|court type:||By KRISHNA VASDEV *|
PROVOCATION AS A DEFENCE IN SUDAN CRIMINAL LAW
By KRISHNA VASDEV *
Provocation is no ground for exempting the accused completely from criminal responsibility for his acts, but may be a ground for mitigating the punishment. The law does take into account the frailty of human naturel and recognises that if a man was provoked to such an extent that in the heat of passion or hot blood he was rendered deaf to the voice of reason, the act although done with the intention of causing death or with full knowledge and comprehension of the consequences, was not the result of malignity of heart, but was in fact imputable to human infirmity. In such cases because the prisoner has had no time to think and to control himself, the law does not exact the full penalty by punishing him as severely as if he had acted with deliberation and afore thought. In England, the defence of provocation is applicable only to a charge of murder so that it cannot be pleaded as a defence to a minor charge.2 However, in the Sudan, although not a justification to a charge of murder, provocation when proved reduces the offence to one of culpable homicide only.3 Moreover, the defence also applies to charges voluntarily causing hurt4 or grievous hurt,5 criminal assault 6 or attempted culpable homicide7.
Most of the provisions of the Sudan Penal Code, including the defence
* LL.M. (London), of the Middle Temple, Barrister-at-Law, Senior Lecturer in Law at the University of Khartoum.
1 See Sudan Government v. Lataxo Itari (1945) AC-CP- 169-45; EP-Maj.Ct.-41.C.25-45 unrep. In this case the accused was found guilty of murdering his father who refused to marry him to a girl he loved and with whom he was living. The deceased gave various untrue reasons why he would not give the necessary goats for his son’s marriage, and became abusive and angry when pressed to help the accused in the matter. According to the President of the Major Court, whatever his real reason was, he had no right to leave his son unmarried for so long (most of his contemporaries already had children of their own).
Bennet C.J., in a note on confirmation, said that the court was right in this case in not passing the death sentence. The learned Chief Justice went on to remark, “Grave as was his crime, it would be disregarding the frailties of human nature to demand that his youth should not react against the malicious cruelty to which he was subjected.”
2 R. v. Cunningham (1959)1 Q.B. 288.
3 Sudan Penal Code, s. 249 (1).
4 Sudan Penal Code, s. 275. Cf. Sudan Government v. Hasab El Rasoul Hussein (1963 ) S.L.J.R. 163, where Awouda P.J. thought that a homosexual advance by the complainant might suffice to constitute grave and sudden provocation in a case involving a charge of hurt under s. 275.
5 Sudan Penal Code, S. 276.
6 Sudan Penal Code, s. 297.
7 Sudan Penal Code, s. 261 causing hurt with such intention or knowledge and under such circumstances that if by that act the accused had caused death he would have been guilty of culpable homicide not amounting to murder. Cf. Sudan Government v. Abdalla Mohammed (1940) AC-CP-237-40 KDN-Maj.Ct..67-40 unrept
of provocation, are based upon the Indian Penal Code;8 so that we could look for a rationale of the defence of provocation in the report of the Indian Law Commissioners who prepared the draft of the Indian Penal Code in 1838. This is what they had to say9’
“We agree with the great mass of mankind, and with the majority of jurists, ancient and modern, in thinking that homicide committed in the sudden heat of passion, on great provocations ought to be punished, but that in general it ought not to be punished so severely as murder. It ought to be punished in order to teach men to entertain a peculiar respect for human life: it ought to be punished in order to give men a motive for accustoming themselves to govern their passions; and in some few cases of which we have made provision we conceive that it ought to be punished with the utmost rigour.
In general, however, we would not visit homicide committed in violent passion which had been suddenly provoked with the highest penalties of the law. We think that to treat a person guilty of such homicide as we should treat a murderer would be a highly inexpedient course. A course which would engage the public sympathy on the side of the delinquent against the law.”
It is not all provocation that will reduce the crime of murder to culpable homicide. Provocation, to have that result, must be such as temporarily deprives the person provoked of the power of self-control, as a result of which he commits the unlawful act which causes death. In deciding the question whether this was or was not the case regard must be had to the nature of the act by which the offender causes death; to the time which elapses between the provocation and the act which causes death; to the offender’s conduct during that interval; and to all other circumstances tending to show the state of his mind11
Whether the provocation was grave and sudden enough to prevent the offence from amounting to murder is a question of fact12
8 The Indian Penal Code is also applicable in Burma. Ceylon. Malaya, N. Borneo, Northern Nigeria. Pakistan and Sarawak.
9 Note M, 107—208 (1838). See also the comment by Mr. Justice O. W. Holmes :
"….According to current authority, a man is not so much to blame for an
act done under the disturbance of great excitement, caused by a wrong done to himself, as when he is calm. The law is made to govern men through their motives, and it must, therefore, take their mental constitution into account.
it might be urged, on the other side, that, if the object of punishment is prevention, the heaviest punishment should be threatened where the strongest motive is needed to restrain; and primitive legislation seems sometimes to have gone on that principle. But if any threat will restrain a man in a passion. a threat of less than death will be sufficient, and therefore the extreme penalty has been thought excessive—The Common Law (1881) at p. 61.
10 See the judgment of Viscount Simon L.C. in Mancini v. D.P.P. (1942) A.C. 1.
11 Stephen’s Digest of the Criminal Law (9th ed). art. 266, applied in Mancini, ibid.
12 Explanation to Sudan Penal Code, 5. 249.(1)
The deprivation of self-control in consequence of grave and sudden provocation is a mitigation, but in order to be so, it must be: (i) such as naturally and reasonably arises out of the provocation; and is moreover (ii) such as prompts an irresistible impulse for retaliation, (iii) which, again, must not savour of malignity, cruelty or wanton brutality13.
Section 249 (1) of the Sudan Penal Code, provides as follows:
“Culpable homicide is not murder if the offender whilst deprived of the power of self-control by grave and sudden provocation causes the death of the person who gave the provocation or causes the death of any other person by mistake or accident.”
It has been held in the Sudan that questions of provocation do not arise in cases of Culpable Homicide not amounting to murder in determining whether the accused is guilty or not, but only in determining the amount of punishment.14 But the provisions of section 249 (1) must be read together with section 38 of the Sudan Penal Code. The courts have taken the view that clause (1) of Penal Code, s. 249 applies only if Penal Code, s. 38 does not apply15.
Under section 38, such grave and sudden provocation as under any section of the Code modifies the nature of an offence or mitigates the penalty which may be inflicted shall not be deemed to include:
(i) provocation sought or voluntarily provoked by the offender as an excuse for committing an offence; or
(ii) provocation given by anything done in obedience to the law or by a public servant in the lawful exercise of the powers of such public servant; or
(iii) provocation given by anything done in the lawful exercise of the right of private defence.
SEEKING THE PROVOCATION (First proviso)
Under section 38 (1) the offence of murder will not be reduced to culpable homicide if the provocation is sought by the accused. The proviso embraces the case of premeditated murder in which part of the plan of the accused is to incite the victim to provoke him, so that he may prepare the way for his own defence if he should be prosecuted16.
13 Gour, The Penal Law of India, Vol. 2 (7th ed., 1963), p. 1417: applied in the Sudan by Lindsay J. in Sudan Government v. Adam Burma Gadim (1948) AC -CP-48; BNP-Maj.Ct, unrep.
14 Per Dunn C.J. in Sudan Government v. Kabun Mango (1922) AC-CP-256-22 unrep.
15 Per Soni J. in Sudan Government v. Mohamed Ahmed Gadir (1961) S.L.J.R. 46 at 50.
16 See the judgment of Babiker Awadalla J. in Sudan Government v. Awad Adam Omer (1961) S.L.J.R. 75 at 76. Cf. also the Indian case of Annamai M.W.N. 1161
Unfortunately there is paucity of judicial authority on the point but the subsection furthermore applies to two other situations.
Firstly, it embraces the case of a man who knows that his wife, mistress or other female relation, is with her lover and sets out with the deliberate purpose of finding them in flagrante delicto, does so and kills either the lover or the woman or both. In such a case he would be guilty of murder.’ Secondly, the subsection does not avail the accused if he voluntarily enters into a fight. He cannot be heard to complain later of “ grave and sudden provocation” because he received precisely what a man expects to receive in a fight.18
1. Deliberate discovery in flagrante delicto:
From time to time the courts in the Sudan have been called upon to deal with the case of the accused who pretended to discover in flagrante delicto (a) his wife; (b) divorced wife; (c) mistress or (d) other female relation.
(a) Wife: In 1937 Creed C.J., bearing in mind the difficulty faced by magistrates in dealing with section 38 Sudan Penal Code, quoted Sir Hari Gour’s commentary on the Indian Penal Code19 on the effect of the first proviso to section 38 as follows 20
“The effect of this proviso read with the exception (i.e. section 249 (1) of the Sudan Penal Code) is that the provocation must come to him; he must not go to the provocation. The rule may be illustrated by reference to the cases of adultery, in some of which the aggrieved husband followed his wicked wife to a place of assignatiofl away from his house and where he killed either her or paramoUr and those in which the paramour visited her in his house, when he killed him on the spot. In the former case, the accused goes deliberately in search of the provocation. In the latter case the provocation comes to him and his act is outside the proviso.”
Could one understand from the above statement of the law that even if the husband was aware of the fact that his wife was canying on with a lover and had proved unfaithful to him on previoUS occasions, yet he
17 See Sudan Government v. N (1941) AC-CP-206-41; EP-41.C.26-441 unrep:
“If the accused knows of a woman’s guilty appointment with a paramour and lies in wait there, intending to kill one or other or both when the appOintme1 is kept, he cannot complain of sudden provocation when the appointment is kept “—per Abu Rannat C.J. in Mohanled Ahmed Gadir supra; “The accused should not voluntarily have ‘asked for’ the provocatiofl which he pleads per Creed, Acting C.J., in Sudan Government v. Ismall Abu Ashman (1947) AC-Cp-156-47; KDN.Maj.Ct.-42 -47 unrep.
18 Sudan Government v. Ahmed Adam Asholai (1940) AC-CP-I32-40 KSA-Ct-1540 ,unrep.
19 It is not clear which edition of the book was meant.
20 Cf. Sudan Government v. Iyeru LojoCk (1937) AC-CP-20737 EP unrep.
would be deemed to have suffered grave and sudden provocation if he finds his wife in flagrante delicto in his own house? Would he be seeking the provocation if to his knowledge his wife had agreed to receive her lover in his bedroom?
In Sudan Government V. Mansour Abdel Gawi 21 the accused suspected his wife of infidelity. He found her absent from her house one night and awaited her return until four o’clock in the morning, when she came back, possibly with a man. He killed her. He was found guilty of murder. Flaxman C.J. said in his judgment:
There was undoubtedly some measure of provocation in the woman’s conduct. Evidently ‘looking for trouble’ and expecting to find it, he had gone to her house at four in the morning, found her absent, and decided to await her return. He did not find the unexpected, and whether there was a man with the woman or not, or whether she answered his abuse with abuse, the provocation given cannot be considered so grave and sudden as to justify a finding that his offence was one of culpable homicide not amounting to murder.”
This was clearly a case where the couple were not found by the husbend in flagrante delicto and so no question of provocation could have arisen.
In 1945, in the case of Sudan Government v. Ahmed Mohamed Arbab 22 the accused, who had reason to suspect that the deceased intended to commit adultery with his wife, borrowed an axe to cut palm fronds and went after the couple. He found them in the act, and killed the deceased with his axe. He was convicted of murder by a major court but the confirming authority altered the conviction to one of culpable homicide. In the judgment of Bennet C.J. (April 12, 1945):
“ I have only altered the finding after considerable hesitation. The vital point as to the strength of the inference as to the accused’s intention to be drawn in all the circumstances from the fact that the accused followed the deceased, suspecting the latter’s intentions and himself armed with an implement which used as a weapon of offence was a dangerous one, knowing, as I think he must have known, that the deceased was unarmed. It was certainly not proved in evidence beyond any reasonable doubt that the accused borrowed the axe for the purpose of using it against the deceased; it must therefore be conceded to him that he borrowed it and was in possession of it for the legitimate purpose of cutting palm fronds. He was entitled to investigate all circumstances pointing to his wife’s adultery and to take all reasonable steps to prevent her adultery. In those circum stances, it seems to me that it was perfectly possible that the accused
21 (1943) AC-CP-7-43: DP-Maj.Ct.-41.C2-42, unrep.
22 (1945)-AC-CP-62-45: DP-Maj.Ct.-41 .C.12-4, unrep.
formed no specific intention at all as to what he was going to do to the deceased, if he in fact found him committing adultery with his wife, and that he acted solely on the provocation given him which was therefore grave and sudden within the meaning of section 249 (1) Sudan Penal Code. It is possible, on the contrary, that he made up his mind in that event to kill the deceased, and that he acted in pursuance of that intention and sought the provocation as an excuse for committing the offence and in which case he could not avail himself of section 249 (1). (See section 38 Sudan Penal Code, proviso 1.) But the accused must be given the benefit of any reasonable doubt in his favour. His statement to the Committing Magistrate supported so far as it went the doubt in his favour. . . . On what has been recorded, I can find nothing which would have warranted the discarding of the possibility that the accused had formed no specific intention as to his course of action, if he found the deceased in fact committing adultery with his wife. The only matter against him in his statement is an apparent connection between his own departure and that of his wife and the deceased. Of course there was a connection. He did go to investigate what was going on, but that fact seems only to beg the main question as to his intention.
“This case is very far removed from the case of a husband who lies in wait for his wife and her lover, and who is armed with a deadly weapon, the possession of which points only to his settled determination to kill one or the other or both of them. I think therefore that the accused should have been given the benefit of the doubt raised by the existence of a reasonable possibility as to his intention in his favour.
“Although this case is a long way removed from the case of a husband who lies in wait for his wife and her lover, it is also a long way removed from the case where a husband quite unexpectedly comes across his wife in the act of adultery. The accused ought to have made up his mind what he was going to do with the dangerous implement in his hand if his suspicions were verified and, knowing that the deceased was unarmed, he ought to have discarded it. Instead, he deliberately left himself to the mercy of the feelings which he ought to have known would be aroused, if his suspicions were verified. In the result he brings himself within section 249 (1) with only a small margin.”
A year later Cummings C.J., in his judgment,23 followed a similar line of argument when he held:
“Husbands who suspect their wives cannot be expected not to
23 Sudan Government v. Eisa Bahami (1946) AC-CP-176-46; KSA-Maj.Ct -41.C.40-46 unrep.
take a chance of making certain of their suspitions, but if their intentions certainly are, ‘ If I find so and so I will bash his head in’, then they are not entitled to call the provocation sudden when they see what they expect to see. If such a husband does kill, his offence is murder.” 24
In Sudan Government v. Babiker Mohammed Mabloul25 the accused was charged with murdering the lover of his wife whom he found in bed with her at midnight. He stabbed the deceased to death immediately. A few months before the incident, the deceased was seen by the accused in his house. He had suspicions of adultery and the deceased was reported as having told the accused that he would give up going to his wife. The trial court found the accused guilty of murder on the ground that he went deliberately in search of the deceased..
The wife of the accused admitted in court that she committed adultery with the deceased several times and that in fact the accused found her and the deceased lying on one bed at midnight at the time of the incident, but she alleged that she had been divorced by the accused several months before the incident. The latter part of her testimony, however, was not believed because no strict proof of the divorce was adduced.
Abu Rannat C.J., relying on the judgment of Bennet C.J. in Sudan Government v. Fadl El Mula Kheiralla,26 substituted a finding of culpable homicide not amounting to murder on the ground that:
“the fact that the accused was suspicious does not operate to prevent the provocation from being sudden. The provocation in this case is the sudden confirmation of the suspicion.”
It is not clear from the report of the case as to the manner in which and the time when he acquired the weapon. Most probably the accused was in the habit of carrying a dagger on the arm. The finding of the court does seem to be quite fair and just in view of the fact that if the accused had no prior knowledge of the clandestine meeting between his wife and her lover, he certainly did not go looking for the provocation. The accused was entitled to investigate any circumstances pointing to his wife’s adultery and to take all reasonable steps to prevent it27.
(b) Divorced wife: In Sudan Government v. Nasr Diab 28 the accused was persuaded to divorce his wife Kaltuma but before the lapse of the necessary three months after the divorce (Idda period), she went through
24 The learned Chief Justice went on to add that the accused in such a case would certainly not be hanged.
25 (1956) S.L.J.R. 36.
26 Unreported. Ibid. at p. 38. The present author has been unable to trace the record of the case in the archives of the Sudan Law Project, where all the unreported cases discussed in this paper can be found.
27 Cf. Sudan Government v. Ahmed Mohamed Arbab, supra fn. 22.
28 (1943) AC-CP-48-43, unrep.
a ceremony of marriage with one Adam Abdullahi. The accused thereupon lodged a complaint against Kaltuma with the Sheikh.
Overcome by a fit of jealousy, he resolved to spy on her. When he arrived at Kaltuma’s house in a rather drunken state, he found her talking to the deceased who was there to propose to her. Hearing Kaltuma talking with the deceased and thinking that she was entertaining Adam Abdullahi, the accused rushed suddenly into the house and stabbed the deceased a number of times, thereby causing his death. The deceased was previously unknown to the accused. It was held that the accused was guilty of murder because there was no grave or sudden provocation in the case. The accused had every right to complain when Abdullahi married Kaltuma before the lapse of three months from the time of the divorce, but having complained to the proper authorities, he had no right whatever to visit Kaltuma’s house.29 As he admitted, he went there in a drunken rage to see if Adam Abdullahi was there. The fact that he killed Musa and not, as he thought, Abdullahi, does not reduce his guilt.
In another case30 decided in 1945, the facts of which are similar to that of Nasr Diab28 the accused suspecting the fidelity of his divorced wife during the Idda period, went to spy on her. He found her in bed with a man, whom he stabbed to death with a knife. The court found the accused guilty of murder. In the judgment of Creed, Acting C.J., (January 6, 1946):
“The woman had been divorced shortly before and the crime occurred in the period of Idda, during which the divorced husband is under an obligation to support the divorced wife and the latter cannot contract a new marriage. The accused suspecting that the woman had some love affair on hand, went to spy on her and finding that she was with another man, killed him. The court has decided that the accused was not deprived of the power of self-control by grave and sudden provocation. He sought out the provocation and found what he went to find. . . . This man appears to have set out from his own house to his ex-wife’s house with the utmost deliberation to see if his suspicions were well-founded: the court is convinced his purpose was “to deal summarily with the tertium quid and he stabbed the lover found with her. I respectfully recommend confirmation of the finding.”
(c) Mistress: In Sudan Government v. Gumaa Said31 the deceased had lived for some years as the mistress of the accused and had borne him a daughter. Recently she had taken to paying clandestine visits to
29 Cf. contra: Sudan Government V. Hussein Idris Abdalla (1961) S.L.J.R. 116, where such a right seems to have been recognised.
