In the name of God the most gracious the most merciful
NATIONAL SUPREME COURT
Criminal Circuit

Before:
Abbas Ali Babiker
Taj Alsir Osman Abdelgadir
Isam Mohamed Ibrahim

Head of the circuit
Member
Member
Trial of / Kamal Ali Bashir
No. : 303/2017
JUDGMENT

The appellant took cognizance of the judgment issued by the Court of Appeal on 19/03/2017 and
has submitted this objection on: 26/03/2017. The objection is admitted in form.
Al kalakla First Criminal Court has convicted the accused ((appellant)) under Section (160) of the
Penal Code and sentenced him to two weeks’ imprisonment.
The Court of Appeal has cancelled the judgment consequent to an appeal submitted to it by the
plaintiff and issued its decision to refer the papers back to the Court of First Instance to define
the conviction after considering Section (157) based on the fact that the accused had addressed
the plaintiff by saying “you are a prostitute”.
The reasons for objection is that, the appellant has spent the imprisonment term decided for
him and the power of the Court is discretionary in amending the accusation sheet by adding or
deleting, however, the Court of Appeal should have upheld the decision issued by the Trial Court.
Section (157/1) of the Penal Code provides that, whoever falsely calls a good person to have
committed adultery or sodomy expressly or impliedly, is deemed to have committed the offence
of libel. Therefore, the Court of First Instance should not have deviated from the charge under
which the case had been referred, especially, if it has reached the conclusion that, the accused
had libeled the complainant and its judgment went on stating that libel was not intended and
the act of accused does not amount to libel, a matter that does not have a legal basis and the
court did not mention any judgment on which it had relied. As to the discretionary power of the
Court to amend the accusation sheet, I agree, it is a right but exercising such right is subjected to
the supervision of the higher courts and the Court of Appeal may exercise the powers granted to
it under section (185/C/D) of the Criminal Procedures Act, if it decides that the conviction is a
mistake. However, it makes no difference if the appellant has spent the imprisonment term or
not.

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