(MAJOR COURT CONFIRMATION)

SUDAN GOVERNMENT v. MOHAMED YOUSIF MUSTAFA D OTHERS

AC-CP-58-1966

Principles

·  Evidence—Testimony of an accomplice— of corroboration required

Where on the trial of an accused person, evidence is given against him by an accomplice, the corroboration which is required, is a corroboration in some material particular lending to show that t accused have committed the crime charged. The corroboration does not need to be direct or to deal with every detail of the crime. It is sufficient if it is merely circumstantial.

Judgment

Advocate: Mohamed .Abu Zeid Ahmed ForAtrny-General

For prosecutor

M. E. Mobarak 1. June 21, 1966: —These are the proceedings of a Major Court held at Singa on December 28—30, 1965, under the Presidency of El Tayeb Mohamed El Tahir and the membership of Ibrahim El Tuharni and Ahmed El Heweries. Ar Mohamed Yousif Mustafa, a sub-clerk in the Northern Fung Rural Council, was convicted under Sudan Penal Code. s. 351 in respect of £S.5998.756m/ms. (embezzled during the period 1957— 1964) and was sentenced to imprisonment for five years and£S.500.000m/ms. (and in default of payment to imprisonment for one year). A2, A3 and A4 were acquitted by the Majority (i.e., the two mem bers). The court president wrote a dissenting judgment as regards A2 and A4 and the Blue Nile Province Attorney is applying against the acquittal of A2, A3 and A4.

At: MOHAMED YOUSIF MUSTAFA

The conviction of A1 Mohamed Yousif Mustafa is supported by sufli cient evidence. The evidence of P.W.2, the Auditor Ibrahim Salih Mohamed and the three statements, by the accused to the Police Investigator P.W.t (i.e., on June 4, 1964, at pages 3—5 of the Case Diary, on June 9, 1964, at page 23 of the Case Diary and on September 9, 1964, at pages 23—25 of the Case Diary), his confession taken on June 15, 1964 by a magistrate and in detail at pages 15—17 of the Case Diary, and his statements both at the Magisterial Inquiry and in court are sufficient to establish the prosecution case against him. The sentence passed by the court considering the gravity of the offence (the maximum term of imprisonment under the section is now 14 years), and the big amount of money embezzled, and all the other circumstances of the case including the fact that this embezzlement was going on for about seven years and that out of £S.6230.692m/ms. received by him on behalf of the council he put £S.5998.756m/ms. in his pocket and paid only the meagre sum of £S.231.936m/ms, to the council treasury, the sentence is, I think, adequate and I therefore confirm finding and sentence.

A2: SIR EL K.HA TIM EL KHALIFA:

A3: ADAM BALM MOHAMED AWADALLA: and

A4: BALLA MOHAMED AWADALLA:

As I have already stated the Court President was dissenting in respect of the acquittal of these three accused. His dissenting judgment is to be found at pages 42—46 of the separate trial record, although he did not write down a dissenting judgment as regards A3 whose case is very much similar to that of his father A The advocate for these three accused (Abdin Ismail for A2 and El Sidig Salman for A3 and A4) referred to the evidence against them in great detail and to the fact that the main piece of evidence against them (i.e., of Al) was that of an accomplice and was not corroborated They also referred to the many contradictions made by A1 in his different statements

“An accomplice shall be a competent witness against an accused person; and a conviction is not illegal merely because it proceeds upon the uncorroborated testimony of an accomplice” (The Indian Evidence Act, s. ‘33).As it is stated in 11 Monir, Principles and Digest of the Law of Evidence: 832/33 (4th ed., 1958) “If an accomplice is jointly indicted with his fellows, he is incompetent to testify, unless he is tendered a pardon, or unless he has been discharged, acquitted or convicted. There fore, an accomplice is a competent witness, if, at the time he is required to give evidence, he is not an accused person in the case in which he is required to testify. Accomplice evidence is admitted from necessity, it being often impossible without, having recourse to such evidence, to bring the principal offenders to justice . . .. In England the uncorroborated evidence of an accomplice is advisable in law, but it has long been a rule of practice at common law for the judge to warn the jury of the danger of convicting a prisoner on the uncorroborated testimony of an accomplice or accomplices, and, in the discretion of the judge, to advise them not to convict upon such evidence. Nevertheless it is within the legal province of the jury to convict upon such unconfirmed evidence, if after the proper caution by the judge, the jury accepts the evidence of the accomplice without corroboration.” (R. V. Baskerville [1916] 2 K.B. 638) “The rule in India does not in any way differ from England, since section 133 of the Evidence Act declares the testimony of an accomplice to he admissible and a conviction based on an uncorroborated testimony of an accomplice, is not illegal.” “Illustration in ‘material particulars’ to rebut the proscription of untrustworthiness which ordinarily attaches to the testimony of an accomplice. It is not possible; indeed it would be in high d dangerous to attempt to formulate the kind of evidence, which would be regarded as Suftcient corroboration in a particular case

the accused falsely” II Monir. Principles and Digest of the Law of Evidence, 835 (4th ed., 1958) “The best and most up-to-date exposition of the nature and extent of corroboration is contained in a judgment of the Court of Criminal Appeal in R. V. Baskerville [1916] 2 K.B. 6 in which all the leading authorities were reviewed and the principles to be observed were enunciated in the clearest possible terms by Lord Reading L.C.J., who delivered the judgment of the court. It is difficult to imagine a more eminent combination of legal talent than that repre sented by the five learned judge who presided over the court in that case. The general rules laid down in that case ntty he summarised as follows:

i. The corroboration must be by some evidence other than that of one accomplice, and therefore, one accomplice’s evidence is not corroboration of the testimony of another accomplice.