30 Sudan Government v. Ismail Mustafa El Tayeb (1945) AC-CP-322-45; DP –Maj.Ct -41.C.50-45, unrep.
31 (1949) AC-CP-333-49 KSA.Maj.Ct.-73-49. unrep.
a certain lover. The accused knew of this and warned her to desist. One afternoon the accused found that the deceased had gone out, and went to look for her in her paramour’s house. He found her there with him sitting together on an angareeb. They were clothed. Overcome by jealousy, he snatched a large knife which was hanging near the door and went for the paramour, who made for the door. The deceased tried to hold the accused back and the accused in trying to stab her paramour, gashed her thigh, severing the femoral artery. She died almost at once. The accused was found guilty of murder. Lomax, Acting C.J. said in his judgment:
“The provocation was sudden but not grave, although the finding might have been otherwise had the deceased been the wife of the accused rather than his mistress.32 However, when a man lives with a woman who he knows had already proved faithless to one man he cannot reasonably expect the same standard of constancy from her as he would from a lawful wife.”
Furthermore, the courts in the Sudan have taken the view that the accused would not be entitled to rely on section 249 (1) if he knew that his mistress was “carrying on” with the deceased for many months and where he knew that on the night of the incident she was intending to go to her lover. In such a case there is nothing sudden about the provocation of finding her with another man.33
(a) Other female relation34: In Sudan Government v. Musa Samara Musa35 the courts were called upon to deal with the accused person who killed the lover of his mother-in-law: The accused heard her leave his house to meet her lover. He followed her to where he found her with her lover and killed the lover. He was charged with murder but convicted of culpable homicide not amounting to murder. The Court of Appeal,
(b) however, substituted a finding of murder.36 In the judgment of Soni J.:
“It is clear beyond doubt that the accused went up the mountain to chastise the lovers. This is where the points of law arise The accused was not the husband of the woman going up having a rendezvous with her lover. The accused was trespassing on her privacy. He was really seeking the provocation. He was taking Upon himself the duties of a policeman, a judge and an executioner. The
32 This cannot be right. Cf. Sudan Government v. Mansour Gawi, supra fn. 21; see also Sudan Government v. El Amin Karama El Hag (1961) S.L.J.R. 65.
33 Sudan Government v. Abdulla Abdel Rahman Osman (I954) AC-CP-88-54; BNP Maj.Ct.-21-54 unrep.
34 For cases involving sisters, see Sudan Government v. Omer Eisa Omer (1955)
AC-CP-232-55; KDN-Maj.Ct.-36-55 unrep.; Sudan Government v. El Chum Ahmed
Ali (1952) AC-CP-45-52; BNP-Maj.Ct.-4-52 unrep. For the case of the sister-in-law
of. Sudan Government v. Sulieman El Dukhri (1945) AC-CP-128-41; BNP-Maj.Ct.-35-41unrep.
35 (1961) S.L.J.R. 107.
36 The sentence of death passed upon the accused was commuted by Abu Rannat C.J.
exception which reduces the offence from murder to the lesser form of culpable homicide requires two things: The provocation should be grave and the provocation should be sudden. It cannot possibly be said that in this case it was sudden. The accused was going up voluntarily to meet the lady and her lover. He does not get confronted suddenly. He goes to see what he expects to find. And secondly, the gravity of the provocation is to be considered. The law regards the husband as having rights over the body of his wife. But the law does not go further. A mother-in-law or an aunt does not stand in the same position as a wife.37”
Babiker Awadalla J. remarked in his judgment that in this case there was both premeditation and preparation and they are both acts inconsistent with the assumption of loss of self-control.38 The learned Judge proceeded to quote from the Indian case of Gohra39 where it was held that if the accused was aware of the purpose for which his wife was leaving the house, his following her to a place where she was having connection with her paramour would be going in search of provocation which could not then be said to be so grave and sudden as to deprive him of self-control. The argument is of course much stronger when the person who is being secretly followed is not a wife but a mother-in-law in whom the law does not recognise any rights in favour of her son-in-law40.
II. Voluntarily entering into a fight:
Where both sides freely enter into a fight and attack each other simultaneously, section 38 would deprive each of them of the right of relying on the mutual provocation engendered by the fight. There cannot be grave and sudden provocation on each side, such a state of affairs being an impossibility.41 It is not possible for a man to bring about the so-called “sudden provocation” on himself and then succeed in pleading it as a mitigating circumstance.42 In Sudan Government v. All Mohamed Ahmed43 the deceased, resenting the accused’s intentions to his cousin,
(1961) 37 S.L.J.R. 108
38 Citing with approval 2 Gour, Penal Law of India (6th ed., 1955), p. 1304.
(1890) 39 P.R. No. 7: Gour, op. cit. (7th ed., 1963) at p. 1420.
40 (1962) 40 S.L.J.R. at p. 209.
“ 41 See Sudan Government v. Guleil Said and Others (1945) AC.CP-308-45 PS-Maj. Ct.-48B-43, unrep.: “No doubt, if either had been killed, the killer could have relied upon S. 249 (4), but that is relevant only to sentence and not to the finding on a charge under s. 279 (2) “—per Bennet C.J.
S. 249 (4) provides: “Culpable homicide is not murder if it is committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offender’s having taken undue advantage or acted in a cruel or unusual manner.” It is immaterial in such case which party first provokes the other or commits the first assault—Explanation to s. 249 (4)
42 Sudan Government v. Musa Ohag (1941) AC-CP-245 KSA-Maj.Ct.-41.C.-34-41, unrep; Sudan Government v. Luate Mayi (1951) AC-CP-372-51; EP-Maj.Ct.-41.C.24. 51unrep
43 (1950) AC-CP-272-50 BNP.Maj.Ct..47-50, unrep.
a married woman challenged the accused to a fight. Each went to his house and emerged, the deceased with a drawn knife, and the accused with a light barbed spear and a light bamboo stick. Both were young men, the deceased rather the bigger. As the deceased advanced holding his knife, the accused threw his spear which pierced the deceased’s left eye, but the deceased plucked it out and continued to advance. The accused then hit the deceased on the head with his stick, and knocked him down. The deceased died about an hour after receiving the injuries caused by the spear. Bodilly J. held the accused guilty of murder on the ground that: (a) Whatever provocation there may have been at the time of the agreement to fight, the accused had had plenty of time to review his determination. The original provocation which the court finds is no more than a challenge by the deceased could not be classed as sudden even if it was grave; and (b) the assault committed upon the accused did not Constitute an act of provocation because it cannot be said that a man who goes forth to fight by agreement can claim grave and sudden provocation when his opponent in fact opens the fight which he himself was seeking.
In Sudan Government v. Musa Ohag44 the court found that a quarrel arose between two parties of Hadendoa and that the accused No. 1 was the first to resort to violence, when he drew his sword and struck and severely injured one El Amin. Abu Hamad, the Cousin of the accused then attacked El Amin, also with a sword, but El Amin threw a dagger at him which struck and mortally wounded him. This inflamed the accused who struggled to attack El Amin but was restrained three times, once by the Omda, a man of standing and disinterested. The second accused then ran up armed, and laid about him. He helped the first accused to get away from those restraining him and lent him his own sword to attack El Amin, who overcome by his injuries, had withdrawn from the fight, but the first accused attacked him and killed him, though almost defenceless with a sword. It was held that the accused was guilty of murder. The defence of grave and sudden provocation failed. In the judgment of Creed C.J.:
“It seems to me more than difficult to hold that the first accused was deprived of the power of self-control by grave and sudden provocation, severe injuries being precisely what the accused had every reason to expect as the result of his actions both in beginning the fighting with a sword and subsequently. Did the first accused expect a man to do nothing when attacked by two men, one of whom had already inflicted a severe and disabling blow upon him and the other was bearing down with a sword?”
44 Supra fn. 42.
OBEDIENCE TO LAW CANNOT PROVOKE
Provocation given by anything done in obedience to law or by a public servant in the lawful exercise of the powers of such public servant is no defence in the Sudan45. In Sudan Government v. Khamis Suleiman Guma’a46 the accused, a soldier, while on escort duty, left the train at Um Ruwaba to find his wife whose conduct had given him anxiety. He was taken into custody having resisted arrest. Four days later he got out of prison and snatched a knife. He was surrounded by police and seized by Adam Fadl whom he stabbed in the stomach causing death. It was held that there was no provocation whatever in this case and the accused was guilty of murder.
In Sudan Government v. Ker Ker47 the accused, who was a thom in the side of the local authority for some months, persisted in his refusal to surrender his pet bull as required by the local court. He fatally speared his group leader, the deceased, who had ordered his arrest for non-payment of a court award and for being insulting to the deceased. Shortly before the accused snatched the spears to kill the deceased, the accused apparently was prepared to surrender to local authority provided he was detained at Aweil and not sent to Mcar, where, according to his allegation, he had suffered the unpleasant experience of being held in a store room for three days. He was there bitten by snakes and found difficulty in controlling his excreta while in confinement.
He was found guilty of murder. The defence of provocation failed, because it was given by a public servant acting within his lawful powers in obedience to the law.
COMBINATI0N OF THE FIRST TWO PROVISOS
In Sudan Government v. Adam Burma Gadim48 the court discussed the application of the first two provisos to section 38, Sudan Penal Code, that is to say, firstly, whether the provocation was given in obedience to the law or by a public servant in the lawful exercise of the powers of
45 Sudan Penal Code, s. 38 (ii). The Law Commissioners in India who prepared the draft of the Indian Penal Code had this to say in their first Report (s. 79. Sup.).:
"We apprehend that grave provocation given by anything done under covet of obedience to the law, or under cover of its authority, or by a publiC servant, or in defence, fl excess of what is strictly warranted by the law, in point of violence, or as regards the means used, or the manner of using them, and the like, would be admissible in extenuation of homicide under this clause.” Cf. Ratanlal, The Law of Crimes (19 ed., 1956) at 732.
46 (1944) AC.CP-225-44; KNC-Maj.Ct-48-44 unrep. The rule of English common law on the point is the same: “Provocation cannot be constituted by the use of lawful force”: R. v. Bourne (1831) 5 C. & P. 120; R. v. Hagan (1837) 8 C. & P.167
(1951) 47 AC.CP- 172 unrep.
such public servants? And, secondly, was the provocation sought or voluntarily provoked by the offender as an excuse for committing the offence? The facts of this case were quite straightforward. The accused, an abnormally primitive and excitable peasant who lived alone in a rakuba in the Forest Reserve, was formerly employed by the Forestry Department, which allowed him to grow winter maize interplanted with young sunt in the Reserve. After a dispute in 1947 with the deceased, a Forests Overseer, the accused left the department’s service, and without permission sowed two feddans of maize on a sunt plot in the Reserve. He had been warned not to raise his crop and forbidden to enter the Reserve, but continued cultivation. About January 21, 1948 the accused appeared on summons in the Omda’s court to answer the department’s complaint, but the department was not represented. On January 31, the Forests Ghaffir saw that the accused had cut down young sunt trees in his cultivation, rebuked him and reported to the deceased. The latter, in exasperation, gave orders for the accused’s crop, which was then ripening and worth about Le.50 to be cut down and his rakuba to be burnt.
The accused arrived on the same day, after the damage had been done. He loaded some of the cut maize on his donkey, took his spear and scimitar, and set off for the deceased’s camp, one kilometre away. On the way he met the deceased’s son and asked him if he had cut down the maize which he denied. At the camp the accused called out to the deceased, and entered his hut and accused picked up a piece of sunt wood. The deceased confirmed that he ordered the destruction of the crop and rakuba. The accused then struck him several violent blows on the head and arm with the scimitar, causing injuries of which he died almost immediately.
Lindsay J., who delivered the judgment of the Major Court on March 15, 1948, said:
"(i) The first point which arises for our consideration in order to determine whether the provocation was grave and sudden enough to prevent the offence from amounting to murder is section 38 (ii) of the Sudan Penal Code. If it was, the accused is not entitled to the benefit of having acted under the influence of such provocation. It is clear that there is nothing in the Forestry Ordinance which empowers a public servant to destroy crops illegally grown within a forest reserve, and further it is not suggested by those concerned with the order or its execution that they had received written instructions from their headquarters to that effect. On the contrary it was admitted that the proper procedure in such cases is to refer to the Native Court for an appropriate order, and not to act on their own initiative. We think this is a salutary and sensible practice, and
in future we trust it will be expeditiouslY carried out by the Depart ment and Native Courts.
"We accordingly hold that the accused is not barred by reason of section 38 (ii) from the benefit of having acted under provocation.
"(ii) The next point for our determination 5 whether the accused is precluded from the benefit of having acted under provocation by reason of section 38 (i). Was the provocation sought or voluntarily provoked by the offender as an excuse for committing the offence? Our conclusion here is that Adam by illegally cultivating this crop in the Reserve and by refusing to take heed of the warning of the Ghaffir and of a warning by the Ranger, must to a considerable extent be deemed to have brought the provocation upon himself, but we are of the opinion that, although in this case the provocation was volim tarily protoked it was not provoked as an excuse for committing the offence. In the result it is still open to us to consider on the facts as a whole whether Adam was deprived of the power of self-control by grave and sudden provocation." 49
ACTING IN PRIVATE DEFENCE CONSTITUTES No PROVOCATION
A person lawfully exercising the right of private defence may give provocation to the aggressors but the aggressor is thereby not entitled to take shelter behind the defence of “grave and sudden provocation” under section 249 (1) Sudan Penal Code.50
FORMS OF GRAVE PIt0VOCATION
For the purpose of section 249 (i), the provocation has to be both grave and sudden.51 And the gravity of the provocation has been defined as the effect produced on the mind by external circumistances52
It is a well established principle of common law that if a man finds his wife in the act of adultery and instantly kills her or her lover, he has received such provocation as makes the killing only manslaughter.53 In England, the principle does not apply to persons engaged to be married54
49 The defence of grave and sudden provocation failed because the conduct of the accused was found to be exceptionallY brutal and out of proportion to the provocation received.
50 Sudan Penal Code, s. 38 (iii). See the interesting case of Sudan Government V. Adam Hassan Adam (1965) S.L.].R. 138, where it was held that the person provoking the aggressor could defend himself. How far this is right seems questionable.
51 Sudan Government v. Musa Samara Musa (1961) S.L.J.R. 107.
52 Per Soni J. in Sudan Government v. Mofiamed Ahmed Gadir (1961) S.L.J.R. 47 at 50.
53 R. v. Maddy (1672) 1 Ventris 158
54 R. v. palmer (1913) 8 Cr.App.R. 207.
or to persons not married but living together as man and mistress.55 In the Sudan, however, as we shall observe, the principle does not merely apply to cases where the husband discovers his wife in flagrante delicto but also extends to cases where he suspects that adultery has already taken place or is about to take place.56
In Sudan Government v. Nguambori57 the accused came home by night and found his wife was out of the house. He searched for her and found her lying in the house of the deceased with him. He immediately speared the deceased to death. He was convicted of murder. Altering the con viction to one of culpable homicide, Creed L.S. said:
“ The accused had a right, which can hardly be denied, to find out where his wife was and why she was away from home at night. Indeed it may well be thought that he had not only a right but also some degree of obligation, according at least to the standards of the society in which he lives. He went to find his wife. He probably suspected that she might be somewhere where she ought not to be. He found her in a house with another man. The sudden realisation that his suspicions were true, and the finding of his wife actually in a room with another man may reasonably be held to constitute grave and sudden provocation. It seems to me that there is nothing to show that the accused, knowing for certain that his wife was with a lover, set out with the cold-blooded deliberate purpose of finding his wife in the act of adultery, or that he lay in wait for the lover outside the house with a clearly formed determination to kill him….Suspicions he may well have had, but suspicions do not prevent the sudden realisation of the truth of those suspicions from forming provocation.”
In Sudan Government v. Babiker Mohammed Mabloul 58 some months prior to the incident which resulted in the killing of the deceased, the accused had seen him in his house and suspected that the deceased was committing adultery with his wife. On the night of the incident he returned home and found her missing. Suspecting that she was with the deceased, he went to look for her in the house where he was staying. He found them both in the act of adultery and killed the deceased. Abu Rannat C.J. held that the accused was deprived of the power of self control by grave and sudden provocation. The learned Chief Justice
ññññññññ55 R.V. Greening (1913) 9 Cr,App.R. 105.
56 E.g. see the Scottish cases of H.M. Advocate v. Gilrnour 1938 J C. and H.M. Advocate v. Hill 1945 J.C. 138: “The accused would be guilty of manslaughter only where he found his wife in the act of adultery, or in circumstances which reasonably conveyed to his mind that his wife had committed adultery or was just about to commit adultery.”
57 (1941)AC-CP-206- EP-41.C.26- 41,unrep.
58 (1956)S.L.J.R. 36.
observed, “I agree that the accused was suspicious, and that he went to the house where his wife was staying in order to confirm his suspicions.” It is worthy of note here that the earlier connivance of the accused at his wife’s adultery with the deceased, did not prevent the provocation from being grave and sudden.
In another case59 decided in I945 the accused detected the presence of an adulterer in his wife’s hut and awaited him outside, armed with a spear. When he emerged, the accused attacked him with bare hands, but the deceased a more powerful man, threw him and attempted to escape, leaving his spear, axe, shorts and an attached disc. The accused picked up the spear and threw it at him, causing his death. Bennet C.J. held:
“ I think that it must be allowed to the accused that he found the deceased in the hut in which his wife was sleeping in circumstances in which the purpose of adultery was certain. He waited until the deceased emerged from the hut and then attacked him. I do not think that his waiting outside the hut can be said to introduce a measure of deliberation or cooling of blood since we do not know how long he waited and since to enter the hut might well have been either to court death or to give the intruder a chance to escape. . . . In those circumstances, it seems to me that the case comes within the provisions of section 249 (1) Sudan Penal Code.”
In an early Sudanese case 60 the court found that the accused stabbed Koko to death when deprived of self-control by grave and sudden provo cation offered by Koko who had had intercourse with the wife of the accused with her consent.61 The marriage between the accused and his wife had not been consummated. All parties were Messiria Arabs. The prisoner was convicted of culpable homicide and sentenced to imprisonment for life. In his judgment Bell J. said:
“ To my mind the provocation was very considerable, and a person even less hot-blooded than an Arab would have lost control in the circumstances in which the accused found himself. As regards the custom of Hadn, is it as a fact tolerated by the Messiria between a man and another man’s wife, if the marriage has not been consummated?"
Regarding the custom of Hadn, the Governor of the Kordofan Province, wrote to the Chief Justice on October 27, 1924 as follows:
59 Sudan Government v. Pamba s/o Badari (1945) AC-CP-179-45; EP-Maj.Ct.-41.C.-28- 45, unrep.
60 Sudan Government v. Ashol Mohamed (1924) AC-CP-247-24; KDN-Mud.Ct.-41.C.-24-28 unrep
61 It is not clear from the record of the case whether the accused did discover his wife in the act of adultery with the deceased.
