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.