(MAJOR COURT CONFIRMATION)

SUDAN GOVERNMENT v. MOUTASIM ABDEL RAHMAN ADAM AND ANOTHER

AC-CP-635-1967

Principles

Evidence—Confession—Whether it is voluntary or not is a question of law—Onus on prosecution to prove confession is voluntary

Evidence—Confession——proof to reject a confession is discretionary—No definite proof or proof beyond reasonable doubt is needed

(i) Whether the confession is voluntarily made or not and is admissible or inadmissible, is a question of law. It is for the prosecution to prove that the confession is voluntary and not for the defence.

(ii) The power to reject the confession as involuntary, is discretionary to the court. No definite proof or proof beyond reasonable doubt is needed to prove that the confession is involuntary. Mere suspicion is enough to prove that the confession is involuntary.

Judgment

Abdel Magid Imam J. July 1, 1968 :—The two accused in this case were clerks in Dayrat El Mahdi. They were charged with forging certain cheques, the property of Ahmed El Mahdi and Yahia El Mahdi, and converting to their own use the amounts shown in the cheques in question. Accused No. 1 Moutasim Abdel Rahman Adam was accordingly charged under Sudan Penal Code, SS. 408, 84/408 and 350, and accused No. 2 Abdalla Abdel Magid Hag Dirar was charged under Sudan Penal Code,s 408

The court found these accused not guilty of the offences of which they were charged and ordered their acquittal.

There was only one point upon which the case pivoted; to wit; whether the confession taken by the magistrate under the Code of Criminal Procedure, s. 119 and other extra-judicial confessions were involuntary and therefore inadmissible in evidence against the accused.

I think the law in respect of the admissibility of confessions in evidence against accused persons is sufficiently clear. The Code of Criminal Procedure, 5. 119 (3) provides that no magistrate shall record any such confession unless after questioning the person making it he is satisfied it is made voluntarily. The Code of Criminal Procedure, s. 235, provides that no influence, except as provided in sections 232 and 233 (dealing with pardons) by means of any promise or threat or otherwise shall be used to an accused person to influence him to disclose or withhold any matter within his knowledge. Sarkar lays it down that the question whether a confession is voluntary or not must be determined by the judge, i.e., it is a question of law. To make a confession relevant it must be shown:

1. that it was made and that by an accused person and

2. that it is voluntary.

In order to make it a foundation for conviction it must be further

shown:

  3.  that it is true.

See Sarkar, Evidence (11th ed. 1965) p. 219.

The principle underlying this rejection of a confession sometimes is that under certain conditions it becomes untrust worthy as testimony.

The power to reject a confession is discretionary. But the court must satisfy itself from all the circumstances of the case that the confession was not voluntary. No definite proof, or proof beyond reasonable doubt, is needed. Reasonable suspicion is enough.

“To reject a confession it is not necessary that there should be positive proof to establish that the confession had been obtained by use of threat, persuasion etc. Anything from the barest suspicion to positive evidence would be sufficient for a confession to be rejected.”

Sarkar, Evidence (11th ed. 1965) p. 232. The burden that a confession was voluntary and free is rather on the prosecution and not on the defence.

The questions that present themselves to the court to arrive at a safe conclusion that the confession was voluntary are:

a. Was the inducement likely to produce an untrue or involuntary confession? and

b. Did the inducement in fact operate upon the mind of the accused?and

c. Did the inducement proceed from a “person in authority"?

“Person in authority” was defined to mean: Someone engaged in the arrest, detention, examination, or prosecution of the accused, or by someone acting in the presence, and without the dissent, of such a person. See same authority; Sarkar, Evidence (11th ed. 1965) p. 242. The test laid down is, has such person authority to interfere with the matter? And had he any concern or interest in it? If so this would appear to be held sufficient to give him that authority. Accordingly a manager of a company and its superior officer were held to be persons in authority.

In this case both complainants were prima facie or ipso facto managers of Dayrat El Mahdi and their power to interfere in the matter is evident.

P.W.2. Ahmed El Mahdi said, “I advised them (both accused) that if a thief confesses his guilt this may reduce his punishment,” see page 27 of the record. P.W.3. at the time was Minister for the Interior. The formal confession was taken in that Ministry’s premises. These circumstances are sufficient in my opinion for the rejection of the confessions, on the ground that, when they were given, there was reasonable suspicion, at least, that they were not voluntary.

For the above, I think there is nothing to call for our intervention.

If my learned colleagues agree then the order will be:

We see no reason to intervene.