“ I understand that the custom of Hadn between one man and another man’s wife when the marriage has not been consummated is punishable according to the Tribal Custom of the Messiria. For a first offence of this nature, the man suspected of illicit Hadn would be warned off by the Sheikh in a Maglis provided the husband proved his case by producing evidence. The next time the man was caught, the husband would bring in witnesses and with their assistance put a rope round the offender’s neck and nearly choke the life out of him and then go away leaving one of their number to sit by him, or the husband may elect to tie up the offender and leave him tied up under the girl’s bed until next morning.”
In Sudan Government v. Elsa Omer 62 the accused thought that the deceased who was on terms of acquaintance with his wife, had come to his house in the middle of the night (at 2 a.m.) to enjoy her favours. He chased and stabbed the deceased to death. It was held by Cummings j. that the conduct of the deceased amounted to grave and sudden provocation. The holding in this case seems to be unusually indulgent, yet the same learned Judge, as the Chief Justice of the Sudan, applied the law rather more strictly in Sudan Government v. Elsa Bahami 63 where the deceased one night, went to the houses of the accused and one Mohamed Hack!, a neighbour of the accused, to look for a goat (or so he said). Both replied they had not seen it and the deceased went off. Later, the same night the accused went to visit Mohamed Hadal to drink some milk. Arrived there the accused who had, he asserted, reason to suspect the deceased was after his wife, enquired after the deceased and was told that he had come and gone. The accused, therefore, went back to his house, and as he thought the deceased might be there with his wife, took off his slippers and approached quietly. At the house he saw the deceased and his wife in very close proximity. He immediately tried to hit the deceased 64 who got up and tried to run away. Two blows missed him and the third hit him on the side of the head. The deceased died some days later. The accused was convicted of murder. Upholding the conviction,65 Cummings C.J. said
" . …Then there is a good deal to be said for the accused on the grave and sudden exception. I would like more information before I could agree that the provocation was grave—more details from the accused as to what the deceased and the wife were doing—after all.
63 (1946)AC-Cp-176-46; KSA-Maj.Ct.41.C-40-46 unrep.
64 The accused used a stick which was curved and very knobby. It was about 3 3/4
feet long and weighed about 1 3/4 Ib
65 But reducing the sentence to 9 years’ imprisonment.
66Contra, Sudan Government v. Yacoub Mohamed El Tayeb (1951) AC-CP-4-51; KDN-Maj.Ct.- unrep: where it was held that suspicion was no provocation.
the deceased had come to the house before that night looking for his goats and might have returned for the same purpose and accidentally found the accused out at that time.” 66
However, the accused was given the benefit of section 249 (1) in Sudan Government v. El Tom Siddik Abbakar.67 Here the prisoner found his wife drinking marissa with the deceased in his cultivation. Under those circumstances, remarked Abu Rannat C.J.:
“ he may have come to the conclusion that there was some illicit relations between them. . . . He was provoked and as he had no time to inquire as to the reasons for the nocturnal visit, he stabbed the deceased once and caused his instant death.” 68
The law seems to have been applied in favour of the husband in an unusually lenient manner.69 Only in one 70 out of the several cases discussed here, the accused was convicted of murder but there too the sentence was altered to one of imprisonment. In view of this trend, it seems doubtful, whether the following dictum 71 of Lindsay C.J. would be followed to-day:
“ A reasonable man is not justified in losing his temper and resorting to violence merely because he suspects that a man is committing adultery with his wife. He must have proof, and sudden and unex pected proof, before giving vent to his feelings of jealousy.”
Confession of adultery:
A confession of adultery by the wife would reduce the offence to culpable homicide.72 In the judgment of Abu Rannat C.J.:
“ If a wife confesses to her husband that she had committed adultery with another man, that would normally be sufficient to enable a court to find that the offence committed was culpable homicide not amounting to murder.” 73
67 (1965) S.L.J.R. 39.
69 For example see two more such cases: Sudan Government v. Adam Salih Tibin (1957) S.L.J.R. 72; Sudan Government v. Mohamed Ahmed Gadir (1961) S.L.J.R. 46.
70 Sudan Government v. Eisa Bahami, fn. 63, supra.
71 Sudan Government v. Ahmed Abdullahi Basi (1952) AC -DP.Maj.Ct.41.C.- 9-52, unrep.
72 Sudan Government v. Marima Mendiwo (1952) AC-CP- BGP.Maj.Ct.-.41.C. 15-52.unrep
73 Sudan Government v. Adam Salih Tibin (I957) S.L.J.R. 72 at 73. At common law, a confession of adultery by one spouse to another could not constitute provocation to justify a verdict of manslaughter if the injured party killed his spouse or the adulterer. Cf. Holmes v. D.P.P. (1946) A.C. 588, H.L. But in Scotland, a confession of adultery is capable of being sufficient provocation to reduce murder to culpable homicide: H.M. Advocate V. Hill, 1941 S.C.(J.) 59; H.M. Advocate v. Delaney, 1945 S.C.(J.) 138. But the common law has been changed by S. 3 of Homicide Act 1957.
The reason for this exception seems to be that a sudden confession is treated as equivalent to a discovery of the act itself.74 A statement by the wife that she was going to live with her lover with whom she confessed to having committed adultery and by whom she was pregnant at the time would amount to grave and sudden provocation.75 Also, an admission by the wife of the accused that she is pregnant by a man other than her husband amounts to grave and sudden provocation to the husband and to the senior members of the family.76
Now it remains to consider how far the detection of the following categories of females in the sexual act would successfully give rise to a plea of grave and sudden provocation: (a) Divorced wife; (b) Mistress; (c) Sister; (d) a Prostitute with whom the accused is infatuated.
(a) Divorced wife: In Sudan Government v. Hussein Idris Abdalla 77 it was held that to find a man in the course of a sexual act with one’s divorcee (during the Idda period) is capable of provocation. M. I. El Nur, Acting C.J., said in his judgment:
“ I do not agree with the court that the accused by coming to his wife at the late hour of the night was stalking her. One cannot exclude the possibility that accused’s intention in visiting his divorcee at the late hour of the night was to have sexual intercourse with her. There is no evidence at all that he expected to find deceased with his divorcee. In my view, therefore, accused killed deceased while he was deprived of his self-control by grave and sudden provocation.” 78
It has been conceded here that the position would be different if the husband had gone to spy over his divorced wife. Indeed in such circumstances if the aggrieved husband kills his divorcee’s lover during the Idda period, he would be guilty of murder.79 However, what is baffling about the case of Hussein Idris Abdalla is that the judgment of Mr. Justice El Nur seems to recognise the right of a husband to visit a divorced wife in her house at the late hour of the night.80 Does such a right exist simply because the accused was attempting to revoke that divorce? 81
(b) Mistress: In Sudan Government v. Abdulla Abde) Rahman Osman 82 which arose in 1954, the court found that the accused and Missou, who
74 R. v. Rothwell, 12 Cox CC. 145.
75 Sudan Government v. Gadeem Ragab Ali (1962) S.L.J.R. 126. But cf. contra R. V. Ellor (1920) 15 Cr.App.R. 41
76 Sudan Government v. Sulieman El Dukhri (1941) AC-CP.128-41; BNP-Maj.Ct-.35-41unrep
(1961) 77 S.L.J.R. 116.
78 Ibid at p. 117
79 Sudan Government v. Nasr Diab (I943) supra fn. 28; Sudan Government v. Ismail Mustafa El Tayeb
(1945) supra fn. 30.
80 Contra: Sudan Government v. Nasr Diab, supra.
81 (1961)S.L.J.R. 116 at 117.
82 (1954) AC-CP- BNP.Maj.Ct-21-54 unrep. See also Sudan Government v. Guma’a Said ( supro fn. 31,
were not married, had been living together for a period of twelve years and Missou had borne him four children. Before the date of the killing, the accused knew that Missou was “carrying on “, with one Fadl El Mula, for many months, and yet he took no steps to complain to anyone in authority. On the night of the incident the accused lost his control when he found the couple in bed together. He inflicted grievous wounds on Fadl El Mula and stabbed Missou to death. The Trial Court found him guilty of murder. In the Court of Appeal Watson J. held:
"If a man has kept as a mistress a slave girl since she reached the age of puberty, if they have openly lived together, and if she has given him four children, I submit that she is de facto accepted as his wife; and though intimacy with another man may not constitute adultery, it is not a freedom which the ‘husband’ is prepared to recognise. To find the woman in bed with another man, in my view, undoubtedly constituted grave provocation.”
Endorsing the view of Watson J., Lindsay C.J. said:
“ The accused was gravely provoked by both the man and the woman, and this Ta’ishi accused was in my view, and Watson J.’s view, deprived of his power of self control due to that provocation.
“ If the woman had been legally married to the accused, what would the trial court’s findings have been? In English law the distinction has been made between the provocation afforded by acts of unfaithfulness of a mistress and a wife, in the former case the law has adopted a less benevolent view 83. I venture to doubt whether in Scotland, where open cohabitation in certain circumstances crystallises into recognition of lawful marriage; the law is so uncompromising.84
It seems to me that in this case under consideration, Watson J.’s view that the woman should, for the purposes of the finding, be de facto accepted as the accused’s wife is realistic and accords with my observation in my judicial experience of these relationships. The girl was taken into the accused’s house from puberty, and she had given him four children. There is no reason to suppose that the accused intended to allow the woman to be sexually free, or that the accused failed in his obligations to support her. I find it difficult to believe that after such a long period of cohabitation, living as a family, there was any sort of right locally recognised for the woman to start an illicit relationship with Fadi El Mula. In short, I consider in this particular case that the actual provocation given to the accused by
83 For example, see R. v. Greening (1931) 3 K.B. 846.
84 Indeed, it is.
both the deceased was every bit as grave as if the accused and the woman had been legally married.”
In a recent case,85 Abu Rannat C.J. said, obiter:
“ The consensus of opinion in India is that there should be no differentiation between lawful wife and a mistress when the question of grave and sudden provocation is in issue. The Madras High Court held” that the question of provocation is a purely psychological question and one cannot apply considerations of social morality to such a purely psychological question. Consequently, where a man sees a woman in the arms of another and loses control over himself, the circumstances that she was his mistress and not his wife does not make any real difference for the purpose of Penal Code, s. 249 (1)"87
With respect, it is submitted that the learned Chief Justice has misapplied the Madras case relied upon by him. The Madras ruling does not apply to just any form of provocation given by the mistress but is confined in its application to cases where she is found in the arms of another man.
“ When a man sees a Woman, be she his wife or mistress, in the arms of another man, he does not stop to consider whether he has or has not the right to insist on exclusive possession of her person. She is a woman of whose person he desires to be in exclusive possession, and that is, for the moment, enough for him.”86
On the facts of the instant case, it is clear that the mistress of the accused may have hit him on his face with her slipper and that she decided to abandon him. On this the accused lost his temper and stabbed her vigorously in the stomach causing her death. The learned Chief Justice proceeded to find the accused guilty of culpable homicide.
The statement of the law, as formulated by Abu Rannat C.J., that there should be no differentiation between lawful wife and a mistress when the question of grave and sudden provocation is in issue gives a misleading picture when looked at in abstract. The question of provocation ought to have been judged in relation to the assault with the slipper, and that being so, the retaliation was not commensurate with the provocation uttered and so the accused ought to have been convicted of murder.88 The conclusion reached by Abu Rannat C.J. would have been quite correct had the deceased been found by the accused in the arms of her lover, which was not here the case.
(c) Detection of sister in the sexual act: In the two unreported cases
85 Sudan Government v. El Amin Karama El Hag (1961) S.L.J.R. 95.
86 Potharaju’s Case, (1932) Madras 25.
87 (1961) S.L.J.R. 9 at 9
88 Sudan Government v. Ibrahim Ahmed El Faki Abdalla (1961) S.L.J.R. 11. The proportion rule of retaliation is dealt with infra pp. 62—66.
on the point which the present author has been able to find, the sisters of the accused persons were not found in the act of adultery. They were found with their lovers in circumstances where the prisoner may have thought that sexual intercourse had either taken place or was about to take place. Both the prisoners who killed the paramours of their sisters were convicted of culpable homicide only. A fortiori detection of a sister of the accused in the act of adultery would amount to grave and sudden provocation in law so that the killing would not be murder.
In the first case,89 decided in 1952, the deceased, who had previously had intercourse with the sister of the accused, had been warned by him to keep away from her. One night the deceased went to her house at night after a dance and the accused, finding him there, accosted him. The deceased raised his stick, but the accused struck it from his hand and, when he tried to wrestle, struck him twice on the head and once on the buttocks with a long bamboo okaz. The second blow, delivered after the deceased fell to his knees, fractured the skull and caused his death the next morning. Abu Rannat J., finding the accused guilty of culpable homicide, said:
“ I think the accused was bound to connect the subsequent conduct of the deceased, when he found him in such suspicious circumstances, with his previous acts. The presence of the deceased in the house of the accused’s sister at night, is one which no doubt, aroused his passion. The deceased’s act was both illegal and improper.90 Gour states 91 that it was held that the killing of a man holding adulterous intercourse with the wife or other female relative of the accused would only be culpable homicide and not murder…..
I think the Indian decision referred to by Gour applies to the facts of this case, and I think there was grave and sudden provocation 92 which reduces the offence to one of culpable homicide not amounting to murder.”
There being no parallel between the Indian case cited by Abu Rannat J. and the facts of the instant case the law was stretched to the advantage of the accused. The Indian case would have been applicable only if the sister of the accused had been discovered by the accused during the course of the sexual act which was not the case.
In the second case 93 also the deceased was detected in the guttiya of the sister of the accused in suspicious circumstances. On the day of the
89 Sudan Government v. Ghum Ahmed Ali (1952) AC.CP.45-52; BNP-Maj.Ct.-4-52. unrep.
90 In what sense?
91 Penal Law of India, 3rd ed., p. 996.
92 Because of the previous nocturnal Visits of the deceased, the provocation in this case was held to he cumulative.
93 Sudan Government v. Omer Elsa Omer (1955) AC.CP-232-55; KDN-Maj.Ct.-36-55. unrep.
incident the accused went to his sister’s house at about 9 p.m. to find out whether their mother, who had gone to another village, had come back or not. The sister came out of the guttiya and told him that the mother had not returned. While conversing, the accused heard movement inside. He went in but there was no light there. The deceased, who was there, probably wanted to escape, and a struggle ensued between both and they wrestled, the accused overcoming the deceased and stabbing him with his knife thrice in the abdomen cutting the blood vessels and causing the hanging out of part of his intestines. The deceased was armed with a knife which he was wearing under his sleeve but he did not use it. A Major Court, finding the accused guilty of murder, said:
“ The accused had no cause for grave and sudden provocation, and he did not act as a reasonable man. He should have waited for the fetching of the light. A sister’s scandal is never so grave as that of a wife. A prudent man would argue with a sister or even beat her. She was not found in flagrante delicto but the circumstances were merely suspicious.”
So Exception 1 to section 249 did not apply.
Soni J., reversing the conviction to one of culpable homicide, said:
“ I think the statement of the accused might safely be accepted when he said that he acted on the spur of the moment quickly and suddenly. Provocation was sudden. The next question is whether it was grave. In these matters the evolution of society must be considered. Social habits and feelings have to be taken into account in order to find out whether a sister’s wrongdoing would or would not as a matter of fact so upset a man of the social standing of the accused that, through a transport of passion he would lose his self- control, considering his honour so hurt that he would kill the paramour instantly. “94
(d) Discovering Prostitute in the Sexual Act: Where a man who is infatuated with a prostitute finds her (or a woman believed to be her) in a darkened house in bed with a man, and kills her in jealous rage, he is not entitled to the protection of section 249 (1) because he saw no more than he would expect to see. Any provocation, therefore, would not be sudden 95
94 Finding of guilty under s. 253 was confirmed by Abu Rannat C.J.
95 Sudan Government v. Yousif El Mahi (1942) AC-CP. NP.MaJ.Ct..6-42, unrep. See also Sudan Government v. Abdu Mohamed Ahmed (1945) AC-CP.276-45: KTM-Maj.Ct.-17-45 unrep. Here the accused had lived with a prostitute as man and wife for two years but they had been separated for some 18 months. One day the accused assaulted a man whom he found in the hosh of the woman. On the next day she arranged to meet another man. The accused overheard the conversation, followed them and as they lay on an angarib stabbed the complainant, It was held there was no provocation.
Provocation by words:
Words, whether of abuse, or used merely as a means of communicating information 96 may give rise to grave and sudden provocation.97 Since 1930, the courts in the Sudan have taken the view that whether provocation by spoken words is grave or sudden depends as much upon when and how those words were used as upon the mentality of the person to whom they were addressed.98 For example, there would be no provocation if the abusive and vulgar words are common among the parties, bearing in mind their social standing. If the social standing of the parties tolerates such insults, then the accused could not be inflamed by their use 99
An insult by itself may not amount to grave provocation but the court must view the result in the light of the previous conduct of the deceased. In Sudan Government v. Mohamed Nur El Bedu Su I-famed 100 the prisoner, who used to be away from home for many months at a stretch, suspected his wife of adultery. He asked her whether she thought that the men whom she admitted to his house and, to whom she applied perfume, were better than he, and she replied, “Yes, their tracks in the ground are better than you.” Thereupon he killed her. He was convicted of murder. Substituting a finding of homicide Bennet C.J. said:
“ It seems to me that it can be said on behalf of the accused that you cannot balance words as if they were mere weights and measures, because you cannot omit the vital factors of the tone and expression with which they were used; that while the deceased’s answer may be said to flow from the accused’s question, it does not do so naturally because of its exaggeration, that because the deceased saw fit to indulge in this hyperbole it is more probable than not that she spoke contemptuously, that a contemptuous answer in such circumtsances was itself provocative, irrespective of the words used, that the words used constituted an admission and confirmation of all the accused’s previous suspicions.”
96 Confession of adultery has been discussed already; supra page 24.
97 Words or gestures may often be infinitely more irritating and provoking than a personal injury of a trivial nature"—Fourth Report of the Commissioners on Criminal Law 1839. cited in the Report of the Royal Commission on Capital Punishment (Cmd. 8932) para. 146.
98 Per Owen C.J. in Sudan Government v. Ahmed Ibrahim isagha (1930) AC.CP-245- 30; BNP-Maj.Ct.-41.C-7-30 unrep. The accused was taxed by the deceased as being impotent and was called a Pimp. He was convicted of murder. See also Creed C.J. in Sudan Government v. Abdel Salam Abdel Sawikoko (1939) AC-CP-84.39; KSA-Maj.Ct.-5-39 unrep.: “1 am not prepared to subscribe to the view that under no circumstances can mere words amount to grave and sudden provocation.”
99 Sudan Government v. Babiker Hassan Tayalla (1949) AC.CP-161-49- BGP-Maj.Ct.1 4 C-7-49,unrep.
100 AC-CP-223.45; KDN-Maj.Ct..56-4 unrep.
An impertinent answer, however, by the daughter of the accused, is incapable of amounting to grave provocation. In Sudan Government v. Mahmoud Dafalla El Awad 101 the accused came home drunk one evening and asked his eight-year-old daughter about the whereabouts of her mother, She said that she did not know to which the accused said, “God knows you not.” According to him the girl enraged him by replying, “God knows not you “. Believing that she was being impertinent he beat her indiscriminately with a stick all over her body until the stick broke and then with a heavier stick. One such blow fractured the skull causing her death. It was held that the accused was guilty of murder. The insults which the accused alleged he and his daughter exchanged could not amount to grave and sudden provocation.
