Criminal Law Public Section

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Mahgoub Gamal El-Din Mahgoub Hamid

Introduction
Criminal law is a law that regulates how to punish anyone who violates a legal rule,
imposes legal punishment on him, and defines permissible and prohibited acts, and
for each crime, there is a penalty.
Criminal law or penal law is a branch of legal science that is related to crime. It can
be defined as the set of laws that the state sets about the behavior that is prohibited
so that it threatens the security, safety, and interest of the public and exposes them
to danger, and sanctions are enacted for them on violators of these laws.
The special criminal law is part of the criminal law that determines the types of acts
and omissions that require criminalization, whether they are in the form of positive
or negative action, and require the establishment of penalties against the
perpetrators, as it controls the criminal acts and acts, as well as the penalties
prescribed for them.
Criminal law is divided into two parts, a general section, and a private section. The
general section includes all provisions and rules that apply to all types of crimes and
punishments, as it is concerned with the general principles related to criminalization
and punishment, which are applied to all crimes, no matter how different and varied,
as it determines the general pillars of crime. And the types of penalties, who is the
offender, what are the preventive measures and when responsibility is achieved, and
what the causes of their absence are. This section of the law is known as the general
theory of criminal law.
As for the private section, unlike the general criminal law, is concerned with
studying each crime separately and determining the circumstances of its
commission. In other words, it is the side that determines the crimes and the penalties
prescribed for them.
Historically, we find the roots of the private criminal law in ancient laws such as the
Code of Hammurabi among the Babylonians, the Laws of Manu among the Indians,
the Code of Buchoris among the Pharaohs, the Laws of Draco and Solon among the
Greeks, and the Law of Twelve tables among the Romans.
In addition, some jurists defined it as: “that legal article that he considers crimes, by
specifying the elements specific to each crime separately, the appropriate
punishment for reprimanding the perpetrator, and the various circumstances that
would aggravate or mitigate the punishment.”
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The provisions of the Private criminal law are less stable than the rules and
provisions of the general criminal law. What was considered a crime in the past is
not considered so now, and what was permissible in the past has become a crime
today, so abortion was a crime in France and is no longer, so if it was medical and
performed in the legal term, theft and murder were not criminals in the past, unlike
today.
However, being limited to these elements specific to each crime may not dispense
with the need to resort to general provisions that are applicable to all crimes,
whatever they are, given that the general section constitutes the general theory of
criminal law that works to root this law, while the section Private takes over the
practical side of these texts.
A crime is defined as the commission of an intentional act that is usually considered
socially harmful or dangerous and is specifically defined and prohibited and
punishable under criminal law. Some also defined it as an act or omission to do
something stipulated by law, and the perpetrator is punished with a criminal penalty.
The concept of crime also varies according to the perspective from which it is
viewed, including:
Crime in Islamic law: Al-Mawardi defined crime as a legal prohibition that Allah
forbids to do, either with a punishment or a disciplinary action, and what is
prohibited is doing something that Allah forbade, or not doing something that he
commanded.
Crime in legal terms: It is an illegal act resulting from a criminal will and for which
the law determines a penalty or a precautionary action. And that the word crime does
not only deal with the acts criminalized by the Penal Code, but rather deals with all
the acts criminalized by other special and complementary laws of the Penal Code to
which all general provisions, basic principles, and general theories stipulated in the
Penal Code apply.
And that the word crime includes only acts criminalized under applicable law. If
there is no law criminalizing the act, then there is no crime, and this is what is called
the Principle of legality.
Crime in terms of social and psychological: It is an act that breaches the moral
foundations that have been established by the group, and the group has made its
penetration an official penalty.
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As for the definition of the criminal: is an adult human being who has committed a
harmful act stipulated by a specific law. Which entails specific criminal penalties in
the same law.
The definition of a felony:
Linguistically: It is what a person reaps from evil and what he acquires.
Idiomatically: a name for an act that is forbidden by law, whether the act is on a
person, money, or something else.
There is no difference between the meaning of crime and felony, for both are an act
prohibited by a legislative text or an omission from a required act.
Criminal divisions:
Crimes Against the Soul: These are all Crimes Against the Person: These
types of murder. include wounds, fractures, and
abortion.
Honor crimes: These are known as Crimes against beliefs and sanctities.
sexual crimes.
Crimes on money: whether movable or immovable, tangible or intangible.
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Part I
Preliminary Provisions and
Enforcement of the Act
4
Article 1 Title and commencement stipulate:
This Act may be cited as the “Criminal Act, 1991”, and shall come into force
after one month from the date of its publication in the Gazette.
Article 2 Repeal stipulates:

The Penal Code, 1983 shall be repealed.
Article 3 Interpretation and explanations stipulate:

In this Act, unless the context otherwise requires, the following words and
expressions shall have meanings and explanations assigned thereto:
Judicial proceeding: includes any proceeding in the course of which evidence may
be taken in accordance with the law.
Likely: an act is said to be “likely” to have a certain consequence or a certain effect
if the assurance of that consequence or effect is foreseeable to a reasonable man.
Grievous hurt: means wounds as defined in this Act, with the exception of scratches
or wounds, which affect the skin only.
Grave provocation: means causing grave anger, which prevents complete self-
control and reflection and takes beyond the moderate state. It shall not be deemed
provocation which:
(a) Is sought or intentionally caused by the offender as an excuse for committing the
offense.
(b) Results from any act done in execution of the law by the public authority.
(c) Results from any act done in the lawful exercise of a legal right.
Harbor: a person is said to harbor another when he supplies that other with shelter
or food or assists that other in any way to evade arrest.
Adult: means a person whose puberty has been established by definite natural
features and has completed fifteen years of age. Whoever attains eighteen years of
age shall be deemed an adult even if the features of puberty do not appear.
Offense: Includes every act punishable under the provisions of this Act, or any Act.
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Hudud offense: means the offenses of drinking alcohol, apostasy (ridda), adultery
(zina) defamation of unchastity (quazf) armed robbery (hiraba), and capital theft.
Good faith: a person is said to have done something or believed in it in “good faith”
if such an act or belief occurs with good intention and the use of due care and
attention.
Alcohol: includes any intoxicant of which the drinking of a small or large amount,
whether the same is in a pure or mixed form, causes intoxication.
Man and woman: “man” means the adult male, and “woman” means the adult
female.
Consent: means acceptance, and it shall not be deemed consent, which is given by:
(a) a person under the influence of compulsion or mistake of fact, where the person
doing the act knows that consent was given as a result of such compulsion or
mistake; or
(b) A person who is not an adult; or
(c) A person unable to understand the nature or consequence of that to which he has
given his consent by reason of mental or psychological instability.
Public authority: means any competent authority of the state and includes the
public corporations and companies of the public sector.
Document of title: means a document which is, or purports to be a document,
whereby a legal right is created, extended, transferred, restricted, extinguished, or
released or whereby the existence or the extinction of a legal right is acknowledged
or established.
Dishonestly: a person is said to do a thing dishonestly who does that thing with the
intention of causing wrongful gain to himself or another or of causing wrongful loss
to any other person, and the expression “wrongful gain” means obtaining property
or retaining it in a wrongful manner, and the expression “wrongful loss”, means
depriving, or preventing any person from his property, or retaining it in a wrongful
manner.
Person: includes a natural person and any company or association or group of
persons, whether incorporated or not.
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Injury: means any hurt illegally inflicted upon a person in body, mental or
psychological, health, honor, property, or reputation.
Movable and immovable property: immovable property includes land and things
permanently attached thereto or fastened permanently to anything, which is attached
to the land, and any property otherwise, is considered movable.
Ta’zir penalty: means any penalty other than hudud and retribution (qisas).
Knowledge: a person is said to know a thing where he perceives it or has reason to
believe therein.
Act: words that denote an act shall include an illegal omission as well as a series of
acts.
Intention: a person is said to cause a consequence intentionally, if he causes it by
using means intending thereby to cause the consequences, or by using means which
he, at the time of using them, knows that the same causes such consequence, or has
reason to believe that they are likely to cause it.
Fraudulently: a person is said to do a thing fraudulently, who does that thing with
intent to deceive, and by means of such, deceit to obtain some gain or advantage for
himself, or another, or to cause loss to any other person.
Disciplined forces: include the Armed Forces, security, police, prisons, fire brigade,
the wildlife conservation forces, and any other forces to be established thereafter.
Has reason to believe: a person is said to have reason to believe if he has cause, or
the circumstances are such as to cause a similar person, so to believe.
Court: includes any court, or body exercising judicial proceedings by virtue of any
Act in force.
Mature: in relation to a natural person means a sane adult, and in relation to a body
corporate, means whoever has the capacity for legal responsibility.
Public servant: means any person appointed by a public authority to undertake a
public office whether the appointment is with or without consideration and whether
it is temporary or permanent.
Probable consequence: a thing that is said to be a probable consequence of an act
where the act or the means employed therein leads to the occurrence of that
consequence in most cases.
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Retrospective effect of the Act
Article 4 Retrospective effect of the Act stipulates:

[1] Notwithstanding the provisions of sub-section (2), the law in force at the time
of the commission of the offense shall be applied.
[2] In case of offenses in which no final judgment has been passed the provisions
of this Act shall be applied where they are beneficial to the accused.
[3] The non-execution of hudud penalties before the coming into force of this
Act shall be a doubt (shubha) which remits the hud penalty, and penalties
inflicted in final judgments shall be revised in accordance with the provisions
of this Act.
[4] Any final judgment of dia passed before the coming into force of this Act
shall be revised in accordance with the provisions thereof for its satisfaction.
What is the beneficial law to the accused?

Dr. Mahmoud Najib Hosni defined the best law for the accused as: The law that
establishes a position or status for the accused is more favorable than the old law.
The law is considered better for the accused if it cancels one of the multiple penalties
prescribed for the crime committed by the accused, even if it is ancillary or
complementary punishments, makes it permissible after it was mandatory, or if it
abolishes an aggravating circumstance, aggravating restriction, a restriction on its
application, or weaker than its effects in aggravating the punishment.
The law is considered better for the accused if it results in dropping the description
of incrimination for the act committed by the offender, reducing this description, or
narrowing the scope of criminalization by changing the elements or circumstances
of the crime in a way that benefits the accused, or determining one of the reasons for
its permissibility or an impediment to responsibility or punishment that exist in the
law.
When the law that is best for the accused is issued, it must be applied retroactively
to the crime committed by the accused.
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[1] Before the final judgment:
The final judgment in this regard means the judgment by which the criminal case
ends, and this is achieved after exhausting all means of appeal.
It is noted that if the Supreme Court decides to refer the case to the trial court to
consider it again, and then a law was passed that was better for the accused and it
must be applied retroactively as long as the case has not yet ended.
In this case, the law that is best for the accused is applied retroactively, without
distinction between whether the new law is a provision of criminalization or
punishment, and whether the act permitted or prevented the offender from
punishment or responsibility or was limited to mitigation.
[2] After the final judgment:

If the criminal case is terminated by a final judgment that has the force of a res
judicata, accordingly, if a law is issued after a final judgment that makes the act that
sentenced the offender without being punished stops the execution of the judgment,
and its criminal effects end. Therefore, the judgment issued to convict the accused
remains valid, but it loses its continued validity as an executive bond.
If the convict is serving a term of imprisonment depriving him of liberty, he must be
released immediately, and if the judgment is issued against him for a fine, it may not
be collected from him. As for what has been paid off a fine, it may not be claimed.
[3] Hudud crimes:

Paragraph [3] of Article [4] of this law stipulates that non-execution of hudud
penalties before the coming into force of this Act shall be a doubt (shubha) which
remits the hud penalty, and penalties inflicted in final judgments shall be revised in
accordance with the provisions of this Act.
The text of Article [3/4] is that the courts in Sudan had issued several hud
punishments in accordance with the Penal Code of 1983, then amended the law and
issued the Criminal Code in 1991. Therefore, the legislator considered that delaying
the implementation of the hud punishment before the implementation of this law was
a doubt (shubha) and replaced it with a disciplinary punishment, and that is
mitigation, which is better for the accused.
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[4] The provisions of blood money (Dia):
Article [4/4] stipulates that any final judgment of dia passed before the coming into
force of this Act shall be revised in accordance with the provisions thereof for its
satisfaction.
Since the blood money (Dia) was a pure right of the victim or his guardian, the
legislator could not forfeit it, and the jurists unanimously agreed that the blood
money (Dia) should not be forfeited by the statutes of limitation. Abu Hanifa, Malik,
al-Shafi’i, and Ahmad held that the penalties for hudud crimes and retribution crimes
and blood money (Dia) do not lapse with the statutes of limitation.
Accordingly, the legislator did not drop the blood money. And the provisions for
blood money (Dia) are stipulated in Article [42] and stipulated in its first paragraph
that [Dia (blood-money) is one hundred camels of different ages or its equivalent
value in money as the Chief Justice may determine from time to time, after
consultation with the competent bodies]. Then it stipulated the rest of the paragraphs
of that article and then detailed its provisions in the second schedule attached to this
law.
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Offenses committed within Sudan
Article 5 Offenses committed within Sudan stipulates:

[1] The provisions of this Act shall apply to every offense committed wholly or
partly in Sudan.
[2] For the purposes of this Act, the definition of Sudan includes its air space,
its territorial waters, and all Sudanese ships and aircraft wherever they are.
If a crime occurs in Sudan, it is subject to the Sudanese criminal law, without

distinction between a citizen or a foreigner. Accordingly, territorial sovereignty is
the main feature of the modern nation-state, and with regard to penal law, it means
the state’s authority to punish all crimes that take place within its borders, regardless
of the sex, nationality, religion, or color of the accused. However, this
fundamentalist principle is limited by two things:
First: is the constitutional immunities imposed by the modern state on itself in order
to achieve a higher national interest.
Second: international law restrictions, such as diplomatic immunities, war
covenants, and the exchange of criminals.
The state’s legislation applies to its territory, and the territory of the state includes
every area in it that is subject to its sovereignty, whether it is on land, at sea or in the
air.
[1] Land Territory:
It includes the area over which the state exercises its authority and sovereignty. This
territory is defined by specific and clear borders in the interest of order and
tranquility between states. These boundaries are determined by international
agreements between states, otherwise they are determined in light of the actual, calm
and stable possession of the land. These borders are considered geographical lines,
and the territory of the state includes the waters that are underground, and all the
rivers and channels that pass through it, whether they are national or international
rivers. The authority of the state in criminalization and punishment extends to every
international monastery or international channel that passes within the borders of the
state.
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[2] Sea territory:
The part of the sea that starts from the state shore and ends at the beginning of the
world sea includes most of the 120 countries that have borders on the seas, which
have defined between 12 nautical miles to several nautical miles as the territorial
waters of their countries. In 1958, Sudan signed the Territorial Sea Agreement, the
first article of which states that the sovereignty of the state extends outside its land
territory and internal waters to a belt of sea adjacent to its shore described as the
territorial sea. Regional as it extends to its bottom and below.
[3] Air Territory:

The territory of the state also includes the element of air space that is above
necessity. The Paris Agreement of October 1919 decided that each state has
complete and unilateral sovereignty over the layers of air above its land territory.
In 1966, the United Nations General Assembly issued its resolution approving a draft
convention regulating the exploitation and use by the state of the upper layers in the
atmosphere, including the moon and other planets. The agreement stipulated in its
first article that the upper atmosphere layers are outside the sovereignty of each
country, but it did not specify the distance between the airspace and the upper layers
of the atmosphere.
Ships and aircraft flying the state flag:

[1] Warships: The international custom tended to subject warships to the law of the
flag, regardless of their presence, that is, whether they were in the territory of another
country or in the international sea.
[2] Merchant ships: It is considered an extension of the territory that carries its flag.
But if a crime occurs on board a foreign ship anchored in the Sudanese maritime
territory, according to the flag law, the crime is subject to foreign law, and according
to the territoriality principle, the crime is subject to Sudanese law because it is
located in the real Sudanese territory, and the accused may be tried before Sudanese
courts.
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Offenses committed outside Sudan
Article 6 Offenses committed outside Sudan stipulates:
[1] The provisions of this Act shall apply to every person who commits:
(a) Outside Sudan an act which makes him a principal or joint offender in any
of the following offences:
(i) Offences against the state;
(ii) Offences relating to the disciplined forces;
(iii) Offences relating to counterfeiting coins, or revenue stamps, where the
offender is found in Sudan.
(b) In Sudan a joint act is associated with an act committed outside the Sudan,
which is an offence in Sudan and is also an offence under the law of the state
where the act is committed.
[2] A person who has committed outside Sudan any of the offences punishable
in Sudan shall not be punished in the Sudan, where it is proved that such person
has been tried outside Sudan before a competent court and has served his
sentence, or that he has been declared innocent by such court.
The state extends the scope of its penal law to some crimes that occur outside the
borders of its territory. This extension is based on the state's right to self-defense
against all forms of attacks on its basic public interests, even if they occur outside
its territory. On the other hand, some interests that are attacked outside Sudan are
linked to the sovereignty of the state, and therefore the legal result of this violation
is in Sudan, as this result directly affects the basic national interests.
These crimes are mentioned exclusively. According to it, the Sudanese criminal law
applies to whoever commits one of them, whether he is a Sudanese or a foreigner. It
is not required that the crime be punishable in the country in which it occurred. It is
also not required that the offender return to Sudan, but may be tried in absentia.
This person may be a principal perpetrator if he commits the executive act of the
crime alone or with others and then flees abroad. He may be an accomplice in one
or more of the ways of participation, namely, criminal conspiracy, abetment, and
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assistance in a crime that took place all or part of it inside the country. Defined by
the principle of the specificity of the criminal text.
The principle of the specificity of the criminal text: Applying the criminal text to
specific and exclusively crimes that are dangerous crimes regardless of the
nationality or place of residence of the perpetrator.
There is no question of the importance of this principle, as each state is keen on its
basic interests and is interested in subjecting crimes that affect it to its legislation
and judiciary because it does not trust the interest of other states in punishing them.
The law defines the crimes that are subject to Sudanese law, regardless of the place
of their commission and the nationality of the perpetrator in Article VI as follows:
[1] Offenses against the State:
These are the crimes stipulated in this law, Articles [50-57].
[2] Offenses Relating to Disciplined Forces:
These are the crimes stipulated in this law, Articles [58-62].
[3] Offenses of counterfeiting currency or counterfeiting revenue stamps:
These are the two crimes stipulated in Article [117], Counterfeiting currency, and
Article [118], Counterfeiting revenue stamps if the offender is found in Sudan.
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Offenses committed by a Sudanese
Article 7 Offenses committed by a Sudanese stipulates:
A Sudanese who has committed outside Sudan an act which makes him a
principal or joint offender to an offence falling under the provisions of this Act
shall be punished when he returns to Sudan if the act constitutes an offence and
also, under the law of the state where the act is done, unless it is proved that
such a Sudanese was tried outside Sudan before a competent court and has
served his sentence, or has been found not guilty by such court.
A citizen of the state may commit some crimes abroad and then return to it and
escape punishment because the territorial principle does not allow him alone to be
tried except for the crimes he committed within the state’s territory. Therefore, the
principle of the personality of the criminal law appeared to remedy this shortcoming
and stipulates that citizens be punished if they commit crimes in the territory of a
foreign state and then returned to the homeland.
Conditions of application of the text:

The text requires a personal application, meaning that the accused will be prosecuted
even if he committed his crime in any country abroad. The following conditions are
required:
[1] That the accused be Sudanese upon his return to Sudan.
[2] He must have committed a crime as a principal or an accomplice, whether
by criminal conspiracy, abetment, or assistance.
[3] That the crime is punishable under the law of the country in whose territory
the crime occurred.
[4] He has not been tried before a competent court and has fulfilled his sentence
or has been acquitted by that court.
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Examples of the crime scene:
The acts of initiating the execution of the crime and completing its occurrence alone
serve as a criterion for determining the place of its occurrence.
There is no difficulty if the crime occurred in one moment on one territory. For
example, the crime of breach of trust is determined by the place where the
embezzlement or waste occurred, not by the place of delivery of the thing entrusted
to it, because delivery is not considered one of the constituent acts of the crime. As
for omission crimes, the place of the crime is determined by the place where the
obligation that the offender refrained from performing must be carried out. The
crime may occur in more than one place, such as if the offender has committed a
criminal activity in a particular region and the result of this activity occurred in
another region.
For example, if a person fires a shot at another in the territory of a particular country,
then the victim moves to the territory of another country and dies there, and whoever
commits a fraud crime using fraudulent methods in Sudan then seizes the money
abroad or vice versa. A person who sends a letter of a death threat in the territory of
a particular country to a person residing in another country.
What is the place where the law is held for the crime to occur?
The crime takes place either in the place where the activity is carried out, at the place
where the result occurs, or in another place where one of the direct effects of the act
occurred, and which constitutes the causal relationship between the activity and the
result. The Sudanese Criminal Code has taken this into account in the text of Article
[6/2].
Extradition of the fugitive from one country to another for trial:

The offender may commit his crime in one country and flee to another to escape trial
or execution. The extradition of a fugitive from one country to another is a
manifestation of international solidarity in the fight against crime, governed by
custom and international treaties, and is originally based on reciprocity. There is an
extradition agreement that was held between most of the Arab League countries
since June 9, 1953.
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And Sudan ratified it. It is a written interpretation of the most important rules that
have been established by international custom. The law on extradition of fugitives
in Sudan is regulated by the Extradition of Fugitive Criminals Act of 1957. This law
is applied in cases where it is agreed to extradite criminals, as Article [4/1] stipulates
the following:
“If an agreement is reached between the government of the Democratic
Republic of Sudan and any foreign country regarding the extradition of fugitive
criminals, then the President of the Republic may decide, by order to be
published in the Official Gazette, to apply the provisions of this law to that
country in accordance with the conditions, exceptions or restrictions stipulated
in that order.”
The Ministry of Justice v. Mubarak Al-Hadi Muhammad1

