(CRIMINAL REVISION)

SUDAN GOVERNMENT v. ABDEL MONEIM SHARIF SALIH

AC-CR-REV-380-1969

Principles

  Criminal Law—Causing death by rash or negli8ent act and careless driving—Penal Code, s. 256 and Road Traffic Act, s. 22—Offences of different nature, even emerging from one transaction Road Traffic—Careless driving and causing death by rash or negligent act—Road Traffic Act, s. 22, and Penal Code, s. 2 of different nature, even emerging from one transaction

Offence of careless driving under the Road Traffic Act, s. 22, and offence of causing death by rash or negligent act under Penal Code, S. 256, are not offences of the same nature, even though emerging from one transaction.

Judgment

Osman El Tayeb C.J. November 26, 1969 : —Accused was convicted by the Traffic Magistrate of the offences of careless driving under the Road Traffic Act, s. 22, and of causing death by rash and negligent act under the Sudan Penal Code, s. 256, and sentenced to imprisonment for three months, and a fine of £S.100.000m/ms. and in default of payment of fine to imprisonment for six months. It is not made clear by the Magistrate whether he intended to visit the accused with one sentence for the two offences or whether he visited him with two sentences, each one for one offence.

Accused submitted an appeal against the findings and sentences. The Acting Province Judge confirmed the finding of guilty under the Sudan Penal Code, s. 256 and refused confirmation of the finding under the Road Traffic Act, s. 22, and reduced the sentence to a fine of £S.3o.ooom/ms. or imprisonment for three months in default of payment. The reasons for the refusal of confirmation of the offence under the Road Traffic Act, s. 22, stated by the Acting Province Judge are that the conviction under the Sudan Penal Code, s. 256, was for the causing of death by negligence, due to negligent driving, and that same negligent driving constituted the offence under the Road Traffic Act, s. 22, and secondly the offence under the Sudan Penal Code, s. 256, was the more heinous offence than the other. The reason for reduction of the sentence was stated to be that the family of the victim had forgiven the accused for causing his death.

The Assistant Commissioner of Police for Khartoum Province submitted an application for revision against the decision of the Acting Province Judge with respect to both the alteration of the findings and the sentence.

This revision is concerned with the law of criminal procedure to be applied in cases where the accused is charged in one trial with more than one offence, and the conviction and sentence resulting therefrom.

The general rule expressed in the Code of Criminal Procedure, s. 199. is that for every distinct offence there must be a separate charge and separate trial, and of course a separate conviction and separate sentence. There are exceptions in which an accused person may be charged in one trial with more than one charge of different and distinct offences, and of course may be convicted with any number of those offences that have been proved. I take here one of those exceptions that is applicable to the case under consideration. It is that provided for in the Code of Criminal Procedure, s. 201, where more than one offence is constituted by one transaction made up of a series of acts connected together. The accused may be charged with every one of such offences, and he will. of course, be convicted of every offence proved to have been committed by him. This is a rule by itself and may be stated as follows: when the distinct offences with which the accused is charged are proved, he must be convicted of every one of them, and be punished for every one separately, provided that the aggregate sentence should not exceed the limitation imposed by the Code of Criminal Procedure, s. 74. An exception to the latter rule may be found when the distinct offences emerge from one transaction, and they are of the same nature, and one of them is an essential ingredient of the other. The best example is that of charging the accused with theft from a dwelling-house under the Sudan Penal Code, s. 39 Here the two offences would be committed in one transaction, and the first is an ingredient of the second, and so the accused may be convicted of the two and punished for them with two distinct sentences, or may be convicted of the graver one only and sentenced for it, or he may be convicted of the two, and punished with one sentence.

In the case of Sudan’ Government v. Souren Vanian (Cr.App. 6) Law Reports ‘9 the Court of Criminal Appeal decided that convictions under the Road Traffic Ordinance, 1945 ss. 41 (3) and 49 (1), of driving while being disqualified from holding a driving licence, and using a vehicle uninsured against third party risks, are distinct offences not of the same nature, and so there must be separate sentences for them.

In the present case the accused was separately charged and convicted in one trial of careless driving under the Road Traffic Act, s. 22, and under the Sudan Penal Code, s. 256, of causing death by rash or negligent act. These are not offences of the same nature. It may be argued that the careless driving was the same negligent act that was an important ingredient for the second offence. This may be true in such a case but t is not generally true that every rash or negligent act within the meaning of the Sudan Penal Code, s. 256, must be that due to careless driving. The distinction is clear between these two offences, in one parcel, and the two of theft and housebreaking to commit theft in the other. There

is another important point which is: offences under two different enactments, having totally different objects, cannot in my opinion be considered as being of the same nature. The Sudan Penal Code and the Road Traffic Act are two different enactments with different underlying principles and objects, and therefore offences created by them are not of the same nature even though emerging from one transaction. The learned Acting Province Judge was, therefore wrong when he refused confirmation of the finding under the Road Traffic Act, s. 22, and the order passed by him has to be quashed.

I think the right course to be taken by me is to send back the proceedings to the Traffic Magistrate for revision of the sentence, taking into consideration the ruling of law stated above and any other facts or matters.