The accused could not be provoked if he does not hear the insulting words 102
An insulting remark like Sagam geneetak kan ma dugetni which literally translated means, “a fart in your arse if you do not hit me” by the sister of the accused to him would fall within the protection of section 249 (1) Sudan Penal Code.103
If the accused also participates in the exchange of insults which are initiated by the deceased, it seems, that much of their gravity would disappear. Bodilly J. remarked in a case 102 decided in 1951
“ The insults were serious and they originated from the deceased, with apparently a minimum of cause, if any. Two witnesses heard the deceased insulting the accused but their evidence as to what was said materially differs. One of them states, that the insult took the form of, ‘Curse your father and the father of the Khawalda’ (the accused being a Khaldi) to which the accused replied ‘Curse the Westerners’; whereas the other witness says that the deceased called the accused ‘son of the mother of a penis’. It is a moot point as to which of these insults might raise a man’s temper the more, but in any event, the accused himself stated that he did not hear this latter insult, and therefore, he could not have been provoked by it. That being so, can this provocation be described as grave within the
101 (1949) AC-CP-3-4;KSA-Maj.Ct.-2-49, unrep.
102 Sudan Government v. Abdel Rahman El Bashir El Sheikh (1951) AC-CP-305-53; BNP.Maj.Ct.-74- 53unrep.
103 Sudan Government v. Sulieman Balula (1953) AC-CP- BNP-305-53-Maj.Ct.-74-53.
unrep. The court found that the accused was a thoughtful and affectionate brother. Both Sudanese members of the court agreed that the provocation offered by the deceased was not such as to make a normal man lose his self control sufficiently to stab his sister. He might be expected to beat the girl but no more. Owen C.J. said: “The court believed the insult to be ‘grave and thi.c considerable insult was also sudden. The act of the accused seems to fall fairly and souarely within the ‘grave and sudden provocation ‘ clause of S. 249, Sudan Penal Code.”
meaning of section 249 (1) of the Code? We think it cannot. We do not go so far as to say that in no circumstances would a mere verbal provocation be sufficient to reduce murder to culpable homicide, for the repetition of the insult or other features of it might well do so, but in the circumstances of the insult in this case, which appears not to have been aggravated beyond the words themselves to which the accused also replied in similar terms, we cannot feel that they were sufficiently serious. This view is supported by the reactions of those who heard the insult.”
However there are cases where words have been held to constitute grave provocation. It was held that a statement by a man to the wife of the accused that he wants “dilka by night “—a kind of massage administered by women to men, is a provocative act, and if the accused killed him at that moment, he would be entitled to the protection of section 249 (1).104 A suggestion by the deceased that the accused and his relatives had no ancestors, viz, that he was illegitimate or that his fathers were of low class such as slaves etc., is capable of giving provocation.105 Moreover, reflections on the parentage or manhood of the accused and possibly slapping him on the face would give rise to the defence of grave and sudden provocation.’106
Verbal insults coupled with assaults:
The cases discussed here are quite conflicting. Repeatedly abusing and insulting the husband and seizing his testicles by the wife amounts to grave and sudden provocation,107 while uttering of insults and abuse together with squeezing of his privates by a mistress of the accused falls short of gravity.108 Seizing of the garment of the accused by his wife and hitting him with a heavy stick has been held to be grave provocation 109 whereas similar conduct by a former mistress of the accused in attacking him and tearing his clothes may be provocative but is not grave.110
104 Per M. I. El Nur, Acting C.J. in Sudan Government v. Mohamed Ahmed Gadir (1961) S.L.J.R. 46 at 48.
105 Sudan Government v. Ismail Ahmed Gargara (1962) S.L.J.R. 148. But of. Sudan Government v. Abdulla Abdel Hadi (1945) AC-CP-315-45; North-Maj.Ct.-Gen.8-1 unrep., where the deceased called the accused a slave and there was some evidence that at one point he may have even poked the bottom of the accused. It was held (per Creed, Acting C.J.,):… “The verbal insult of ‘slave’ does not in my view amount to grave provocation.”
106 Sudan Government v. Obeid Abdulla (1950) AC-CP-84-50; NP.Maj.Ct.-5-5o, unrep.
107 Sudan Government v. Idris Mohamed (1934) AC-CP-57-43, unrep.
108 Sudan Government v. Yacoub Abdel Rahman (1951) AC-CP-274-51; BNP-Maj. unrep.
109 Sudan Government v. Gadalla Mohamed (1938) AC-CP-159-38; KDN-Maj.Ct.-41.C.-
110 Sudan Government v. Abdalla Said Medani (1937) AC-CP-37-37; KTM-Maj.Ct.-41. C.-19 unrep.
The provocation offered by the deceased in using an abusive epithet and striking the accused with his whip may be grave within the meaning of section 249 (1) Sudan Penal Code.111 It seems, however, that the use of a whip when accompanied by an abuse is more provocative than the punching of the face of the accused together with an utterance of an insult. In Sudan Government v. Abdalla Mohamed Ali 112 there was a brawl between the accused and the deceased and his companions, in which the deceased insulted the accused and punched his face. The accused then walked to a lorry to find a weapon in the dark, picked up the starting handle and returned to give the deceased a single heavy blow on the head, fracturing his skull, so that he died the next morning. It was held by Lindsay C.J. that he was guilty of murder because the court was not satisfied that this provocation was sufficiently grave to resort to the use of a deadly weapon. In another case,113 the deceased, a prisoner of viOlent character and record, serving a life sentence in Port Sudan, insulted the accused, a young Nuba warder, and pushed his hat off. The accused loaded his rifle, which he had never previously fired, and discharged a round which struck the deceased. An operation was performed on the deceased which turned out subsequently to have been unnecessary. Hernia developed in consequence of the operation, and a second operation was performed six months later to treat the hernia. The deceased died. as a result of the operation. A Major Court found the accused guilty of murder.
Creed, Acting C.J., in a note on confirmation, gave the accused the benefit of section 249 (1) and reversed the finding of the court to one of guilty under section 253 Sudan Penal Code. The learned Judge said:
“ In my view the court has again decided wrongly. It accepts as a fact that the provocation was not merely verbal but also physical and it stresses the fact that it was in a public place. To a young warder rightly conscious of his responsibilities and of the necessity of maintaining his position such provocation as that described is wounding in a very high degree especially when coming from an old lag like the deceased, who was clearly a rascal of the most offensive type.”
So we could deduce from the above statement of the law that, in order to assess the gravity of the provocation, the relationship of the provoker to the accused must be taken into account. Indeed, the same act of provocation may acquire some degree of severity especially when it
111 Per Creed C.J. in Sudan Government v. El Agab Mustafa (1937) AC-CP-8.37; WNP-Maj.Ct..41 .Ct-41.C-242,unrep.
112 (1951) AC-CP-331-51; KSA-Maj.Ct.-65-51, unrep.
113 Sudan Government v. Mohanna Kuku (1945) AC-CP-324-45; KSA-Maj-Ct-41.C-59-
comes from the wife rather than a male relation of the accused. This is clearly demonstrated by the case of Sudan Government v. Gadalla Mohamed 114 where it was held that:
“ in considering the question of grave and sudden provocation by the deceased (wife of the accused), full weight should be given to her sex and to the nature of the blow (apparently a very severe one) struck by her.”
In another case,115 Atabani D.J. remarked:
“ In considering whether the accused can avail himself of the concession which the law gives to the frailty of human nature, due regard should be given to the fact that the deceased was not only the wife of the accused but also his cousin. As such the accused would be susceptible to a greater degree of provocation than in the ordinary case of a husband and wife.”
Refusal of intercourse
Refusal of intercourse by the wife does not amount to grave and sudden provocation in order to entitle the accused husband to the benefit of section 249 (1) Sudan Penal Code, should he kill her. In Sudan Government v. Awad Fadol 116 according to the accused, his wife had been misbehaving and insulting him for some three or four months. On the night of the incident, she refused him intercourse and grossly insulted him. He seized his arm knife, which was hanging on the end of the bed, and stabbed her fourteen times inflicting injuries of which she died at once. The accused was convicted of murder.
Lomax, Acting C.J., in a note on confirmation, said:
“ The court, rightly in my view, held that insults and refusing sexual intercourse did not amount to grave and sudden provocation. Indeed the accused himself admits that for about the last three or four months she had been misbehaving herself and insulting him, and so it can have come as no great surprise to him when on the night of the incident she refused him sexual intercourse and insulted him. The deceased may indeed have used bad insults to the accused, and refused him, but any provocation so caused was not ‘sudden’, and can in no way have justified the act of the accused. The mode of resentment bore no proper or reasonable relationship to the sort of provocation which, even according to the accused’s allegation, had been given. In my view therefore, the act of the accused amounted to murder.”
114 (1938) AC-CP-I59-38; KDN-Maj.-Ct.-41-38 unrep.
115 Sudan Government v. Ahmed Hussein Ali (1950) AC-CP-218-50; KTM.Maj.-Ct.-12-50, unrep.
116 (1950) AC-CP-I 24-50; KDN-Maj.Ct., unrep
In another case 117 the accused tried to have sexual intercourse with his wife. She resisted, he snatched up his knife lying on his bed and stabbed her with it. There was evidence that at some stage she may have hit him in the private parts with a slipper. He convicted of murder. It was held by Lindsay C.J.:
“ Even on the assumption the deceased used a slipper, this provocation coupled with the resistance to his desire for intercourse did
not entitle the accused to the benefit of subsection (1) of section 249
of the Code.” 118
In both the unreported cases just discussed, the accused persons were found guilty of murder although the refusal of intercourse by the wife was accompanied by insults in one case and with an assault in the other. A fortiori, mere refusal of intercourse, leading to the killing of the wife, would be murder.
A normal reasonable man values his manliness to a great extent so that a sexually tainted tickle, a touch on the lip, a caress on the cheek or a tender romantic embracing and such similar preludes to an act of sodomy or acts pertaining to sexuality would certainly excite the passion of such a man and would amolmt to grave provocation.119 But if upon such an act of provocation, the accused kills the provoker, he would be guilty of murder.’120
It has been held in England that if a father sees another person in the act of committing an unnatural offence with his young son and instantly kills him, this, by analogy to the adultery rule would amount to sufficient provocation; but if, hearing of it, he goes in quest of the party and kills him, it would be murder.’121
Some examples of grave provocation:
A forcible entry by the deceased into the house of the accused, possibly with a dangerous weapon, for the purpose of assaulting the accused may give rise to grave provocation.122 A murderous attack upon the accused with a sword, from which he suffers painful injury, amounts to grave
117 Sudan Government v. Abdulla Abdel Fattah (1951) AC-CP-276-51, unrep.
118 See Sudan Government v. Mohamed Nur El Bedu Suliman Hamad (1945) AC-CP 223-45; KDN-Maj.Ct.-56-45, unrep. The prisoner was held to have been provoked by the refusal of his wife to allow him to have intercourse with her, coupled with insulting words spoken by her. The provocation in this case was held to be cumulative; infra p. 50.
119 Sudan Government v. Hassab El Rasoul Hussein (1963) S.L.J.R. 163.
120 Sudan Government v. Ibrahim Ahmed El Faki Abdalla (1961) S.L.J.R. 11. Because retaliation must be commensurate with the act of provocation.
121 Per Parke B. in R. V. Fisher (1837) 8 C. & p. 182.
122 Sudan Government v. Hassan Billal (1939) AC-CP-208-39; BNP.Maj.Ct.-46-39, unrep.
provocation.123 Moreover, an accused person may be provoked by being throttled,124 or where he is stripped of his shirt and the attack upon him results in injury to him.125
Striking the wife of the accused by the deceased, in the act of pursuing his own wife who runs into the house of the accused for shelter, amounts to provocation to the accused husband.126
An unauthorised borrowing of a donkey belonging to the accused is capable of provoking him.127
The refusal of a thief on being pursued to give up himself and the stolen property, together with aiming a rifle at him, amounts to grave and sudden provocation in that it would deprive a reasonable man of seIf-control 128
In an unreported case,129 the accused, an ex-employee of the Forestry Department, was warned not to raise his crop and forbidden to enter the reserve, but continued cultivation on a sunt plant in the reserve. The deceased Inspector, who was not authorised to order the destruction of the crop, ordered it to be cut and the rakuba belonging to the accused to be burnt. It was held that to such a man the cutting of his valuable crop, just before it was ripe, was grave provocation.
If the deceased deprives the accused of money and shirt with a pair of shorts, by what is little short of false pretences, this amounts to provo qation, but such a provocation is not grave within the meaning of section 249 (1) of the Sudan Penal Code.130
I has been held that the taking of a sheep or bull from the family’s stock would constitute grave provocation to the members of a family of a Nilotic or the people from the Eastern District of Equatoria Province.131 But injury to property could not amount to grave provocation in law. In the judgment of Mudawi P.J. in Sudan Government v. El Balla Baleila 132:
123 Sudan Government v. Abdalla Idris Abdel Rahim (1942) AC-CP-71-42; NP-Maj.Ct.
4-4 2 unrep.
124 Sudan Government v. Guma’a Shamie Kaf rein (1951) AC-CP-26-51; DP.Maj.-Ct.-41
125 Sudan Government v. Adam El Bushra (1951) AC-CP-151-51; KDN-Maj.Ct.-33-5I, unrep.
126 Sudan Government V. Mohamed Mehaair (1941) AC-CP-66-41 KDN-Maj.Ct.-23-,unrep.
127 Sudan Government v. Mukhtar El Hag El Amin (1946) AC-CP-200-46; KNC-Maj-Ct. 42-46, unrep. Here the provocation was not found to be sudden because the accused had known of the borrowing of the donkey for some time and had actually heated up and been cooled down over it.
128 Sudan Government v. Abdalla Mohamed (1940)AC-CP.237-40; KDN-Maj.Ct.-76-4o, unrep.
129 Sudan Government v. Adam Burma Gadim (1948), supra fn. 47.
130 Sudan Government V. Ahmed Hassan Abdel Rahman (1949) AC-CP-245-49; BNP Maj.Ct..48- 49 unrep.
131 Sudan Government v. Logol Adozie Nalmazia (1966) S.L.J.R. 2.
132 (1958) S.L.J.R. 12 at 13.
“ Generally the act of the deceased to be provocative must be addressed to the person of the accused, or in a limited number of cases to people related to him. Provocation (Provocative) acts were never extended to cases of injury to property and it will be a sad day if the extension was effected.”
The question as to how far the belief of the accused that the deceased was responsible for several deaths in his family because of the charms exercised by him amounts to grave and sudden provocation was discussed in Sudan Government v. Tia Muni.133 In this case, the accused married the daughter of the deceased, a noted witch-doctor or Kujur, but she died in childbirth, and the accused blamed the deceased for practising his evil machinations. The accused got married again, and three daughters subsequently born died suddenly. The accused implored the deceased to cease his practices but his second wife and a newly born son died suddenly. Convinced that all the deaths had been brought about by the deceased, he sought the deceased out in order to kill him. The accused found him hoeing a field, dropped the spear which he was carrying and attacked him with his knife. The deceased defended himself with his hoe, but the accused closed and stabbed him to death. A Major Court, finding the accused guilty of murder, said that it was clear that the accused suffered most grievous family losses—three girls, a young son and their mother all died in strange circumstances in two years—he was quite satisfied, indeed certain, in his mind that all this was caused by the spells of the deceased, and suffered so much that he was pretty well out of his mind.
.Cummins C.J., agreeing with the Major Court, said:
“ The accused did not cause the death whilst deprived of the power of self-control by grave and sudden provocation given him by the deceased. The accused firmly believed that the deceased had caused by spells the deaths of four of his children and their mother, but he had not an atom of proof of that, so that it was impossible to say that the deceased had given him any provocation at all.”
For provocation to be sudden, it must be unexpected.134 It must take the accused unawares. He must not voluntarily have “asked for the provocation” which he pleads.135 Furthermore, provocation would
133 (1939) AC-CP-95-39; KDN-Maj.Ct.- unrep.
134 Per Flaxman C.J. in Sudan Government v. Yousif El Mahi (1942) AC-CP-136-42;
133 Per Creed. Acting C.J., in Sudan Government v. Ismail Abu Ashman (1947)
AC-CP-156-47; KDN-Maj.Ct.- unrep.
not be considered sudden if the accused had actually heated up and been cooled down over it.136 For example in Sudan Government v. Adam Haraz Atrun 137 the accused, while boasting at a party, swore by divorce that he had killed more elephants than any man of the Rizeigat. The real champion, the deceased, took this as defamatory, and in spite of the accused’s apology, hailed him before the native court which fined the accused Le4.o for swearing a false oath and referred him to the Mazoon, who divorced the accused from his wives. The accused was then in the position that Sharia Law forbade remarriage to an ex-wife unless there had been an intervening marriage and subsequent divorce between her and the second husband. The accused was enraged at the destruction of his domestic life for which he considered the deceased responsible. Encountering him one day on the road, he attacked the deceased with a spear. There was a fight between the two men in which the deceased was killed. Maclagan C.J. found the accused guilty of murder. The learned Chief Justice remarked: “The accused undoubtedly harboured feelings of rage and jealousy against the deceased; but there was no sudden provocation.”
Soni J., explaining the meaning of the term “sudden” said : 138
“The clause (1 of section 249) applies when the man is confronted with the provocation: that is the meaning of ‘sudden’. If a thing happens or comes on without warning, it is then called ‘sudden’. A person acts ‘suddenly’ when he acts without forethought or deliber ation. An act is done ‘suddenly’ when it is performed without delay, when it is speedy, prompt and immediate. If a man thinks over what he is going to do, when he plans an action, when he is carrying out what he has planned, he is acting with forethought and deliberation, and his action is not sudden.”
The Sudanese Courts have taken the view that the accused should have been so infuriated by the grave and sudden provocation given to him that he should either act at once 139 or react immediately 140 or that his act should be the offspring of the moment but not the result of cool and mature consideration.141 There have been cases where the courts have applied the objective test so that if there was ample opportunity for the
139 Sudan Government v. Mukhtar El Hag El Amin (1946) AC-CP-200-46; KNC-Maj.Ct.. 42-46, unrep.
(1948)137 AC.CP- KDN.Maj.Ct.-29-48, unrep.
138 Sudan Government V. Mohamed Ahmed Gadir (1961) S.L.J.R. 46 at 50.
139 Per Bodilly J. in Sudan Government v. Abdel Rahman El Beshir El Sheikh (1951) AC-CP-5-52 BNP- Maj.Ct..1-51- unrep.
140 Sudan Government v. Logo! Adozie Nalmazia (1966) S.L.J.R. 2.
141 Per M. I. El Nur, Acting C.J., in Sudan Government v. Mohamed Ahmed Gadir (1961) S.L.J.R. 46 at 48. Also see Babiker Awadalla J. in Sudan Government V. flood Adam Omer (1969) S.L.J.R. 75: “The accused should have acted on the spur of the moment.”
blood of the accused to cool down, he would be guilty of murder, although, as a matter of fact, subjectively speaking, he had not regained his power of self-control. The clearest indication of this comes from cases where courts have declined to give the benefit of section 249 (I) to the accused if he had had ample time to consider the consequences of the crime 142 or if there was lapse of time between the provocative act and the killing143.