The administrative decision issued by the Minister of Justice to extradite the
Sudanese citizen to the United Arab Emirates “Emirate of Dubai” was based on the
text of Articles [40] and [42] of the Riyadh Arab Judicial Cooperation Agreement of
1983 was in violation of the law and an error in the application, as Extradition Act
1957 the one who governs the rules of the judiciary to extradite criminals in Sudan
and the procedures it follows and the executive authority in this has stipulated in
Article [4/1] the existence of an agreement between the government of the Republic
of Sudan and any foreign country regarding the extradition of fugitive criminals for
the implementation of that law has been proven that at the time of the Minister of
Justice’s decision the UAE had not ratified the Riyadh Arab Agreement for Judicial
Cooperation and until today, and with its subsequent ratification, the agreement is
not considered effective in confronting it according to the conditions The entry into
force of the Riyadh Agreement.
Accordingly, the decision issued by the Minister of Justice to extradite the Sudanese
citizen was in violation of the Extradition Law of 1957, and the Supreme Court was
correct in canceling it.
.‫م‬1992/22 / ‫ط أ س‬/ ‫ م ع‬-1

.‫م‬1999/ 20/‫مراجعة‬
17
Part II
Criminal Responsibility
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Basis of criminal responsibility
Article 8 Basis of criminal responsibility stipulates:

[1] There shall be no responsibility except upon a mature person of free will.
[2] There shall be no responsibility unless an unlawful act is done with intent or
by negligence.
The free mature person means the person's ability to understand the nature of his
actions and assess their results. The jurists agreed that the condition of the obligated
person must be mature, adult and understanding of the commissioning, because the
commissioning is a speech and a speech of one who has no action or understanding
is impossible, such as inanimate objects and animals.
ْ َ َّ َ َّ ْ َ َ َ َ ْ َ ُ َ َ ْ َ ُ
َّ ‫ َو َع ْن‬،‫النائم َح ََّب َي ْس َت ْيق َظ‬
،‫الص ِغ ر ِي ح َب يك ُ َي‬ ِ ِ ِ ‫ {ر ِفع القلم عن ثَلث ٍة عن‬:‫النب ُصىل هللا عليه وسلم‬ ‫قال ْ ْ ي‬
ُ َّ َ
.}‫ون حب ي ِفيق‬ َ ْ َ َ َ
ِ ‫وعن المجن‬
Prophet Muhammed ‫ ﷺ‬said in the Hadith: {The pen has been lifted for three: from
the sleeper until he wakes up, from the young until he grows, and from the
insane until he awakens}. And Sharia does not condemn the compulsive or the
unconscious
.2}...‫ان‬ ‫يم‬ ٌّ ‫ إ ََّّل َم ْن ُأ ْكر َه َو َق ْل ُب ُه ُم ْط َم‬...{ :‫قال هللا تعاىل‬
َ ‫ئ ب ْاْل‬ ‫ن‬
ِ ِ ِ ِ ِ ِ
{…Except him who is forced thereto and whose heart is at rest with Faith…}.
It is not sufficient to hold the offender accountable for him to be of mature and adult,
but he must have freedom and choice, that is, to be aware of his action. For this
reason, we find that Sharia tends to bear the responsibility, starting with the
congenital aspect, which relates to the conscience of someone who commits
something that harms society or causes harm to someone. The basis of this liability
is that the basis of accountability is freedom, choice, correct awareness of the results,
and the right intention for them because morality does not judge an act as evil unless
three elements are present, which are: the correct perception, freedom of choice, the
intent is to results that are harmful, even if they are not considered as such. If one of
these elements fails, the person is not considered to have committed a sin, and
perhaps Article 8 is the general rule for criminal accountability.
2
- Surah Al-Nahl, verse [106].
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Act of a child
Article 9 Act of a child stipulates:

A child who has not attained puberty shall not be deemed to have committed
an offense; provided that care and reform measures set out in this Act may be
applied to a child who has completed seven years of age, as the court may deem
fit.
Puberty in Islamic law may be proven by the appearance of natural signs such as
pubic hair, nocturnal emission, or menstruation, according to the sex of the
youngster, whether he is a boy or girl, or determined by a certain age that the jurists
have not agreed upon.
The eighth article of this law also traced its impact, as it considers the young one
who has not reached puberty. However, in its last part, it stipulates taking care and
reform measures against those who have reached the age of seven.
20
Act of a person incapable of judgment by
reason of insanity or intoxication
Article 10 Act of a person incapable of judgment by reason of insanity or
intoxication etc. stipulates:
[1] A person shall not be deemed to have committed an offense who at the time
of committing the act does not appreciate the nature or consequences of his acts,
or is unable to control them by reason of:
(a) Permanent, or temporary insanity, or mental infirmity; or
(b) Sleep, or unconsciousness, or
(c) Taking intoxicant substances or drugs as a result of coercion, or necessity,
or without knowing it to be so, but where the intoxicant substance or drug is
taken voluntarily, knowingly, and without necessity, he shall be responsible for
the offense as if he had committed it without being intoxicated or drugged.
Definition of insanity:
There are many definitions of insanity, and some defined it as: “It represents the
condition of a person who is unable to direct his actions in a correct manner
due to the cessation of his mental powers on growth, deviation or decline,
provided that he is among the specific disease states.”
Others defined it as: “the inability of a person to reconcile his thoughts and
feelings with his surroundings for mental reasons.”
Insanity is not a name for one disease, but for many diseases. Sometimes it is
permanent, it may be intermittent, and sometimes it is mental and it may be pure
moral insanity [Folie morale] taking the form of losing moral sense, i.e. sufficient
ability to distinguish between good and evil, the latter of the most complex issues.
And opinion differs on it. Since the accused is normal in his will and intelligence,
but he is naturally deprived of his moral sense, then it is difficult to diagnose.
The legislator has equated insanity with common sense so that the jurist does not
occupy himself with examining the nature of these mental illnesses. When it is
proven to the court, based on expert reports, that the accused’s illness led to his loss
of freedom of choice at the time of the commission of the crime, then it is not feasible
21
after that to research the medical description of the disease. In this case, the insanity
is continuous or intermittent as long as it is proven that it existed at the time of the
commission of the crime.
Elements of using insanity as a defense:

[1] That the accused at the time of committing the crime was insane, whether
the insane person was the original perpetrator or just an accomplice.
If the accused becomes insane after committing the crime, this does not affect the
establishment of criminal responsibility. On the other hand, it is not important for
the accused to have previously been insane or mentally impaired as long as it is
proven that he was fully aware or discerned and had a free choice at the time of the
commission of the crime.
[2] That the reason for the accused’s loss of the ability to perceive or control his
actions is permanent or temporary insanity or mental impairment, and not, for
example, anger or voluntary drunkenness.
Government of Sudan v. Ahmed Al-Obeid Saghiroun

The phrase “permanent or temporary insanity” is a redundant phrase, since the court
does not concern itself with the mental state of the accused except at the time of the
commission of the act. There is no sense in talking about the perpetuation of the time
of insanity. What is important is that the state of insanity or the general mental state
is present at the time of the act, whether it is a permanent or temporary state, except
that the state of insanity or the general mental state is permanent, which may help to
prove the existence of the state at the time of the act.
Partial defense of insanity in the crime of murders:

Partial payment of insanity in the crime of premeditated murder under Article 130
of the Criminal Code comes after the completion of the elements of the crime of
murder including any of the general defenses, the court begins by examining first
the availability of the elements of the crime of premeditated murder.
22
If the responsibility exists for the material and moral elements of the murder crime,
it moves to the question of whether the accused has the right to benefit from any of
the defenses or the complete exceptions, including the possibility of insanity under
Article 10 of the Criminal Code, or if any of the defenses and nine exceptions
mentioned in Article 131 of the law apply. Criminal law reduces the responsibility
of the accused from premeditated murder under Article 130 to quasi-intentional
murder under Article 131 of the Criminal Code.
With regard to the partial defense of the mental health of the accused, "murder is
considered semi-intentional if the killing was committed under the influence of a
mental, psychological or nervous disorder to a degree that clearly affects his ability
to control or control his actions." This defense is consistent with the full defense of
insanity under Article 10 in that the legally considered time is the time of committing
the act, but it differs in Article 10 in the other two conditions.
In order for the accused to benefit from the special partial defense under Article
[131/2/i], it is required to prove the following:
(A) That the accused was under the influence of a disturbance resulting from
backwardness, injury, or disease.
(B) That this was to a degree that had a real impact on his ability to form the
intent of the act.
Contemporary insanity rule for the crime:

Contemporary insanity of crime entails lifting the penalty on the offender due to a
lack of awareness of it. Insanity does not permit the forbidden act, but rather removes
the punishment from the perpetrator, and this ruling is agreed upon among the jurists
of Sharia, and Sharia does not differ in this from positive law.
Exempting the insane and the like from criminal punishment does not absolve him
from civil liability for his actions, because money and blood are infallible.
Rule of insanity before judgment:

If insanity occurred before the ruling, it does not prevent the trial and does not stop
it according to the Shafi’is and Hanbalis, and their argument is that the
commissioning is only required at the time of the commission of the crime as long
23
as there are means that lead to the truth because the effect of insanity is limited to
the inability of the accused to defend himself and the rule is that the inability to
defend does not stop the trial nor prevent it.
As for the Malikis and the Hanafis, they see that insanity before the ruling prevents
the trial and stops it until the insanity ends, and the basis of this opinion is that the
condition of the penalty is commissioning and that this condition must be met at the
time of the trial, and this requires that the offender be charged and at the time of the
trial, if this is not the case, the trial shall be suspended.
The Sudanese criminal law agrees with the opinion of the Malikis and the Hanafis
to stop the trial of the insane, and this is what Article 202 of the Code of Criminal
Procedure stipulates.
Rule of insanity after the judgment:

If the offender becomes insane after being sentenced, then Al-Shafi’i and Ahmed
consider that insanity does not stop the execution of the sentence unless the crime
for which the sentence is condemned is a hudud crime and the only evidence of proof
based on his confession because the convict in hudud crimes has the right to retract
his confession until the time of execution of the sentence after starting the
implementation, if he retracts his declaration, the execution shall be suspended due
to the possibility that the reversal of his declaration was valid.
But if the judgment is based on evidence other than a confession, the reversal of the
decision does not stop the execution of the judgment, and the basis of this opinion is
that the punishment is for a crime committed by a responsible criminal at the time
of its commission and that the lesson in the sentencing of the penalty and its
implementation is either the condition of the person charged at the time of the
commission of the crime, neither before nor after that.
This view can also be justified by the fact that punishment is prescribed for discipline
and restraint, so if the discipline aspect is disrupted by the insanity of the convict
because he does not feel discipline, then the aspect of reprimand should not be
disrupted because the interest of the community is apparent in the implementation
of the penalty to restrain others.
In the doctrine of Malik, they believe that insanity stops the execution of the
sentence, and the sentence remains suspended until the insane awakens, unless the
24
punishment is retribution, because according to the opinion of some, it falls in
despair of the insane awakening and is replaced by blood money. But others see, in
despair of the insane’s awakening that the insane sentenced to retribution should be
handed over to the guardians of blood (Dia).
Abu Hanifa considers stopping the execution of the penalty for the insane unless the
insanity has occurred after the insane has been handed over to be executed, because
this is considered a start in execution, and if the execution begins, it is not stopped
for insanity, and if the punishment is retribution, then the offender goes insane after
the sentence is passed against him and before he is handed over to be executed on
him, then retribution turns into insanity for blood money istihsanaan.
The insanity stops execution on two grounds:

[1] The condition of the penalty is to commission the punisher:
That is, his authority to be criminally liable, and the penalty is only by the judiciary,
that is, by ruling thereon.
[2] Fulfilling the judgment ends the litigation:
That is, the execution of the judgment is considered complementary to the litigation,
and if it is a condition of the trial, the offender is commissioned, then it must be at
the time of execution because the execution is complementary to the trial, if the
offender is handed over for execution, the execution shall be deemed to have taken
place with this surrender.
The Sudanese criminal law applies the two Islamic theories together, where the
provisions of the law prohibit the execution of the penalty on the one who went
insane after a final judgment has been issued against him if the penalty is the death
penalty or a penalty restricting his freedom or financial penalties that are executed
on his money but not on him by means of physical compulsion.
Article [31/d] stipulates: Where the sanity of the offender is hopeless, in case of
his becoming insane, after the passing of the sentence of retribution (qisas)
against him.
25
Government of Sudan v. Abdel Aal Mahmoud Khaled 3
The court waited for a full three years until the accused regained his mental strength
and was able to continue the proceedings and then continued the court proceedings.
Dementia:
The Personal Status Law for Muslims of 1991 [299/b] defined him as: (He is of little
understanding, mixed with words, and corrupt in management). Whether it
stems from the origin of creation or a disease that has occurred to him, and from that
it is understood that it is the least degree of insanity the rule of dementia is the rule
of boyhood with reason because the boy is in his first state without reason, so he is
insane, and at the end of his state, he is deficient in reason so the imbecile is attached
to him, and it does not prevent the correctness of his words and actions, and his Islam
and his authorization to sell and buy someone else’s money and to divorce his wife
are valid.
Epilepsy and hysteria:

The person with epilepsy takes convulsive movements after losing awareness and
choice, and in this case, he may commit criminal acts without realizing what
happened to him after his awakening. And the person suffering from hysteria
experiences convulsive movements, and if he returns to him, he will be deliriously
unconsciously. These patients and their ilk are subject to the ruling of the insane if
at the time of committing the accident they were unconscious, or their perception
was weak in the degree of comprehension of the lunatic. These patients take the
ruling of compulsion if they enjoy perception, but they lack choice if they do not
lose their awareness or choice. They are criminally responsible for their actions.
Sleep:
Some people perform actions while they are asleep, without realizing it. It is most
likely that the movements that the sleeper makes are a repetition of the movements
that he used to do while awake, but it happens that he performs different movements
3
- Sudan Law Journal & Reports [1962] p. [115].
26
that have nothing to do with the movements that he makes while awake. The rule in
Sharia is that there is no punishment for the sleeper:
ْ َ َّ َ َّ ْ َ َ َ َ َ َّ َ َّ ْ َ َ َ َ ْ َ َ َ ْ
،‫ وعن الص ِغ ر ِي ح َب يك ُ َي‬،‫ { ُر ِف َع القل ُم عن ثَلث ٍة عن الن ِائ ِم ح َب ي ْست ْي ِقظ‬:‫النب صىل هللا عليه وسلم‬ ‫قال ْ ْ ي‬
ُ َّ َ ُ ْ َ َ َ
.}‫ون ح َب ي ِفيق‬ِ ‫وعن المجن‬
Prophet Muhammed ‫ ﷺ‬said in the Hadith: {The pen has been lifted for three: from
the sleeper until he wakes up, from the young until he grows, and from the
insane until he awakens}.
The jurists attribute the state of sleep to compulsion and not to insanity. Perhaps the
wisdom in this is that the awake sleeper enjoys awareness, but only loses choice.
There is no difference between Sharia and positive law in this matter because
coercion in Sharia raises the penalty, as well as insanity and the rule of compulsion
and insanity in positive laws also raise the punishment, so whether we consider the
sleeper compulsive or insane, he is not punished for the crimes that come to him
while he sleeps.
Fainting:
Fainting is a disease, but it does not remove the mind like insanity because the
inability to use the mind does not necessitate the absence of reason, so the
completeness of his capacity remains by his survival and fainting is more severe than
sleep as an accident and in the absence of choice and strength, because sleep is a
natural period of origin. As for fainting, it is symptomatic from all sides. Because a
person may not faint during his lifetime and fainting is an excuse that falls into some
of the rights of God; because fainting is a disease that contradicts strength.
Drunkenness:
Drunkenness is often the thing that causes the mind to go away during its
drunkenness. In the behavior of drunkenness, there are doctrines, the most important
of which are:
The first doctrine: A doctrine that looks at drunkenness in itself and judges the
invalidity of the drunken’s behavior, whether the drunkenness was by consent or
choice or by compulsion and necessity, so his divorce does not take place and his
27
contracts are not executed, just as his apostasy (Ridda) is not dependent. At the head
of this doctrine is Ibn Qayyim al-Jawziyya.
The second doctrine: The majority of jurists are of the opinion that he does not look
at drunkenness, but rather at its cause and its occurrence by choice or compulsion.
If drunkenness is by choice and with a forbidden substance such as alcohol and the
like, then all the actions of the drunk are valid, his contracts are contracted, his
divorce is valid, and his apostasy (Ridda) is implemented. However, if drunkenness
is by force or by a substance whose origin is halal, then all the actions of the drunk
are not responsible, because the drunk is excused.
The third doctrine: This doctrine looks in terms of the capacity of the drunker and
decides that drunkenness from a forbidden drink does not invalidate the capacity of
the commissioning in the first place for the realization of reason and puberty, but it
prevents the use of the act through the predominance of pleasure, so he is obligated
to all consequences and his behavior becomes whether he drinks under compulsion
or obedience, and that is because the commissioning is based on moderation.
The Sudanese criminal law is in complete agreement with the preponderant opinion
in Islamic Sharia, as it does not punish the person who committed the act while he
was in a coma caused by an intoxicating or narcotic substance due to coercion or
necessity or without his knowledge of any kind, Article [10/c] of the Criminal Code.
The position of the criminal law towards drunkenness as a barrier to

liability:
The position of the criminal law toward drunkenness can be summarized in four
main points:
[1] The criminal law assumes that a drunk person has the same knowledge that he
has, which is not drunk, Article [10/c].
[2] Intoxication constitutes a complete defense of criminal responsibility if it is
involuntary and reaches the point that the accused loses the ability to understand or
control his actions. Article [10/c].
[3] Drunkenness voluntarily does not constitute any defense, nor does it even reduce
the penalty, but rather it may be a matter of aggravation.
28
[4] Mere drinking has become a crime for a Muslim and a crime for a non-Muslim
if it is accompanied by annoyance and provokes feelings of others, Article 78.
It was decided in implementation that in the case of:
Government of Sudan v. Euwrba Modua 4

The accused's drunkenness at the time of the crime is not considered a defense, as
the Chief Justice refused to amend the death penalty to a prison sentence even though
the accused had committed a crime while intoxicated.
Government of Sudan v. Deng Mangwen 5

The Chief Justice said that drunkenness is not considered a defense unless it reaches
the stage of temporary insanity.
Government of Sudan v. Hassan Al-Sayyad 6

The Chief Justice said the assumption of knowledge contained in Article 42 of the
Penal Code cannot be refuted, and therefore the accused knew that death was a
probable consequence of his act and therefore he is guilty of the crime of
premeditated murder, but the state of drunkenness made the state of the accused
more like a state of temporary insanity, so he amended the death penalty to life
imprisonment.
It is clear from these precedents that voluntary drunkenness is not accepted as a

defense of criminal liability and the wisdom of this is that if the defense of voluntary
drunkenness was accepted to exempt from liability resulting from the act of
drunkenness, any accused could absolve himself of responsibility by taking any
intoxicating or narcotic substance before committing the crime.
4
5
6
29
Performance of duty and exercise of right
Article 11 Performance of duty and exercise of right stipulates:

No act shall be deemed an offense if done by a person who is bound, or
authorized to do it by law, or by a legal order issued from a competent
authority, or who believes in good faith that he is bound, or authorized so to do.
Public Servant:
The person to whom the exception applies must already be a public servant, and thus
the definition of a public servant must apply to him. This was mentioned in Article
3. Public servant: means any person appointed by a public authority to undertake a
public office whether the appointment is with or without consideration and whether
it is temporary or permanent.
Conditions of permissibility:
The employee's work is legal or permissible if the following conditions are met:
[1] There must be discretion authority.
[2] There must be a reason to use this power.
[3] The work in which the authority is exercised must conform to the conditions
of the law in terms of form and substance.
[4] The employee shall direct it to the purpose for which the law is intended by
the authorized authority.
[1] There must be discretion authority:

These powers are distributed in the different branches of law, and administrative law
contains the largest part of them, the Code of Criminal Procedure grants
discretionary powers to judicial officers and prosecutors to conduct investigations,
arrest suspects, imprison them, and search their homes, including the authority of
the Public Prosecution Office to arrest the accused, for whom there is evidence of
his accusation, Article 67 of the Code of Criminal Procedure.
30
[2] There must be a reason to use this power:
The cause or motive is the driver of voluntary activity. Here is a realistic or legal
case that pushes the employee to carry out the work. The work done by the employee
is not legitimate if it is not based on a legitimate reason that justifies it.
[3] The work in which the authority is exercised must conform to the conditions
of the law in terms of form and substance:
The work of the employee shall be in conformity with the law if he is within the
competence of the job and the conditions required by the law are observed in it in
terms of subject matter and form, the availability of which results in the illegality of
the work.
Whether the lack of jurisdiction is due to the place, type, or person. If the judicial
officer departs from his jurisdiction, he does not have any authority. Rather, he is
considered an ordinary individual and this is the general rule for performing every
official job.
[4] The employee shall direct it to the purpose for which the law is intended by
the authorized authority:
Every authority authorized by law is intended to achieve a specific purpose that is
always in the public interest because of a reason, and the employee’s will must be
directed to achieving this purpose, so his work is illegal if he uses the authority to
achieve other purposes and goals far from the public interest. Targeting a personal
or partisan interest.
When is public servants' work illegal?