M. E. Mobarak J. July 31, 1968 :—In this case the Information was lodged with the police by Ahmed Abdel Rahman El Mahdi, then Minister of Interior. When the police went to interrogate him he referred them to Hafiz El Baroudi, the manager of the Arab Bank stating that this Hafiz knew all the details. The two accused were interrogated by the investigator P.W.1. supt. of police Abdalla Hassan Sabir. The statement by Ai Moutasim is to be found at pages 4—9 of the Case Diary and that of A2 Abdalla at pages 912  -  of the Case Diary. These two statements were taken in detail and were proved in court by the investigator (Criminal Court Circular No. 7). Later on the same day (September 7, 1965), Al Moutasim made two confessions the first of which was recorded at page 13 of the Case Diary and the second at page 15. A2 Abclalla made a confession to the magistrate which is to be found at page 14 of the Case Diary. All these confessions were recorded by Magistrate Dafalla El Radi. The statement by the informant (Ahmed Abdel Rahman El Mahdi) was taken by the police later after that on October 31, 1965, at page 28 of the Case Diary. Later the statements by the two accused to the police and their confessions to the magistrate were recorded. The offences alleged to have been committed by the two accused have nothing whatsoever to do with the informant as Minister of Interior. They are concerned with his private enterprise. There is not the least evidence (or even suggestion) that either P.W.1. the supt. of police Abdalla Hassan Sabir who interrogated the two accused or else the magistrate Dafalla El Radi who recorded their confession exerted any pressure or threat on either of the two accused or else made any promises to them.

The court heard only three witnesses for the prosecution in this case. These were:

1. P.W.1. supt. of police Abdalla Hassan Sabir; the investigator;

2  .P.W.2. Ahmed Abdel Rahman El Mahdi; the informant; and

3  .P.W.3. Yahia Abdel Rahman El Mahid.

A very important witness for the prosecution was not heard by the trial court. This is Hafiz El Baroudi, the manager of the bank who was the first person interrogated by the police at pages 1—4 of the Case Diary. His statement to the police shows that the two accused confessed their acts before him and he himself made a record of these confessions in four documents (Nos. I, 2, 3 and 4) which he later on delivered to the investigator. He stated that one Hilmi Abbas Ahmed Omer was present then. The statement also tends to corroborate the statement of Al Moutasim to the police (page 7 of the Case Diary, lines 12—25) in respect of his telephone call to Hafiz El Baroudi in which he alleged that he was P.W.3. Yahia Abdel Rahman El Mahdi. Had this witness Hafiz El Baroudi been called to testify before the trial court his evidence, if it is identical to the statement already made by him to the police, would no doubt, have much strengthened the prosecution case against the two accused.

One other defect in the trial is that the court ought to have called the magistrate who recorded the confessions of the two accused (Dafalla El Radi) to testify before it “as a witness as to the contents” of the confession “and to prove the circumstances in which it was recorded.” (Code of Criminal Procedure, s. 119 (5)). This is, in my view, a typical case for the application of the provisions of the last part, of subsection (5) of Code of Criminal Procedure, s. 119.

It is true that the investigator did not seek the help of a handwriting expert in order to establish or otherwise that the signatures and writing on the cheques involved were in the handwriting of Al Moutasim and A2 Abdalla. As the two accused had already confessed to him to P.W.2. Ahmed Abdel Rahman El Mahdi, to Hafiz El Baroudi (the manager of the bank) and their confessions were recorded by a magistrate in the Case Diary, I do not think that the investigator is to blame in this respect. For all apparent purposes his case was almost watertight. But the trial court, as the two accused retracted all their confessions (judicial and extra-judicial) ought to have acted otherwise than it did so as to arrive at the truth. The court, in my view should have adjourned the proceedings before considering the finding and referred the cheques and admitted writing by the two accused to a handwriting expert for his opinion and then called this witness as a witness before it.

There is no important piece of evidence against Al Moutasim who was never considered by the court in its judgment. He admits that he was keeping the cheque book of P.W.2. Ahmed Abdel Rahman El Mahdi. This, if established proves opportunity which is a very important factor in arriving at the truth in this case and which ought to have been given full consideration.

One last comment on the trial—the part of the record containing the finding, judgment and salient facts is now filed between pages 32 and 33 of the record and before the sheets containing the admission of the confessions of the two accused in evidence, their statements at the Inquiry and their statements in court.

For all the reasons stated above, I think that we should refuse confirmation of the finding of not guilty in respect of both accused, direct that the Case Diary and the cheques exhibited be returned to the investigator so

                                                          that he may seek the help of a handwriting expert and then the case be  retried by a newly constituted Major Court which is to be directed to hear the testimony of both the bank manager, Hafiz El Baroudi, Hilmi Abbas Ahmed Omer and the Province Judge, Dafalla El Radi as the lines stated in this Note.

The fact that P.W.2. Ahmed Abdel Rahman El Mahdi stated in court (page 27) that he does not claim recovery of the money embezzled has no bearing whatsoever on the duty of the court to take all possible efforts to arrive at the correct conclusion in the case.

Galal Ali Lutif 1. August 19, 1968:—I agree with the conclusion arrived at by my learned colleague Imam J. that there is nothing to call for our intervention.

ORDER: Abdel Magid Imam J. September 23, 1968 :—We see no reason to intervene.