( The National Supreme Court )

Judges:

President

Hon Justice: Abas Alil Babiker                    Supreme Court Judge

Member

Hon Justice: TagAlsir Osman AbdElgader Supreme Court Judge

Member

Hon Justice: Asam Mohammed Ibrahim    Supreme Court Judge

Parties:

Sudan Gover. VS  SH. Y. T. Q.

SC/NS/510/2017

The Law of informatics crime 2007, Articles 10/17 Law of Evidence 1994 Article 9/9 recording of telephone calls.

The Principle:

1–The evidence earned from the vocal recording of  telephone  calls is not regarded as illegal evidence.

2–The Law of informatics crimes 2007 does not require obtaining permission from the prosecutor or any body else.

Judgement

Judge: Asam Mohammed Ibrahim

Date: 11/9/2017

The mentioned a above, was brought before the court of the informatics crimes Khartoum, after she was accused by the prosecutor under Articles 10 and 17 of the law of the informatics crimes of 2007, perseuant to the complaint by Sit        Al nfoor Ahmed Bashir and Gosim Mukhatr Ibrahim Agoba , stating that the accused insulted them and threatened them by telephone . After hearing the case, the Court of First Instance acquitted the accused. But the Court of Appeal Khartoum annulled the decision, and decided to return the papers to the Court of First Instance to review its decision. The accused was not satisfied with the decision of the Court of Appeal and raised this challenge by her Advocate Mr. Alsadiq Khalid Abdal Gadir.

The challenge is formally acceptable, and its reasons are summarized as follows:

• The confession of the agent of the complainant that the presented recording is incomplete which shows the bad intention of the complainant and his deducing and provoking the accused.

·        The complainant is residing in Saudi Arabia and its Laws prohibit the recording of the telephone calls.

·        The incomplete speech is considered marital secrets which the Islam and the Law protect.

·        Investigation of the accused dropped part of the provocation of the complainant to the accused, who produced documents, showing the extent of the insult made to her by the complainants.

·        The recording was made by an unlawful menas, and the saying was not disseminated, so that the guilt of defamation is not applicable and complainant is the one who disseminated it.

• The challenged Judgment is correct, the evidence of the vocal recording was not obtained by unlawful means, and the complainant Gosim did not need to take permission from the prosecution or any other body,   and I explain this by that the excluded evidence as per 9 /11 of the law of Evidence 1994 is the one that infringed the principles of the Islamic Sharia or the law or justice or public order. The recording of the complainant Gosim of what the accused said is not contained in any of the aforesaid and as spying on her. The calls by telephone is one of the forms of communication  that took place instead of face to face meeting and is a result of the innovated means of information and its spreading, which made the addressing and connection through it the original .        If this is so then the evidence obtained through those means cannot be unlawful. As to the permission, the complainant Gosim does need to take it from the prosecution or anyone else in order to record the conversation between him and the accused, because the Law of informatics crimes which governs this case did not require that. If what was intended by the Code of Criminal procedure, the said law requires permission in cases of search, and this include the procedure of a trap.
• On the other hand the evidence produced by the prosecution, that is the vocal recoding is regarded as one of the testimonies defined in Article 43 / 2 of the law of Evidence 1994 and is acceptable in evidence, as far as the accused did not deny it: As to saying that the complainant is residing in Saudi Arabia, and its law prohibits recording telephone calls, this is not proved, and the applicable law is the law of informatics crimes 2007 Article 24 of it. 
• The Court of First Instance in its judegment referred to analogy as one of the reasons for its judegment in favour of the accused, the judegment mentioned proved insult from the complainant to the accused.
•  The legislator did not make the exchange of insults, a ground for forgiveness from responsibility as appeared from the judegment of the Court of First Instance, but made it one of dropping the sentence only Articles 157/ 2 of the Criminal law 1991 A.D.
• What we said determine the argument as to incomplete recording which the court of First Instance and the Advocate of the challenger said in his petition. As to the provoking it was not a reason for acquittal.
• Therefore I confirm the challenged Judegment.

Judge: Tag Elsir Osman                 

Date: 19/9/2017

I agree

Judge: Abas Ali Babiker                 

Date: 20/9/2017

I agree

The Final Order:

- Confirmation of the whole Judgement

- Inform the parties.

Abas Ali Babkier

      Judge of the supreme Court

President of the Circuit

20/9/2017