[1] That the employee performs the act out of a false belief that it is within his
competence.
[2] That the act comes on a mistaken belief that obedience to the superior is the
source of the matter and is obligatory.
31
First case:
That the employee comes to work on the belief that it is legally valid, and that the
law allows him to do so. As if the prosecutor ordered the detention of a juvenile that,
the law does not allow detention.
The mistake here is related to the employee exceeding the limits of his jurisdiction,
but if the employee gives himself a specialization that is not related to him, this text
does not apply to him. For example, a police officer or prosecutor issues an order to
punish an accused with imprisonment, demolish a house, or arrest a person other
than the one appointed in the arrest.
Second case:
If the employee commits the act in implementation of an illegal order issued by a
superior, the ordered act in and of itself may not be permissible in the law, or because
it was not preceded by a reason that justifies its taking, or because it does not fall
within the jurisdiction of the order, or because it was issued in other circumstances
or in conflict with Legally assessed situations, or because it did not target the public
interest. For example, a judicial officer arrests a person under an invalid arrest
warrant for one of the foregoing reasons.
Exercise of personal rights in law:

For the use of the personal right, the following conditions must be met:
[1] The existence of a right established by law.
[2] That the act was committed in the use of that right.
[3] That the doer is one of those authorized by law to exercise the right.
[4] That the act is committed within the limits established for the right and that
the right is not in dispute.
Right to discipline a minor:

A minor is considered in need of supervision if he has not reached fifteen years of
age, and the commitment to supervision is matched by the right to discipline. This
right is granted to anyone who is obligated to oversight by law or by agreement, and
32
the right to discipline is transferred to the one who has the right to supervise. Islamic
law permits simple beatings for education and discipline, and it is not permissible
for simple beatings to go beyond the one that causes fracture or injury or that results
in disease. If the batterer exceeds these limits, he is entitled to the prescribed
punishment for the crime of premeditated battery.
The right of a husband to discipline his wife:

The husband, in accordance with the provisions of Islamic Sharia, has the right to
discipline his wife lightly for every disobedience that has not been specified.
Discipline may not be intended to take revenge, but rather to discipline and confront
disobedience. The right to discipline permits light beating, and if the husband
exceeds this limit and causes grievous harm to his wife, he shall be punished by law.
Right to conduct medical works:

The doctor gives the right to perform the necessary actions that are necessary and
appropriate for the patient’s recovery according to the principles recognized in the
medical profession, and these actions include giving medicines and performing
surgical operations these actions do not, in fact, constitute an assault on the victim,
but rather aim to protect his body and maintain his safety.
For this reason, the legislator permits doctors to perform their procedures, and the
doctor is not responsible if he fails to treat him. If he performs the surgery in
accordance with the established professional principles and exerts the care of a
careful doctor in his work, that is his obligation to take the care of the usual
professional person without being obligated to achieve a specific result. The
condition of the victim’s consent to perform the surgery is not the reason for its
permissibility, but rather it is a condition of the doctor’s practice of the victim’s
knowledge. In order for the reason to be permissible, the doctor must be licensed to
practice the profession of medicine. If this condition is not fulfilled for him, or if he
is suspended from practicing the profession, or exceeds the scope of the license, he
will be described as the perpetrator of the intentional wound. If the doctor fails to
treat him, and this is due to his negligence, lack of caution, and failure to observe
the principles of his profession, then he is committing the crime of wrongful injury
or wrongful transport according to the rules.
33
Right of private defense
Article 12 Right of private defense stipulates:
[1] No act shall be deemed an offense if done in the lawful exercise of the right
of private defense.
[2] The right of private defense arises when a person is confronted with the
danger of an immediate or imminent assault upon his person, property, or
honor the person, property, or honor of any other person, and when it is not
possible to avoid the danger by having recourse to the public authorities, or in
any other manner and the said person may combat the danger by what is
necessary to combat it and by the appropriate means.
[3] No right of private defense arises against a public servant, acting within the
limits of the powers of his post unless there is the apprehension of causing death
or grievous hurt.
[4] The right of private defense shall not extend to willfully causing death unless
the danger to be repelled is apprehended to cause death, grievous hurt, rape,
abduction, kidnapping, robbery, armed robbery (hiraba), criminal mischief, or
damage to public property or establishment or criminal mischief by sinking or
by setting fire or by using poisonous, or explosive materials.
The right of self-defense in Islamic law is called the defense of the assailant
(alsaayil) and its origin is in the Qur’an and Sunnah.
ْ ََ َُْ َ ُ ََ ََْ َ ٌ َ ُ َ ُ ُ ْ َ َ َ ْ ْ َّ َ ْ ْ َّ
‫اص ۚ ف َم ِن اعتد ٰى عل ْيك ْم فاعتدوا عل ْي ِه ِب ِمث ِل َما‬ ‫ { الشه ُر الح َر ُام ِبالشه ِرَ الحر ِام والحرمات ِقص‬:‫قال تعاىل‬
َ‫اَّلل َم َع ْال ُم َّتق ن‬
َ ‫اع َل ُموا أ َّن ه‬
ْ َ َ‫ه‬ ُ َّ ُ ََ ََْ
.7}‫ئ‬ ‫ِر‬ ‫اعتد ٰى عل ْيك ْم ۚ َواتقوا اَّلل و‬
The verse was translated into: “{[Fighting in] the sacred month is for [aggression
committed in] the sacred month, and for [all] violations is legal retribution. So
whoever has assaulted you, then assault him in the same way that he has
assaulted you. And fear Allah and know that Allah is with those who fear
Him”}.
ُ َ َ َ َْ ََ َ ُ َْ َ َ َ ْ َ ْ َ َ َ َ َّ ‫َ ْ َّ َ ُ ا‬
‫ ففقأت ع ْينه ما‬،‫صاة‬ ِ ‫ { لو أن رجَل اطلع عليك ر‬:‫النب صىل هللا عليه وسلم‬
ٍ ‫ فخذفته بح‬،‫بغي إذ ٍن‬ ‫قال‬
ُ َ ‫َ َ َ ْي‬
.}‫ناح‬
ٍ ‫كان عليك ِمن ج‬
7
- Surah Al-Baqarah, verse [194].
34
Prophet Muhammed ‫ ﷺ‬said in the Hadith: }If a man were to look at you without
permission, and you grabbed him with a pebble and spewed out his eyes, you
would not be offended{.
Self-defense is a natural right of humans, and its legality has been determined by all
legislation since ancient times. In order for the right of self-defense to be established,
the law required three elements.
Elements of the right of self-defense:

[1] The occurrence of an infringement is considered a crime against oneself,
money, or honor, or against the person, money, or honor of another.
[2] It will not be possible to rely on time for the protection of the men of public
authority.
[3] Using the necessary force to ward off this infringement and not exceed it.
In the case of legitimate defense, there is behavior on the part of the aggressor, and
behavior on the part of the defender, the action is within the limits of the defense, so
certain elements are met in the attack and other elements in the defense:
 Conditions of the assault:

[1] There is a risk of committing a crime.
[2] That the assault is on the soul, money, honor, or the soul, money, or honor
of others.
[3] The danger is immediate or imminent.
[4] It is impossible to push it by resorting to public authorities or by any other
method.
 We will talk about the conditions of the assault:

[1] There is a risk of committing a crime:
The self-defense must be preceded by an assault or a threat of assault threatening the
defender himself or his money, or the soul of others or his money. The origin of the
35
attack, which allows self-defense to pose a real danger to the defender, is sufficient
to realize the idea of the attack that there is an immediate danger to a right that
protects him Criminal law so that if the aggressor was left alone, the crime would
have occurred, or the damage would have already occurred.
If the right is completely denied, the state of self-defense does not arise, but the use
of force is a crime whose type depends on the behavior of the offender and his
criminal intent in accordance with the general rules.
Government of Sudan v. Al-Amin Kajo Humis 8

That the victim hit the accused with the palm on the face is not considered an act
that portends an imminent danger that threatens life within the meaning of Article
61 penalties, even though the victim was armed with an ax and was bigger in size
than the accused, because of the relationship between the two parties, and therefore
is not considered a reasonable fear of causing death or harm. particle. The
presumptive danger is equivalent in this respect to the real danger.
Government of Sudan v. khatam Mohamed Hassan 9

The convict taking the only weapon in his hand and using that weapon against him
is not a violation of the right of private self-defense as long as there is a reasonable
fear of death or grievous harm for the purpose of reasonable fear. The court takes
into consideration the circumstances surrounding the incident, such as the violence
of the assault on the defender, and the superiority of the aggressor in physical
strength. The lesson in danger is the defender’s assessment of the circumstances in
which he was, provided that his assessment is based on acceptable reasons that
would justify him.
8
- Sudan Law Journal & Reports, [87/73/‫ ]م ع ط م‬p. [403].
9
36
[2] That the assault is on the soul, money, honor, or the soul, money, or honor
of others:
The right to self-defense is based on two principles:
i. The security authorities in the state are not present everywhere, and therefore a
person had to defend himself if these authorities did not exist to protect him from
aggression.
ii. The first duty of a person is to help himself.
The Sudanese criminal law tends to limit the crimes that allow causing death or
grievous harm in defense. Defense is only permitted to repel the danger of certain
crimes, which are stipulated in Article [12/4] of the Criminal Code of 1991:
“The right of private defense shall not extend to willfully causing death unless
the danger to be repelled is apprehended to cause death, grievous hurt, rape,
abduction, kidnapping, robbery, armed robbery (hiraba), criminal mischief, or
damage to public property or establishment or criminal mischief by sinking or
by setting fire or by using poisonous, or explosive materials”.
Article [12/4] of the Criminal Code lists these crimes exclusively, so other crimes
cannot be compared to them. However, in the cases in which defense is permissible,
the law does not differentiate between whether the assault was on the defender or on
others. Defense is permissible against the soul of the defender or his money or the
same or another person’s money alike, and the law did not require a special
connection between the defender and those who defend him to allow the defense of
others.
Government of Sudan v. Mohamed Hamza Abdullah 10

The exercise of this right does not require a relationship between the defender and
the person being protected, but rather the right of every citizen to defend himself or
his property or himself or the property of others.
10
- Sudan Law Journal & Reports [1971] p. [24-26].
37
[4] It is impossible to push it by resorting to public authorities or by any other
method.
Article [12/2] stipulates: “The right of private defense arises when it is not
possible to avoid the danger by having recourse to the public authorities, or in
any other manner".
This right does not exist if it is possible to rely at the appropriate time on the
protection of the men of public authority, and this condition is independent of the
condition of the occurrence of danger it is conceivable that it would be in a situation
that the harm could be rectified by taking refuge with the men of the public authority
if he was close to the endangered, and then the state of legitimate defense would not
exist.
The right of legitimate defense is based mainly on the principle of necessity, the
need for a person to protect himself or others in the absence of legitimate authority,
and it is an exceptional right. The general rule is to resort to the rule of law and the
citizen not to take the law into his hands, and with the courts emphasizing the general
necessity of recourse whenever possible.
 Conditions of defense:
[1] It is necessary to repel the enemies.
[2] It must be proportional to the assault.
We will talk about the conditions of the defense:

[1] It is necessary to repel the enemies:
Article [12/2] stipulates: The right of private defense arises when a person is
confronted with the danger in any other manner and the said person may
combat the danger by what is necessary to combat it and by the appropriate
means.
This clause relates to the material element of the defense and should not be confused
with the proportionality clause. The first is related to how to defend and the other is
related to the amount of defense. The availability of this condition does not require
a comparison between one means and another. It does not look at the psychological
38
state of the defender but at his action, if it is intended to repel the assault, then it is
necessary, and therefore it is stipulated:
i. That committing a crime is the only way to avoid danger.
If it is proven that the victim or a third party was able to respond to the assault by
another means that is not considered a crime, then the defense through the crime is
not necessary.
ii. Directing the defense to the source of danger.
If the victim leaves the source of danger and directs his defense against another
person, this defense is not the only way to respond to the assault.
[2] It must be proportional to the assault:

If it is proven that committing the crime is the only way to respond to the assault,
the condition of necessity, that is, the availability of the right to defense, but the
defender is restricted in using this right to a certain limit, which is that the crime that
he will resort to committing is proportional to the attack he was subjected to, and
proportionality is not measured by the amount of damage to which the defender is
exposed there is nothing to prevent the defender from inflicting more harm on the
aggressor than he intended to do.
The requirement to properly use the right of legitimate defense does not give the
person an open license to harm the aggressor, but only allows him to use the
necessary amount of force and violence to repel the aggression.
Government of Sudan v. Taha Harun Ibrahim 11

“Proportionality here does not mean matching or parity between the two forces, but
rather it means an appropriate amount of force or harm according to the existing
circumstances, even if it is more than aggression in reality, provided that it does not
increase clearly it is a matter of discretion, noting that the defender cannot be asked
to measure his blows with a scale of gold.”
11
39
The right of self-defense against a public servant:
Article [12/3] stipulates: "No right of private defense arises against a public
servant, acting within the limits of the powers of his post unless there is the
apprehension of causing death or grievous hurt".
The law does not deprive a person of the right of self-defense against an act
committed or attempted by a public servant in his capacity as such if he knows or
has reason to believe that the person who committed the act or attempted to commit
it was the public servant.
If the public servant exceeds the limits of his job in bad faith, then the legitimate
defense against this transgression is permissible, regardless of its gravity or the
gravity of the injury that may have occurred to the defender. As long as the
aggression of the public servant in bad faith. Because the employee's act is then
considered a crime.
Causing death in self-defense:

The Sudanese legislator identified the crimes that are specifically and exclusively at
risk, so he permitted recourse to legitimate defense against all crimes of self-
aggression, then limited the permissibility of some crimes of assault on money.
[1] Permissibility of causing death in self-defense:
Article [12/4] stipulate: “The right of private defense shall not extend to willfully
causing death unless the danger to be repelled is apprehended to cause: death,
grievous hurt, rape, abduction, kidnapping”.
The numerous judicial precedents have repeatedly stated that the right of defense
does not necessarily require the occurrence of harm, but rather arises as soon as the
fear begins on reasonable grounds.
Government of Sudan v. Antar Mahmoud 12

“Punch may lead to serious harm to the assailant, which gives the accused the right
of legitimate defense.”
12
40
The same court decided in a case:
13
Government of Sudan v. Bisharat Ahmad kukab
“Punching and kicking an accused person cannot reasonably fear that it will cause
death or serious harm”.
Perhaps both judgments are true in the context of its facts and limited circumstances.
[2] Permissibility to cause death in defense of money:

Article [12/4] stipulate: “The right of private defense shall not extend to willfully
causing death unless the danger to be repelled is apprehended to cause:
A- Armed robbery
B- Robbery
C- Criminal mischief, or damage to public property or establishment
D- Criminal mischief by sinking or by setting fire or by using poisonous or explosive
materials.
This article only gives a license to prove that the intentional death was necessary and
does not give an open license to intentionally cause death in all the cases mentioned
in the article.
14
Government of Sudan v. Jibril Muhammad Abakar
The victim took a goat belonging to the accused without reason, and when the
accused followed him, the victim put the goat on the ground and proceeded to
slaughter it. The accused only hit him with his stick on the head, a blow that shattered
the skull and caused death. The court found that the accused was exercising his right
to legal defense but exceeded the necessary amount of defense and convicted him
under Article [249/2] of the Penal Code.
13
14
41
Compulsion
Article 13 Compulsion stipulates:

[1] There shall not be deemed to commit an offense every person who is
compelled to do an act by coercion or by threat of death, or imminent grievous
hurt to his person, or family, or serious injury to his property, where the said
person apprehends that the execution of the threat is most probably to occur
and it is not in his power to avoid it by any other means.
[2] Coercion shall not justify causing death, grievous hurt, or the commission
of any of the offenses against the state, which are punishable with death.
Definition of compulsion:
Linguistically: Coercion is to get a person to do something he hates.
Compulsion in Sharia: It is an act that a person does to another so that his consent
is lost or his choice is spoiled.
Types of compulsion in Islamic law:

[1] Complete compulsion: A type that prevents consent and spoils the choice, and
it is feared that the soul will be damaged.
[2] Incomplete compulsion: A type that prevents consent and does not spoil the
choice, and it is something in which there is no fear of damage to a waiting period,
such as imprisonment for a short period or beating, which is not feared for damage.
Conditions of compulsion in Islamic law:

The jurists unanimously agreed to take the principle of coercion, but they differed in
its conditions and in the crimes that it affects.
[1] That the compulsion is able to quickly achieve what he is compelled by, so if
he promised to keep him in the first place, he was not forced.
[2] The compulsor should not be able to repel the compelled by arguing, fleeing,
or calling for help.
42
[3] The compulsor should not be able to repel the compelled by arguing, fleeing,
or calling for help.
[4] That the coerced act is not permissible.
[5] That the compulsion is specific, and if it is not specified, then there is no
compulsion.
Offenses not affected by compulsion:

The jurists agreed that forced coercion does not raise the penalty for who was forced
f the crime he committed was murder, amputation of a limb, or fatal beating, and
their argument for that is:
َ ْ َّ ُ ‫ َ َ َ ْ ُ ُ ْ َّ ْ َ ه َ َ َّ َ ه‬:
.15}…‫ٱَّلل ِإَّل ِبٱلحق‬ ‫قال هللا تعاىل { وَّل تقتلوا ٱلنفس ٱل ِب حرم‬
The verse was translated into: }And do not kill anyone which Allah has forbidden,
except for a just cause{.
‫ا‬ ْ ‫ْ َ َ ْ َ ُ ْ ُْ َ ا‬ َْ َ َ ْ ُ ْ َ َ‫َ ه َ ُ ْ ُ َ ْ ُ ْ ن‬
.16}‫َٰت ِبغ ر ْ ِي َما ٱكت َس ُبوا فق ِد ٱحت َملوا بهت ََٰٰٰنا َو ِإث اما ُّم ِبينا‬
ِ َٰٰ ‫ئ وٱلمؤ ِمن‬ ‫ {وٱل ِذين يؤذون ٱلمؤ ِم ِن ر‬:‫قال هللا تعاىل‬
The verse was translated into: }Those who hurt believing men and believing
women undeservedly, shall bear the guilt of slander and a major sin{.
They justify the punishment of who was forced person that he intentionally and
unjustly killed the victim, believing that his killing would save him and deliverance
from the evil of the compulsion.
The jurists differed if someone forces another person to kill another person,
and then kill him.
Abu Hanifa said: will be punished for the compulsion who ordered it, not who was
forced.
ْ ُ َ َ َّ ‫قال النب صىل هللا عليه وسلم { ُرف َع عن ُأ‬
.}‫عليه‬
ِ ‫هوا‬‫ر‬ ‫ك‬ ‫است‬ ‫وما‬ ‫سيان‬‫لن‬‫وا‬ ‫الخطأ‬ ‫ب‬ َ ‫م‬
ِ ‫ي‬ ِ ‫ي‬
Prophet Muhammed ‫ ﷺ‬said in the Hadith: }My ummah has been removed from
error and forgetfulness and what they were forced to do{.
15
- Surah Al-Isra, verse [33].
16
- Surah Al-Ahzab, verse [58].
43
Some jurists said: Kills the one who was forced only because he is the direct cause
of the killing, and killing is not permitted by compulsion, and there is no retribution
on the who ordered because it is the cause, and the direct one takes precedence over
causing. And on this opinion Imam Zafar, may God have mercy on him, is the view
of some Shafi’is and some Hanbalis and Imamis.
Many jurists said: Kills the one who was ordered by coercion to cause it, and he
kills the one who was forced because he is the direct cause of the killing. And this is
the opinion of Malik and al-Shafi'i.
It is unavoidable to state that coercion in itself is harmful, and therefore ta'zir must
be done on the condition of guaranteeing the money.
Elements of compulsion in law:

[1] The means of coercion should be a threat from which death or serious harm
is feared.
[2] The danger must be present and about to occur, and if the danger is in the
future, it is not considered a defense.
[3] The action is proportional to the gravity of the danger.
[4] Coercion by the threat of immediate death must not be for the commission
of murder or any of the offenses against the state, which are punishable with
death to be excluded based on the article [13/2].
[5] The will of the person must not be involved in the existence of coercion.
As for his voluntarily joining a gang of robbers, he cannot defend himself by
coercion, because by joining by choice a person has committed himself to the
consequences of his wrongful act.
44
Non-voluntary acts
Article 14 Non-voluntary acts stipulates:

No act, at the time of its commission, shall be deemed an offense if done by a
person non-voluntarily and without the ability of controlling his acts, by reason
of an act of God, or sudden illness, which makes him incapable of avoiding that
act.
In the criminal law, the Sudanese legislator did not define force majeure or sudden
illness, and this provision has no equivalent in previous laws and has no equivalent
in Islamic criminal legislation.
However, from the concept of the article, it may happen that harm results to neither
the accused nor anyone else involved in it, so the causal link is cut off, and the
liability rises to him completely.
Elements of force majeure and sudden illness:

[1] That the accused, when committing the act, was not voluntary or had the
power to control his actions.
[2] That the lack of choice or lack of control over his actions was due to a force
majeure such as an earthquake, war, torrential rains, floods, or hurricanes. Or
he had suddenly contracted a sudden illness at the time of the act, such as a
fever, which affected his mind and made him act as if he was insane, in which
case his act is not considered a crime.
If the driver of the car faints and it is proven that he did not previously suffer from
diseases that lead to it, it may be considered a sudden illness. But if it is proven that
he has previously contracted diseases that lead to him, and the employer has
neglected to sign a medical examination on the driver to discover the serious
complications he is exposed to, then in these cases there is no reason to consider the
sudden illness.
If a bullet fired by a fisherman after hitting the target rebounds and hits another
fisherman, this is considered force majeure. As long as the bullet was proven to be
45
fired, it was in a manner consistent with the normal act of hunting. And that the
injured was not on the target line, but rather in an area where the bullet could not be
expected to rebound.
From the foregoing, we see that it is not possible to lay down a general rule to
consider force majeure or sudden illness, but it is due in this regard to the
circumstances of each individual case.
46
Necessity
Article 15 Necessity stipulates:

No act shall be deemed an offense if done by a person compelled to do it by
necessity to protect his person, honor, or property or the person, honor, or
property of another from the imminent grave danger which he has not willfully
caused and which he has no ability to avoid; provided that no injury similar to
the injury to be avoided or greater injury results; and provided that necessity
does not justify causing death except in the performance of duty.
The state of necessity in Islamic law:

There is a lot in Islamic law about the state of necessity.
.17) ‫يم‬ َ ‫َل إ ْث َم َع َل ْيه ۚ إ َّن ه‬
ٌ ‫ٱَّلل َغ ُف‬
ٌ ‫ور َّرح‬ ٓ َ َ ٍۢ َ َ َ ٍۢ َ َ ْ َ َّ ُ ْ
‫ف‬ ‫اد‬ ‫ع‬ ‫َّل‬‫و‬ ‫اغ‬ ‫ب‬ ‫ي‬ ‫غ‬ ‫ر‬‫ط‬ ‫ٱض‬ ‫ن‬ َ ‫ (… َف‬:‫قال تعاىل‬
‫م‬
ِ ِ ِ ِ ٍ ٍ ‫ر‬ ِ
The verse was translated into: }But if one is forced by necessity without wilful
disobedience nor transgressing due limits, then there is no sin on him. Truly,
Allah is Oft-Forgiving, Most Merciful{.
َ ُ ُ ْ َّ ُ َ َ َ ُ َ َ َْ
.18}…‫ {… َوقد ف َّص َل لكم َّما ح َّر َم عل ْيك ْم ِإَّل َما ٱضط ِر ْرت ْم ِإل ْي ِه‬:‫قال تعاىل‬
The verse was translated into: }While He has explained to you in detail what is
forbidden to you, except under compulsion of necessity{.
ٌ ‫ور َرح‬
.19}‫يم‬ َ ‫اض ُط َّر نف َم ْخ َم َصة َغ ْ َي ُم َت َجانف ْل ْثم َفإ َّن ه‬
ٌ ‫اَّلل َغ ُف‬ ْ َ
‫ {ف َم ِن‬:‫قال تعاىل‬
ِ ِ ٍ ِِ ٍ ِ ‫ٍ ر‬ ِ‫ي‬
The verse was translated into: }(As for) he who does not intend to commit a sin
but is constrained by hunger to eat of what is forbidden, then surely, Allah is
Forgiving, Merciful{.
Coercion is attached to the state of necessity in terms of the ruling, but it differs from
compulsion in the reason for the act. In coercion, the person who ordered the
coercion pushes another person to force him to do the act, but in the case of necessity,
no one is motivated to do the act, but the perpetrator is found in circumstances that
require leaving it and committing the forbidden act in order to save himself or others
from perdition.
17
18
- Surah Al-An'am, verse [119].
19
- Surah Al-Ma'idah, verse [3].
47
The state of necessity in law:
The rule of necessity varies according to the crime, as there are crimes that are not
affected by necessity, crimes that are permitted by necessity, and crimes in which
the penalty rises due to necessity.
If a passenger train is approaching at great speed another passenger train standing
on the same line at the railway station, and a railway worker sees the danger targeting
the passengers of the two trains, he diverts the train entering the station to a sidebar,
and this causes the death and injury of some passengers of the entering train, the
worker may benefit from the defense under Article 15 in the face of any criminal
accusation that may result from the accident, provided that the accused acted without
criminal intent to cause harm and that he had exercised the necessary care and
attention to prevent or avoid harm to the passengers of the two trains. Even if the act
results in other harm to persons.
Unrecognized necessity by law:

This exception does not apply to intentionally causing death. He is not, in any way,
compelled to kill another in order to save himself from perdition, if a group is in a
boat that is about to sink due to the heavy load of it, then no one of them has the
right to throw another into the water in order to lighten the load of the boat and save
himself and others from perdition.
Elements of necessity in law:

[1] That the necessity is compelling, such that the perpetrator finds himself or
someone else in a situation where he fears damage to the soul or the organs.
[2] The necessity should be present and not expected.
[3] That there is no means to ward off necessity other than committing the
crime, if it is possible to ward off necessity by a permissible act; it is prevented
by a prohibited act.
[4] To push the necessity to the extent necessary to push it.
48
Accident
Article 16 Accident stipulates:

There shall not be deemed an offense anything which occurs accidentally in the
exercise in good faith of a legal act which results in unexpected injury.
This text describes a case of the failure of the moral element of the intention and
error of the existence of the voluntary act, which is the act in its legal sense, and the
model in which the conception of the application of this article is. That the accused
was working cutting wood, flying the ax head, and injuring another person. There is
no criminal responsibility for the accused if he was not negligent or reckless in the
way he used the ax and did not intend or knew that it was likely to cause the harm
that occurred and the court was also convinced that he was practicing a lawful act in
a lawful way and by lawful means … etc.
Sudan Government v. Al-Khader Elias Abbas Majlia 20

On [12/16/1978] a complaint was filed against the victim (Muhammad al-Tayyib
Abdullah) because he destroyed the water cartridges, a police report was opened and
the police were assigned to arrest the accused, (Al-Khader Elias Abbas), and bring
him to the police station.
The accused went with his official pistol and found the accused hitting the bricks.
He asked him to go to the police station, so he complied with the order, washed his
hand, and headed to the cart. The prosecution witness (Ibrahim Al-Tayeb Bakhit)
asked him not to go so as not to lose his daily wage, so the victim refused to go, the
accused ordered him to ride and he repeated the order, but the victim refused for fear
of losing his daily wage.
Prosecution witness No. 2 asked the victim to ride, but he refused. The accused again
hatefully grabbed the victim’s hand and pushed him hard towards the car and pulled
out his pistol filled with bullets, he asked everyone to move away, and he went back
and fired a shot from his pistol that hit the victim in the back of his head, killing him
after he was taken to the hospital.
20
- Sudan Law Journal & Reports [1980] page [100].
49
“He was sentenced to death by hanging and in the ruling of the Supreme Court we
conclude that we agree with the [General Court] the bullet that hit the accused's head
is the cause of death and that the accused, from the circumstances surrounding the
accident, knew that the death of the victim was probable”.
The court refused to enable the accused to defend himself under this article
because he did not meet the defense conditions.
Elements of the accident:

[1] That the act that a person performs is innocent, lawful, and harmless in
nature, and the method of doing it is harmless in itself and lawful and without
intention or criminal knowledge.
[2] The means used in carrying out the work must be legitimate and in good
faith.
[3] Unforeseen damage caused by accidental cause or misfortune.
Damage here is not likely or expected to occur in the eyes of the ordinary person,
according to the familiar, and therefore it is not possible to prevent it or take
precautions to avoid it, as it is an abnormal result from the ordinary.
50
Consent
Article 17 Consent stipulates:

[1] No act is deemed an offense by reason of injury it causes to the body, or
property of any person, who has given his consent expressly, or impliedly to
that act.
[2] The provisions of sub-section [1] shall not apply to acts, which are likely to
cause death or grievous hurt.
The jurists have agreed that consent to killing or wounding does not extinguish the
crime, because the infallible soul from harm by virtue of Islam is not permissible
except for one of the reasons for the solution, and not one of the reasons for the
solution is permission to harm, because harming himself is forbidden for a believer,
his permission to harm others is not permissible for others to shed his blood.
Therefore, suicide is prohibited, and it is forbidden for a person to damage his own
money.
As for the law, it tries to balance between protecting the private interest and
protecting the public interest when considering the victim’s consent as a full defense
or a special partial defense under Article 17 and Article [131/2/e] of the Criminal
Code. The general version of the text of Article [17/1] is that the victim is allowed
to waive his own right to punish the offender for the harm without death or serious
harm if it is proven that the victim consented to that harm in the manner described
in paragraph (1) of Article 17 and with the victim’s consent The effect of this in
mitigating the crime of murder from premeditated to semi-intentional. But if the
offender's conduct constitutes a crime independent of the harm inflicted on the
victim, this is a general right that is not sufficient to be revoked by the direct victim's
waiver.
The victim's consent can be defended against the charge of causing harm or
destroying money if the legally valid consent is established. But the consent of the
pregnant woman, for example, is not sufficient to push the responsibility for causing
the abortion, and it is not sufficient, also, the consent of the buyer in price violations,
because these acts constitute independent crimes, to the pregnant woman and to the
buyer.
51
No consent in death or grievous harm:
The legislator forbids whoever kills a person based on his will, as happened in cases
of what is known as merciless killing in order to relieve the patient from a painful
and hopeless illness. He deprives him of full defense under Article 17. The legislator
also forbids whoever causes the death of another person during a duel that takes
place with the consent of the two parties, depriving him of full payment with the
victim’s consent, but these cases find the opportunity to defend private partial under
Article 131 of the Criminal Code and what is meant in the second paragraph of
Article 17 of the acts that are likely to cause death or grievous harm actions that
cause death are not accidental without a likely consequence.
Government of Sudan v. Aki Doi Chang 21

The accused and the victim differed over some sticks of wood until the order to invite
each other to fencing with spears. After a series of spear-throwing and various
injuries, the accused hit the victim in the heart, killing him.
The accused could not benefit from the defense under Article 17 because the act was
probable to cause death or serious harm to him to be a defense under Article
[131/2/e] of the Criminal Code.
21
52
Misconception of facts
Article 18 Misconception of facts stipulates:

No act is deemed an offense where the doer believes in good faith, by reasonn
of a mistake of facts, that he is permitted to do the said act.
Elements of the misconception of facts:

[1] That the belief is based on an error in facts and not a mistake in the law.
What is meant is that the accused’s mistake is related to facts and events and not to
his ignorance or understanding of the law. It is not the defense that the accused
thought his act was lawful in the law, but rather the defense that the accused thought
that the situation was a certain way. If it were true, it would have been lawful to do
so.
[2] That the accused believes that he is authorized to commit the wrongdoing.
That is, the accused believes that the law obliges him or approves of his action
because he is authorized to do so.
Examples of misconceptions of facts:
Government of Sudan v. Sobhi Michel 22

The accused heard something moving in the dark in the middle of the planting and
thought that it was a wild animal and threw his spear towards that moving and then
appeared to have stabbed his brother-in-law, who died as a result of the stab. The
court acquitted the accused under Article 44 of the Penal Code, considering that the
law recognizes the accused to have done it if the facts were as he believed them.
22
53
Government of Sudan v. Mayaniq Lohyuk 23
The accused believed that the victim had bewitched him and killed her. The court
refused to push him to justify his action and convict him of premeditated murder and
sentenced him to life imprisonment because even if the facts were as the accused
believed, the law does not allow him to kill someone who bewitched him.
24
Government of Sudan v. Abdullah Mukhtar Nur
The accused, a young man of about twenty years old, left his village in western
Sudan near the time of Suhoor in Ramadan, in search of his lost cow, and in the
valley between his village and the neighboring village, he saw a black Ghost carrying
a stick, and he greeted him, but the ghost did not want to greet him.
And since the belief in the existence of the ghost of a [Baatiya] was common in the
area, the accused thought that he would confront those ghost [Baatiya], so he beat
them until they fell to the ground, then went to the village and told everyone that he
had killed the ghost [Baatiya], and when they came in the morning they found that
the accused had killed an old woman from the neighboring village and the victim
was deaf, which shows that she did not return the peace that she did not hear, and
since the accused’s mistake is related to the facts in the sense that it relates to the
nature of the thing he is dealing with if he thinks it is a devil and not a human, the
court accepted his defense under Article 44 because if the facts were as the accused
thought, the law would have approved it to do.
23
24
54
Part II
Criminal Joint Acts
55
Definition of attempt
Article 19 Definition of attempt stipulates:

Attempt is the commission of an act, which apparently indicates the intention
to commit an offense, where the offense has not been consumated, due to a cause
beyond the offender’s will.
An attempt is considered an incomplete crime, and this means that some of its
elements have been left behind, but if all these elements are available, the crime is
complete, and there is no place for research on the attempt and the reason for the
incomplete and the failure of the criminal result to be achieved.
The criminal outcome is achieved:

[1] It assumes that the result was not achieved at all.
For example, if a person fires a shot at an enemy with the intent of killing him, the
bullet misses the target and does not hit him.
[2] It assumes that the criminal result that the offender wanted has been
achieved, but based on a cause other than his action, that is, the causal
relationship between the act and the result has ceased.
For example, the offender hits a person with a hard machine on the head and believes
that he died, then puts him on the railway tracks to hide his crime, then the train ran
over him, and it turns out from the autopsy that the death was a result of the train’s
shock and was not caused by the strike with a hard machine, here the offender is
tried for attempted murder.
The legislator here decides the equality between these two forms, for the attempt has
its material and moral elements, and the mere absence of the causal link between the
act and the result does not mean that the crime of attempted crime does not exist.
There is no difference between the attempt and the complete crime in terms of the
moral element, for the criminal intent is available in the attempt in the same way that
it is available in the complete crime.
56
Elements of attempt:
In order for the attempted crime to take place, three elements must be present:
starting implementation, then the criminal intent, and finally the failure to complete
the crime for reasons that are not due to the will of the offender. These pillars are
detailed as follows:
[1] Starting implementation:

The crime usually begins with an idea brewing in the offender’s mind and then his
determination to implement it by starting to prepare for it, and these two stages are
the stage of thinking about the crime and determination to commit it, then the stage
of preparing for it is not punishable by law.
However, the law may consider some preparatory work as an independent crime and
punish it, and the legislator then decides that the preparatory work involves danger
or clearly reveals the danger of the perpetrator.
An example of this is the crime of manufacturing an instrument for a criminal
purpose stipulated in Article 185, which punishes the mere person who manufactures
or imitates a key or plots a plan intending to use it in committing crimes against
money.
[2] Criminal intent:

That the intent of the perpetrator tends only to commit a complete crime, where there
is no difference between the complete crime and the attempt, where the criminal
intent, the criminal intent, is the same in both cases and the difference is due to the
failure of the desired result in the case of the attempt and its occurrence in the case
of the complete crime.
[3] Failure to have the desired effect:

The punishable attempt imposes two things:
- Failure to complete the crime.
- That it is not due to the will of the offender.
57
The first order ensures the distinction between an attempt and a complete crime, and
the second order ensures the distinction between a punishable attempt and cases of
commencement of execution that are followed by a voluntary retraction, in which
no punishment is inflicted.
Voluntary retraction:
As for the voluntary revocation, it may be due to purely psychological reasons that
made the perpetrator of the act take his decision in complete freedom not to proceed
with the completion of the crime. In another expression, retraction is optional if there
are no external factors independent of the person of the perpetrator that affected him
and directed his will not to complete the crime, and in this way, voluntary retraction
is automatic retraction.
Frank expressed this by saying: The voluntary retraction assumes that the perpetrator
can complete the crime, but does not want to.
58
Penalty for attempt
Article 20 Penalty for attempt stipulates:

[1] Whoever attempts to commit an offence shall be punished with
imprisonment, for a term, which may not exceed one-half of the maximum term
prescribed for that offence, and where attempt constitutes an independent
offence, the offender shall be punished with the penalty prescribed therefor.
[2] Where the penalty of any one offence is death or amputation, punishment
for an attempt thereof shall be imprisonment, for a term, not exceeding seven
years.
This article sets a general rule for the penalty of attempt, and then sets two special
cases:
[1] It is the general rule where the penalty for the attempted offense is set at
half the penalty for the complete crime.
[2] If the attempt is an independent crime, then the legislator has set a special
penalty for it, and the perpetrator is tried with that special penalty.
Examples of that in this law are Waging war against the state. The penalty for
attempt here is the penalty for the complete crime because the legislator here equated
the complete crime with the attempt given its gravity.
An example of this is also in this law the crime of attempting to commit suicide
stipulated in Article 133, where the attempted suicide was considered a distinct and
independent crime, and a special punishment was imposed on it.
[3] If the penalty for the crime is death or amputation, the penalty is seven
years.
This tendency in the punishment for the attempt is consistent with what the
proponents of the objective doctrine said that the punishment for the attempt should
be less than the punishment for the complete crime because it is less harmful to
society.
59
Government of Sudan v. Ibrahim Ahmed Youssef 25
The facts of this case are summed up that some witnesses found a differential 26 in
the desert that was proven to have been stolen from the complainant. The
complainant says, after learning about the location of the differential, that he
accompanied the driver of Qandran and headed west and found the differential
without the tires, and then went to search, so the Pullman car met them, and because
it was night, we suspected the matter.
We waited in our place and the car got off the asphalt and headed to the differential
place and we chased it. The accused, the driver of the car, Pullman, felt the chase
and turned his direction into the city because he felt that the witnesses to the
accusation were following his trail.
The court convicted the accused under Article 321 of the Penal Code, the crime of
theft.
The Court of Appeal acquitted the accused on the grounds that his work was merely
preparatory work. Although I agree with the Court of Appeal in its conclusions, its
causation was flawed, because the matter deserved more scrutiny, analysis, and
causation.
25
26
- Differential: It is a gear with three iron shafts that has the property that the speed of rotation of one
shaft is the average of the speeds of the others or a constant multiple of this average.
60
Joint acts in execution
of criminal conspiracy
Article 21 Joint acts in execution of criminal conspiracy stipulates:

When an offense is committed by two or more persons in execution of criminal
conspiracy between them, each of such persons shall be responsible for that
offense in the same manner as if it is committed by him alone, and shall be
punished with the penalty prescribed therefor.
The reason for which the article considered each of them an original perpetrator of
the crime as if he had committed it alone in this instance is that the presence of
several contributors at the crime scene encourages, protects, and supports the person
or persons directly, this article shows the degree of criminal responsibility and its
criterion is in one of the forms of participation in the crime, which is the form of the
participation of several people in the intent and action.
The phrase “in implementation of the criminal agreement between them” means in
implementation of the agreement concluded between them before committing these
acts, the common intent includes the agreement, and it must be actual intent, and the
common intent of all of them must be to commit the crime that occurred, or in other
words, the action that took place must be the action that they all thought of.
Element of joint acts in the execution of criminal conspiracy:

[1] To prove that the accused have committed a criminal act and the criminal
act is the only criminal activity that leads to a result for which the individual
would be punishable if he achieved it alone.
[2] Participation of the accused in some form in the commission of the criminal
act or criminal behavior.
[3] Participation is in the implementation of the prior agreement on the
common intent between those persons.
61
[1] To prove that the accused have committed a criminal act and the criminal
act is the only criminal activity that leads to a result for which the individual
would be punishable if he achieved it alone:
The word Act, as Article 3 of the Definitions says: words that denote an act shall
include an illegal omission as well as a series of acts.
The criminal act intended in the article does not necessarily mean the material
element of the crime and may form a part of it, or be the cause of the result that
constitutes the material element.
Government of Sudan v. Ali Faqiri 27

Its facts are summarized in that the defendants attacked the post office run by the
victim for the purpose of robbery and shot him with their pistols, causing him two
shots that killed him. All the accused were convicted, including the accused, who
was definitely proven that the bullet fired from his pistol did not hit the victim at all,
because he participated in the commission of the criminal act, which is shooting with
a common intent with others. He is responsible for the full result according to this
principle, just as if it may cause that whole result on its own.
[2] Participation of the accused in some form in the commission of the criminal
act or criminal behavior:
The direct form of participation requires, of course, the physical presence of the
accused at the scene of the crime and his actual participation in the criminal activity.
The accused participated in the beating, taking money, or possessing drugs, for
example.
Government of Sudan v. Amin Hagina and others 28

The first three defendants attacked the victim and others were sleeping in front of a
shop, while the fourth defendant was guarding their camels from a distance. The first
27
28
62
accused used his rifle to shoot the victim while his two colleagues were armed with
swords, and they robbed and burned the shop and ran away on camels, but the police
followed them up the next day and arrested them with the robbed goods.
The Court of Appeal upheld the conviction of the four defendants, including the
fourth defendant, who was standing guard of camels in preparation for escaping with
the stolen items, as it said: (This article requires the existence of a common intent
between the perpetrators to commit a criminal act, and that they are an investigation
or in implementation of that common intent, they participated in bringing about the
criminal act, and in this, In this case, each of them is responsible for that act as if he
had committed it alone. The common intent means the existence of an agreement
between the perpetrators or the convergence of their minds and the convergence of
their will to commit the crime and the development of the plan for it. The agreement
may extend to the method of its implementation by specifying the role or act that
each one of them performs, and after this, they proceed towards implementing the
agreement in order to commit the crime. It is not required that each of them perform
the role or act assigned to him according to the agreement, and it is sufficient to
establish criminal responsibility for each one of them that he was present to commit
the crime and his presence was a result of the agreement to commit it.
[3] Participation is in the implementation of the prior agreement on the

common intent between those persons:
The agreement on the common intent may be explicit, or implicit, drawn from their
behavior and actions. What is important is that there is a real agreement and not just
a consensus on the whims and purposes of the accused.
Government of Sudan v. Mohamed Osman Hamid and others 29

The fact that the armed suspects came out to support each other (Fazaa) does not
indicate their agreement to kill the thief, and this intention cannot be deduced from
the facts and circumstances, and they carry arms to defend themselves and to arrest
thieves, and there is no definitive presumption in their bearing of arms to indicate
the common intent, as it is interpreted by one interpretation and not other than that
it killed the thief.
29
63
Joint acts without
criminal conspiracy
Article 22 Joint acts without criminal conspiracy stipulates:

When an offense is committed by two or more persons without criminal
conspiracy between them, every one of them shall be responsible for his act and
shall be punished with the penalty prescribed for the offense constituted by such
act.
This article stipulates another form of joint responsibility, which is the form of
participating in the act with a union in intent without a previous agreement, i.e. the
form of committing a criminal act by a group of people who have a similar intent
without a previous agreement between them.
Participation in this article is not based on agreement, but rather on compatibility,
and care should be taken not to confuse agreement with compatibility.
- Agreement: It is the main element on which the common intent is based in Article
21, as it requires the convergence of two wills based on a previous understanding.
- Compatibility: It is just thoughts, that is, the same idea that more than one person
has to implement at the same time.
Example: thieves frequent a certain neighborhood where they commit the crime of
theft, and the residents of the neighborhood take a night watch, and one of the thieves
falls into their hands, then they beat him severely, leading to his death.
It is permissible to try the perpetrators in this case with different penalties according
to the act that each of them committed. If one of the perpetrators hit the thief with a
whip, another with a stick, and the third with a knife, and it was proven that it was
the stab of the knife that led to the death, that being struck by the whip caused minor
harm, and that the blow of the stick caused serious harm.
Each of the three accused shall be punished according to the act he committed and
that constituted a specific crime, one of them shall be punished with the crime of
murder, the second with grievous hurt, and the third with simple harm.
64
Order to commit an offense
and compulsion thereof
Article 23 Order to commit an offense and compulsion thereof stipulates:
Whoever orders an immature person or a person of good faith to commit an
offense, or whoever compels a person to commit such an offense, shall be
responsible for it as if he has committed it alone, and shall be punished with the
penalty prescribed for that offense.
One of the perpetrators may have a personal reason for preventing responsibility,
such as being a child, under the age of discernment. It may happen that the offender,
instead of committing the crime himself, makes forced labor of others in committing
it.
An innocent person is a person who has no criminal intent, such as a child under the
age of discernment, or a mentally handicapped person, and a well-intentioned
discern person, such as a compulsion, if a person incites a child or an insane person
to commit a crime and commits it, he is considered by doing this to be the original
perpetrator of the crime.
Giving poison by the hands of a person of any age who is ignorant of the nature of
the substance he has submitted and the reason for which the person to be killed gives
it, or coercion to submit it is considered a primary actor of the first degree and not a
participant, and the user of the human tool is considered a primary actor of the first
degree, even if he was absent when the act was committed, which is what is called
in some foreign laws, such as the Belgian and Swiss, the moral agent.
65
Criminal conspiracy
Article 24 Criminal conspiracy stipulates:

[1] A criminal conspiracy is an agreement between two or more persons to
commit an offence.
[2] With the exception of murder, armed robbery (hiraba) and offences against
the state punishable with death, criminal conspiracy shall not be deemed a
punishable offence unless an attempt is made to commit the offence; and in all
cases, a retracted criminal conspiracy shall not be deemed an offence.
[2] Whoever, commits the offence of criminal conspiracy shall be punished with
imprisonment, for a term, not exceeding five years, and if an attempt is made
to commit the offence or the offence has been committed, he shall be punished
with the penalty prescribed for the attempt or for the commission of the offence,
as the case may be.
In some cases, the criminal conspiracy may take the form of a criminal tendency that
poses a serious threat to public security, which is always likely to cause harm to the
safety of citizens themselves and their money or to the safety of state security.
This is what prompted the legislator to intervene with punishment on the mere
agreement between two or more persons, and it is clear from this that the legislator
criminalizes the criminal conspiracy, i.e. does not make the punishment for it
dependent on the commission of the crime or crimes that were the subject of it, and
this means that the criminal conspiracy lies in itself the illegal character That is, the
agreement does not derive its danger from an illegal act, but rather from its own
intuition.
Criminal conspiracy: It is the agreement of two or more persons, and this
agreement requires the convergence of two free and conscious wills to carry out the
act. There must be at least two parties to such an agreement. A person cannot agree
with himself, but he can agree with anyone else, including his wife and child. The
validity of the agreement by which this crime is carried out does not require that the
identity of the other party is revealed and verified, or that he be brought to trial as
long as it is proven that the other person is a party to the agreement.
It is not required that communication and agreement take place indirectly through
others, and it continues after the withdrawal of some parties and the entry of new
66
parties to the general plan. The first person may agree with the second, and the
second agrees with the third, indicating the existence of the first person without
specifying his personality or identity for the third person. Then he connects the third
and fourth person to the plot and tells him about the presence of other parties. Thus,
the parties to the agreement and its means of communication diverge. Some
members may withdraw and the agreement will continue with the rest of the parties.
Conditions for the crime of criminal conspiracy:

[1] That two or more will unite:
Union means the agreement concluded between them before committing these acts,
and the agreement may be explicit as well as it may be implicit, based on the
circumstances.
[2] The agreement must be intentional:
Meaning that all those who enter it or join it are aware of its purpose and that its
subject or means of achieving its purpose constitutes one of the crimes stipulated
exclusively in Article [24/2], which are the crimes of intentional murder stipulated
in Article 130, The crime of robbery (hiraba) under Article 168 and crimes against
the state is punishable by death, such as the crime of undermining the constitutional
system in Article 50 and the crime of waging war against the state in Article 51 of
this law.
With the exception of those crimes mentioned exclusively, the criminal conspiracy
is not considered a punishable penalty unless that agreement appears to be enforced
with a meaning that has been attempted and the elements of attempt stipulated in
Article 19 of this law are fulfilled.
Bearing in mind that the rescinded agreement is not considered a crime, regardless
of the type of retraction, i.e., whether it is voluntary or non-voluntary, because the
text is absolute, general, not specific, restrictive, as the end of the second paragraph
of Article 24 states that: (In all cases, it is not considered the retracted agreement
is a crime).
The penalty for a criminal agreement is imprisonment for five years if the crime was
not attempted or the crime was not committed, if the crime is attempted or the crime
is completed, the penalty for it shall be the punishment for the attempted crime or
the punishment for the complete crime, as the case may be.
67
Abetment
Article 25 Abetment stipulates:

[1] Abetment is the inducement of one person by another to commit an offence,
or the ordering of any mature person under his control to commit it.
[2] Subject to observing the limit of the penalty prescribed for the offence,
whoever abets the commission of an offence shall be punished in accordance
with the following:
(a) In case of the non-commission of the offence, or the attempt thereof, with
imprisonment for a term not exceeding five years;
(b) In case of the commission of the offence, or the attempt thereof, with
imprisonment, for a term, not exceeding ten years, or with fine, or with both,
and where the penalty prescribed for the offence is whipping, he shall be
punished with whipping not exceeding half the penalty.
[3] Whoever abets the commission of an offence and is present at the time of the
commission thereof shall be deemed to have committed that offence.
[4] Whoever abets by a person to commit a certain act shall be responsible for
any other act, which constitutes an offence, committed by the abetted person if
that other act is a probable consequence of the abetment.
Abetment: It is creating the idea of a crime in a person and then strengthening it so

that it turns into a determination to commit it. It is clear from this definition that the
activity of the instigator is psychological in nature, as it turns to the psyche of the
perpetrator in order to influence him and push him to the crime. Abetment includes
seduction, agreement or conspiracy, and assistance in the commission of a crime.
Elements of the crime of abetment:

[1] There must be a seduction, conspiracy, or assistance.
[2] That the subject is a crime.
[3] Criminal intent.
68
Abetment includes provocation, encouragement, and others. The legislator did not
mention a means of temptation it may be a gift, a promise, a threat, or a misuse of
the authority of order over one who is under his authority, and the abetment may
occur with deeds, words, or writing. The existence of abetment does not require that
there be a direct connection between the instigator and the person who committed
the act of abetment, or that one of them knows the other. Retraction after abetment
does not work because it is considered positive repentance, that is, retraction after
the crime has been completed.
The penalty for abetment is as follows:

I. If the incitement did not result in the commission of the crime or the attempt to
commit it, the penalty shall be imprisonment not exceeding five years.
II. If the crime is attempted or the crime is committed, the penalty shall be for a
period not exceeding ten years or with a fine or with both.
III. If the penalty prescribed for the crime is whipping, then the penalty shall be half
of the penalty of whipping prescribed for the penalty.
IV. If the instigator of the crime was present at the scene of the crime at the time of
its occurrence, then in this case he is considered an original perpetrator because
he is considered the perpetrator of that crime, and this is a form of the original
contribution.
V. If the inciting person commits another act that constitutes a crime other than the
crime to which he was instigated but which was a probable result of the
incitement, the instigator shall be responsible for that crime.
Examples of abetment:
Khalid tempts Jamal and Muhammad to rob the house at night and supplies them
for this purpose with weapons to commit the crime of robbery, when Jamal and
Muhammad enter the house, they are resisted by Ziad, one of the house's residents,
and they intentionally kill him. In this case, if the intentional murder was a probable
consequence of the abetment, then Khalid will be punished with the penalty
prescribed for intentional murder.
The principle is that if a person is incited to commit a crime, he is not responsible
for a crime completely different in substance from the one he was abetted to commit.
69
If Khalid ordered Muhammad to burn down Jamal's house, and Muhammad
committed robbery during the fire, then in this case he asks Khalid about the fire
because he participated in it, but he does not ask about the robbery because he did
not participate in it and did not expect it at all, and there is no probable result, i.e. A
natural consequence of his induction.
The rule is that the instigator is responsible for the probable results, that is, the
normal and natural consequences of the abetment, conspiracy, or assistance that took
place, even if it was different from the subject of the abetment when it was
committed under his influence.
70
Assisting
Article 26 Assisting stipulates:

Whoever assists the commission of any act, which constitutes an offense,
intending thereby to facilitate the commission thereof, shall be subject to the
provisions of section 25, and shall be punished with the penalty prescribed for
the abettor, as the case may be.
The text of this paragraph expands to include all forms of assisting in the commission
of the crime. His saying “intending thereby to facilitate the commission thereof”
indicates that the assistance may be in any way in the prepared, facilitating, or
complementary actions to commit it and the assistance in all its forms is useful by
providing a movable thing or real estate, so he is considered a partner who lends his
house to commit the crime in it.
And the acts of assisting, if we look at them in relation to the time when the
perpetrator began his activity, are either acts prior to the commission of the crime,
such as preparing a weapon or making a tool to open locks and other equipped works.
There is no doubt that the perpetrator is considered a partner whenever a punishable
act occurs. Either it is contemporaneous with the crime, such as monitoring the road
or occupying the victim or the guard during the commission of the crime with the
intention of facilitating or completing it.
Article [25/3] stipulates: "Whoever abets the commission of an offense and is
present at the time of the commission thereof shall be deemed to have
committed that offense". That is, he is an original perpetrator because he commits
one of the constituent acts of the crime.
The acts of assisting that make the person a perpetrator are the ones that occur at the
time of their commission and at the place of their occurrence. It goes without saying
that the assistance subsequent to the completion of the crime does not make the
perpetrator an accomplice in it. Because participation would facilitate the occurrence
of the crime, it is not considered a partner, for example, who intervenes to rid the
murderer from the grip of the police. Since the subsequent assistance entails a social
danger in some cases, as it hinders the work of the public authorities in tracking
criminals, the law makes it an independent crime, such as concealing the things
obtained from the crime, Article [181/2] of the Criminal Code, such as concealing
the offender and concealing the body of the dead person.
71
Part IV
Sanctions
72
Death penalty
Article 27 Death penalty stipulates:

[1] The death penalty shall be by hanging, lapidation, or in the same manner in
which the offender caused death, and it may be by way of hud, retribution
(qisas), or Ta’azir; and it may be accompanied by crucifixion.
[2] With the exception of Hudud and retribution (qisas) offenses, the death
sentence shall not be passed against any person, who has not attained the age
of eighteen, or who exceeds seventy years of age.
[3] Death sentence with crucifixion shall not be passed except for armed
robbery (hiraba).
Execution: It is the taking of the soul of the convict. And in terms of its
characteristics, it is an excisional criminal penalty, as it leads to the final exclusion
of those who are executed from the community; the legislator has limited it to three
types: either it is stoning, it is similar, or it is hanging.
Types of execution:
[1] Stoning:
It is the punishment for a married adulterer, whether a man or a woman and the
meaning of stoning is murder by throwing stones. Stoning was proven by the action
of the Prophet, peace, and blessings, be upon him, as well as by the consensus of the
companions of the Prophet and Tabi'un. The Prophet, may God’s prayers and peace
be upon him, established the hadd punishment for stoning on Ma’iz and al-
Ghamdiya, and the rashidun Caliphs after him established this limit in their covenant
and repeatedly declared that stoning is the minimum for adultery after marriage.
َّ ‫َ ْ َ ُ َ ْ َ َ َ َّ ه ُ َ َ ن َ ُ ُ ه‬ ْ ُ ْ ُ َ ُّ َ َ
ِ ‫ {َّل ي ِحل دم ام ِر ٍئ مس ِل ٍم يشهد أن َّل ِإله ِإَّل اَّلل وأ ين رسول‬:‫رسول هللا صىل عليه وسلم‬
‫اَّلل ِإَّل‬ ‫قال‬
ُ َّ ُ َ ْ َ ‫َ َّ ُ َّ ن‬ ْ َّ ُ ْ َّ ََ َ ْ
.}‫للجماعة‬
ِ ‫لدين ِه الت ِارك‬
ِ ‫ان والم ِارق‬ ِ ‫ النفس ِبالنف‬:‫ِب ِإحدى ثَل ٍث‬
‫س والثيب الز ِ ي‬
Prophet Muhammed ‫ ﷺ‬said in the Hadith: }The blood of a Muslim who testifies
that there is no god but God and that I am God’s Messenger may not lawfully
be shed but for one of three reasons: a life for a life; a married man who
73
commits fornication; and one who turns aside from his religion and abandons
the community{.
[2] Similar:
It is the killing of the offender in the same way that the victim was killed, and this is
in the crime of retribution for premeditated murder as stipulated in Article [130/2]
of the Criminal Code (Whoever commits murder, shall be punished with death
by retribution).
ُْ ْ ْ ْ ْ َ َْ ُ ‫ب َع َل ْي ُك ُم ْٱلق َص‬
ٰ ََ ‫اص ِ نف ٱلق ْتىل ٱل ُح ُّر ِبٱل ُحر َوٱل َع ْب ُد ِبٱل َع ْب ِد َوٱْل‬ ْ ُ َ َ َ ‫َ ٓ ٰ َ ُّ َ ه‬
َ ‫وا ُكت‬
‫نب‬ ‫ {يَٰ َٰأيها ٱل َِذين ءامن‬:‫قال هللا تعاىل‬
ٌ َ ْ َ َ ْ ُ َّ ٌ ْ َ َ ٰ َ ٍۢ ٰ َ ْ ْ َ ٌ ٓ َ َ َ ِ ُ ْ َ ْ ٌٍۢ َ ِ َ ٌ ْ ََ ْ ُ َ َ ‫ْ ُ ََ ٰ َ َ ْ ُ ن‬
‫وف وأداء ِإلي ِه ِب ِإحسَٰ ٍَٰن ذ ِلك تخ ِفيف من ربكم ورحمة‬ ِ ‫يه ش َء فٱتباع ِبٱلمعر‬ َِ ‫ف َلهۥ ِم َنَ أ ِخ‬ِ ‫ِ َبٱْلنب ۚ فمن ع‬
ٌ َ ُ َ ٰ َ َْ ٰ ََْ
. }‫ف َم ِن ٱعتدى بعد ذ ِلك فلهۥ عذاب أ ِليم‬
30 ٌ
The verse was translated into: }O you who believe! Al-Qisas (the Law of Equality
in punishment) is prescribed for you in case of murder: the free for the free, the
slave for the slave, and the female for the female. But if the killer is forgiven by
the brother (or the relatives, etc.) of the killed against blood money, then
adhering to it with fairness and payment of the blood money, to the heir should
be made in fairness. This is an alleviation and a mercy from your Lord. So after
this whoever transgresses the limits (i.e. kills the killer after taking the blood
money), he shall have a painful torment{.
َ ُ َّ َ ُ ‫َ ه‬ َْ
َ ‫اْل ْل‬ ُ َ ٌ َ َ َ ‫ { َو َل ُك ْم نف ْالق‬:‫قال هللا تعاىل‬
.31}‫اب ل َعلك ْم تتقون‬
ِ ‫ب‬ ‫وىل‬
‫ِي‬ ‫أ‬ ‫ا‬‫ي‬ ‫اة‬‫ي‬‫ح‬ ‫اص‬
ِ ‫ص‬ ِ ‫ِي‬
The verse was translated into: }And there is (a saving of) life for you in Al-Qisas
(the Law of Equality in punishment), O men of understanding, that you may
become Al-Muttaqun{.
َّ ُُْ َ ُُْ َ َ ْ َ َ ْ َ ‫َ ْ َ ْ نَ ْ َ ْ ن‬ ْ َّ َ ْ َّ َّ َ ٓ َ ْ ْ َ َ َ ْ َ َ َ
‫ٱْلذ ِن َوٱلسن‬ ‫ب‬ ‫ن‬ ‫ذ‬‫ٱْل‬‫و‬ ‫نف‬
ِ ‫ٱْل‬ ‫ب‬ ‫نف‬‫ٱْل‬‫و‬ ‫ئ‬‫ر‬ ‫ع‬ ‫ٱل‬‫ب‬ ‫ئ‬‫ر‬ ‫ع‬ ‫ٱل‬‫و‬ ‫س‬ ‫ف‬ ‫ {وكتبنا علي ِهم ِفيها أن ٱلنفس بٱلن‬:‫قال هللا تعال‬
ُُ َ ٰ ٓ َ ْ ُ َ ِ ُ ‫ِ َ ُ َ َ ِ َّ َ ٌ ه ُ ِ َ َ ِ ه ْ َ ْ ُ ِ َ ٓ َ َ َ ه‬ َ َّ َ َ ٌ َ َ ُ ُ ْ َ
‫اص ۚ ف َمن ت َصدق ِب ِهۦ فهو كفارة لهۥ ۚ ومن لم يحكم ِبما أنزل ٱَّلل فأولَٰ َٰ ِئك هم‬ ‫ِبٱلسن وٱلجروح ِقص‬
َ َّ
.32}‫ٱلظ َٰٰ َِٰل ُمون‬
The verse was translated into: }And We ordained for them therein a life for a life,
an eye for an eye, a nose for a nose, an ear for an ear, a tooth for a tooth, and
for wounds is legal retribution. But whoever gives [up his right as] charity, it is
30
31
32
- Surah Al-Ma’idah, verse [45].
74
an expiation for him. And whoever does not judge by what Allah has revealed
then it is those who are the wrongdoers}.
ْ َ ُ ُ َ ‫ َ َ َّ ُ ْ َ َ ْ ََ َ ُ َ َ َ َ َ ْ ُ ْ َ َ ْ َ َ ْ ُ َ ْ َ ن‬:
‫يل ِمن هذي ٍل و ِإ ين ع ِاقله ف َمن‬ ‫وسلم {أَّل ِإنكم يا مع َش ْخزاعة قتلتم َهذا الق ِت‬ َ َ ٌ َ ‫صىل َهللا َعليه‬ ‫النب‬
‫ُقال َ ُ ي‬
ُُ ْ َ ْ َ ْ َ ْ ُ ُ َ ْ ‫ََْ ن‬ َ ‫ن‬ ْ َ ُ ُ ْ َ َ َ َ ْ َ َ
.}‫ئ أن يأخذوا العقل أو يقتلوا‬ ِ ‫ق ِتل له بعد مقال ِ يب ه ِذ ِه ق ِتيل فأهله ب رئ ِخ ريت ر‬
Prophet Muhammed ‫ ﷺ‬said in the Hadith: }Then you, Khuza’a, have killed this
man of Hudhail, but I swear by God that I will pay his blood wit. If anyone kills
a man hereafter his people will have a choice, to kill him if they wish, or to
accept blood wit if they wish{.
[3] Hanging:
Execution is carried out by hanging to death. In Ta’zir crimes, the death penalty shall
not be applied to a person who has not reached the age of eighteen, nor to an old
man (sheikh) who has reached the age of seventy.
The death penalty is not imposed on economic crimes because it changes with the
change of policies and economic conditions
َّ ‫َ ْ َ ُ َ ْ َ َ َ َّ ه ُ َ َ ن َ ُ ُ ه‬ ْ ُ ْ ُ َ ُّ َ َ
‫اَّلل ِإَّل‬
ِ ‫رسول هللا صىل هللا عليه وسلم {َّل ي ِحل دم ام ِر ٍئ مس ِل ٍم يشهد أن َّل ِإله ِإَّل اَّلل وأ ين رسول‬ ‫قال‬
ُ َّ ُ َ ْ َ ‫َ َّ ُ َّ ن‬ ْ َّ ُ ْ َّ ََ َ ْ
.}‫للجماعة‬
ِ ‫لدين ِه الت ِارك‬
ِ ‫ان والم ِارق‬ ِ ‫ النفس ِبالنف‬:‫ِب ِإحدى ثَل ٍث‬
‫س والثيب الز ِ ي‬
Prophet Muhammed ‫ ﷺ‬said in the Hadith: }The blood of a Muslim who testifies
that there is no god but God and that I am God’s Messenger may not lawfully
be shed but for one of three reasons: a life for a life; a married man who
commits fornication; and one who turns aside from his religion and abandons
the community{.
75
Retribution
Article 28 Retribution (qisas) stipulates:

[1] Retribution (qisas) is the punishment of an intending offender with the same
offensive act he has committed.
[2] The right to retribution is initially established for the victim and then vests
in his relatives.
[3] In the case of murder, retribution shall be death by hanging and, if the court
sees fit, it shall be in the same manner in which the offender has caused death.
[4] In the case of wounds, retribution shall be in accordance with the provisions
set out in Schedule I hereto.
[1] Retribution:
Retribution in Sharia is the original punishment for killing and wounding, and
retribution is an appreciable punishment as it is a destructive punishment.
Retribution falls on the soul and on the person not reaching the soul, so if it falls on
the soul, it is murder, and if it falls on the person not reaching the soul, it is a wound
or a cut.
[2] Who has the right to retribution?

