between the penalty which they decide and the maximum limit that legally prescribed in
accordance with the foregoing Article.
Secondly: When the penalty is singled out towards the convict under Article (45/a) & (b) if
it is found in its judgments reason for failure to impose death penalty whenever fate deemed
to be life imprisonment.
The trial court sentenced the convict to 15 years in prison with a fine and upheld by the
appeal court in contravention of the offence prescribed under Article (45/b) read in
conjunction with Article (86/f) by reason of going beyond the maximum and minimum
limits prescribed for commitment of such offence as the minimum limit is 20 years in prison
with a fine. The legislator` objective of imposing such fine is to compensate the victimized
child against abuses she sustained and harms resulting from the offence.
So, and in accordance with the provision ofArticle (83/3) the trial court must decide upon
such compensation. This Article is read as follows ((the judicial bodies shall ensure for all
children being victims of the offences provided for in Articles 45/46, the availability of
appropriate proceedings for obtaining, without discrimination, an indemnity for harms
which are caused to them by persons who are legally responsible for these offences. For
further details please see the criminal circular 46/2011 which refers to allocation of part of
the fine for such objective by way of indemnity without prejudice to the right to blood
money or indemnity for certain wound (Arsh). Please refer to page 294 of the Child
Criminal Protection previously referred to.
This penalty is imposed in contravention of law and the victim has not been indemnified.
So, I am in the opinion that this necessitated us as a court of law to intervene. This opinion
is supported by what is contained in the trial of Idris Fadul vide No. 56/2017 dated
21/08/2017/National Supreme Court unpublished, which is similar to this trial in terms of
singling out the penalty contrary to the provisions of Child Act. I am in the opinion that the
trend of our intervention, if both my colleagues the members of the circuit agree, to be on
the basis of the provision of Article (185) Paras (b) & (h) of Criminal Act which prevents us
from strengthening the penalty. The conclusion of our opinion is as follows:
1. Upholding the conviction under Article (45/b) which to be adjusted and read in
conjunction with Article (86/f) of Child Act for 2010.
2. Returning the papers to the trial court so as to act in accordance with the directives of this
memorandum.
Abd Al Latif Mohamed Al Amin
Supreme Court Judge
23/04/2018
Second Opinion:
I agree with my colleague`s first opinion Judge Abd A Latif in terms of causation and result
and addition to his memorandum.