Exactly, how much time should elapse between the alleged act of provocation and the act of killing in order to give the accused the benefit of section 249 (1) Sudan Penal Code is not clear. In Sudan Government v. Mohamed Mehagir 144 lapse of fifteen minutes was held to be fatal although Flaxman C.J. remarked that the continuance of a state of mind is not necessarily to be measured solely by the passage of minutes. The judgment of Flaxman C.J. was as follows:
“ The court believes, and there is evidence to support its view that perhaps fifteen minutes elapsed between the injury by the deceased to the accused’s wife and the striking blow by the accused. That is to say, in its opinion, the loss of self-control occasioned by the provocation had died down, and reason had time to assert itself. The continuance of a state of mind is not necessarily to be measured solely by the passage of minutes, but although it is possible that another court might have taken a different view, I think there was evidence here to justify the finding of the fact by the court that the accused is shown to have sufficiently recovered his self-control, if indeed, he had lost it by reason of the provocation, at the time he struck his blow. The defence of grave and sudden provocation fails.”
Offence during loss of self-control:
Whether the provocation was grave and sudden enough to prevent the offence from amounting to murder is a question of fact.145
It seems that the courts have misconstrued clause (i) of section 249 Sudan Penal Code which provides that in order to entitle the accused to mitigation, the offence must have been committed “whilst the offender is deprived of the power of self-control” in consequence of grave and
142 Sudan Government v. Abdel Salam Sawikoko (1939) AC-CP.84-39; KSA-Maj.Ct.5-
143 Sudan Government v. Abdulla Abdel Hadi (1945) AC-CP.315-45 North.Maj-Ct. Gen.-8-1 unrep. Cf. also Sudan Government v. Ali Mohamed Ahmed (1950) AC-CP-272-50; BNP-Maj.Ct.-47-50 unrep.: “Whatever provocation there may have been at the time of the agreement to fight, the accused had had plenty of time to review his determination.”
144 (1914)AC-CP-66-41- KDN-Maj.Ct.—23-41 unrep.
145 Explanation to clause (1) of s. 249, Sudan Penal Code. Applied in Sudan Government v. Omer Eisa Omer (1955)AC-CP-232-55; KDN-Maj.Ct.- unrep.:
Sudan Government V. El Agab Mustafa (1937) AC-CP-8-37;WNP-Maj.Ct.-41-C-242, unrep.
sudden provocation. The judgments of the Sudan courts seem to suggest that provocation would no longer be sudden if the accused walked a considerable distance to fetch the weapon of crime. Going a considerable distance for the weapon might in certain cases introduce an element of preparation and premeditation for the crime 146 but there may be cases where the accused may still be in the grip of an ungovernable fury and the question that would arise for determination would be whether or not the offence could be attributed to loss of control engendered by the provocative act.147 It is quite immaterial whether another person in similar circumstances would have cooled down or whether the accused ought to have cooled down but the essential question is to inquire whether as a matter of fact he did cool down. The test prescribed by the Penal Code is purely subjective in character and there is no room for introducing the criteria of a reasonable man. Nevertheless, it has been held that where the accused travelled a mile before he killed, the provocation would rio longer be sudden because there was sufficient time and opportunity to a reasonable man for reason to resume its seat and for the blood to cool.149 In Sudan Government v. Adam El Bushra 150 the accused ran to his house, 1000 yards from the scene of the quarrel, he took his two kokabs. He followed his enemies 151 who gave him the provocation, which was found by the court to be grave, for about two miles and passed round in front of them and threw the first kokab that missed. He was not satisfied but ran round for about iooo yards to stand before them again and throw, when he succeeded in recording a direct hit on the heart of the deceased. The Major Court was of opinion that the time during which the accused was engaged in these manoeuvres was sufficiently long to make him cool down and recover his reason and self-control because the suddenness that forms the essence of the defence of provocation must have waned from the moment the accused thought of going to his house to bring his
146 In Sudan Government v, Abdalla Said Medani (1937) AC-CP-37-37; KTM-Maj.Ct.-41-C.191. unrep., the accused walked half a mile to his own house, he took the spearhead, walked half a mile back to the house of the deceased and stabbed her on arrival. This was held to be an act done under preparation and the crime was murder.
147 Cf. Sudan Government v. Marima Mendiwo (1952) infra. 44.
148 Gour, The Penal Law of India, Vol. 2 (7th ed., 1963) at p. 1416.
149 Sudan Government v. Adam Burma Gadim (1948) AC-CP-57-48 BNP-Maj.Ct.-? -48, unrep. Also in Sudan Government v. Sulieman El Dukhri (1941) AC-CP-128-41: BNP-Maj.Ct.-35-41 unrep., the accused was not given the benefit of S. 249 (1) because he followed the deceased for 500 yards before killing him and did not act when the provocation was given.
150 (1951)AC-CP-151-51; KDN-Maj.Ct.-33-51 unrep.
151The use of the term “enemies” is a bit unfortunate because the record does not reveal that there was prior enmity between the accused and the deceased and his companion. After a dance the accused received provocation from the deceased and his companion, who attacked and injured him and stripped him of his shirt, which they carried away.
weapons. The accused, therefore, was not protected by section 249 (1). In a note on confirmation, Lindsay C.J. said:
“ It seems to me that the accused had in fact regained his power of self-control, since on each occasion for which he threw his spear, he seems to have waited for the deceased and his companion to come up before emerging to throw his spear and I think the conviction (for murder) was correct.”
Even walking a distance of ten metres, not in order to fetch a weapon, but merely to take off the gallabia, drawing his knife by the accused and then walking back, has been held hardly to make the offence on the spur of the moment which is an essential criterion in determining whether the provocation was or was not sudden.152
At least in one unreported case, namely, Sudan Government v. Marl am Mendiwo 153 the courts have applied the subjective test in determining whether the accused had regained self control at the time of the killing. There the court said that the answer to the question whether the provocation was sudden depended not only on the passage of time but on whether the accused was afforded a reasonable opportunity to regain control. This sounds highly realistic in view of the fact that the accused walked a terribly long distance in order to kill his victim. Objectively speaking, the accused had had plenty of time to regain self control and ought to have cooled down but the court quite rightly gave him the benefit of section 249 (1) Sudan Penal Code because at the time of the killing, he was still in the grip of his ungovernable fury. The case seems to be one of great importance and so we shall deal with the facts fully. The accused was convicted by a Major Court of murdering his wife Sinyo. Doi was a friend of the accused and his wife and the accused looked upon him as an uncle. On March 8, I952 Doi came to visit them and slept the night in their house. About 8 a.m. on March 9, the three went to a nearby beer-shop where they drank beer steadily until about midday and became intoxicated. They then returned to the house together, accompanied by a friend of the accused. Soon afterwards, Mariam, the accused, left the house with his friend to visit a man who was sick. Doi stayed behind in the house with Sinyo and her two children. In the afternoon Sinyo brought water for Doi and he bathed behind the house. Sinyo and then Doi then left the house together and Went in the direction of the river. In the evening while it was still light, the accused returned to his house alone. He went behind the house. and there he saw the place where Doi had bathed and the footprnits of his
152 Per Babjker Awadalla J. in Sudan Government v. Awad Adam Omer (1961) S.L.J.R. 75 at 76.
153 (1952) AC-CP.18 BGP-Maj.Ct.-4 unrep.
wife and Doi. This made him most suspicious, and he asked his daughter where her mother and Doi had gone. She replied that they had gone to the water together. This increased the suspicions of Mariam who set off along the path which led to the river. He met Doi and asked him where his wife was: Doi said that she was coming behind. The accused told Doi to wait for him in his house and then went on and met her, coming along the path carrying a tin of water on her head. According to the President of the Major Court, what happened then was not certain, but she dropped the tin and gourd she was carrying and ran towards her house. The accused picked up the tin and gourd and followed her. He found neither her nor Doi at his house. He went to the house of a neighbour where he found a very sick woman called Amna. He told Amna that his wife had committed adultery with Doi. The accused left the tin and gourd at Amna’s house and started to run after his wife, following her tracks along a path. About 7 p.m., after running for about two miles, he caught up with her. He punched her in the back of the neck, caught her, threw her to the ground face downwards and fell on her. She twisted on to her back so that he was sitting on her stomach. He slapped her face four times with the flat of his hand. He then seized her head with both hands and twisted it to the side with great force until he broke her neck. He then carried her about 140 paces to the house of one PW3 He asked PW3 to help him carry Sinyo’s body to the house of PW5 a relative of Mariam’s. PW3 refused at first. Mariam was still intoxicated at this time. He tried to carry Sinyo but dropped her about 6o yards from PW3’s house. While PW5 was bringing a light to examine the body. Mariam ran to Doi’s house, which was a mile or more away. He found Doi’s wife (PW10) in the house, told her that her husband had committed adultery with Sinyo and said that he (Mariam) was going to have sexual intercourse with her. At this point Doi arrived at his house. Mariam at once charged him with committing adultery with Sinyo but Dol strenuously denied it. Mariam then took Doi’s spear from him by force and told him to come back and hear the accusation from Sinyo’s own lips. Doi agreed to do so and PW10 (Dol’s wife) said she would go too. They set off, Mariam running ahead and leaving Doi and PW10 behind. On the way they thought better of following Mariam, and stopped at the house of a friend. When Mariam arrived at PW5’s house, he was arrested and handed over to the police the next morning.
In his judgment Abu Rannat J. said:
“ The facts set out in the Summary of Salient Facts are supported by evidence, except perhaps the time which elapsed between the time the accused met the deceased for the first time when she was returning from the river to her house, and the time when he caught
her and twisted her neck. No reliable evidence is given as to this time interval. The court found that the accused must have covered a distance of more than two miles before he ultimately met the deceased and caused her death. No measurement of such distance was made, and at any rate the distance is not known with precision.
…The facts show that after her confession, the deceased threw the water tin and gourd on the ground and ran away. The accused ran after her. He saw a sick woman Amna and told her of his wife’s adultery. There is no evidence that he then took time to reflect; on the contrary the evidence tended to show that he was still smarting under the provocation he had received, and the effect of the strong beer made him more inflammable. The accused was pursuing the deceased when he finally caught her and twisted her neck. I think the incidents upon which the contention of provocation are based, i.e. the discovery of the bathing in his house, the footprints of his wife, and the final admission by her of adultery, are closely related to the killing in point of time. It cannot be said on the evidence before the court that the time which elapsed between deceased’s confession of adultery and the twisting of her neck was sufficient to moderate his passion. I, therefore, think that there was sudden as well as grave provocation.”
In a note on confirmation Lindsay C.J. said:
“ In my opinion from the time the accused had his suspicions confirmed that his wife had just committed adultery up to the time he was finally restrained by being tied up, he was quite beside himself, and in his favour the court might reasonably have conceded that his somewhat erratic actions flowed spontaneously from the realisation of his wife’s adultery. There is no clear evidence that the accused had any real opportunity to regain his self-control, or that he regained it until after he had committed the fatal assault upon the deceased. The main ground upon which the court appears to have refused the accused the benefit of subsection (1) was that the accused had time to regain control to himself. Time, in the sense used here and referred to in Gour,154 includes reasonable opportunity to regain control. Amna could not help him in his distress; no one tried to calm him down and so, while still apparently quite out of control, off he went after the deceased. His subsequent behaviour of carrying the woman, dropping her, rushing off and threatening to commit adultery with Doi’s wife; his insistence that Doi come and hear the deceased’s confession of adultery, although
154 Penal Law of India, Vol. 2, 3rd ed., para. 3307 at p. 993.
by then the deceased must have been dead, suggest to me that reason had not yet resumed its seat, and as I say, there is no clear evidence that a reasonable opportunity had been afforded to the accused to calm down.”
This was a salutary case and it seems that the court, quite inadvertantly, may have applied art. 226 of Stephen’s Digest, which provides as follows
“ Provocation does not extenuate the guilt of homicide unless the person provoked is, at the time when he does the act, deprived of the power of self-control by the provocation which he has received, and in deciding the question whether this was or was not the case regard must be had to the nature of the act by which the offender causes death, to the time which elapsed between the provocation and the act which caused death, to the offender’s conduct during the interval, and to all other circumstances tending to show the state of his mind” 155
In such cases, of course, one has to bear in mind the fact that the accused may have been brooding for some time over wrongs or fancied wrongs and the slow-burning anger might reach a long delayed climax.156 In Sudan Government v. Tia Muni 157 it was held that provocation suffered by the accused could not be considered sudden if he had been brooding over the matter for some months. For that reason, it would be impossible to hold that the accused was deprived of self-control at the time of the act continuously from the time of the provocation, if any.
The question, however, seems to be one of degree. In Sudan Government v. Gadeem Ragab All 158 when the wife of the accused admitted to him that she was pregnant by her lover, he became angry but did not do anything. Later she taunted him with this and said that she would never leave her lover and live with the accused again as man and wife. At that very moment the accused stabbed the deceased twice in the belly and caused her death after a few hours. In the judgment of Abu Rannat
“ The point at issue is whether in the circumstances the accused lost his self-control by reason of grave and sudden provocation. The court found that there was grave provocation, but that it was not sudden, as the accused knew about the pregnancy of his wife long
155 Stephen’s Digest of the Criminal Law, as referred to in History of the Criminal Law of England Vol. 3(1883) at p. 82.
156 Cf. Marsack, “Provocation in trials for murder “, (1959) Cr.L.Rev.697.
157 (1939) AC-CP- KDN-Maj.Ct.-30-39, unrep.
(1962)158 S.L.J.R. 126.
ago and did nothing. The answer to the court’s finding may be the comment in Gour 159 where the author said:
‘ It has been sometimes said that, if a person had time to reflect, he could not avail himself of this exception (Penal Code, s. 249: clause 1.) But the question is one of degree. A person may suffer from provocation so grave that he may brood over it, but may refrain from acting. He may, again suffer a provocation which may completely throw him off his balance.’
“ In my view the accused is entitled to the benefit of Penal Code, s. 249 (1) and the finding is altered to one of guilty under Penal Code, S. 243.” 160
The real test in such cases is whether the death of the deceased w caused by the accused while smarting under a provocation so recent and so strong that the accused might not be considered at the moment the master of his own understanding.161
The loss of control, owing to grave and sudden provocation, may be deduced from the fact that the accused later on tried to take his own life.162 In the words of Atabani D.J.: “The fact that the accused tried to take away his own life after stabbing the deceased, shows in what state of mind he was in at the time.” 163
The first reference to the term “Cumulative Provocation” appears in Sudan Government v. Pamba s/o Badari,164 a case decided in 5945. The accused detected the presence of an adulterer in his wife’s hut and awaited him outside, armed with a spear. When he emerged, the accused attacked him with bare hands, but the deceased, a more powerful man, threw him and attempted to escape, leaving behind his spear and axe. The accused picked up the spear and threw it at him, causing his death. In his note on confirmation, written on July 25, 1945, Bennet C.J. said :165
159 Penal Law of India, Vol. 2 (7th ed., 1961) at p. 1417.
160 (1962)160 S.L.J.R. 128.
161 Per Abu Rannat C.J. in Sudan Government v. Ismail Ahmed Gargara (1962)
S.L.J.R. 148 at 149. This view seems to have been based upon the summing up by Tindal C.J. in R. v. Hayward (1833)) 6 C. & P.157 which was approved by the Court of Criminal Appeal in England in R. v. Hall (1928) 21 Cr.App.R.48.
162 Cf, Abu Rannat C.J. in Sudan Government v. El Amin Karama (1961) S.L.J.R.
95 at 97: “The fact that the accused also stabbed himself vigorously and that he himself was in great danger shows that he was under grave and sudden provocation.”
163 Sudan Government v. Ahmed Hussein Ali (1950) AC-CP-218-50; KTM.Maj.Ct.-12-50 unrep.
164 (1954) AC-CP-179-45; EP-Maj.Ct.-41-Ct.C-28-45, unrep.
165 Substituting a conviction for homicide.
“ I think it must he allowed to the accused that he found the deceased in the hut in which his wife was sleeping in circumstances in which the purpose of adultery was certain. … His final act was clearly premeditated, and I think it must be allowed that it was due to the cumulative provocation of the adultery, the struggle and the deceased’s imminent escape. Committed on the spur of the moment, in those circumstances, I think that there was considerable excuse for his act.”
It is perhaps worthy of note here that provocation may be cumulative although successive acts constituting it may follow each other in close proximity. Two months later, in another case166 decided by him Bennet C.J. refers to “culminating point” of provocation in his judgment. The learned chief Justice remarked:
“ The court has considered the insult separately from the previous conduct. It has not considered the gravity attaching to the insult by reason of the previous conduct. It was thus enabled to dismiss the insult as not being sudden. .. . The question is, therefore, whether in the light of the previous provocation, and coming on top and as the culminating point thereof, the deceased’s insult was likely to provoke an ordinary man in the position and situation of the accused to react violently and in the same sort of way as did the prisoner.... -
I have come to the conclusion that the accused should be given the benefit of the above argument in his favour and that it should be allowed that he received grave and sudden provocation.”
In 1946 Cummings C.J. quoted the following statement of the law from Gour, 167 with approval : 168
“ The question whether the provocation given was ‘sudden’ as well as ‘grave’ enough to be an extenuation for the offence depends upon the nature of the provocation, its effect upon the person
166 Sudan Government v. Mohamed Nor El Bedu Suliman Hamad (1945) AC-CP-223-45; KDN-Maj.Ct:-56-45, unrep. See also Bennet C.J.’s remarks in Sudan Government V. Lataxo Itori, supra 1. Here the accused murdered his father because of his refusal to marry him. The learned Chief Justice said, ‘ Although in the legal sense the provocation was not sudden, in that it did not lead to the immediate loss of self-control, the final act of the cumulative provocation was not so far removed from the crime in point of time. It was not itself perhaps a grave provocation, but coming on top of the deceased’s previous conduct, it was grave, and in all but legal essentials it assumed a sudden aspect in that, upon reflection, this last act of the deceased did suddenly convince the accused of the hopelessness of his position, and although it led to no sudden loss of self- control, it did place the accused in an intolerable position so long as his father continued to live.”