ii. The corroborative evidence must be evidence which implicate.s the accused that is, which confirms in some material particular not only the evidence that the crime has been committed, but also that the accused committed it. In other words, the corrobora tion must be both to the corpus delicti and as to the identity of the accused.

iii. It is not necessary that the story of the accomplice should be corroborated in every detail of the crime, since, if this were so, the evidence of the accomplice would be unnecessary

iv. The corroboration need not be direct evidence that the accused committed tbe crime; it is sufficient if it is circumstantial evidence of his connection with the crime.

v. The rule of practice requiring corroboration of the evidence of the accomplice in some material particular implicating the accused has virtually become equivalent to a rule of law.

The decision of the Court of Criminal Appeal in England has been followed in several decisions in India, II Monir, Principles and Digest of the Law of Evidence, 836 (4th ed., 1958)

I made the long quotation to show clearly the legal position as regards the evidence of an accomplice and the extent to which its corroboration is required.

There is no doubt that A was an accomplice to all the other accused His trial, which started jointly with them was separated and, after his conviction, he was called as a prosecution witness as against the other accused. I shall now deal very briefly with his prosecution as regards each of them.

(a) AS REGARDS A2 SIR EL KHATIM EL KHALIFA:

A2 Sir El Khatirn was the supervisor of the produce markets of the Rural Council and as such he was the superior of A1 Mahemed Yousif. The court president in his dissenting judgment stated that the evidence of Al against the accused .42 was sufficiently corroborated to warrant the conviction of A2. I need not go into the details of his argument in respect of this matter. I agree in principle to what was stated in this judgment. Ar Moharned Yousif since the start (see his statement to the Police on June 4, 1964 at pages 3—5 of the Case Diary) stated that .A2 Sir El Khatim had abetted the offence committed by him and gave details of the abetment. P.W.2 (page 13 of the joint trial record) testified that he had paid £S.109 (the total of £S.55 and £S.54) to A2 on the authority of a letter for A1, A2 (vide his statement at the Magisterial Inquiry page 14 of separate trial record) stated that this sum of £S. was paid in the Council Treasury vide Receivable Ordcr No. 208 of lanuary 30. 1964. This ought to have been checked. Muhafiz Mohamed Yahia Musa (P.W.9 in the joint trial record, pages 16—17) stated that 42 had accused A1 of forgery, etc. and threatened to report the matter and that after a short interval both .A1 and .42 went out laughing and .42 was carrying an envelope. .4r stated the same story and added to it that the envelope contained some money he had given to .42 to keep him silent. .42 was not examined fully by the court to explain this matter, which tends to cor roborate the testimony of .4i against A2. Furthermore, .41 stated that late in 1961 or early in 1962 he was suspended (or dismissed) by the Executive Officer El Tayeb Ismail on suspicion of embezzlement or forgery for a period of a few months and that later on, on the transfer of the officer, he was not only taken back but was given the difference of increases in pay to which, it seems, he was not entitled. This, he states, was done through the mediation of .42 (page 2 of separate trial record and statements of Ar at Magisterial Inquiry and in court). The allega tion of .A1 against A2 do not even end here. He stated that twice during the period 1957 to 1964. A2 collected money from him (and other sub- clerks) on the assumption that these sums would be paid to the auditors who arrived on duty to inspect the accounts with a view to their keeping their mouths shut. If this is so, there is no wonder that the embezzlements by Ar started in 1957, came to light seven years later or in 1964.

b. A3: ADAM BALLA MOHAMEM AWADALLA:

c. A4: BALLA MOHAMED AWADALLA

These two accused are son and father. The name of the father A Balla Mohamed Awadalla (or Balla Awadalla) appears in the three lists prepared by the informant (the Audit Inspector Ibrahim Salih Mohamed) so frequently that one gets the idea that he is almost the only person who buys produce from the market at Wad Ayis in which Ai was working. The father and son are working in partnership and their place of business (Hillat Balla) is in El Dindir Rural Council area. Abu Hasheim market produce is only about four kilometres from their village and is within their council area. One wonders why do they have to go all the way to Wad Ayis produce market, about 45 or 50 kilometres away from their village and in another Council area to buy sesame, dura, etc. The explana tion by A1 that A2 had made an arrangement with him A1, A3 and A4 to issue false documents in their favour is quite plausibk.

The position of A3 and .A4 is almost equal and I agree with the Court President (vide his dissenting judgment at pages 45—46 of the separate trial record as regards A4, that there is some evidence to corroborate the testimony of A1.

I have carefully read the Case Diary, Magisterial Inquiry and the whole of the trial record, I do not think it will serve the ends of justice to send the papers back for reconsideration by the same court of the findings of not guilty in respect of A2, A3 and A4. I shall, therefore, refuse confirma tion of findings of not guilty in respect of A2, A and A4 and order the retrial of these three accused by a newly constituted Major Court with the same president and two members other than those who sat on the first trial.

One last comment—. A2, .A3 and A4 were charged under Sudan Penal Code, s. 84/351. The finding was not guilty under Sudan Penal Code, s. 351.