of Sudan Penal Code, S. 249 (4) which reduces the offence from one of homicide amounting to murder to one of homicide not amounting to murder.
As for (a) I agree with my learned colleague in his note above that the Code of Criminal Procedure, S. 238 does not apply to this case under consideration and even if it did apply, it is not imperative. The section reads:
“The court at any stage of a trial where there are several accused may by order in writing stating the reasons therefoir stay the proceedings of the joint trial and continue the proceedings against each or any of the accused separately.”
Note—” This section embles a court to stay proceedings in a joint trial where it appears that the evidence of one of the accused is required for the prosecution r defence of another accused. . . . In such case the accused whose esidence is desired should if possible he acquitted or convicted before his evidence is taken.”
It is clear from the above that the section speaks of a trial where several accused are being jointly tried together. This is not the case here. It cannot also be said, as will instantly be shown, that the accused and the witnesses in question ought to have been joined in one trial. Even if this allegation is correct, yet it is clear from the explanatory note appended to the section, that it makes the decision for conducting separate trials completely within the discretion of the court.
The facts in the opinion of the advocate, which make these witnesses accomplices in law, are that they failed to report the offence, that they failed to help the injured man a that they have screened the offender. It is submitted that these facts alone do not render the witnesses accomplices in law and who ought, as such, to have been joined and tried in one trial as co-accused. In fact they could not be tried unless and until the crime, the subject-matter of their failure in their duty of their screening it, has been established. This view is supported by the decision in the Iron Trunk case. These witnesses, therefore, are not accomplices in the strict sense and their statements need no corroboration. But it is the duty of the court to meticulously scrutinise their evidence with a view to testing its reliability.
As for (c) above the court was not bound to call the medical witness to the witness box as long as his report was clear and full. Criminal Court Circular No. 25, Part II, para. (2) (c) makes it only advisable for the court to do so. Of course if the report was defective or ambiguous concerning the cause of death it would be of paramount importance for the court to call the medical Witness to cure the defect or clear the ambiguity.
As for (d) above. I think that though the accused did not specifically plead the Sudan Penal Code, s. 249 (4), having flatly denied all, it is clear from the record that there was not sufficient evidence to make the court take up the defence on his behalf. Criminal Court Circular No. (3) reads:
“It is sufficient in order to be acquitted of murder, for the accused, or for the evidence itself without the aid of the accused, to raise such a possibility of the existence of circumstances entitling him to the benefit of a subsection that the court feels it cannot safely disregard it—of course if the possibility is so far fetched, is so unlikely that the court cannot “swallow it” and considers that it is safe to disregard it then the accused is not entitled to benefit…”
For the above I agree that the finding and the sentence be confirmed I also agree that the sentence be commuted
AbdeI Mageed Hassan J. September 7, 1967: - Ifully agree with the notes of the learned Judges of the High Court in respect of confirmation of the finding of guilty of accused under the Sudan Penal Code, 5. 251, and I shall not reiterate the reasons fully discussed in both notes.
As to the commutation of the death sentence, I am of opinion that there are no grounds for such commutation and therefore for the recommendation of mercy to use the Prerogative Power. Criminal Court Circular No. 26 deals with such cases and it clearly states in para. 3 that:
“The normal sentence to be passed on persons convicted of murder is the death sentence and it is only where good and sufficient reasons exist that the alternative sentence should be passed. It is not possible to define all the circumstances in which it is proper to pass the alternative sentences, but, since the discretion is a judicial and not an absolute one the individual conscience of members of the court must be taken into account in arriving at the proper sentence.”
At section 7 the same circular states:
“In making a recommendation to mercy the court should state its reasons fully and where relevant should include a note on the state of civilisation and the customs of the accused and other relevant matters such as the state of public security in the area.”
The reason given by the Major Court for recommendation of mercy was as follows: “Accused had administered only one stab and so there were no circumstances of peculiar atrocity
I am of opinion that this is no good reason for recommendation for mercy as required by the Criminal Court Circular. Moreover, it is not clear that the court used its discretion neither judicially nor in accordance
to establish precedents in this country. Being drunk ws never of any avail to an accused person except it amounted to insanit and even then when the drunkenness was involuntary.
In the circumstances I am of opinion that the death entence should be carried out.