167 Penal Law of India, 3rd ed., Art. 3307. p. 993.
168 Sudan Government v. Guma’a Abdel Rahman (1946) AC-CP-117-46; KNC-Maj.Ct.30-64,unrep
provoked, and in short upon the probability of its producing a similar effect upon other persons. But when it is said that the provocation must be ‘sudden’, it is not implied that it should have all immediately preceded the homicide in point of time. For a person may by repeated or continuous provocation inflame another to a state of mind when the provocation immediately pre ceding the act is only the last straw, the gravity of which should be measured not by what it amounted to but rather by what it implied.” 169
Cummings C.J., however, went on to add:
“ Indeed in some ways the smaller individual acts of provocation often repeated are worse than one act much greater in itself, because the repeated acts go on and on until the inevitable explosion’ at last occurs, as here. The court have rejected this plea because they find the final provocation not ‘sudden’ because it was of the same kind as was given the night before. I do not agree with that as a statement of law. I think that one could go on and on with exactly the same act of provocation repeated, and then the last one could be held grave as ‘the last straw’, the tenth repeated act is not the same as the first, for it comes on top of the preceding nine 170
In Sudan Government v. Ismail Abu Ashman,171 a case that arose in 1947, the President of the Major Court, Hayes J., referred to the doctrine of cumulative provocation as a dangerous one. The facts as believed by the trial court were as follows:
The accused married the deceased about two years before the date of the fatal incident and they lived in the house of Urn Kheir, the Wife’s mother, in peace and comfort until about four months before the event, when one, Mohamed, was invited by Um Kheir’s family to stay with her and give her a hand with the housework.
Mohamed is described by friend and foe alike as a pimp and eunuch, but there is no direct evidence before the court that he plied the trade of the one, or suffered under the disability of the other. The best that is said of him by anyone is that he was helpful to old Urn Kheir in such women’s work as cooking and winnowing grain. The worst is that he prostituted the deceased for money, and that he taught her to distil Araki for sale.
169 Also followed by Abu Rannat, J., in Sudan Government v. El Ghurn Ahmed (1952) AC-CP-45-52; BNP-Maj.Ct.-4- 52, unrep; followed again by Abu Rannat C.J. in Sudan Government v. Adam Salih Tibin (1957) S.L.J.R. 72 at 73.
170 The provocation in this case consisted of the repeated singing of a song by the deceased woman in which she referred to the accused, a retired Sal of the Police after 19 years service, as a Ghaffir.
171(1947) AC-CP- KDN-Maj.Ct..42-47, unrep.
An intimacy grew between Moharned and the deceased woman and she increasingly neglected her husband (the accused) for the former and his friends. The accused did surprisingly little about this, possibly because it appears that all his relations-in-law were on Mohamed’s side, and the house was Um Kheir’s and his wife’s. But when she refused not only to sleep with him, but even to cook for him, he divorced her and went to live with his father.
Two or three months passed during which Mohamed continued to live with Um Kheir and the deceased. During this period rumours spread that Mohamed and the deceased were in partnership for the purpose of prostitution and the sale of Araki; the latter at least seems to have been well founded, and, as to the former, it is at least clear that Mohamed used to take the deceased out with him into the village—conduct quite sufficient in itself to found grave suspicions in a village—given that Mohamed was a eunuch.
The humiliation was eating into the accused; and his bitterness, no doubt, was constantly increased by rumours about the pair. On May 6, 1947 he casually met them in a beer-house; they were sitting together inside and when they saw him they went out whispering and tittering together; he thought that he was their butt. He decided to complain to Um Kheir, but when he got to her house she was out and all he found was the couple again, once more sitting and drinking intimately together. He went out without making a fuss. After resting for a while in a relative’s house, he set off to his father’s house. By bad luck, there followed the third meeting of the day; his wife and her friend were going happily along the road together on their way to a wedding feast; they seem to have been only a few yards in front of him. This was the last straw, and he strode up and, with his axe, felled first Mohamed, and then, when she tried to run, his wife. He gave each a second blow as they lay. Mohamed seems to have suffered no permanent harm, but the woman’s skull was broken and she died three days later. The accused was convicted of murder and sentenced to death with a recommendation to mercy. In his judgment Hayes J., the President of the Major Court, tried to answer the question raised by him:
“ Did he (the accused) strike her (the deceased) when deprived of the power of self-control by grave and sudden provocation? No. We make this finding after careful consideration of the circumstances. There is no doubt that he received a great deal of provocation, and it has been said by a past Chief Justice in a note to the Confirming Authority that provocation may be cumulative, so that this exception may save a person who kills on what is in itself a slight provocation, provided that it is the last in a series—in effect the straw which
breaks the camel’s back. We think that this, unless carefully applied, is a dangerous doctrine; certainly it should not be applied in a case where the final act is of a trifling nature, probably it should not be applied where the act is less grave than those that went before. We do not think that fits the present case. That the accused was smouldering with fury is plain. But he had been smouldering all day, and what finally roused him to violence was no more than the sight of Mohamed and the deceased, with another woman and a little girl, walking along a public road together.”
Creed, Acting C.J., in his note on confirmation, said:
“The gravity of the provocation cannot be correctly assessed
in isolation from the present effect (if any) on the accused of any previous provocation which he received.”
Curious as it may seem, the learned Acting Chief Justice went on to uphold the conviction for murder and commuted the sentence to one of life imprisonment.
There is a disturbing element in the judgment of Hayes J. in that although it concedes that the accused was smouldering all day and also at the time of the fatal incident, yet he was refused the protection of section 249 (1) because the last provocative act, which resulted in the loss of control in the accused, judged independently of the previous acts of provocation, was a trivial one. However, it should be observed that (i) Hayes J. was presiding over the trial as a Judge of the first instance and for the purpose of the rule of stare decisis the fact that he was a Judge of the High Court ought to be ignored; and (ii) the proposition formulated by Hayes J. is unsupported by authority. For example, in Sudan Government v. Guma’a Abdel Rahman 172 the plea of cumulative provocation succeeded although the last act of the deceased which resulted in an outburst of retaliation in the accused was of the same kind as the ones that preceded earlier, it was as trivial as it could be imagined, in that it consisted of the deceased woman repeatedly singing a song in which she referred to the accused, a retired Sol of Police, as a Ghaffir.
Atabani J. applied the doctrine of cumulative provocation in 1950 in the case of Sudan Government v. Ahmed Hussein AIi.173 The accused in that case married the deceased in 1947, the marriage was unhappy and in May, 1950 she left her husband’s house at Medani, and took up residence in the house of a notorious prostitute in Khartoum. On June 29 the accused found her and obtained police assistance to get her out of the brothel. The police could not further intervene and the Sharia
172 Supra fn. 167. See also Sudan Government v. Hawa Bint Mohamed Sharif, infra.
173 (1950) AC-CP-218-50; KTM-Maj.Ct.-12-50- unrep.
Court, to which the accused then took her, naturally refused to act in the absence of proceedings. The accused asked her to go to a relative pending suit, but she refused insisting that she would return to the brothel and insulting him grossly. The accused drew a knife, stabbed her three times, and then stabbed himself. She died of her wounds.
Atabani J. in his judgment said:
“ The provocation in this case consists of a series of acts which started about a month before the incident, when the deceased deserted the accused at Wad Medani, and fled away to Khartoum. The second stage of the case is reached when the accused came to Khartoum to search for his wife. He ultimately found her in the house of a common prostitute. It is significant to note that till then the accused behaved in the commendable way of a law-abiding citizen: he resorted to the police, who quite rightly referred him to the Sharia Court. They both then went together to the Sharia Court but naturally the initiation of proceedings had to comply with certain formalities (petition, payment of fees, hearing etc.) which would require some time. It was here that the case entered into its crucial stage. Some temporary arrangement had to be made for the housing of the deceased until the matrimonial dispute was heard and determined by the Sharia Court. The accused says that he suggested to the deceased that she should go and remain with her aunt, but that she refused and insisted to go back again to the brothel from which he had taken her a few hours past. The accused further says that the deceased insulted him and used the most vulgar terms of abuse, the worst that a wife could say to a husband. . . . The cup was already full: the deceased’s insistence to go back to the brothel coupled with her grave insults, had caused the contents to overflow. The accused lost his power of self-control and acting on the spur of the moment, he decided to kill her and then take away his own life as well—that shows in what state of mind he was in at the time. He then rushed towards his wife and stabbed her time and again. Having done so he turned on his own self and attempted to commit suicide.
In considering whether the accused can avail himself of the concession which the law gives to the frailty of human nature due regard should be given to the fact that the deceased was not only the wife of the accused but also his cousin. As such the accused would be susceptible to a greater degree of provocation than in the ordinary case of a husband and wife.
Having regard to all the circumstances of this case, therefore, we find that the accused did the act under grave and sudden
provocation within the meaning of the first exception to section 249 Sudan Penal Code."174
In 1953 Lindsay C.J. observed 175:
“ It is established law that a series of acts over a period in the aggregate may constitute grave and sudden provocation although the last act of provocation, taken by itself if unrelated to the earlier acts, might be insufficient to confer the benefit of the section.”
In this instant case, the series of acts, leading to provocation in the aggregate were as follows: (1) Neglect of the deceased to provide for his wife, the accused, for over a year; which according to the court constituted evidence of “ill treatment over a long period,” 176 and (2) an argument over the price of a donkey belonging to the accused which was sold by the deceased. The learned Chief Justice, said:
“Taking a broader and more benevolent view, . . . and having regard to her circumstances of life and so on, it is quite likely that any reasonable person of her walk of life would have acted as she did if similarly situated, having regard to the past history of the parties.”
The finding was accordingly altered to guilty under Sudan Penal Code, section 253.
It is well established now that the gravity of the provocation must be measured by what preceded it and not merely by what it amounted to in itself.177
INTENTION TO KILL
The defence of provocation would be available to the accused even if there is clear evidence of his intention to kill as demonstrated by his knowledge of the circumstances that his act is probably going to result in the death of the victim.178
In England, as regards intent to kill, Lord Simon, said in Holmes V.
174 The finding and sentence were confirmed by Lindsay C.J. on September 7, 1950.
175 Sudan Government v. Hawa Bint Mohamed Sharif (1953) AC-CP-347-53; DP. Maj.Ct.-41.C.48-53 unrep.
176 The ill-treatment of the accused started with the deceased marrying a second time, although the accused woman had been married to him for nineteen years and had borne him seven children, five of them surviving at the time.
177 Per Abu Rannat C.j. in Sudan Government v. Adam Salih Tibin (1957) S.L.J.R. 72 at 73.
178 Sudan Government v. Abdalla Said Medani (1937) AC-CP-37-37; KNC-Maj.Ct.-41.C.- 191, unrep; Sudan Government v. Hassan Billal (1939) AC-CP-208-39; BNP-Maj.Ct. 46-39, unrep: Sudan Government v. Guma’a Abdel Rahman (1946) AC-CP-117-46-KNC-Maj.Ct.30-46. unrep.
176 (1946)A.C.588 at 590. For a criticism see Edwards: “The Doctrine of Provocation” (1953) 69 L.Q.R. 547.
"The whole doctrine relating to provocation depends on the fact that it causes, or may cause, a sudden and temporary loss of self-control whereby malice, which is the formation of an intention to kill or to inflict grievous bodily harm is negatived. Consequently, where the provocation inspires an actual intention to kill 180 (such as Holmes admitted in the present case), or to inflict grievous bodily harm, the doctrine that provocation may reduce murder to man slaughter seldom applied.”
Dealing with the issue of intent to kill, Lord Goddard C.J. delivering the opinion of the Judicial Committee of the Privy Council,182 said:
"(In English law) the defence of provocation may arise where a person does intend to kill or inflict grievous bodily harm but his intent to do so arises from sudden passion involving loss of self- control by reason of provocation. An illustration is to be found in the case of a man finding his wife in the act of adultery who kills her or her paramour, and the law has always regarded that, although an intentional act, as amounting only to manslaughter by reason of provocation received, although no doubt the accused person intended to cause death or grievous bodily harm.” 183
It has been suggested that the law was rather widely stated by Lord Goddard.184
Referring to the dictum of Viscount Simon in Director of Public Prosecutions v. Holmes,185 Lord Devlin, delivering the opinion of the Judicial Committee of the Privy Council,186 said:
“It is plain that Viscount Simon must have meant the word ‘actual’ to have a limiting effect and that he had in mind some particular category of intention. He cannot have meant that any sort of intention to kill or cause grievous bodily harm was generally incompatible with manslaughter because that would eliminate provo cation as a line of defence. . . . Their Lordships think it right to reaffirm the law as stated by Lord Goddard 187 and to do so with special reference to Lord Simon’s dictum, to which Lord Goddard did not advert. Lord Goddard’s statement can be reconciled with the dictum only if the word ‘actual’ in the dictum is treated as
180 Emphasis supplied.
181 The expression “Provocation negatives malice aforethought” seems to have originated in R. v. Welsh (1869) 11 Cox 336.
182 Att.-Gen. for Ceylon v. Kumarasinghege (1953) A.C. 200.
184 Report of the Royal Commission on Capital Punishment, Cmd. 8932 para. 136.
185 Supra fn. 278.
186 Lee Chun.Chuen v. The Queen (1963) A.C. 200.
187 Supra fn. 181.
the distinguishing feature. Their Lordships do not think it necessary to interpret the dictum any further than to say that it cannot be read as meaning that the proof of any sort of intent to kill negatives provocation. Lord Simon was evidently concerning himself with the theoretical relationship of provocation to malice and itt particular with the notion that where there is malice there is murder: and he may have had in mind that actual intent in the case of premeditation must generally negative provocation. 188
In the Sudan, once the court is satisfied beyond reasonable doubt that the accused caused death either intending to do so or with the knowledge that death would be the probable consequence, the court then considers the mitigating circumstances, such as provocation, whether or not the accused had pleaded them specifically.189
The onus of proof:
It is the duty of the court to consider the question of absence of provocation 190 before reaching a finding in all cases involving charges of murder.
In 1941Sir Thomas Creed, then the Legal Secretary of the Sudan, emphasised 191 that:
“ It is a salutary practice in this country as in India, that if an accused person fails to put forward a defence which obviously on the facts he should put forward, the court puts forward that defence on his behalf, although technically it is for the accused to plead any mitigating circumstance which reduces his crime from murder to culpable homicide not amounting to murder. The courts will not allow justice to be sacrificed for a technicality, and the court was perfectly correct in dealing with the question of grave and sudden provocation, although the accused did not plead it, but denied completely his presence at the scene of the crime.” 192
181 See Sudan Government v. Pamba s/a Badari (1945) AC-CP-179-45; EP.Maj.Ct.-41.C-8-25-, unrep. Here the prisoner was given the benefit of grave and sudden provocation although the court found the presence of unpremeditated intent to kill.
189 Criminal Court Circular No. 3.
190 Sudan Government v. El Tom Siddik Abbakar (1956) S,L.J.R.39- See also the judgment of Lord Tucker who delivered the opinion of the Judicial Committee of the Privy Council in Chan Kau v. R. (1955) A.C. 206: “In cases where the evidence discloses a possible defence of self.defence, the onus remains throughout upon the prosecution to establish that the accused is guilty of the crime of murder and the onus is never upon the accused to establish this defence any more than it is for him to establish provocation or any other defence apart from that of insanity.”
191 In Sudan Government v. Nguambori (1941) AC-CP-206-41 EP.41.C-26-41 unrep.
192 In England, it is the duty of the judge to put the issue to the jury even if the accused has based his defence on a plea of accident or self-defence and has not raised the issue of provocation. R. v. Hopper (1915) 2 K.B. 431: Kwaku Mensah
The Criminal Court Circular No. 3 issued on August 8, 1950 provides that the prosecution has to prove the offence of murder; and that before a court may convict, it has to be satisfied on the whole of the evidence including any explanation by the accused, that the mitigating circumstances which constitute any of the exceptions do not exist, since the absence of such circumstances is an essential part of the proof of murder.193
Standard of proof:
The common mistake is to suppose that the accused must prove beyond any reasonable doubt that he is entitled to succeed in his defence of grave and sudden provocation set up under section 249 (1) Sudan Penal Code. It is sufficient in order to be acquitted of murder, for the accused, or for the evidence itself without the aid of the accused, to raise such a possibilty’194 of the existence of circumstances entitling him to the benefit of section 249 (1) that the Court feels that it cannot safely disregard it— of course if the possibility is so far fetched, is so unlikely that the court cannot “swallow it,” and considers that it is safe to disregard it then the accused is not entitled to benefit.195 When the defence of provocation has been made out, an acquittal on a charge of murder would most certainly result in a conviction for culpable homicide. The same principle applies in England, where if the jury are left in reasonable doubt whether the act was provoked, i.e. perpetrated under the impulse of provocation, the prisoner is found guilty of manslaughter.196
Furthermore, where a plea of self-defence by the accused fails, provocation might succeed. Conduct which cannot justify may well excuse.197
Where on the evidence it is not clear whether the accused was still
v. R. (1946) A.C. 83. See also the judgment of Viscount Sankey in Woolmington V. D.P.P. (1935) AC. 462. “It has long been settled law that if on the evidence, whether of the prosecution or of the defence, there is any evidence fit to be left to a jury, and whether or not this issue has been specifically raised at the trial by the counsel for the defence and whether or not the accused has said in terms that he was provoked, it is the duty of the judge, after a proper direction, to leave it open to the jury to return a verdict of manslaughter if they are satisfied beyond reasonable doubt that the killing was unprovoked
per Lord Tucker in Bullard v. R.(1957) A.C. 635 at 642. See also Morris & Howard, Studies in Criminal Law, Oxford (1964), 88.
193 Clause 2 (b) Criminal Court Circular No. 3.
194 Justice does not seem to have been sacrificed for a technicality in Sudan Government v. Mohamed Nur El Bedu Suliman Hamad (1945) AC-CP-223.45; KDN-Maj.Ct.- unrep. where the Major Court held that the previous conduct of the deceased as alleged by the accused “if proved up to the hilt” might constitute grave provocation. Bennet C.J. did substitute a finding of guilty of culpable homicide for that of murder without commenting upon the statement of law as formulated by the Major Court.
195 Clause 3, Criminal Court Circular No. 3.
196 See the judgment of Viscount Simon L.C., in Mancini v. D.P.P. (1942) A.C. 1 at11..
197 Sudan Government v. Abdalla Mohamed (1940) AC.CP-237-40; KDN-Maj.Ct.-76-40, unrep; Sudan Government v. Abdalla Idris Abdel Rahim (1942) AC-CP-71,-42; NP-Maj.Ct.-4.42, unrep. See also R. v. Porritt (1916) 3 All E.R.463.
actuated by loss of self-control at the time of the killing, he must be given the benefit of doubt 198 Also if the trial court has given the accused the benefit of section 249 (1), the confirming authority may not interfere with the finding although it comes to a different conclusion. Two cases 199 could be cited in support of this proposition and one against.200
The question, how far drunkenness may affect the powers of the accused to restrain himself from committing a crime does not seem to have been discussed in many cases where the issue would have been relevant.201 However, it has been held that in assessing the gravity of provocation, the fact of drunkenness is not to be taken into account. The provocation must be so grave that it would upset a normal reasonable man, not a drunken brute.202
The law does not grant any indulgence to a person who had taken the quantity of liquor requisite to make him a savage. Drunkenness is no defence unless it renders the accused incapable of forming the specific intent to cause death.
