(MAJOR COURT CONFIRMATION)

SUDAN GOVERNMENT v. EL SHEIKH AGAB EL DOR AND OTHERS

AC-CP-591-1969

Principles

  Criminal Law—Acts done by several persons in furtherance of the common intention—Penal Code, s. 7 intention exists only when there is the element of agreement between the offenders

  Criminal Law—Common intention—Penal Code, s. 78-Intention is the only ingredient to this offence and not knowledge

  Criminal Law—Private defence of property extends to the causing of death—Penal Code, s. 62—It continues up to the point of recovery of property stolen by thieves or robbers

According to Penal Code, s. 78, common intention cannot exist unless there is the element of agreement between the offenders; that they thought of crime and made their pre-arranged plan for it or for the mode through which to carry it out.

Intention is the only ingredient of the offence under Penal Code, S. 78; there fore, knowledge does not come within the ambit of the above section.

In the case where the right of private defence of property extends to the causing of the death, under Penal Code, s. 62, it continues up to the point of recovery of the property stolen by thieves or robbers and does not exist only for protection against the taking of such property.

Advocate: Abdel Rahim Hag Hamad or the accused

Judgment

Osman El Tayeb C.J. November 5, 1969:- These are two split trials in a tribal fight between members of El Zayadia tribe of Sodari District, of Kordofan Province, with others of El Midob tribe of Kotum District of Darfour Province. The first trial is for El Zayadis (Group A) who are three accused, namely: (1) Au El Sheikh Agab El Dor, (2) Ismail Hamid Mukhair and (3) Saleh Hamid Khalifa.

They were charged jointly with causing the death of four persons from El Midobis, hereunder named, and therefore committed an offence punish able under the Sudan Penal Code, S. 251, read with the Sudan Penal Code, s. 78. The deceased were: (1) Ibrahim Haroun, (2) Ismail Baraka, (3) Mohamed Adam and (4) Saleh Adam.

In the second trial were El Midobis (Group B) who are: (1) Abdel Rahim Abdalla Gamie, (2) Idris Gidoh, (3) Yousif Abdel Mula, (4) Abakar Adam Abakar and (5) Abdel Karim Hassab Alla.

They were charged with jointly causing the death of four persons from El Zayadis (hereunder named) and thereby committed an offence punish able under the Sudan Penal Code s.251, read with the Sudan Penal Code, 5. 78. The deceased were: (1) Ahmed Khoweigil, (2) Mohamed Balila(3)Matar El Kajawi, (4) Adam Sabil.

The Major Court found El Zayadis guilty as charged and sentenced the three of them to death, and found El Midobis not guilty as charged and released them.

From the evidence the salient facts that are proved or believed appear to be as follows:

El Zayadis had lost some camels, and they suspected that they were stolen by Midobis. They, seven persons, the three accused and the four deceased, rode after them in the country of El Midob. They found camels belonging to El Midobis with their attendants. El Zayadis were armed with firearms and swords. They fired two or three times in the air to put the attendants in fear of death or of injury. The attendants were frightened and they ran away leaving the herds of camels in the possession of the offenders. The camels were about thirty in number. El Zayadis stole the camels, and made their way towards their country. This was on September 23, 1966 in the evening.

The attendants went to the village and broke the news of the robbery of the camels by some unknown persons. The Midobis raised the hue and cry and about 17 or i5 persons rode on their camels and moved in pursuit of the robbers. This was in the early morning of September 24, 1966. In the afternoon of September 26, 1966, about ii or 9 persons of them—the rest were left behind because of the fatigue of their camels arrived at a Khor known as Thawani El Hawarab, where they found the Zayadis with the camels.

A hot fight ensued between the two parties in which firearms, swords and sticks were used, and the result was that four on each side were killed, and some others injured. All the deceased, on both sides, had firearm- wounds and also some of them had other wounds caused by swords or sticks. Two of the El Zayadis accused, namely, Ali El Sheikh Agab El Dor and Ismail Hamid, suffered from wounds caused by swords and sticks, and their third accused Saleh Hamid Khalifa suffered from a wound caused by a firearm. The condition of the three of them was serious, but they gradually recovered. Similarly two of El Midobis accused, namely, Abdel Rahim Abdalla Gamie and Idris Gidoh, suffered from wounds caused by swords.

According to the statement of El Zayadis they had three shot guns that were carried by their three deceased, and that they, the accused, were carrying swords. Each one of them denied that he hit any of their opponents. El Midobis stated that only one of their group had a shotgun, and he was the deceased Ismail Baraka, and the others were carrying either swords or sticks. None of them admitted that he hit this or that of their opponents.

