After the papers have been brought forward before the Supreme Court, the punishment was
amended as to be under Article (45/c) along with the amendment of the imprisonment
punishment to seven years as from 07/02/2016 and a fine of one thousand pound of which
three thousand is to be paid as a compensation to be collected by civil way ….etc. under the
judgment in respect of the appeal in cassation No. 88/2016 dated 13/06/2016
Later, on 25/10/2016, the appellant`s attorney submitted a request before the Trial Court
for referring the appellant to the Medical Commissioner to estimate his age. This was
declined by the Trial Court which led to the submission of the request in question for
examination. It is clear that the Trial Court had no other option except for declining the
request as long as a judgment was delivered by the Supreme Court upholding the conviction
with the amendment of the punishment as stated hereinabove. This makes the contested
judgment of the appeal court to be valid and should have to be upheld since the request has
not been submitted in the preliminary procedures as contained in the petition of the appeal
in cassation, but after the Supreme Court adjudicated over the subject matter thereof making
the matter going beyond the jurisdiction of the Trial Court.
On consideration of the premises, the judgment the object of the request contained an
observation to which the court has not paid any attention. It was clear that the convict has
announced his age as 68 years old (Sixty-Eight years) since the phase of investigations
through the trial form. The accused failed to challenge this and the Court has not verified
his age. This means that the Court has adopted the age announced by the accused. Then,
the matter did not require further searching as the convict was believed in the age which he
announced. The Court did not initiate any investigation over the age and should have taken
the calculation of age into the assessment of punishment but it has no power now after the
issuance of the judgment of the Supreme Court on the subject matter.
Even the Supreme Court has no power to intervene in the judgment it delivered except
through review under Article (188/a) of the law, if required.
THEREFORE
I am of the opinion that we should uphold the appeal judgment the object of cassation in
appeal and order to bring the papers forward before the Supervisor of the Review Circuit to
take whatsoever he deems appropriate in connection with causing to follow the provisions
of Article (33/4) of the Criminal Act or 1991 read with Article (48) thereof.
Derar Yousif Sayed Ahmed
Supreme Court Judge
06/04/2017
Agree:
Shawqi Osman Ahmed
Supreme Court Judge
20/04/2017
Babiker Mohamed Babiker Al Tenay
Supreme Court Judge
07/05/2017