198 Per Bennet C.J. in Sudan Government v. Pamba s/o Badari (1945) AC-CP-179-45- EP-Maj.Ct.-41.C.-28-45, unrep. Also cf. Soni J. in Sudan Government v. Omer E Omer (i AC-CP-232-55; KDN-Maj.Ct.-36.55, unrep: “I think that the statement of the accused might safely be accepted, when he said that he acted con the spur of the moment quickly and suddenly.”
199 Sudan Government V. Guma’a Shade Kafrein (1951) AC-CP.26-51. DP-Maj.Ct..41-C-3.51 unrep; Sudan Government v. Musa Murgan (1947) AC-CP-227-47; DP-Maj.Ct. 41-C-38-47- unrep.
200 Sudan Government v. Musa Samara Musa (1961) S.L.J.R. 107.
201 Sudan Government v. Gasim Ali (1942) AC-CP- BNP-Maj.Ct.-5-42, unrep; Sudan Government v. Mahmoud Dafalla El Awad (1949) AC-CP-3-49; KSA-Maj.Ct.-2-49, unrep; Sudan Government v. Suleimon Balula (1953) AC-CP-305-53; BNP-Maj.Ct.. 74-53. unrep.; Sudan Government v. Gadeem Ragab Ali (1962) S.L.J.R. 126. But see Sudan Government v. Abujuku Muss (1961) S.L.J.R. 127; Sudan Government V. Odia Muduari (1961) S.L.J.R.9, Sudan Government v. Den Manguen (1961)S.L.J.R. 17 Sudan Government v. Mukhtar Hussein Idris (1961) S.L.J.R. 130; Sudan Government v. Hassan Mohamed El Sayyad (1961) S.L.J.R. 153.
202 Per Cummings C.J. (August 10, 1946) in Sudan Government v. Mukhtar El Hag El Amin (1946) AC-CP-200-46; KNC-Maj.Ct..42-46unrep. In Sudan Government V. Mohamed Saad Suleiman (1946) AC-CP.209-46; KTM-Ct.-18-46 unrep., the same principle was repeated by Cummings C.J. (August 19, 1946): “In assessing whether the accused suffered grave provocation, it is, I think, settled that we follow India in not taking the drunkenness into account. The provocation to be grave must be such as would so upset a normal reasonable man.”
203 Cf. Jerome Hall, General Principles of Criminal Law, Indianapolis (1947) p. 347.
204 Sudan Government v. Abujuku Musa (1960) S.L.J.R. 127 at 128. For the law in England which is the same as in the Sudan, see the judgment of Lord Goddard C.J. in R. v. McCarthy (1954) 2 Q.B. 105: “It is in our opinion flow settled that apart from being in such a complete and absolute state of intoxication as to make him incapable of forming the intent charged, drunkenness which may lead a man to attack another in a manner which no reasonable sober man would do cannot be pleaded as an excuse reducing the crime to manslaughter if death results.,”
PROPORTION RULE OF RETALIATION
The rule of English law 205 that: “it is not every slight provocation which will, when the party receiving it strikes with a deadly weapon, reduce the crime from murder to manslaughter” has been followed in the Sudan.206 Fists must be answered with fists but not with a deadly weapon, it has been said.207 The incongruity behind such a rule has been exposed by Glanville Williams who points out that it ignores the fact that a man who kills with a moderate blow which is only likely to cause death can never be guilty of murder; provocation arises on the issue of responsibility only if the accused intended to kill or do great bodily harm, and if he intended to kill, it is a little difficult to see why importance should be attached to the mode of killing, provided of course the killing was in hot blood 208.
Talking about the relationship between provocation and the mode of resentment, Lord Simon, said :209
"….it is of particular importance . . . to take into account the instrument with which the homicide was effected, for to retort, in
the heat of passion induced by provocation, by a simple blow is a very different thing from making use of a deadly instrument like a concealed dagger. In short, the mode of resentment must bear areasonable relationship to the provocation if the offence is to be reduced to manslaughter.” 210
Lord Goddard C.J. dealt with the question as follows 211:
“ If a man who is provoked retaliates with a blow from his fist on another grown man a jury may well consider, and probably would, that there was nothing excessive in the retaliation even though the blow might cause the man to fall and fracture his skull, for the provocation might well merit a blow with the fist. It would be quite another thing, however, if the person provoked not only struck the man but continued to rain blows upon him as happened
205 R. v. Lynch (1832) 5 C. & P. 324; Mancini v. D.P.P. (1942) AC. 1. According to Kenny, “The introduction of such a principle may have been probably due to the ancient confusion of homicide under provocation with homicide in self-defence.”——Kenny, Outlines of Criminal Law, 19th ed. by J. W. Cecil Turner (1966) at p. 273.
206 Sudan Government v. Ibrahim Ahmed El Faki Abdulla (296,) S.L.J.R. i Sudan Government v. Awad Fadol Mohamed (1950) AC-CP.124-50 KDN-Maj.Ct., unrep.
207 R v. Duffy (1949)1 All E.R. 932; R. v. Gauthier (1943) 20 Cr.App.R.113.
208 Provocation and the Reasonable Man” (1954) Cri.Rev. 740 at pp. 745, 747—748.
209 Mancini v. D.P.P. (1941) 3 All E.R.272.
210 Ibid at p. 277.
211 R. v. McCart thy (1945) 2 Q B. 105.
in the present case and as the accused apparently did in the case of Thomas.”212
The courts in the Sudan have taken the view that an insult and a punch in the face do not justify resort to the use of a deadly weapon like the starting handle of a lorry.213 In Sudan Government v. Yacoub Mohamed El Tayeb 214 the accused suspected his wife of illicit relations with a person with whom she was standing and talking in the market place. On questioning her, she answered him in these insulting words, “I am standing with your mother’s husband.” Being enraged, he threw her to the ground and stabbed her eight times before being stopped by bystanders. She died on the spot. It was held by D. M. Osman J 215 that such words do not in the opinion of the court amount to such a provocation as would, in an ordinary person, provoke him in acting as he did. Further, the mode of resentment bears no relation to the alleged provocation. “The Jaw condescends to human frailty but does not indulge human ferocity.” 216 Lindsay C.J., in a note on confirmation, said:
“ I agree with the court that the provocation was insufficiently grave to justify the complete loss of temper and consequent assault with a knife—no reasonable man in such circumstances would be expected to act with such brutality and savagery. There is no doubt that the accused had been correctly convicted of murder.” 217
However, the same learned Chief Justice, observed in another case 218 decided by him in 1950 that,
212 (1827) 7 Car. & P. 817 at 829 where Parke B. directed the jury as follows:
“ Suppose for instance, a blow were given, and the party struck beat the other’s head to pieces by continued, cruel and repeated blows; then you could not attribute that act to the passion of anger, and the offence would be murder.”
213 Sudan Government v. Abdalla Mohamed Ali (1915) AC-CP-33-51 KSA-Maj.Ct.- 65-51unrep.
214 (1951)AC-CP-4-51; KDN-Maj.Ct.- unrep.
215 President of the Major Court.
216 The words italicised appear in the summing up of Coleridge J. in R. v. Khrkham (1837) 8 C. & P. 115 at 119.
217 See also Sudan Government v. Adam Burma Gadim (1948) AC-CP-58-48 BNP Maj.Ct., unrep: “The violence used upon the deceased and the manner of its execution was out of proportion to the provocation. . . . The accused gave way to the impulse for retaliation in a manner which savoured of malignity, cruelty and wanton brutality.” But it seems that the rule has not always been uniformly applied. For example in Sudan Government v. Hawa Bint Mohamed Sharif (1953) AC-CP-347-53 DP-Maj.Ct.-41.C.-48-53, unrep.: the deceased took a second wife and neglected the accused, his first wife. There was a quarrel be tween the accused and the deceased, the latter demanding a sum of £S.0.800m/ms. from the accused. The accused thereupon gave a blow with an axe on the head of the deceased and he fell on his knees. Not content, she struck a second blow with the axe, hitting him on the back of the neck, causing his death. She was found guilty of culpable homicide although the force used was excessive and had no relation to the provocation which was quite trivial.
218 Sudan Government v. Obeid Abdalla (1950) AC-CP-84.50; NP-Maj.Ct.-5-50, unrep.
“ Once a man is in fact quite out of control (the provocation being adequate to cause loss of control) it is unreasonable to expect him to remain a ‘gentleman’ and to retaliate in a decent manner’
In Sudan Government v. Awed Adam Omer 219 there was a Shakla (fight) between six Sudanese—natives of Darwish village near Wad Medani-and the three Fellata living in the Fellata quarter of the same village. Prior to the incident which was the subject matter of the prosecution for murder, there was a previous Shakla between the accused and the deceased. On the night of the incident, the accused seems to have got infuriated by a remark of the deceased “Ya Khallia, a! gamaa joe” (meaning the group have come), to which the accused retorted in words “inta gassid aih” which was an invitation to the deceased for a scuffle. As not unexpected, a fight started between the two factions; all the par ticipants using sticks. One such blow landed on the accused who stabbed the deceased with a knife. It was held by Abu Rannat C.J. that:
“ Words used by the deceased that the ‘group have come’ and the subsequent blow by the deceased on the accused, do not warrant stabbing with a knife on a vital part of the deceased’s body. The defence of provocation could not succeed, and the charge of murder be reduced to culpable homicide not amounting to murder, unless the action of the accused taken by him in consequence of the provocation was reasonably commensurate with the degree of provocation offered to him.” 220
The learned Chief Justice followed the judgment of Lord Goddard C.J. in the Privy Council case of Att.-Gen. for Ceylon v. Kumarasinghege 221 which declared that:
“ The words ‘grave’ and ‘sudden’ are both relative terms, and must, at least to a great extent, be decided by comparing the nature of the provocation with that of the retaliatory act. It is impossible to determine whether the provocation was grave without at the same time considering the act which resulted from the provocation.”
Abu Rannat C.J. went on to add:
“ It is wrong to say that, because the Penal Code does not expressly say that the retaliation must bear some relation to the provocation, the contrary is the case.”
219 (1961) S.L.J.R. 75.
220 Ibid. at p. 79.
221 (1953) A.C. 200. Abu Rannat C.J. pointed out that s. 294 of the Ceylon Pena Code is similar to s. 249 of the Sudan Penal Code.
The above extract from the judgment of Abu Rannat C.J. does seem to imply that the proportion rule is a separate and distinct element from the loss of control and something which had to exist before the defence could succeed.222 Discussing this principle, the Supreme Court of Hong Kong declared 223 that such a proposition was not only unsupported by authority but also “illogical and contrary to common sense.”
“ The better view, however, is that the proportion between provocation and retaliation is only one of the factors to be taken into account by the court, in deciding whether the defendant’s actions were those of an ordinary man and has no independent existence as a rule of law of its own.” 224
REASONABLE MAN—SOME UNREASONABLE TENDENCIES
In order to assess the gravity of the provocation, the courts in the Sudan have from time to time applied the following three tests:
(a) purely a subjective test;
(b) the test of a reasonable man;
(c) the test of a reasonable man of the same locality as the accused.
That section 249 (1) of the Sudan Penal Code lays down a subjective test is quite clear 225 although it has been argued 226 that “gravity” is a relative quantity and the question whether a provocation act is grave enough to be legally acceptable is determinable on a comparative basis. Be that as it may, considering the state of the English law relating to provocation to be quite narrow,227 a man of the standing of Sir Fitzjames Stephen was advocating in 1864 for the adoption of the Indian test in England. In view of this, one wonders whether Stephen had an objective test in mind in his proposed criminal code although he omitted reference to a reasonable man as such.229
222 See Kenny, Outlines of Criminal Law, (19th ed.) by J. W. Cecil Turner at p. 174
223 Ng Yiu-nam v. R. (1963) Cr.L.Rev.850 disregarding R. v. McCarthy (1954) 2 Q.B.105.
224 Cf. Colin Howard, Australian Criminal Law, (1965) at p. 75 citing Stephen’s Digest of the Criminal Law (5th ed.) art. 246 and G. Williams (1954) Cr.L.Rev.740 at pp. 744—750.
225 provides: “Culpable Homicide is not murder if the offender, whilst deprived of the power of self-control by grave and sudden provocation, causes the death of the person who gave the provocation, or causes the death of any other person by mistake or accident.”
226 Cf. Brown. “The Ordinary Man in Provocation—Anglo-Saxon Attitudes and- Unreasonable Non-Englishmen” (1946) int. & Comp. L. Quarterly 203.
227 Although at that time, the test used in England was purely subjective. For example cf. R. v. Lynch (1832) C. & P. 324; R. v. Hayward (1833) 6 C. & P. i
228 Stephen, ‘ Capital Punishments ‘—Fraser’s Magazine (1864) Vol. LXIX. pp. 766-67 referred to in para. 146 of the Report of the Royal Commission on Capital Punishment (Cmd. 8932)
229 For a contrary view see Brown, op.cit. 206.
(a) Subjective test:
The subjective test has proved by far the most acceptable as shown by the number of cases listed in the footnote.230 The courts have said that in such cases the real test is whether the wound of the deceased was caused by the accused while smarting under a provocation so recent and so strong that the accused might not be considered at the moment the master of his own understanding.
(b) The test of a reasonable man:
The reasonable man 231 seems to have found his way into the juris- prudence of the Sudan via India where colonial judges, ignoring the express words of the relevant section dealing with the defence of provocation, introduced the concept of a reasonable man.232 “It seems absurd,” points out Williams, 233“that a reasonable man will commit a felony the possible punishment for which is imprisonment for life.” For this reason, the term “ordinary man” is preferable because it is more consistent with the idea of loss of self-control234.
Fortunately, the courts have not transported the image of the English reasonable man into the Sudan who may be playing darts or shivering in a bus queue a few thousand miles away,235 but M. I. El Nur J. did echo the words of Lord Reading C.J. in Rex v. Lesbini 236 that:
“ The test to be applied in order to determine whether homicide would otherwise be murder or manslaughter by reason of provocation
230 Sudan Government v. Ismail Ahmed Gargara (1962) S.L.J.R. 348; Gadeem Ragab Ali (1962) S.L.J.R. 116; El Amin Karama El Hag (1961) S.L.J.R.95 Hussein Idris Abdolla (1961) S.L.J.R. 116; Mohamed Ahmed Gadir (1961) S.L.J.R. 46; Babiker Mohammed Mabloul (1956) S.L.J.R. 36; Abdulla Abdel Rahman Osman (1945) AC-CP-88-54; BNP-Maj.Ct.-54 unrep.; Marima Mendiwo (1952) AC-CP. 183-52;BGP-Maj.Ct.-41.C.15-52 unrep; Ahmed Hussein Ali (1950) AC-CP-218-50 KTM-Maj.Ct.-12-50 unrep; Eisa Bahami (1946) AC-CP-179-46; KSA-Maj.Ct..41.C.-40-46. unrep.; Ahmed Mohamed Arbab (1954) AC-CP-62-45; DP-Maj.Ct.-41 C.-12-45, unrep.; Pamba S/o Badari (1945) AC-CP-179-45 EP.Maj.Ct.-41.C-.28-45 unrep.; Idris Mohammed (1943) AC-CP-57-43 unrep.; Abdalla Idris Abdel Rahim (1942) AC-CP-71-42 NP-Maj.Ct.-4-42. unrep.; Eisa Omer (1942) BNP-Maj.Ct., unrep.; Musa Ohag(1941) AC-CP.245-41: KSA-Maj.Ct..41-C-34-41 unrep.; Nguambori (1941) AC-CP-206-41- EP-41.C.-26-41 unrep.
231 The literature on the subject is vast. See Williams, “Provocation and the Reasonable Man” (1945) Cr.L.Rev. 740; Edwards, “Provocation and the Reasonable Man: Another View” (1954) Cr.L.Rev.898 Marsack, “Provocation in trials for Murder” (1959) Cr.L.Rev. 697: Howard. “What Colour is the Reasonable Man ” (1961)Cr.L.Rev. 41; Brown “Ordinary Man in Provocation” (1964) int. & Comp. L. Quart. 203; Russell on Crime, Vol ,, 12th ed. (1964) by J. W. Cecil Turner pp. 535 et seq.
232 Dinabandhu Oriya V. The Emperor AIR 1930 Cal. 199; Sohrab v. Emperor 7 Lah. 67; Des Raj V. Emperor 20 Lah. 345; Khadim Hussein V. Emperor 7 Lah.488
233 (1954) Cr.L.Rev. 740 at 742.
234 For example see the Australian case of Enright (1961) V.R. 663 cited by Morris & Howard: Studies in Criminal Law, Oxford (1964). Also see Howard: Australian Criminal Law (1965) at p. 73.
235 Cf. Brown (1964) int. & Comp. L. Quart. 203. at 217.
236 (1914) 3 K.B.1116
is whether the provocation was sufficient to deprive a reasonable man of his self-control, not whether it was sufficient to deprive the particular person charged with murder (e.g. a person afflicted with defective control and want of mental balance) of his self-control.” 237
In India, Le was explained by Davis C.J. as follows 238:
“ Lord Reading was dealing presumably with Englishmen or some people like them. He was not dealing with Baluchis nor do we think that judgment was intended to lay down that what is grave and sudden provocation to a Baluchi is grave and sudden provocation to an Englishman or vice versa. In short the ‘reasonable man,’ always a somewhat ideal figure, is not a person of identical habits, manners and feelings wherever he may be. . . . While it is the offender whom the court regards when considering the question whether he was deprived of the power of self-control by grave and sudden provocation, it decides whether this was so by the test of a ‘reasonable man,’ the ordinary normal man, the ordinary normal Baluchi, when dealing with Baluchis and the ordinary Englishman when dealing with the English.” 239
In 1938, in the case of Sudan Government v. Gadalla Mohamed,440 in order to ascertain whether the provocation was grave and sudden, Gorman L.S. applied the concept of an ordinary man 241 in full and normal control of his actions. In 1945, in Sudan Government v. Mohamed Nur El Bethi Suliman Hamad,242 altering the conviction of the prisoner from that of murder to one of culpable homicide, Bennet Cj. said:
237 Sudan Government v. Barakia Wajo (1961) S.L.J.R. 114 at 115.
238 Ghulam Mustafa Ghano AIR Sind. 182.
239 Ibid. at pp. 183, 184. In the original draft of the Indian Penal Code, it was explained (Explanation 1 to S. 297 of the draft) that the provocation would be grave when it is such as would be likely to move a person of ordinary temper to violent passion, but in the explanation to exception to s. 300, Indian Penal Code, there is now no reference to “ordinary person.” But see s. 261 (2) of the Canadian Criminal Code which provides: “Any wrongful act or insult, of such a nature as to be sufficient to deprive an ordinary person of the power of self-control, may be provocation if the offender acts upon it on the sudden, and before there has been time for his passion to cool.” This is apparently based on s. 176 of the English Draft Code prepared in 1879. The Criminal Codes of Queensland and Western Australia also refer to the ordinary man—cf. s. 268 of the Queensland Code.
- (1938)240 AC-CP-159-38; KSN-Maj.Ct..41.C-44-38, unrep.
