accused has committed the physical act, which constitutes the basic element of the crime, namely;
practicing sex with the victim, as before answering this question, talking about consent will be useless.
Reference is made to the objection pleading, the reasons included therein and those added, the
accusation has relied on circumstantial evidences such as, the accused and the victim had met in the
house of Sara, from the accusation witness. On the day on which the accusation relied as being the day
on which the offence has been committed, the witness went out to the grocery and left the accused and
the victim alone inside the house. The offence took place immediately after she went them together.
The witness denied this incident conclusively stating that, she has never left the house leaving the
accused and witness inside alone, yet she confirmed that she closed the house as usual and nobody was
there. The accusation also relied on the fact that there is love relation between accused and the victim,
which, even if proved, will not relate accused to this offence. The appellant stated that the accused
spoke about a settlement while he was detained and denied that, even the witness who mentioned this
incident, stated that the purpose of the accused’s confession was conciliation. However, the investigator
did not mention that the accused had made any confession while he was in the police detention. All
these facts weaken accused’s confession.
As to the statement that, the investigator, public prosecution and the Court did not refer accused to the
Criminal Laboratory to be checked by DNA, the accusation could have request this medical checkup even
during the trial stage, however, this request was not made and this reason has not been raised before
the Trial Court or the Court of Appeal, therefore, it cannot be raised for the first time before the
Supreme Court and it does not relate to the Public Policy. As it was not raised before, it has not been
decided by the lower courts, therefore, accusation was based on mere feelings, which were not
supported by facts or at its best face, mere probabilities which do not conclude that accused has
committed the offence attributed to him. The Supreme Court has clearly established that, conviction
shall be established on conclusive and definite evidence and not on guessing, that any doubt shall be
interpreted to the benefit of the accused while innocence can be based on doubt. Deciding a person
innocent does not require conclusive evidence, while conviction requires a conclusive evidence. This
means that, if the Court is hesitant between innocence and conviction, and there seems to be doubt, the
Court shall favor innocence and issue its judgment accordingly and according to Sharia principles, which
was followed by legislation which have decided the same principle by stating (no body shall be convicted
if the theory of his guilt is no more than the theory of his innocence) .
Based on the above, I believe the reasons for objection and the reasons added thereto do not vitiate the
contested judgment which upheld the judgment issued by the Trial Court, therefore, the objection shall
be rejected.
Mohamed Al Tirifi Mohamed “signed”
Judge at the Supreme Court
21/05/2014
Abdel Raheem Abdulwahab Altuhami “signed”
Judge at the Supreme Court
23/09/2014