Furthermore, according to the statements of El Midobis, El Zayadis started the shooting first, they said that one of them raised his turban to El Zayadis, as a sign of peace, and requested them to surrender the stolen camels, but the El Zayadis replied by shooting at them. According to the statements of El Zayadis, El Midobis started the shooting and they only retaliated in self-defence.

The Major Court believed the statements of El Zayadis to establish the facts that they had three firearms besides the swords, and that those fire arms were carried and used by their three deceased companions, and also believed the statements of El Midobis that they had one firearm besides the swords and sticks, and that it was carried and used by one of their deceased companions. The court further believed them as to the fact that El Zayadis started the shooting.

I think the court is entitled or justified to come to these findings of fact, in view of the evidence before it, but it seems that El Midobis had more than one firearm, because the firearm wounds caused to El Zayadis were numerous. As some of El Midobis returned to their homes after the fight it is likely that some of the firearms were taken away.

Returning to the salient facts, we find that El Midobis came up with El Zayadis, with the stolen camels in their custody; one of El Midobis waved his turban, as a peaceful request for the return of the camels, in reply one of El Zayadis fired a shot, then a hot fight developed between the two groups in which the firearms were heavily used, and further the two groups came in contact with each other and the swords and sticks were used. As usual It is too difficult to know, in such a case, the part taken by each one of each group, even the fact that the owners and users of the firearms were the deceased persons is not without some doubt.

In the case of El Zayadis the court decided firstly that, as to the deaths caused by them, they knew that death would be the probable consequence of their acts. This is clear because the deaths were caused by firearms. Secondly the court dealt with their joint responsibility. They were charged with committing the crimes jointly under the Sudan Penal Code, s. 78. The Court stated that they had the common intention of stealing the camels, and this was executed by them together. Further when they were reached by El Midobis, they stood ready to face their opponents, started the fight and caused those deaths and decided that the murder was caused with a common intention and that accused acted together in furtherance of that common intention.

Advocate Abdel Rahim Hag Hamad for El Zayadis placing his reliance on the fact, believed by the court, that the deaths were caused by the deceased Zayadis who were carrying the firearms attacked the decision of the court about the joint responsibility of the three accused for those deaths. He submits that if the accused had a common intention with respect to the stealing of the camels it was not true that they had that common intention with respect to the killing. He added that the common intention implies acting in concert, and the existence of a pre-arranged plan.

In my opinion the common intention cannot exist unless there is the element of agreement between the offenders, that they thought of the crime, had it in their minds at one time, and made their pre-arranged plan for it or for the mode through which to carry it out. This has to be proved by the conduct of the accused, and the circumstances in which the offence was committed. The fact that accused had a common intention to steal the camels does not prove the common intention to kill the owners of the camels who came up in pursuit. It is possible to believe that the accused’s intention was to take the camels to their home instead of their own lost camels that they suspected were stolen by the Midobis, and by this to compel the Midobis to return to them the other camels. However, knowing that the Midobis would come up after them, they were not intending to wait for them, they were running fast to reach their home safely. In these circumstances, it cannot be believed that the

accused made up their minds in concert at the same time, that if and when the Midobis come up, they would kill some of them. Again the fact that accused made a common assault on their opponents in the fight does not prove the common intention. Common assault is to be distinguished from common intention. The assailants may have different intentions. Two or more persons giving blows to another and causing his death cannot be held jointly responsible for the killing unless it is shown that, previous to their acts of giving the blows, they had agreed to or thought together of killing him. Again same or similar acts or blows, done or given by each one of the accused, do not mean the existence of a common intention; people may do similar acts resulting in a crime but with different intentions as to that crime.

It is important to emphasize that common intention to commit a crime is different from knowledge of each one of accused that the com mission of that crime would be a likely consequence of their acts. Intention and knowledge are two distinct elements of any offence. Intention is wide enough to include knowledge, and knowledge is only one of the circumstances to be taken as proof of the existence of intention. This is the root of the common principle of criminal law that every person intends the natural consequences of his act. Where the law makes intention alone an ingredient of the offence, the proof of knowledge would not, by itself, incriminate him. In the case of joint acts under the Sudan Penal Code, S. 78, where the existence and proof of a common intention is essential, the proof of knowledge that death would be the probable or a likely consequence of the common or same or similar acts of the accused, would not bring them within the ambit of that section.

The appropriate law to be applied in this case is that of abetment, and in particular section 88 in which reads:

"An act is abetted with the intention on the part of the abettor of causing a particular effect, and an act for which the abettor is liable in consequence of the abetment causes a different effect from that intended by the abettor, the abettor is liable for the effect caused in the same manner and to the same extent as if he had abetted the act with the intention of causing that effect, provided that he knew that the act abetted was likely to cause that effect."