241 See the American case of Maher v. People (1862) 10 Mich. 212, at pp. 219—220:
“ Reason should, at the time of the act, be disturbed or obscured by passion to an extent which might render ordinary men, of fair average disposition, liable to act rashly or without due deliberation or reflection, and from passion, rather than judgment.” Also in State v. Watkins (1910) 147 Iowa 566, it was said:
:‘ Such provocation as had a natural tendency to produce a state of mind in an ordinary man of average disposition, in which reason is so disturbed or obscured by passion that the person is likely to act rashly without due deliberation, and from passion rather than judgment.”
242. AC-CP-223-45; KSN-Maj.Ct.-56-45 unrep.
“ In my opinion the court has unquestionably misdirected itself, and never applied its mind to the real question for its consideration. The question was—’ Were the insulting words spoken by the deceased immediately before the accused’s blows were delivered, such as, following the previous course of conduct by the deceased, would amount to such provocation as would, in an ordinary man in the position and situation of the accused, provoke him in such a way as would be likely to cause him to strike the deceased as did the prisoner?
Later on in the judgment, Bennet C.J. remarked:
“ I think that there is some danger of applying a standard of self-control which is beyond that of the ordinary man in the Sudan. Subsections (1) and (4) of section 249 are concessions which the law makes to human frailty as judged by the natural standard of the ordinary man in the Sudan, and not by what any of us think ought to be the standard of the ordinary man in the Sudan. I have little doubt that a Sudanese jury acting properly and impartially would give the prisoner the benefit of section 249 (1) in this case.”
However, one wonders whether Lindsay C.J. was applying the test of the reasonable man in the Sudan when he said:
“ A reasonable man is not justified in losing his temper and resorting to violence merely because he suspects that a man is committing adultery with his wife. He must have proof, and sudden and unexpected proof, before giving vent to his feelings of jealousy.” 243
In 1946 Cummings C.J. in two of the cases decided by him, introduced the normal reasonable man into the Sudan by holding: “The provocation to be grave must be such as would upset a normal reasonable man.” 244 Does this mean that the reasonable man in the Sudan is expected to be mentally normal? A necessary consequence of this is that a person of excitable temperament who is peculiarly susceptible to provocation or is unusually excitable or pugnacious could not rely on provocation which would not have led an ordinary person to act as he did. This indeed is so as shown by the case of Sudan Government v. Barakia WaJo where the accused, who was extemely excitable and irritable and afflicted with defective control of his nerves because of his being an epileptic, killed
243 Sudan Government v. ,4hmed Abdullahi Basi (1952) AC-CP-389-52; DP-Maj.Ct.-41-C. 9-52, unrep.
244 Sudan Government v. Mohamed Saad Suleiman (1946) AC-CP-209-46; KTM-Ct.-18-46, unrep.: repeated in Sudan Government v. Mukh tar El Hag El Amin (1946) AC-C P-200-46; KNC-Maj.Ct.-42-46, unrep.
ò245 (1961) S.L.J.R. 114
his half-sister. Applying the test as laid down by Lord Reading C.J. in R. v. Lesbini 246 M. I. El Nur. J. said:
“ I am in full agreement with the learned trying Magistrate that the provocation of accused which was due not to the conduct of the deceased which was not capable of provoking a reasonable man, but due to his irritability because of his being epileptic, is not such grave and sudden provocation as would bring the accused within the orbit of section 249 (1).” 247
As a statement of the law this seems to be rather harsh because there are many persons who, for various reasons beyond their control, are particularly sensitive to affront and the law ought to take account of these individual reactions.248 It has been aptly said that:
“ once the ‘reasonable man’ becomes a legal principle of liability then
“(c) It creates the incongruity which always arises when a subjective and an objective test of liability are in application at the same time. It introduces a normally insupportable distinction between the treatment of a man born ‘normal’ or ‘average’ and a man born ‘abnormal’ or varying from the ‘average’. For if the reason for excusing the ‘normal’ man is that his innate control mechanism has been paralysed by events, how can it be ethically proper to refuse the like benignity to a ‘sub man when his innate control mechanism has been so paralysed; and thus to deal leniently with a man to whom ‘nature’ has been moderately kind, while treating with ruthless severity the man to whom ‘nature’ has been immoderately unkind? “ 249
There is at least one unreported Sudanese case where the mental background of the accused was taken into account in assessing the gravity of the provocation. In Sudan Government v. Ahmed Ibrahim Isagha 250 the accused was weak-willed and unsociable and was dominated in everything by the deceased who occasionally taunted him with incapacity
246 (1914) 3 K.B. 1116 Court of Criminal Appeal: followed by the House of Lords in Mancini v. D.P.P. (1942) A.C.1.
247 (1961) S.L.J.R. 114 at 115.
248 See the argument for the abolition of the reasonable man test presented by the Society of Labour Lawyers and the evidence given by Sir Basil Nield, K.C., M.P. before the Royal Commission on Capital Punishment: “This test is inequitable. If the accused is mentally abnormal or is of subnormal intelligence or is a foreigner of more excitable temperament or is for some other reason peculiarly susceptible to provocation, it is neither fair nor logical to judge him by the standard of the ordinary Englishman” Cmd. 8932, para. 141
149 Russell on Crime, Vol 1, 12th ed. (1964) by J. W. Cecil Turner at 535 For other very cogent arguments against the “reasonable man “ test: see also clauses (a), (b) and (d) in Russell.
250(1930) AC-CP-245-30; BNP-Maj.Ct.- unrep.
and generally treated him with contempt, and finally called him a pimp. He was convicted by a Major Court of the murder of the deceased. Owen C.J. in his judgment said:
“ The real defence in the case was that the evidence showed that the accused was weak-willed, that he had suffered continual insults and indignity; and that his self control, never very great, was undermined by these insults and indignities, and that in such circumstances-well known as they must have been to the deceased—the culminating insult ‘pimp’ was provocation both grave and sudden. Whether provocation by spoken words is grave or sudden depends as much upon when and how those words were said as upon the mentality of the person to whom they were addressed.”
The authority of this case is however weakened by the fact that (1) it may be construed as being confined only to verbal insults; (2) the case was decided in 1930 and has never been followed since; (3) the benefit of section 249 (1) was not given to the accused although the sentence of death passed upon him was commuted to life imprisonment.
In England the theory behind not taking into account the unbalance of mind of the accused seems to be that
“ If the law were otherwise, a bad-tempered man would be entitled to a verdict of manslaughter whereas a good-tempered man would be liable to be hanged.” 251
This is a very misleading argument because it ignores the fact that a good-tempered man hardly ever would lose his temper. The English courts, however, do not stop there. In their opinion not only are the mental characteristics of the accused to be ignored, but also no allowance is to be made for his physical defects. So that the fact that the accused is impotent or lame or cross-eyed ought to be ignored. In Bedder v. DPP252 Lord Simmonds L.C. said•
“ The argument for the appellant was that the jury, in considering the reaction of the hypothetical reasonable man to the acts of provo cation, must not only place him in the circumstances in which the accused was placed, but must invest him with the personal physical peculiarities of the accused. Learned counsel . . . did not . . . venture to say that he should be invested with mental temperamental qualities which distinguish him from the reasonable man; for this would have been directly in conflict with . . . the recent decision of this House in Mancini’s case.253 But he argued that the reasonable man should
251 Per Avory, J., in Rex v. Lesbini (1914) 3 K.B. 1116
252 (1954) 38 Cr.App.R.133, House of Lords.
253 Mancini v. D.P.P. (1942) A.C.1. House of Lords.
be invested with the peculiar physical qualities of the accused, as in the present case with the characteristic of impotence, and the question should be asked; What would be the reaction of the impotent reasonable man in the circumstances? For that proposition I know of no authority, nor can I see any reason in it. It would be plainly illogical not to recognise an unusually excitable or pugnacious temperament in the accused as a matter to be taken into account but yet to recognise for that purpose some unusual physical characteristic, be it impotence or another. Moreover, the proposed distinction appears to be to ignore the fundamental fact that the temper of a man which leads him to react in such and such a way to provocation is, or may be, itself conditioned by some physical defect. It is too subtle a refinement for my mind or, I think, for that of a jury to grasp that the temper may be ignored but the physical defect taken into account.”
Some of the Indian cases seem to strike a similar note in that they hold that provocation must be such as will upset not merely a hasty and hot-tempered or hypersensitive person, but one of ordinary sense and calmness.254
It is submitted that neither the ruling in Bedder’s case nor the Indian view just cited should be followed in the Sudan because they directly conflict with the test laid down by section 249 (1) Sudan Penal Code which is purely subjective in character. Properly construed, there is ample room for taking into account not only the physical but also the mental characteristics of the offender.255
(c) Reasonable man of the same locality:
This test seems to have originated in the judgment of Davis J.C. in the Indian case of Ghulam Mustafa Ghano 256 where the learned judge said:
The ‘reasonable man,’ always a somewhat ideal figure, is not a person of identical habits, manners and feelings wherever he may be. . . . The ‘reasonable man’ is the normal man of the same class or community as that to which the accused belongs257.”
254Sohrab (1924) Lab. 67; Khadim Hussein (1926) 7 Lah. 488, Des Raj (1939) 20 Lah.345
255 English Common Law has been modified in New Zealand by s. 169 (2) of New Zealand Crimes Act, 1961. which provides: “Anything done or said may be provocation if (a) In the circumstances of the case it was sufficient to deprive a person having the power of self-control of an ordinary person, but otherwise having the characteristics of the offender, of the power of self-control.” On this point see Brown, (1964) Int. & Comp. L. Quart. 203 at 217.
256 AIR Sind. 182.
257 Ibid. at 183. The same test was applied in Des Raj V. Crown (1939) ILR 20 Lah. 345.
In the judgment of Abu Rannat C.J.:
“ The ‘reasonable man’ referred to in the text-books is the man who normally leads such life in the locality and is of the same standard as others. . . The real test is whether an ordinary Arab of the standard of the accused would be provoked or not.” 258
The learned Chief Justice repeated the same formula fl 1966:
“ It is said that no provocation can be grave unless it would cause a reasonable man to act as the accused did, but in my view the reasonable man in this context must be a man of the same class as the accused....” 259
In some of the cases, this statement of the law has been qualified to take into account the upbringing and past experiences of the accused. For example, in Sudan Government v. Ismail Abu Ashman 260the learned Acting Chief Justice, Mr. Creed, held:
“ The provocation must be grave, that is to say, the provocation leading directly to the act must be such that it would deprive of the power of self-control a reasonable man with the same past personal experiences as the accused. The gravity of the provocation cannot be correctly assessed in isolation from the manner of life of the community of which the accused is a member, or in isolation from the present effect (if any) on the accused of any previous provocation which he received.”
This test is partly subjective, partly objective, in character. It has been held 261 that:
“ the question whether the provocation given was ‘sudden’ as well
258 Sudan Government v. El Baleila Balla Baleila and Others (1958 ) S.L.J.R. 12 at 13. But cf. Lord Goddard C.J. in R. v. McCarthy (1945) 2 Q.B. 105 at 112: “No court has ever given, nor do we think ever can give, a definition of what constitutes a reasonable or an average man. That must be left to the collective good sense of the jury.” Lord Goddard, however, also spoke of “any reasonable person, that is to say, a person who cannot set up a plea of insanity.”—R. V. Ward (1956) 1 Q.B. 3 at 356.
259 Sudan Government v. Logol Adozie Nalmazia (1966) S.L.J.R. 2. see also Lindsay C.J. in Sudan Government v. Hawa Bint Mohamed Sharjf (1953) AC-CP-347.53; DP-Maj.Ct.41.C.48-53 unrep.: ‘ Having regard to her (accused’s) circumstances of life and so on, is it to be inferred that any reasonable person of her walk of life would have acted as she did if similarly situated, having regard to the past history of the parties? I think it is quite likely.”
260 (1947) AC-CP-156-47 KDN.Maj.Ct.-42-47 unrep. See the same learned Judges remarks in Sudan Government v. Mohanna Kuku (1945) AC-CP-324-45 KSA Maj.Ct.-41.59-45 unrep.: “The question is not whether the deceased’s conduct would ‘justify the accused warder in using his rifle on the deceased ‘ but whether it would deprive a reasonable man of the accused’s upbringing and in the position in which he found himself, of the power of self control.”
261 Sudan Government v. Guma’a Abdel Rahman (1946) AC-CP-117-46; KNC-Maj.Ct.
30 -64 unrep.: Sudan Government v. Adam Salih Tibin (1957) S.L.J.R. 72.
as ‘grave’ enough to be an extenuation for the offence depends upon the nature of the provocation, its effects upon the person provoked and in short upon the probability of its producing a similar effect upon other persons.” 262
In India, the Supreme Court seems to have finally settled for this test. In Nanavati v. The State of Maharashtra,263 Subba Row J., delivering the judgment of the full bench of the Supreme Court, said:
“ What a reasonable man will do in certain circumstances depends upon the customs, manners, way of life, traditional values, etc.; in short the cultural, social and emotional background of the society to which the accused belongs. In our vast country there are social groups ranging from the lowest to the highest state of civilisation. It is neither possible nor desirable to lay down any standard with precision: it is for the court to decide in each case, having regard to relevant circumstances.” 264
Even in Australia, in applying the law to native races, Mr. Justice Kriewaldt modified the law of provocation in order to make it appropriate to the particular community with which he was dealing.265
Killing one other than provoker
If the accused causes the death of any person other than the provoker, by mistake or accident, his crime would be culpable homicide, not murder, if it has been established that he acted under stress of grave and sudden provocation.266 In Sudan Government v. Musa Murgan 267 the accused, who was on bad terms with his wife Um Guma’a, came to the house of his wife’s friend, Bakheita, with whom she was living, at io o’clock at night, to take her to a house which he had just rented. The wife refused to accompany him and threw the tobe, which he had given her, at him. Enraged, the accused kicked over and broke a water bowl. Bakheita who was lying on a bed near by, taunted the accused and supported his wife.
262 Gour’s Penal Law of India, Vol. 2, 7th ed. (1964) at p. 1412.
263 (1962) S.C.605
264 Ibid. at 630.
265 Kriewaldt J. used the following words in his judgment in Patipatu unrep. May15,1951)
an ordinary reasonable person in that vicinity and of that description.” The same principle was applied by Kriewaldt J. in MacDonald (unrep. July 21, 1953): Muddarubba (unrep. February 2, 1956); Nelson (unrep. March 21. 1956). For extracts from the summing up cf. Morris & Howard. Studies in Criminal Law (Oxford) 1964; Howard “What Colour is the Reasonable Man “ (1961) Cr.L.Rev. 41; Howard, Australian Criminal Law (1965)
266 Sudan Penal Code, s. 249 (1). The position of common law also is the same.- R. V. Maddy (1671) 2 Keb. 829.
26 7 (1947) AC-CP-227-47; DP-Maj.Ct..41.C-38-47 unrep. See also Sudan Government V. Ismail Ahmed Gargara (1962) S.L.J.R. 148.
The accused lost his temper and hit his wife on the side with a stick which he carried. The wife of the accused took up an axe by its head and hit him on the face with the handle or the flat. Bakheita, who may or may not have interfered in the fight, picked up her four year old daughter, Fatma. The accused struck at her with the blade of the axe; the blow fell partly on her arm and partly on the child’s head. The injury to Bakheita was slight but the skull of the child was broken and her brains scattered.
A Major Court found the accused not guilty of murder but guilty of culpable homicide on the ground that the accused intended to kill the woman and not her child. The court was of the opinion that the accused was entitled to plead provocation under section 249 (1). On reference for confirmation, it was held by Cummings C.J.:
“ The finding that the accused was entitled to the benefit of the exception of grave provocation was wrong. The test in deciding on the killing of Fatma was ‘What crime would the accused have committed had he killed Bakheita?’ But had he killed Bakheita, who did not give him grave provocation, he could not say that he killed her by accident or mistake for Urn Guma’a who had given him grave provocation. Then the crime is murder.”
The intention of section 249 (1) seems to be to protect an accused person only when his intention is to kill the person who gave the grave and sudden provocation, and not when he actually tries to kill some other person. In this case the accused would have been protected only if he had killed his wife’s friend when intending to kill his wife. The defence for grave and sudden provocation would be available to the accused only if the blow was aimed at the provoker and if by accident it should miss him and kill another person by mistake or accident.268
1. The courts in the Sudan, sooner or later, would have to make up their mind as to whether to come out for the purely subjective test or the test of a reasonable man of the same locality as the accused. Because of the almost universal outcry against the reasonable-man test 269 and
268 See R. v. Porritt (1961) 3 All E.R. 463. “If the firing at the person intended to be hit would be manslaughter, then, if the bullet strikes a third person not intended to be hit, the killing of that person equally would be manslaughter and not murder.”
269 Russell on Crime, Vol. 1, 12th ed. (1964) by J. W. Cecil Turner; Smith & Hogan:Criminal Law (1965) 215; Williams (1954) C.L.Rev. 740; Brown (1964) Int . & Comp.L.Quart. 203.
also because it is contrary to the letter and spirit of section 249 (1) Sudan Penal Code, such a test is completely out of place in the Sudan. A clear choice indicated by the highest judicial authority in the country would make easy the task of the trial court which has to administer the law from time to time.
2. . One of the essential ingredients of the defence of provocation in the Sudan is that the crime should have been committed by the accused during loss of self-control. if there is no element of preparation and premeditation in the offence, generally, the benefit of the section ought to be given to the accused. The question for determination is not whether the accused ought to have regained self-control but whether or not he did regain it at the time of the offence. Surely, if he was smouldering with fury at the time, his conduct would fairly and squarely fall within the orbit of section 249 (1)
.3 The law, as it stands at present, is broad enough to take into account the mental and physical characteristics and abnormalities of the accused. On this point Mancini 270 and Bedder 271 should not be followed, If, however, the courts do follow these cases then there would be a strong argument for adopting section 169 (2) of New Zealand Crimes Act, 1961.272
.4 The proportion rule of retaliation works unfairly to the detriment of the accused. Under it, the prisoner is expected to make an impossible choice of a weapon if, for example, at the time the provocation is given to him, he is armed with a sword, a dagger and a spear. When punched on the face with great force, he would not normally stop to think whether to use his fists in retaliation or to use any of the several weapons at his disposal.
5. The law seems to have been applied very liberally in favour of aggrieved husbands who kill their wives upon the slightest suspicion of adultery. Is that fair?
. 6Finally, one would like to repeat the remarks of Soni J. who said 273 that in matters of provocation, evolution of society 274 must be considered, Social habits and feelings have to be taken into account.
270 (1942) A.C.1.
72 2 Supra fn. 254.
273 Sudan Government v. Omer Eisa Omer (1955) AC-CP-232-55; KDN-Maj.Ct..36-55. unrep.
274 On this theme, see the remarks of Lord Goddard C.j. in R. v. Semini (1949) 1 kB. 405: “ At a time when society was less secure and less settled in its habits when the carrying of swords was as common as the use of a walking stick at the present day, and when duelling was regarded as involving no moral stigma if fairly conducted, it is not surprising that the courts took a view more lenient towards provocation than is taken to-day when life and property are guarded by an efficient police fore and social habits have changed.”