H.S/Yousif Abdullah: The Judiciary Journal 1972, page 22.
H.S/Against/Omer Mohammed: The Judiciary Journal 1979 page ….
From the summary of the case, we observed the incompleteness of the indicting evidence of
paragraph (J) from article (45) and the revision of the indictment to paragraph (B) of the child
law of 2010.
We are of the opinion of reaching a conclusion on the appeal in the following manner:
First:
Based on the preliminary deliberations and discussions of the appeal in question, we are first and
foremost, and prior to reaching a conclusion of the appeal, of the opinion that it is important (to
notify the accused in order to make a counter statement or reply) to the case, for the following
reasons:
a) The crime for which the accused has requested to revise the indictment and which the
preliminary charge of this trial had made is a crime (act of rape) according to paragraph
(B) of article (45) read along with article (86) Paragraph (W) of the Child Act of 2010
and penalized by “Death or life imprisonment”, which constitutes the severest
punishments of the Child Act, a special law formed to punish for crimes affecting
children.
b) The criminal court did pass the sentence as indicated under article (45) Paragraph (B), but
was of the opinion, according to the presented evidence, that the accused has testified of
the adulterous acts upon the victim, but he does deny the act of “rape” and what is
established from the existing persecution evidence (from the statements of the victim) as
established by the judicial doctrine, in spite of which the court reiterated and decided to
penalize under article (45) paragraph (J) instead of (45) paragraph (B). The persecution is
of the opinion that the reason for the indictment contradicts the conclusion that the
criminal court had reached.
c) The following principle has been established in the constitutional court and on its
procedures and interpretation of the laws:
Constitutional case /M.D./F.D./12/2000
Abu Obaidah Ali Al Awadh /Against/ The Sudan Government
Constitutional Law Journal 99-2003 page.
G.D/ /58/2001 Al Tayeb Ali /Against/ H.S.
Constitutional Journal page 209 the same edition
d) It is considered against the natural and constitutional right for the accused, in serving a
prison sentence, to be surprised with a new penalty that might lead him or her to the brink
of execution without prior knowledge, and without questioning him or her, nor informing
him or her or allowing him or her the chance of knowing what has been concluded in his
or her absence for a chance to reply or appeal; for the basic fundamental of natural justice
is that no one shall be accused of a civil offence without a hearing, let alone for criminal
cases.
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