The meaning of this section can best be understood by explaining the position of members of two groups in a fight when two groups are involved. There is no doubt that each one is abetting the members of his group by encouraging or aiding them to assault the members of the other group. So long as the dual assault continues, each group charging on the other and striking indiscriminately, every member would individually be charging and striking, and by this common action he would be abetting his companions. In the heat and confusion of the fight each one may have a different intention from the others, one may have the intention of merely overawing and repelling their opponents, one may have the intention of causing to them simple hurts, a third may have the intention of causing to them grievous hurts, and a fourth may have the intention to cause death. Some or all of them may have the same or similar intention to assault their opponents, but not a common intention as that discussed above. Each one with the intention he has abets others to do the act abetted, for which the abettor is liable, and the abettor would also be liable for the consequences of the act abetted, but which the abettor had not intended, provided he had the knowledge that those consequences were likely to happen. One of the group abetted his companions to strike their opponents with the intention of causing them hurt only, he is liable for the hurt, but if the hurt resulted in death, he is not liable for that death, unless he had known that it was likely to result. In this case the abettor would be guilty of culpable homicide not amounting to murder, but if he knew that death would be the probable consequence of the act abetted, he would be guilty of murder.

There are normally two situations in fights; the first is that where there is evidence to prove that a particular member has killed a certain member of the other group. He has to be charged with that killing and may be convicted of it, and the other members of his group have to be charged of abetment under the Sudan Penal Code, s. 88. The other situation is where there is no evidence against a particular member to prove his killing of a certain member of the other group, then all of them have to be charged of abetting each other in causing death under the same section.

In the present case it is believed that the deaths of the four Midobis were caused by the four deceased Zayadis, who were carrying the fire arms, and so the three accused ought to have been charged with abetment under the Sudan Penal Code, s. 88, and accordingly convicted. As the shooting with firearms was an act, to the knowledge of accused, where death would not only be its likely consequence but the probable con sequence of it. The accused have to be convicted of abetting murder.

The conviction of the three Zayadis is to be altered to read Sudan Penal Code, s. 88/251.

We come to the reasons for findings in respect of the five accused Midobis. The court found that A Abdel Karim Hassab Alla, was one of those left behind; he did not take part in the fight and was acquitted. The four others joined in the fight, but they were found to have been exercising their lawful right of private defence, without going beyond the limits and restrictions provided by law. I agree with the court.

Under the Sudan Penal Code, s. 62, the right of private defence of property extends to the causing of death. It does not exist only for the protection of the property by preventing the robbers or the thieves from taking it, but it continues up to the point of recovery of the property. This is the rule applicable to the hue and cry or the faza’a (as it is locally known). When robbers or thieves get possession of stolen animals, and run away with them, the owners collect their people with their arms and pursue them, with intention of recovery of their animals. In Sudan Government v. Abdalla Matar Mahmoud and Others, AC-CP-307-1948, Maclagan C.J. quoted the then legal Secretary as saying in another case:

"The legal position of a member of a faza’ is, I think, as follows:

They have a right of private defence in respect of the theft, and, although we have not included the Indian section 105 as to the beginning and continuation of the right of private defence, I think our law is the same. So if the owner of stolen property in hot pursuit of the thieves finds them with the property, hi right of defence of property is still alive, but of course it is not right to attack the thieves with dangerous weapons. Also the members of a faza’ have a right of arrest under the Code of Criminal Procedure, s. 27 (Fourthly), but this again does not extend to causing death. However, if the faza’ in lawfully exercising their rights, have a murderous attack made on them by the thieves, then they have a right of private defence of their persons to kill if necessary."

Maclagan C.J. added this:

"To this I would add that once the right of private defence exists, the person assaulted is not bound to modulate his defence step by step. He may pursue his adversary till he finds himself out of danger; and if, in a conflict between them he happens to kill, such killing is justified."

The above first statement of law applies when the offence committed with respect to the property was theft, and so restrictions and limitations on the right of private defence of the members of the faza’ were imposed— that they would not be justified in attacking the thieves with dangerous weapons in order to recover their animals; this would only be justified if they were attacked by the thieves, in order to defend their persons. This is expressed in the Sudan Penal Code, s. 62 (c). But when the property was taken by committing robbery it seems to me that the faza’ would be entitled to attack the robbers with dangerous weapons as may be under stood from the first part of the section. It is unnecessary to go further in this discussion, because in this case it is believed that the robbers started the firing at the faza’, and so they were entitled to repel it by similar

force in defence of their persons. And when they joined in that fierce fight, it was difficult for them to know where was the limit, it seems that they stopped the fight when both groups found themselves disabled.

I confirm finding of not guilty under the Sudan Penal Code, s. 78/251 in respect of all five accused of El Midobis."