The principle in determining the right of retribution for the victim or his guardian
.33}… ‫ورا‬
َ َ ُ َّ ْ َ ْ ‫ن‬
ُ ‫ان َم‬
‫نص ا‬ ‫شف يف القت ِل ۖ ِإنه ك‬ ْ ‫وما َف َق ْد َج َع ْل َنا ل َوليه ُس ْل َط اانا َف ََل ُي‬
‫ {… َو َمن ُقت َل َم ْظ ُل ا‬:‫قال هللا تعاىل‬
ِ ِ ِ ِ ِ
The verse was translated into: }... And whoever is killed unjustly - We have given
his heir authority, but let him not exceed limits in [the matter of] taking life.
Indeed, he has been supported{.
At the time when Sharia granted the blood guardian the right to retribution, it granted
him another right, which is the right to pardon retribution, and made it permissible
for him to pardon money or for free. If he is pardoned, retribution is remitted, and
the public authorities may punish the offender with whatever other punishment they
deem fit, without killing. The one who has the right to demand retribution in the
33
- Surah Al-Isra, verse [33].
76
extremities is the victim himself because he is the one who was assaulted and he is
his guardian. If he has no guardianship over himself because he is insane or because
he is an undiscerned child. Then the guardian is demanding retribution because he
is required to preserve him.
The degree of relatives is determined based on the bond of male kins, meaning,
sonship comes before fatherhood and comes fatherhood before brotherhood.
[3] How to fulfill retribution:
Retribution shall be fulfilled in the person by hanging until death, and it is
permissible to kill the offender with the same amount he was killed with if the court
deems it appropriate.
ُ ََ ََْ ْ ََ ْ َُْ َ ُ ََ ََْ َ
.34}‫ {ف َم ِن ٱعتد ٰى عل ْيك ْم فٱعتدوا عل ْي ِه ِب ِمث ِل َما ٱعتد ٰى عل ْيك ْم‬:‫قال هللا تعاىل‬
The verse was translated into: }...Then whoever transgresses the prohibition
against you, you transgress likewise against him...{.
In the case of wounds, retribution shall be in accordance with what is stipulated in
the provisions of the first schedule annexed to this law:
i. A sighted eye, where wholly pulled out.
ii. The nose, up to the tip.
iii. A sound ear, hearing is immaterial.
iv. A lip, where wholly severed, part thereof is immaterial.
v. A tooth, where the competent medical body decides that no alternative, therefore,
is expected.
vi. The tongue, where wholly severed.
vii. A hand, where severance is from a joint, and the victim shall have the dia of the
part exceeding the joint, in case of excess.
viii. A foot, for which the provisions of the hand shall apply.
ix. Fingertips, fingers, toe tips, and fingers and toes of hands and feet, where
severance is from a joint.
x. The penis, where wholly severed, or severance is from the glans.
xi. The testicles and one shall be taken, for its counterpart; on condition of guaranty
of the soundness of the other.
xii. Exposing wounds, which such as end with a bone.
34
77
Conditions of retribution
Article 29 Conditions of retribution (qisas) stipulates:

[1] For applying retribution for wounds, the following conditions shall be
satisfied:
(a) The similarity between the two organs in type, soundness, and size, and there
shall be no retribution except for a counterpart of the injured organ and a
sound organ shall not be taken for a paralyzed or defective one, nor a complete
for an incomplete one, or an original for an additional, but the whole shall be
taken, for the whole, and the part, for the part, as retribution may require, and
(b) The possibility of fairly satisfying punishment for similar organs without
the death of the offender resulting therefrom, or exceeding the injury which he
has inflicted on the victim.
The Muslim jurists have unanimously agreed on retribution not reaching the soul,
but retribution is within the scope of the possible, and the similarity in the extremities
is in the original without description, so length and shortness do not enter into
similarity, as well as a mistake and lack thereof.
Three things are noticed when cutting in order to achieve similarity:

[1] The organs must be opposite each other:
The opposite members are cut off, the right hand with the right, and the healthy with
the healthy, and the healthy hand is not cut instead of the diseased, and the molar is
from the teeth in the opposite molar and so on.
[2] The opposite should not lead to an increase or a decrease:
In the sense that the symmetry is possible and does not exceed the crime, and if it is
not possible, then there is no retribution.
[3] The benefit that is lost corresponds to the benefit that is removed:
If the benefit that is removed by inflicting retribution is more severe, preventing
retribution, such as if the offender is one-eyed, and he has removed the sight of one
78
of the eyes, then undoubtedly if he is punished by him, the sight will be removed
from him, while the crime did not go away all of the sight.
Retribution is based on equality, and in order for the punishment to be similar to the
crime, there is no excess of one over the other, if the penalty can only be carried out
by an increase or by the possibility of an increase in the near future, then there is no
retribution.
Because the blood of the offender is infallible, it is not permitted from him except to
the extent of the felony, so what exceeds it remains on the infallibility, and suspicion
of the extent to be fulfilled is explained in the interest of the offender because of the
principle of infallibility, which is a certain matter, so it is not permissible with the
suspicion of excess.
79
Multiple retributions
Article 30 Multiple retributions (qisas) stipulates:

[1] An individual shall be executed for a group and a group for an individual.
[2] Retribution (qisas) is multiple, in case of wounds by the multiplicity of
unsimilar parts, in which case the smaller shall be included in the greater,
except where the offender intends to deform the victim, retribution shall then
be by two amputations, the smaller and the greater.
[3] Where the offender amputates similar parts from several victims all of
which are punishable with retribution he shall be punished with retribution if
any of the victims so demands without prejudice to their right to claim complete
or incomplete dia, as the case may be.
[4] Where the offender amputates three parts, or more of one, or several
victims, all of which are punishable with retribution he may be punished with
retribution, for what he has amputated, or with death.
The group is killed when they kill a person:

If a group intentionally kills a person, they will all be punished.
َ ْ ‫َ ْ َ َ ٍۢ ن‬
ْ ‫ٱْل‬ ْ َ ْ َ ٍۢ‫ْ َ ْ َ ٰ َ َ َ ْ َ َ َ َ ن ٓ ْ َٰٓ َ َ َّ ُ َ َ َ َ َ ْ ا‬
‫ض‬ ‫ر‬ ‫ف‬ ‫اد‬ ‫س‬‫ف‬ ‫و‬ ‫أ‬ ‫س‬ ٰ ‫ { ِمن أج ِل ذ ِلك كتبنا ع‬:‫قال هللا تعاىل‬
ِ ِ ٍ ٍ ‫ب ِإس ِ َّءيل أن َهۥ من قتل نفسا ِبغ ر ِي ن‬
‫ف‬ ِ ‫ىل ٓب‬
‫اس جم ا‬
.35}...‫يعا‬ َ ‫اها َف َك َأ َّن َما أح َيا ٱلن‬
ْ َ َ َ ْ َ ْ َ َ ‫َ َ َ َّ َ َ َ َ َّ َ َ ا‬
‫فكأنما قتل ٱلناس ج ِميعا ومن أحي‬
ِ
The verse was translated into: }That was why we wrote for the Children of Israel
that who ever killed a soul, except for a soul slain, or for sedition in the earth,
it should be considered as though he had killed all mankind; and that who ever
saved it should be regarded as though he had saved all mankind...{.
This text states that the killer, whether he was one or more than that, has assaulted
the right to life as if he did not kill one but rather killed more than one. Undoubtedly,
if the group participates in one killing so that it is not known which of them the fatal
blow was, each one will be charged with the crime of murder, and they will be led
for what they did. This is the jurisprudence of the issue in terms of texts, and in terms
of general reprimand, taking the group to kill one is what is consistent with the
interest and protection of the group.

35
80
For this consideration, Omar Ibn Al-Khattab killed the group by one, and it is
narrated that he, may God be pleased with him, killed seven of the people of Sanaa
with a man, and he said, may God be pleased with him, that “if the people of Sana’a
conspired against him, I would have killed them.” This is because killing by means
of cooperation is overwhelming and retribution is imposed on the foolish, so the
word of the living must be fulfilled. Therefore, we see that the text of Article [30/1]
is consistent with the purposes of the Sharia, and with the lofty purpose of it, which
is that society lives in safety from the wicked.
َ ُ َّ َ ُ ‫َ ه‬ َْ
َ ‫اْل ْل‬ ُ َ ٌ َ َ َ ْ ‫ ََ ُْ ن‬:
.36}‫اب ل َعلك ْم تتقون‬
ِ ‫ب‬ ‫وىل‬
‫ي‬ ِ ‫أ‬ ‫ا‬‫ي‬ ‫اة‬‫ي‬‫ح‬ ‫اص‬
ِ ‫ص‬ ‫قال هللا تعاىل {ولكم ِ يف ال ِق‬
The verse was translated into: }And there is (a saving of) life for you in Al-Qisas
(the Law of Equality in punishment), O men of understanding, that you may
become Al-Muttaqun{. This is the view of most jurists or the greatest majority of
them.
Multiple retribution in the wound with multiple parts:

If one of the crimes does not necessitate retribution in the soul, then the penalty
prescribed for each crime must be imposed without overlapping between them. They
are not obligated to one another in retribution, because each one is alone in the causal
reason for retribution and for the separation between the two crimes.
The system followed in Islamic law in the case of multiple retribution is that the
punishments go beyond that to start implementing what is for God, i.e. what touches
the rights of the group, then after that it is established what is for the people, i.e. what
affects the rights of individuals.
Imam Malik believes that what God has no pardon in, and that of humans may be
pardoned, and it is in the interest of the convict to delay what affects the rights of
individuals. It is equal for Malik after that to start with the light punishment and then
start with the more severe punishment, and he decides to leave the start with either
of them. Only one punishment is executed on the offender, as if he had committed
one crime, the smaller one would be included in the larger one, because if the crimes
were many and were of one kind, then the punishments overlap and the smaller one
would be included in the larger one. Unless the offender intended the similarity, then
36
- Surah Al-Baqarah verse, [179].
81
in this case only he will be punished by the smaller and then the larger pieces. This
is the doctrine of Imam Malik and the Sudanese legislator has taken it in this part.
It came in the Al-Sharh Al-Kabir Al-Dirdiri: "If he cuts the upper joint of a man’s
forefinger and then cuts the second joint again, then Imam Malik sees
retribution from the second joint, unless the offender intends to cut the two
joints one by one".
Abu Hanifa sees retribution in the first joint, and he does not have retribution in the
second joint, and he must be given arsh37. The same ruling applies to him if he cuts
off a man’s finger and then cuts off his palm after that, or if he cuts off the palm and
then cuts the forearm, then he must be punished for what he cut first only. The
justification of Abu Hanifa is that when the first cut was cut, there was a similarity
between the victim and the offender, but in the second cut, the similarity was not
achieved because the victim was cut off and the offender was intact.
If a man cuts his right hand from the joint and takes revenge from him, then one after
that cuts off the arm from the other elbow, then Abu Hanifa does not see the
retribution, because retribution for assault in his view requires equality in arsh,
because he takes assault the path of money, and in this case he does not know
equality, because the arm does not have an estimated arsh.
According to Malik, al-Shafi’i, and Ahmad al-Qiyas, requires retribution because
they do not follow the path of money, and they do not stipulate equal arsh. This is
what the Sudanese legislator took in the text of the aforementioned Article [30/2].
If, by doing that, the offender intends to do that to the victim as revenge, then in this
case he is treated with the same intent, and the pain is repeated by repetition of
retribution, and the smaller and then the larger cut-off from him.
But if the offender cuts identical extremities from multiple victims, such as cutting
off the right hand of more than one victim, and it requires retribution, it can be
executed according to the previous conditions, then the right hand is cut off from
him from the joint, and the right of the rest is transferred to the full or incomplete
blood money, as the case may be, and this as stipulated in the third paragraph of
Article 30. However, if the offender has cut off three or more extremities from one
victim, or multiple victims, and all of them require retribution, then he may be
sentenced to retribution for each of them, and he may be sentenced to death.
37
- Al-Arsh: It is called the allowance for the person not reaching the soul from the extremities.
82
Remittance of retribution
Article 31 Remittance of retribution (qisas) stipulates:

[1] Retribution shall be remitted in any of the following cases:
(a) Where the victim or his relative is an offspring of the offender;
(b) Where the victim or some of his relatives have pardoned, with, or without
consideration;
(c) Where the injury occurs with the consent of the victim;
(d) Where the sanity of the offender is hopeless, in case of his becoming insane,
after the passing of the sentence of retribution (qisas) against him;
(e) Extinction of wounds. Of the part subject to retribution, (qisas), in case.
[1] Where the victim or his relative is an offspring of the offender:

A parent shall not be killed for a child of his due to the shubha of entitlement.
َ َ ُ َ
.)‫ ( أنت ومالك ْلبيك‬:‫قال صىل هللا عليه وسلم‬
Prophet Muhammed ‫ ﷺ‬said in the Hadith: }You and your wealth belong to your
father{. The mother intervened in the same ruling, and this was due to a suspicion
(shubha) related to the crime scene.
And that if the hud punishment is refrained from, the crime nevertheless exists and
the responsibility for it is available in the presence of the group’s right in it to
maintain security and to prevent corruption in it, and consequently, a Tazir can be
imposed in this case. Tazir punishment can amount to murder.
[2] Where the victim or some of his relatives have been pardoned, with, or
without consideration:
It is permissible to pardon retribution, and it is better than fulfilling retribution.
ُ ْ ََ ُ ْ َ ْ َ ْ ُ ْ َ ْ َ ُ ْ ُّ ُ ْ َ ْ َ ْ ‫َ ٓ ٰ َ ُّ َ ه َ َ َ ُ ْ ُ َ َ َ ْ ُ ُ ْ َ ُ ن‬
ٰ ََ ‫نب ِبٱْل‬
ۚ ‫نب‬ ٰ ‫ {يَٰ َٰأيها ٱل ِذين ءامنوا ك ِتب عليكم ٱل ِقصاص ِف ٱلقتىل ۖ ٱلحر ِبٱلحر وٱلعبد ِبٱلعب ِد وٱْل‬:‫قال تعاىل‬
ٌ ْ ُ ٌٍۢ َ َ ٌ ََ
ٌ ‫اع ب ْٱل َم ْع ُروف َو َأ َد ٓا ٌء إ َل ْيه بإ ْح َسَٰٰ ٍَٰۢن ۗ َذٰ ل َك َت ْخف‬ َ ْ ُ َ ‫َ َ ْ ُن‬
.38}...‫يف من َّربك ْم َو َرح َمة‬ ِ ِ ٍ ِِ ِ ِ ِ ِ ‫ب‬‫ٱت‬‫ف‬ ‫ء‬‫ش‬ْ ‫يه‬ َ ِ ‫فمن ع‬
ِ ِ ‫ف لهۥ ِمن‬
‫خ‬‫أ‬
38
83
The verse was translated into: }O you who believe! Al-Qisas (the Law of Equality
in punishment) is prescribed for you in case of murder: the free for the free, the
slave for the slave, and the female for the female. But if the killer is forgiven by
the brother (or the relatives, etc.) of the killed against blood money, then
adhering to it with fairness and payment of the blood money, to the heir should
be made in fairness. This is an alleviation and a mercy from your Lord{.
ُ ‫َ ُ َ َّ ٌ ه‬ َ َّ َ َ َ ٌ َ َ ُ ُ ْ َ
.39}‫اص ۚ ف َمن تصدق ِب ِهۦ فه َو كف َارة له‬ ‫ {وٱلجروح ِقص‬:‫قال هللا تعاىل‬
The verse was translated into: }...And for wounds is legal retribution. But
whoever gives [up his right as] charity, it is an expiation for him...{.
‫ه‬
َ ‫وسل َم‬
ٌ َ ‫رفع إليه‬ َ َ ُ‫ه‬ ‫ه‬ ‫َ ه‬ ُ ‫ن‬
‫فيه‬
ِ ‫شء‬ ‫ِ ي‬ ‫يه وعىل ِآل ِه‬ ِ ‫ {ما رأيت رسول‬:‫رض هللا عنه قال‬
ِ ‫اَّلل صىل اَّلل عل‬ ‫عن أنس َّ ي‬
.}‫بالعفو‬ ‫فيه‬ َ ٌ
ِ ِ ‫ إَّل أمر‬،‫ِقصاص‬
Narrated Anas ibn Malik: }I never saw the Messenger of Allah (‫ )ﷺ‬that some
dispute which involved retaliation was brought to him but he commanded
regarding it for remission{.
The meaning of pardon according to the Hanafis and Malikis is to drop retribution
for free. As for relinquishing retribution in exchange for blood money (Dia), it is
reconciliation, not pardon, because the waiver of the guardian is not implemented
unless the offender accepts the payment of blood money.
The blood money is not established with them except with the consent of the two
parties, i.e. the guardian and the murderer, and the guardian has no choice but to
retaliate or pardon the blood money unless the murderer agrees to give the blood
money.
pardon according to the Shafi’is and Hanbalis is to waive retribution for free or to
blood money, and the guardian of blood has the choice: if he wants retribution and
if he wants to take the blood money, with the consent of the killer or not. In
accordance with the hadith:
َ َ ْ ََُ َ َ ْ ‫ََْ ن‬ َ‫ َف َأ ْه ُل ُه َب ْ ن‬،‫يل‬
ٌ ‫ { َف َم ْن ُقت َل َل ُه َقت‬:‫قال النب صىل هللا عليه وسلم قال‬
‫ َو ِإن أح ُّبوا‬،‫ئ؛ إن أح ُّبوا قتلوا‬
‫ئ ِخ ريت ِر‬ ‫ر‬ ِ ِ
ْ ‫َ َ ُ ْي‬
.}‫أخذوا ال َعق َل‬
39
84
Prophet Muhammed ‫ ﷺ‬said in the Hadith: }If anyone kills a man hereafter his
people will have a choice, to kill him if they wish, or to accept blood wit if they
wish{.
This is what the Sudanese legislator has taken into consideration in the text of Article
[31/1/b] of the Criminal Code, which results in the amnesty for the killer according
to the Hanafis and Malikis dropping retribution for free, At that time, the one who
pardons has no right to take the blood money except through conciliation, i.e. an
agreement with the offender to pay the blood money with his consent, what is
required for intentionality in their view is retribution in kind.
[3] Where the injury occurs with the consent of the victim:
Abu Hanifa and his companions believe that permission to cut and wound results in
the prevention of punishment because the extremities in their view follow the path
of money. And the infallibility of money proves a right to its owner, so the penalty
for cutting and wounding is likely to fall with permission, if the wound or cut leads
to death, then Abu Hanifa considers the act intentional murder.
In Malik’s doctrine, permission to cut and amputate is not considered unless it
continues to exonerate him after the wound and amputation. If he does not exonerate
him after the wound and amputation, then he has the prescribed penalty, which is
retribution and blood money, but if he continues to exonerate him, the prescribed
penalty, which is retribution and blood money, is replaced by tazir unless the injury
is performed or Cutting to death, the offender shall be punished with the penalty of
intentional murder.
As for the Shafi’i doctrine, the permission to cut or amputate off the punishment
drops from the offender unless the group considers his punishment as tazir. If the
wound or amputation leads to death, it is among the jurists of the doctrine who see
the responsibility of the offender for intentional killing and ward off retribution on
suspicion (shubha) of permission, so blood money is the punishment.
The doctrine of Abu Hanifa and his companions, says that permission to amputate
and wound entails the prohibition of punishment in the case of consent agrees with
Sudanese law.
85
[4] Where the sanity of the offender is hopeless, in case of his becoming insane,
after the passing of the sentence of retribution (qisas) against him:
We have previously talked about the responsibility of the insane, and it suffices to
review the above and add that if the offender becomes insane after committing the
crime and he cannot be cured of insanity, then retribution falls in this case.
[5] Extinction of wounds. Of the part subject to retribution, (qisas), in case:

What is meant by the extinction of retribution in an assault is that the extremities in
the place of retribution go away while the offender remains alive, extinction of
retribution is the reason for dropping the punishment of retribution in an assault only.
The principle is that the extinction of retribution in an assault is the extremity similar
to the place of the felony, and if the place of retribution is extinction, retribution falls
because its place is non-existent and the existence of the thing is not imagined with
the absence of its place.
If retribution is remitted right, the victim does not have to do anything. According
to Imam Malik because the right of the victim in retribution is in kind, and if it is
remitted, then the right of the victim falls. But if the retribution is extinction with
injustice, then the right of retribution is transferred to the unjust. Abu Hanifa believes
that if the place for retribution is extinction by a disease, then the victim does not
have to do anything because of the extinction of retribution, either if it is missed by
a right such as the implementation of a penalty or the fulfillment of retribution, and
he believes that the victim must be paid blood money (Dia) instead of retribution.
Al-Shafi'i and Hanbali believe that if the place of retribution of the victim is
extinction, he must take the blood money, whatever the reason for the loss of the
place of retribution.
The Sudanese law took the opinion of Malik and stipulated in the criminal circular
No. [94/83] that retribution extinction by extinct the place of retribution.
86
Relatives of the victim
entitled to retribution
Article 32 Relatives of the victim entitled to retribution (qisas) stipulates:
[1] The relatives of a victim entitled to retribution (qisas) are his heirs at the
time of this death.
[2] Where the victim is a minor, insane, or of unsound mind, he shall be
represented by his relative, trustee, or custodian and the court may wait until
the attainment of puberty of the minor, if it deems fit.
[3] The State shall be guardian for every person who has no guardian, or the
place of whose guardian is unknown or whose guardian is absent and there is
no hope of his return.
[4] The relative of a victim in case of murder, or intentional wounds shall have
the right to claim retribution, or dia, or reconciliation, upon an amount of
money, or complete pardon; and in the two cases of semi-murder and
negligently causing death or wounds, he may claim dia, reconciliation or
pardon; provided that a person representing a minor and anyone in the same
status shall not pardon, save for consideration which shall not be less than the
dia.
[5] The right of an unknown, or absent relative to retribution, or dia, or pardon
shall revive if he returns before execution of retribution (qisas) or payment of
dia.
[6] Pardon may not be retracted from if it is expressly made by consent.
The guardian who has the right to demand blood:

The First view: The jurists have differed in this. Al-Zahiri people see that
guardianship is for all lineage relatives, whether they are agnatic or not. Everyone
who suffered from his killing and was hoping for a benefit from him has the right to
demand his blood.
The second view: The view of the majority of Hanafi, Shafi’i, and Hanbali jurists
(that the one who has the right to demand retribution are the heirs at the time of his
87
murder, whether they were male or female, so retribution is for his heirs who would
likely inherit him if he left something).
The third view: Imam Malik’s saying is that they are the guardians of blood who
have the right to demand it, and the right to pardon it, who are the inheritors from
men and not others, so the guardianship of blood does not belong to the spouses, and
the guardianship of blood does not belong to those with kindred of blood, and it is
not for the heirs of shares from non-kindred of blood, such as the children of the
mother and grandmothers on the mother’s side or the father’s side.
The Sudanese criminal law took the opinion of the majority of jurists, as it stipulated
that those who have the right to retribution are his heirs at the time of his death,
whether they are young or old, men or women.
Does the minor or the insane have the right to demand to fulfill retribution?
The reason for preventing the young and the insane from fulfilling retribution before
puberty and recovery is that retribution is a right and that its use requires the capacity
of those who use it.
In the Imam Ahmad bin Hanbal doctrine, “If the guardian of blood is the young, they
must await his puberty.”
And in the doctrine of Imam Malik, “they do not wait for him to reach puberty, but
the retribution is handled on his behalf by his guardian, his father or grandfather
because they are guardians of himself. If he is not one of these and he does not have
a trustee, then the ruler who is responsible for fulfilling the punishment.”
The Hanafi school of thought differs in opinion. One group said what Ahmad and
Al-Shafi’i said is to wait for the young until he reaches puberty, and another group
said that the ruler is the one who fulfills it according to his guardianship.
And the state, according to this text [32/3], is the guardian of the one who has no
guardian, or the guardian is unknown or absent, whose return is not expected, and
the ruler does not have the right to pardon because it harms the public.
88
Imprisonment and expatriation
Article 33 Imprisonment and expatriation stipulates:

[1] The penalty of imprisonment shall include:
(a) Life imprisonment, the term of which shall be twenty years;
(b) Exile which is imprisonment in a place far from the place where the offence
is committed and from the offender’s place of residence.
[2] Expatriation is the restriction of the offender’s residence away from the
place where the crime is committed.
[3] With the exception of armed robbery (hiraba) the imprisonment penalty
may not be passed upon any person who has not attained eighteen years of age.
[4] With the exception of armed robbery (hiraba), the imprisonment penalty
may not be passed upon a person who is seventy years of age, and where the
term of imprisonment is retracted, or remitted by reason of attainment of
seventy years of age, there shall apply to the offender the penalty of expatriation
for the term of imprisonment prescribed.
[5] In calculating the whole term of imprisonment passed at the same trial for
several offences the total term of imprisonment shall not exceed the term of life
imprisonment.
[6] Where the offence may be punished with a fine only, the period of
imprisonment determined by the court instead of payment of fine shall not
exceed:
(a) two months, if the amount of the fine does not exceed 1000 SDG;
(b) four months, if the amount of fine does not exceed 5000 SDG;
(c) six months, in any other case.
Expatriation penalty:
It is a complementary punishment to the punishment of an unmarried adulterer, and
its source is the hadith:
ُ ُ ْ ُ ْ { :‫قال النب صىل هللا عليه وسلم‬
.}‫عام‬
ٍ ‫ وتغريب‬،‫مائة‬
ٍ ‫بالبك ِر جلد‬
ِ ‫البكر‬ِ ‫ي‬
89
Prophet Muhammed ‫ ﷺ‬said in the Hadith: }When the parties are unmarried, they
shall receive a hundred lashes and be banished for a year when they commit
fornication and when they have been married, they shall receive a hundred
lashes and be stoned to death{.
The jurists differ in its obligation. Abu Hanifa sees expatriation of the adulterer as
not obligatory, but for the rulers to combine lashing and expatriation if he sees an
interest in that. For them, the punishment for expatriation is not a hadd punishment
like a lashing, but rather a tazir punishment.
Malik, al-Shafi’i, Ahmad, and al-Zahiriyah view the necessity of combining lashing
and expatriation, and they consider expatriation to be a hadd punishment like
lashing, and their justification is the hadeeth:
ُ ُ ْ ُ ‫ (الب ْك‬:‫قال النب صىل هللا عليه وسلم‬
.)‫عام‬
ٍ ‫ وتغريب‬،‫مائة‬
ٍ ‫بالبك ِر جلد‬
ِ ‫ر‬ ِ ‫ي‬
Prophet Muhammed ‫ ﷺ‬said in the Hadith: }When the parties are unmarried, they
shall receive a hundred lashes and be banished for a year when they commit
fornication and when they have been married, they shall receive a hundred
lashes and be stoned to death). And it was narrated on Umar and Ali that they
were lashed and banished, and none of the Companions of the Prophet
denounced them, so their work became unanimous (Ijma){.
Westernization of women:
Malik believes that expatriation is made for the man rather than the woman because
the woman needs to be preserved and maintained, that the hadd punishment must be
a restraining order on adultery, and that alienating her is a temptation and
empowerment.
Al-Shafi’i, Ahmad, and Al-Zaharien see Westernization as an obligatory punishment
for both men and women.
What is expatriation?
Malik and Abu Hanifa said that expatriation means imprisonment for a period not
exceeding one year in the country in which he is exiled. The Sudanese legislator took
the doctrine of Imam Malik and Abu Hanifa. According to Al-Shafi’i and Ahmad,
expatriation means banishment from the state in which the adultery occurred to
90
another state, provided that he observes the person who has been alienated so that it
is kept under surveillance in the state to which he has been expelled and is not
imprisoned there. For the Shafi’is and Hanbalis, alienation is the situation under
surveillance in another state, and Al-Ẓahiriyyah on this view.
The penalty of Exile:

This penalty shall be imposed on the bandit if he terrorizes people and does not take
money or kill. This penalty was included among the penalties specified for the crime
of armed robbery (hiraba).
َّ َ ُ ْ َ ْ ‫َ ا َ ُ َ َّ ُ ْ َ ْ ُ َ ه‬ َ ْ ‫َّ َ َ َٓ ٰ ُ ْ ه َ ُ َ ُ َ ه َ َ َ ُ َ ُ َ َ ْ َ ْ َ ن‬
‫ض ف َسادا أن يقتل ٓوا أو يصل ُب ٓوا أو تقط َع‬
ِ ‫ر‬ْ ‫ٱْل‬ ‫ { ِإنما جزؤا ٱل ِذين َ يح ِاربون ٱَّلل ورسولهۥ ويسعون ِف‬:‫تعاىل‬ ‫َقال‬
40 ... ْ َ ْ َ ْْ َ ُ ْ َٰ ْ ُُ ُ ََْ ْ ْ
. } ‫ض‬ ِ ‫َٰف أو ينفوا ِمن ٱْلر‬
ٍ َٰ ‫يهم وأرجلهم من ِخل‬ ِ ‫أي ِد‬
The verse was translated into: }The recompense of those who wage war against
Allah and His Messenger and do mischief in the land is only that they shall be
killed or crucified or their hands and their feet be cut off on the opposite sides,
or be exiled from the land...{.
The justification for this punishment is that the bandit who terrorizes people and
does not take money from them and does not kill anyone from them only intends to
be famous and was punished with banishment, which leads to the interruption of his
remembrance and the protection of society from his evil. Imam Malik, Al-Shafi’i,
and Ahmad view that exile is the expulsion of the exile from one country to another
within the boundaries of Islam provided that the distance between the two countries
is not less than the shortening distance41.
In Article [168/1/c], the Sudanese legislator took the opinion of Imam al-Shafi’i,
where it stipulated the penalty of exile for a period of seven years imprisonment in
cases other than murder, rape, causing grievous hurt, or stealing money that reaches
the minimum (Nisab) for capital theft. The penalty of alienation applies to a person
who has reached the age of seventy, while the penalty of imprisonment does not
apply, except for the crime of armed robbery (hiraba).
40
41
- The distance of the shortening: the jurists differed in it. Imam Abu Hanifa said that the distance of
the shortening is 24 leagues, and the majority of doctrine from the Maliki, Shafi’i, and Hanbali schools
that the distance of the shortening is 16 leagues.
A league is equal to five kilometers and forty meters.
91
Fine
Article 34 Fine stipulates:

[1] The court shall assess the fine with reference to the nature of the offense
committed; the amount of wrongful gain obtained thereby, the degree of the
offender’s participation, and his financial status.
[2] The court may order payment of a fine, either in whole or in part as
compensation for any person aggrieved by an offense, unless an independent
judgment for compensation is passed.
[3] When passing a judgment on a fine, the penalty of imprisonment shall be
passed as an alternative penalty in the case of non-payment of the fine and if
the convicted person pays part of the fine, the alternative term of imprisonment
shall be shortened in proportion to the part paid of the total fine.
[4] Fine shall be remitted by death.
The fine, like imprisonment, is subject to the discretion of the court, and the first
paragraph of Article 34 has set criteria that the court will take into consideration
when imposing the penalty of a fine. The court must take into account the nature of
the crime, the material, moral and psychological effects that it entailed, and the
illegal gain that the offender achieved for himself. Then the financial condition of
the offender.
After issuing the penalty of a fine, the court may pass a judgment on all or part of it
to compensate the aggrieved party as a result of the crime, unless the court has
awarded him compensation independently according to the text of Article 204 of the
Code of Criminal Procedure.
If a prison sentence is imposed as an alternative punishment for non-payment of the

fine according to the text of Article 33 and the convict spends a period in prison in
implementation of the alternative punishment and then wants to pay an amount, the
fine shall be reduced in proportion to the prison period he has spent in
implementation of that alternative punishment.
92
If a person is sentenced to thirty days in prison for not paying a fine of 3000 pounds
and spent a week in prison for not paying the fine, if after that he wants to pay the
fine, then an amount will be deducted from it:
30000
× 7 = 7000 Which pays 30000 − 7000 = 23000 SDG
30
However, the fine in all cases, as a personal penalty, is remitted upon the death of
the convict.
93
Whipping
Article 35 Whipping stipulates:

[1] Save in Hudud offenses, no sentence of whipping shall be passed, upon a
person, who attained sixty years of age, or a sick person, whose life would be
endangered by whipping, or whose sickness would thereby be aggravated.
[2] Where the penalty of whipping is remitted, by reason of age, or sickness, the
offender shall be punished with an alternative penalty.
The punishment of whipping is based on combating the motives that call for the
crime. The motive that calls the adulterer to adultery is the suspicion of pleasure and
enjoyment of the ecstasy that accompanies it, and the motive that distracts a person
from pleasure is pain, and a person cannot enjoy the ecstasy of pleasure if he tastes
the touch of torment.
The punishment of whipping is also an inexpensive punishment for the public
treasury, and it does not have the negative effects of the prison sentence, because it
is a non-destructive punishment, so its expectation should not result in the death of
the convict, or the increase in disease on him, and it should not inflict on the old
man, who has reached the age of sixty, and in this cases, The court replaces the
penalty of whipping with another penalty stipulated by law.
It is noted that the punishment of whipping if it is for a hudud crime, is not remitted
regardless of the age of the convict, and it does not remit from the patient, so the
execution may be done until he is cured and imprisoned until then 42.
42
- See Article 194 of the Criminal Procedure Code of 1991.
94
Forfeiture and destruction
Article 36 Forfeiture and destruction stipulates:

[1] Forfeiture is the judgment vesting private property into the ownership of
the State, without consideration, or compensation.
[2] Destruction is the damaging of property, without consideration, or
compensation.
Forfeiture: It is a financial penalty that forcible forfeiture of money without return

and its addition to the property of the state. As a result of committing a crime,
whether stipulated in this law or in any other law, such as the customs law, goods
control, smuggling, and other special criminal laws, the forfeiture is usually free of
charge, but sometimes it is permissible to pay for that in customs cases by forfeiting
some goods for violating the customs law. The convict may also be compensated
with a portion of the money.
Forfeiture as a punishment: Confiscation is a punishment if it occurs on things that
are not permitted to be possessed or circulated, and it may be a complementary
punishment that is only judged against the accused in accordance with an original
punishment43.
Destruction: It is the destruction of money that is the subject of the crime without
compensation. This is like the extermination of liquor and hashish with all its
derivatives and other tools used in committing the crime, such as liquor-making
tools, counterfeiting tools, and others, and it is done without paying any
compensation because it is invaluable or illegal money or prepared for an illegal
purpose.
43
- See articles 50, 51, 52, and 53 of the Criminal Law of 1991.
95
Closing of premises
Article 37 Closing of premises stipulates:

The penalty of closing premises is the judgment prohibiting the use of premises,
or conducting in any way any business therein, for a period, not less than one
month, and not exceeding one year.
Article 129 of the Code of Criminal Procedure stipulates: “The Governor, or

Commissioner, whenever it has been proved to him, after conducting the
necessary inquiry, that any house or shop is operated to deal in liquor,
narcotics, psychotropics, gambling, or prostitution, may order eviction and
closure thereof, for a period, not exceeding one year”.
The local laws related to public order also stipulated the closure of the shop
whenever it was in violation of the laws regulating public health. The assumption is
that the owner of the shop abused it, by using it for illegal purposes, and it became
a den for practicing vice, for example. With this punishment, the legislator wanted
to deprive the offender of the benefit of the shop for a period of no less than a month
and not more than a year.
96
Pardon of the offense
Article Pardon of the offense stipulates:

[1] The execution of Hudud shall not be remitted by pardon.
[2] The execution of qisas shall not be remitted, save with the pardon of the
victim, or his relative.
[3] The execution of the Ta’azir penalty may be wholly, or partially remitted by
the pardon of the public authority, in accordance with the Criminal Procedure
Act, and without prejudice to the rights of any aggrieved person of the
pardoned offense in obtaining compensation.
The importance of dividing the crimes and then the penalties prescribed for them
into hudud crimes, retribution crimes, and ta'zir crimes in terms of remitting the
penalty or pardoning it:
[1] Hudud crimes:

Hudud crimes may not be remitted or pardoned at all, whether by the victim, his
guardian, or the head of the state. Therefore, Article [208/1] of the Criminal
Procedure Code of 1991 stipulated: (The head of state shall have the power to
remit conviction, or penalty, in otherwise than hudud offenses).
[2] Retribution crimes:

In retribution crimes, a pardon is permissible from the victim or his guardian. The
victim or his guardian may pardon retribution in exchange for blood money, and he
may also pardon blood money. This type of crime is determined by the victim or his
guardian, but if the victim is a minor and does not have guardians, he is the chief
state and guardian, then the head of state is his guardian. The legal rule is that the
Sultan is the guardian of the one who has no guardian. In this case, the head of state
may pardon in his capacity as the guardian of the victim and not in any other
capacity, provided that the pardon is not free. Therefore, Article [208/2] of the Code
of Criminal Procedure stipulates that: (Notwithstanding the provisions of sub-
section (1), the head of state shall not issue an order remitting conviction, or
97
penalty, in retribution offenses and the offenses in which the criminal suit is
compoundable, save after the consent of the injured person, or his guardians,
or after satisfying the adjudged right).
[3] Ta'zir crimes:

In the crimes of ta'zir, the head of state has the right to remit the conviction or
sentence or both, or to issue a comprehensive pardon for the offender, provided that
his pardon does not affect the purely personal rights of the victim. The remission of
the ta'zir penalty by a pardon from the public authority, whether totally or partially,
should not affect the rights of any victim of the pardoned crime to obtain
compensation.
98
Ta’azir penalty and evaluation
Article 39 Ta’azir penalty and evaluation stipulates:

The court shall, when determining the appropriate Ta’azir penalty and
evaluating it, take into consideration all the mitigating, or aggravating
circumstances, and in particular, the degree of responsibility, motives for the
commission of the offense, seriousness of the act, the grievousness of the injury,
the dangerous nature of the offender, his position and previous convictions and
all the other circumstances surrounding the incident.
The hudud penalties for which the Islamic Sharia has set penalties are among the
serious crimes that are distinguished by their non-differentiation in different times
and places, and it is not possible for a society in which security and tranquility
prevail unless there are fewer crimes in it in general, especially the crimes whose
punishments are stipulated in Islamic Sharia because they come on the foundations
of every good society, and fighting it preserves all the elements of society that live
and continue. The hudud crime is an assault on the right of God that He ordained
and appointed, and preventing people from committing it in order to protect virtue
and organize society.
The guardian does not leave the estimation of the upper limit for it, since it is in its
origin according to the estimation of God. It is not like retribution, because
retribution is limited by the crime itself, as its basis is equality between the harm
inflicted on the victim and the punishment inflicted on the offender.
As for punitive crimes, the law determines the penalties prescribed for the crime,
and its punishment is estimated with a maximum and a minimum, and the matter is
left in estimating what is between them to the judge’s jurisprudence in the case and
to the extent he deems appropriate in order to achieve their goal, which is reforming
the criminal. The law has enabled the judge to exercise his authority in an appropriate
manner, and it shows the controls in the light of which the judge can reduce the
penalty to less than the minimum or tighten it to more than the maximum. Therefore,
the judge must clarify in the penalty memorandum the reasons on which he relied in
tightening or reducing the penalty because this falls under the supervision of the
higher courts.
99
Government of Sudan v. Gabriel Mohamed Ibrahim 44
The facts of the case are summed up, in the open near the village of Saraf al-Ahmar,
which is affiliated to the Al-Qadarif Center, the accused followed the girl and made
full sexual intercourse with her by force. The news reached the residents of the
village, so the men went out to chase after him, and when they caught up with him,
they found him sleeping under the shade of a tree. The deceased hit him on the head
with an ax and then tried to stab him with a spear, but the accused grabbed the spear
and stabbed him once with the same spear and killed him.
The court found him guilty under Article 317 of the Penal Code, acquitted him of
the charge of intentional murder, and sentenced him to eight years in prison. The
convict requested a reduction of the sentence for family reasons, which he mentioned
in the clemency memo.
The aforementioned article punishes with imprisonment for fourteen years and did
not find a reason to justify inflicting the punishment to the degree it decided, for the
accused committed his crime with unparalleled boldness and assaulted the victim in
the open and at the sight of her friends, and all this indicates insolence and arrogance
that has no limit, and if you do not meet such Acts with the deterrent punishment
they deserve, people's honor will be lost on every arrogant, reckless young man.
Therefore, the appeals court rejected the request for clemency and even refused to
uphold the penalty and returned the case papers to the trial court to intensify the
penalty.
44
100
Multiplicity of offenses
and its effect on penalties
Article 40 The multiplicity of offenses and its effect on penalties stipulates:
[1] Where a single act constitutes more than one offense, the penalties shall
overlap and only one penalty, which is the greater shall be inflicted.
[2] Where offenses are multiple, all penalties therefor, except forfeiture, shall
be excluded by the death sentence passed for one of them.
Types of a plurality of crimes:

[1] The case of moral plurality:
It is that the offender conducts one criminal behavior, but it can be subject to more
than one legal description called plurality by description, because the legal
descriptions of criminal acts may overlap among them, due to the presence of
common elements in them between some crimes or some others. This overlap may
be between two crimes united in type or different in it.
Since this plurality is not real, but rather is a plurality of legal descriptions, i.e.
different names for one criminal behavior, the majority of legislators, including the
Sudanese criminal law, have agreed that the offender shall be punished with a
punishment of one description of the incident, which is its most severe description.
Forms of moral pluralism are the following:

[1] If a person shoots a specific victim with the intent to kill him, but the shot did
not hit him, but it hit another person unintentionally. It is from this deviation in the
goal that a felony of attempted premeditated killing arises with regard to the victim
intended to be killed, whose caliber was miscalculated, and a complete felony of
murder for the victim who has already died, and the case is a moral rather than a
material plurality.
[2] If the public servant commits the crime of alteration of a document stipulated in
Article 124 with the intention of embezzling public funds, which constitutes a crime
under Article [177/2] of this law. Since the penalty for alteration of a document is
not more than seven years and the penalty for breach of trust by a public official is
101
not more than fourteen years with a fine and death, the penalty to be applied in this
case is the penalty for breach of trust as the most severe penalty, which is death or
imprisonment not exceeding fourteen with a fine.
The judge is not obligated to sign the maximum penalty for the most severe
punishment. He may use his discretionary powers in accordance with the general
rules, and this leads to the right to impose the minimum penalty for the most severe
penalty, even if the penalty is less than the maximum limit for the crime with the
lightest description.
[2] The case of material or real plurality:

The rule in the legislation is that the penalties are multiplied by the number of crimes,
but the law clarifies the order to be followed in the implementation of freedom-
restricting penalties. Article 16 of the Code of Criminal Procedure stipulates: (The
court may inflict a number of the sanctions, which it is empowered to inflict,
upon any person convicted, in one trial, or two, or more offenses, subject to the
provisions of section [33/5], of the Criminal Act, 1991).
According to the text of the aforementioned Article 16, the court may impose the
penalty for each crime separately, and those penalties shall be applied sequentially
as a general rule unless the court stipulates in its decision that they shall apply
concurrently.
If a person is accused of a crime of theft, breach of trust, then criminal
misappropriation, and all these crimes are proven independently, the court may
impose a penalty for each crime and apply those penalties sequentially, provided that
the total of those penalties does not exceed the life imprisonment period according
to the text of Article [33/5]. Of this law and the term of imprisonment is twenty years
according to the text of Article [33/1/a] of this law.
However, if a person is sentenced to several penalties for several crimes, including

the death penalty, then the death penalty shall supersede all the penalties imposed,
except for forfeiture, because it is implemented in the matter for which the penalty
was issued. The legislator did not set any restriction for the multiplicity of the fine,
and it is enforced on the convict, regardless of their total.
102
Persistent offenders
Article 41 Persistent offenders stipulates:
[1] Where a person is convicted of any offence, which may be punished with
imprisonment, and has previously been convicted twice for similar offences, the
court shall punish him with imprisonment.
[2] Where a person is convicted of any offence, which may be punished with
imprisonment and has previously been sentenced with imprisonment twice, the
court shall punish him with imprisonment, and the court shall warn the
offender; and if after such warning the offender is convicted of any offence,
which may be punished with imprisonment, committed during his
imprisonment or during a year after his release, the court shall sentence him to
imprisonment, for a term, not less than the maximum penalty prescribed for
that offence.
Persistent offenders: It is the case of a person who commits a crime after being
finally sentenced for another crime. Thus, recidivism differs from the case of
multiple crimes in the previous article, where the criminal commits two or more
crimes before he is finally sentenced for one of them.
The wisdom of the severity of the punishment in recidivism is that the criminal who
returns to committing the crime after having preceded him in another crime is
evidence that the first punishment was not sufficient to deter him.
Conditions of persistent offenders:

[1] It is required that a final judgment has been issued against the person for
two crimes.
That is, the judgment has become final by exhausting all means of appeal.
[2] The two offenses for which the person was convicted must be similar.
That is, the crimes committed are similar to the condition of application of this text.
If the person had committed the crime of forgery and then the crime of theft, these
crimes are not considered similar, and therefore one of the conditions for the
application of this article is not met.
103
As for the second paragraph, it differs from the first paragraph in the
following:
[1] It is not required that the two crimes for which a person was convicted before the
third crime be identical, the condition is only that the person has been sentenced to
imprisonment for the two previous crimes.
[2] The court issues a warning to the person in the event that he commits a third
crime, of whatever type, that he will not commit any act that constitutes a crime after
that. The wisdom of warning is for a person to come to his senses and give up his
criminal tendency, with a sentence of imprisonment for the crime.
[3] But if he returns for the fourth time and commits any crime for which he may be
punished with imprisonment, the court shall sentence him to the maximum prison
sentence prescribed for that crime without any consideration of any circumstances
or reasons he presents to reduce the penalty, for the court here has deprived the
legislator of its discretionary power.
104
Dia (blood money)
Article 42 Dia (blood money) stipulates:

[1] Dia (blood money) is one hundred camels of different ages, or its equivalent
value in money as the Chief Justice may determine from time to time, after
consultation with the competent bodies.
[2] Dia of wounds (arsh) and “ghura” are determined as set out in Schedule II
hereto.
[3] Dia multiplies by the number of victims and not by the number of offenders
in the offense punishable therewith, and payment of dia shall be equally borne
by the offenders, if their participation is in the execution of a criminal
conspiracy between them, and in all other cases, dia shall be paid by each,
according to his participation in the offense.
[4] No other compensation shall be imposed alongside dia for homicide and
wounds.
[5] In case of homicide and wounds caused by negligence the amount of dia shall
be decreased proportionately to the offender’s participation in causing the
offense.
The source of Dia (blood money) in the Islamic system is not custom, and it comes
from the Qur’an and Sunnah.
ٌ ‫ه‬ ٌَ َ ْ َ ْ ََ ً َ َ ‫ْ ا‬ ََ ً َ َ َّ ‫ْ ا‬ َُْ َ ْ َ َ
‫ { َ َو َما كان ِل ُمؤ ِم ٍن أن يقت َل ُمؤ ِمنا ِإَّل خطأ ۚ َو َمن قت َل ُمؤ ِمنا خطأ فتح ِر ُير َرق َب ٍة ُّمؤ ِمن ٍة َو ِدية ُّم َسل َم ة‬:‫قالَ تعاىل‬
ُ َّ َ َّ ْ َ
.45}‫ِإ ٰىل أه ِل ِه ِإَّل أن ي َّصدقوا‬
The verse was translated into: }And never is it for a believer to kill a believer
except by mistake. And whoever kills a believer by mistake - then the freeing of
a believing slave and a compensation payment presented to the deceased's
family [is required] unless they give [up their right as] charity...{.
ٌ َ َ َ َ َ ٌ َ ‫السوط‬ ُ ‫الخطإ َق‬
َّ ‫تيل‬ َ َ ُ
‫اْلبل أربعون ِمنها خ ِلفة‬
ِ ‫والعصا مائة ِمن‬ ِ ِ ِ ‫ { قتيل ع‬:‫النب صىل هللا عليه وسلم‬
‫مد‬ ‫نقال ي‬
ُ
.}‫بطونها أوَّلدها‬
ِ ‫يف‬
45
- Surah An-Nisa, verse [92].
105
Prophet Muhammed ‫ ﷺ‬said in the Hadith: (The Dia for intentional homicide and
accidental -such as that inflicted with a whip or a stick- is a hundred camels,
forty of which are pregnant she-camels).
Dia (blood money) is an amount of money, and although it is a punishment, it is
entered into the victim’s money and does not enter the state’s treasury, in this
respect, it is similar to compensation, especially since its amount varies according to
the severity of the injuries and varies according to the perpetrator’s intentional and
non-intentional crime.
Amount of Dia (blood money):

The amount of Dia (blood money) as defined by this law is one hundred camels or
the equivalent of its value in money as determined by the Chief Justice because the
value of camels varies from time to time according to the economic situation,
financial policy, and the fluctuation of the currency value. The full blood money for
life was proven to be one hundred camels, according to the hadeeth:
ْ َ ‫ََ َا‬ ْ َّ ‫َ َ َّ ن‬
ِ ‫ {وأن ِ يف الن‬:‫النب صىل ليه وسلم‬
.}‫س الدية ِمائة ِمن ِاْل ِب ِل‬ ‫ف‬ ‫قال ي‬
Prophet Muhammed ‫ ﷺ‬said in the Hadith: }...that the bloodwit for a life is a
hundred camels...{.
Types of Arsh:
Estimated arsh: It is what the legislator specified its amounts, such as the arsh of
the hand and the foot.
Unestimated arsh: Amounts that are not evaluated and left at the discretion of the
judge.
Dia is obligatory by losing the benefit of the organ, such as by damaging the hands.
As for the arsh, it is obligatory to lose some of the benefits of the organ and not
others, such as damaging one hand and one finger, so the hand has arsh and the finger
has arsh. The organs for which blood money is obligatory are of four types:
[1] Unique body parts:
Nose - Tongue - Penis - Urinary tract - Feces tract - Skin - Scalp hair - Beard hair.
106
[2] Dual body parts:
Hands - Feet - Eyes - Ears - Breasts - Testicles - Labia - Buttocks - Jawbones.
[3] Quadruple body parts:
Eyelids - Eyelashes.
[4] Decuple body parts:
Feet fingers - Hands fingers.
Full Dia (blood money) is obligatory for the loss of an organ's function, such as the
mind, sight, smell, intercourse, and walking. The legislator specified the amount of
Dia (blood money) for assault crimes that do not rise to homicide, which is what is
called the estimated arsh for the wounds, so the legislator made it full Dia (blood
money) when one of the unique organs in the body is amputated.
What is obligatory for the full Dia (blood money)?

A full Diya is obligatory instead of retribution (Qisas) for crimes committed whether
intentionally or by mistakes if the function of the part was paralyzed, either through
amputation or maiming or crippling its sensibility without altering its form. And
parts obligatory for full Dia (blood money) according to the first schedule of this
code are:
[1] Unique body organs:

Nose: If it was entirely amputated or from the tip then the Dia (blood money) is
obligatory.
ْ َ ٌَ َُ ُ ُ ْ َ َ ُ َ َْ ْ ‫َ ن‬
.}‫ب جدعه الدية ِمائة ِمن ِاْل ِب ِل‬ ‫وع‬
ِ ‫ف إذا‬
‫أ‬ ِ ‫ {و ِ يف اْلن‬:‫النب عليه الصَلة والسَلم‬
‫قال ي‬
Prophet Muhammed ‫ ﷺ‬said in the Hadith: {… that for the complete cutting off of
a nose the blood wit of a hundred camels must be paid}.
In addition, the nose includes both nostrils and the septum between them, and the
bridge is estimated in the Dia (blood money) according to scholars including Shafii.
And both sides as well as the septum of the nose a third of the Dia (blood money)
each.
107
Tongue: tongue of the speaker is obligatory for Dia (blood money)
َُ َ ِّ ‫َ ن‬
ِ ‫ {و ِ يف اللس‬:‫النب عليه الصَلة والسَلم‬
.}‫ان الدية‬ ‫قال ي‬
Prophet Muhammed ‫ ﷺ‬said in the Dia Hadith: {… And Dia is required for a
Tongue}.
The tongue of a mute, however, is only obligatory for unestimated arsh according to
Malki, Shafi, and Hanafi scholars, Hanbali scholars, however, believe that it is
obligatory for a third of a Dia (blood money). As for a child's tongue in the pre-
talking period is obligatory for a Dia (blood money) according to most scholars
except Abu Hanifa.
Penis: Penis, as well as glans, is obligatory for Dia
ُ َّ ‫ن‬
.}‫كر الدية‬
ِ ‫الذ‬ ‫وف‬
‫النب صىل هللا عليه وسلم { ي‬
‫قال ي‬
Prophet Muhammed ‫ ﷺ‬said in the Dia Hadith: {… that full blood wit must be paid
for the penis}.
As for castrated penis as well as men unable to have intercourse is obligatory for un-
estimated arsh according to Hanafi and Hanbali, but a full Dia according to most
Shafi and Malki. As for the urinary and feces tracts, a full Dia is obligatory.
Flayed Skin: According to Shafi a full Dia if the skin hasn’t recovered but the life
of the person in question was not in danger because of that, or if he died due to an
unrelated cause. According to Malki a full Dia if the skin was damaged, whitened,
or blackened. According to Hanbali and Hanafi an un-estimated arsh, but Hanafi,
scholars elaborate further that flaying the skin of a face is obligatory for a full Dia.
Removing hair from the head, beard, or eyebrows: If it does not sprout, then
blood money is obligatory according to the Hanafis and Hanbalis, but according to
the Malikis and Shafi’is, it is obligatory in all of them an un-estimated arsh.
[2] Dual body organs:

When two or one of the dual parts are cut off, if this results in the loss of their
function or one of them, then the Dia (blood money) is :
The hands: If they are cut off from the wrist or the shoulder, then the Dia (blood
money) is obligatory.
108
َُ ‫َ ن‬
.}‫اليدين الدية‬
ِ ‫ {و ِ يف‬:‫النب صىل هللا عليه وسلم‬
‫قال ي‬
Prophet Muhammed ‫ ﷺ‬said in the Dia Hadith: {that full blood wit must be paid
for the hands...}.
The Feet: In the two feet the blood money is paid, and in one foot is half the blood
money.
َ َ ْ ‫َ ن‬
.}‫ {و ِ يف الرج ِل خ ْم ُسون‬:‫النب صىل هللا عليه وسلم‬
‫قال ي‬
Prophet Muhammed ‫ ﷺ‬said in the Dia Hadith: {... for a foot fifty...}.
The Eyes: They both have Dia (blood money).
ُ َ
‫العين ر ن‬ ‫ن‬
.}‫ئ الدية‬ ‫ { ي‬:‫النب صىل هللا عليه وسلم‬
‫وف‬ ‫قال ي‬
Prophet Muhammed ‫ ﷺ‬said in the Dia Hadith: {...that full blood wit must be paid
for the eyes...}.
The ears: the Dia (blood money) is obligatory in them and in one-half the blood
money.
ْ َ َ َ ُ ‫َ ن‬
.}‫ذن خ ْم ُسون ِمن ِاْل ِب ِل‬
ِ ‫اْل‬ ‫ {و ِ يف‬:‫النب صىل هللا عليه وسلم‬
‫قال ي‬
Prophet Muhammed ‫ ﷺ‬said in the Dia Hadith: {...and for an Ear fifty camels...}.
The Lips: They both have Dia (blood money), in each lip, half the Dia (blood
money), upper or lower, small or large.
ُ ‫الش َف َت ْر ن‬
َّ ‫ن‬
.}‫ئ الدية‬ ‫{ ي‬:‫النب صىل هللا عليه وسلم‬
Prophet Muhammed ‫ ﷺ‬said in the Dia Hadith: {... that full blood wit must be paid
for the lips...}.
The breasts and nipples of the woman: They include the blood money, and in one
of them is half the blood money, because there is beauty and benefit in them. Ibn Al-
Mundhir said: The scholars unanimously agreed that in a woman’s breast is half the
blood money, and in the breasts the blood money is full. Imam Malik requires that
in order to obtain the blood money for the nipples, the milk was cut off or spoiled,
if it is not cut off or spoiled, it must be un-estimated arsh. As for the breasts, they
have blood money, whether the milk is cut off or not.
The Testicles: have full blood money.
ُ َ
‫البيضت ر ن‬ ‫ن‬
.}‫ئ الدية‬ِ ‫ { ي‬:‫النب صىل هللا عليه وسلم‬
109
Prophet Muhammed ‫ ﷺ‬said in the Dia Hadith: {... that full blood wit must be paid
for the testicles...}.
The Labia: In both of them, the blood money is full, and in one of them is half the
blood money.
The Buttocks: the blood money is full according to the Hanafis, Shafi’is, and
Hanbalis, and in one of them is half the blood money.
The jawbones: include the full blood money according to the Shafi’is and Hanbalis,
and they are the two bones that have teeth and in one of them is half of the blood
money because they are both useful and beautiful.
[3] Quadruple body organs:

The eyelids: according to the majority of scholars, have Dia (blood money), and in
each eyelid is a quarter of the Dia (blood money), because it contains apparent beauty
and complete benefit. The Malikis see that there is an un-estimated arsh because
there is no text in it.
The eyelashes: According to the Hanafis and Hanbalis, the blood money is due to
them, because the eyelashes are attached to the eyelids like the nipple and the fingers
with the palm.
[4] Decuple body organs:

These are the fingers of the hands and the fingers of the feet, and in each finger, there
is a tenth of the blood money according to the agreement of the four schools. And a
finger is not preferred over a finger.
ْ َ ٌ َْ َ ْ َ َ ْ َ ْ ُ ُ ‫ن‬
.}‫ش ِمن ِاْل ِب ِل‬‫ { َو ِ يف كل أ ْص ُب ٍع ِمن أ َص ِاب ِع الي ِد والرج ِل ع‬:‫النب صىل هللا عليه وسلم‬
‫قال ي‬
Prophet Muhammed ‫ ﷺ‬said in the Hadith: {...for each finger and toe ten camels...}.
And in the extra or paralyzed finger, un-estimated arsh.
The teeth: As for the 32 teeth, they contain blood money.
ْ َ ٌ ْ َ ‫ن‬
.}‫س ِمن ِاْل ِب ِل‬ ‫ { َو ِ يف السن خم‬:‫النب صىل هللا عليه وسلم‬
‫قال ي‬
Prophet Muhammed ‫ ﷺ‬said in the Hadith: {...and for tooth five camels...}.
110
As for the extra age, there is an un-estimated arsh. The second schedule attached to
the law stipulates that the blood money is to be paid in full when all the teeth are
gone. The blood money in one tooth is half a tenth.
Wounds:
What was in the rest of the body except for the head and face, which are of two types,
Ja'ifa, and Non- piercing. The compensation for a bodily injury is as follows:
Ja'ifa: This creates a Piercing wound into the thoracic or abdominal cavity.
Non-Piercing: The one that does not reach the cavity.
Al-Shijaj [Fracture]: These are head and facial wounds in particular. Dia, for
fractures, shall be as follows:
1
a) Dia for “A’mma”, which reaches the brain cortex, one-third .
3
1
b) Dia for “Damigha”, which reaches the brain, one-third .
3
3
c) Dia for “Nagila”, which dislocates the bone, three one-tenth .
10
1
d) Dia for “Hashima”, which smashes the bone of the head, or face; one-tenth .
10
1
e) Dia of “Muadiha”, which exposes the bone, half one-tenth .
20
The penalty for intentional wounds:

Original punishment in the case of intentional wounds is retribution, and there is no
retribution in the Ja'ifa and the A’mma because it is feared that will cause death, but
the blood money is in both, and with the exception of the Ja'ifa, the jurists differed.
[1] The Hanafi doctrine: There is no retribution for any wound if the injured person
does not die, whether the wounds were Ja'ifa or otherwise because it is not possible
to fulfill the retribution on the basis of similarity. If the injured person died because
of the wounds, then must fulfill retribution.
[2] The Malikis: Retribution is obligatory for intentional wounds, whenever possible
similarity and death are not feared according to verse:
111
َ ُ ُ ْ َ
ٌ ‫وح ق َص‬
.46 }...‫اص‬ ِ ‫وٱلجر‬...{ :‫قال هللا تعاىل‬
The verse was translated into: {...and for wounds is legal retribution...}.
That is for medical professionals to measure the length, width, and depth of the
wound, and cut its size into the offender.
[3] Shafi’is and Hanbalis: It is cut short for every wound that ends in a bone, such
as the one shown on the face, head, humerus, forearm, thigh, leg, and foot, because
it can be fulfilled by similarity without unfairness or addition, because it ends up in
a bone, and because God has stipulated retribution for wounds.
However, if it is not possible to carry out retribution in the wounds because it is not
possible to achieve the similarity, then the arsh shall be obligatory.
Felony on fetal or abortion:

[1] The case of the fetus being delivered dead:
If the fetus is delivered dead from his mother, the penalty for the offender is the
blood money for the fetus, the blood money for the fetus, male or female,
intentionally or by mistake, or otherwise, is valued at five camels, i.e. half a tenth of
the blood money.
The evidence for it is several authentic hadiths, including what was narrated by Abu
Hurairah said:
‫ن‬ ََْ َ َ َ َ ُْ ُ ْ ْ َ ْ َ ُ َ َََ ْ
‫ ف َر َمت إحداهما اْلخ َرى بحج ٍر فقتلتها وما يف‬،‫ان ِمن هذي ٍل‬ ِ ‫ (اقتتل ِت ْام َرأت‬:‫رض هللا عنه‬ ‫ي‬
‫قال أبو هريرة ن‬
َّ َ َ ٌ َ ْ ٌ ْ َ ٌ َّ ُ َ َ َ َّ َ‫ه َ َ َ ن‬ ُ ‫َ ه‬ ُ َ َ ْ ْ َ
‫ وق نض أن‬،‫وليدة‬ ِ ‫ عبد أو‬،‫ فقض أن ِدية ج ِن ِينها غرة‬،‫النب صىل هللا عليه وسلم‬ ‫ َفاخت َصموا َإىل ي‬،‫ب َطَ ِنها‬
.)‫عاقل ِتها‬ َْ
ِ ‫ِدية المرأ ِة عىل‬
(That two women of Hudhail fought together and one of them threw a stone at
the other killing both her and what was in her womb. Then God’s Messenger
gave judgment that the blood wit for her unborn child should be a male or
female slave of the best quality, he gave judgment that the woman responsible
for blood wit should pay her blood wit, and he made her sons and those who
were with them her heirs).

46
112
[2] The case of the fetus being delivered alive:
If the fetus is delivered alive and then dies intentionally as a result of the felony, is
retribution required from the offender?
The Malikis said: The most probable view is that retribution is required if the act
usually leads to death, such as hitting the abdomen or back. The blood money is only
required, and not the Ghurra if the act often does not lead to a result, because if the
fetus started crying, becomes one of the living beings, and there is no Ghurra. This
is what the Sudanese legislature has taken, according to the doctrine of Imam Malik:
“Dia of a fetus, when miscarried and died, full”47.
The Hanafis and the Shafi’i Hanbalis said: The felony against the fetus is not
intentional, but rather semi-intentional or mistaken because the existence and life of
the fetus are not realized until it is intended, so the blood money is obligatory in full,
and the offender does not inherit anything from it, and Dia shall be multiple with a
multiplicity of fetuses.
The blood money is multiplied by the number of victims, but it does not multiply by
the number of perpetrators in the crime that necessitates it. This is what is stipulated
in paragraph 3 of Article 42. The blood money is distributed to all perpetrators, and
each of them pays his share of it under the provisions of Article 21 of the Criminal
Code (Joint acts in the execution of criminal conspiracy). The victim may not obtain
any compensation other than blood money for murder or wounds, even if he is
entitled to compensation for the damages resulting from the crime, in accordance
with the provisions of Article 46 and also the provisions of Article 157 of the Civil
Transactions Law of 1984.
Paragraph 4 states "No other compensation shall be imposed alongside dia for
homicide and wounds". Blood money is compensation for the psychological pain
that afflicts the victim, so it is compensation for a kind of moral damage that afflicts
the person, but it is the compensation of a specific amount and has special provisions.
It is differentiated from civil compensation, as it includes removing the harm caused
to a person, whatever it was, whether material or moral, in which the damage must
be proven and it is subject to the discretion of the judge.
The amount of blood money in accordance with paragraph 5 of Article 42 is reduced
by the percentage of the victim's participation in causing the crime.
47
- See the second schedule attached to the Criminal Code of 1991.
113
Judgment of dia
Article 43 Judgment of dia stipulates:

[1] The court shall pass judgment of dia in accordance with Schedule II hereto,
in any of the following cases:
(a) In murder and intentional wounds, if retribution (qisas) is remitted;
(b) In semi-murder and semi-intentional wounds;
(c) In homicide and wounds caused by negligence;
(d) In homicide and wounds caused by a minor, or indiscriminate person.
Dia (blood money) is divided into two parts:

[1] Dia (blood money) is obligatory from the beginning:
The Dia that was obligatory in the beginning is the blood money for the mistake. In
the mistake it obligatory Dia (blood money) and does not obligatory retribution.
[2] Dia (blood money) is obligatory instead:
The blood money is to be in lieu of retribution. And it is in three cases:
i. That the blood guardian or the victim accepts blood money instead of retribution.
This is what the Holy Qur’an referred to:
.48}...‫وف‬ ُ ْ َ ْ ٌٍۢ َ َ ٌ ْ ََ ‫ف َل ُهۥ م ْن َأخيه‬
َ ‫ َف َم ْن ُع ِ ن‬...{ :‫قال تعاىل‬
ِ ‫شء فٱتباع ِبٱلمعر‬ ِ ِ ِ
The verse was translated into: (...But if the killer is forgiven by the brother (or
the relatives, etc.) of the killed against blood money, then adhering to it with
fairness and payment of the blood money, to the heir should be made in
fairness...).
ii. That it is not possible to fulfill the retribution (qisas) in the limbs.
iii. To be a doubt (shubha) that prevents retribution.
The court shall also order blood money for murder and injuries caused by a non-
adult or a person who has no discernment.
48
114
To whom dia is due
Article 44 To whom dia is due stipulates:

Dia is due originally to the victim, and then passes on to his heirs, according to
their shares in inheritance, and where the victim has no heirs, dia shall vest in
the state.
It is noted that the legislator required proof of blood money for the victim, the first
person who owns the blood money is the victim who was harmed by the felony then
his heirs inherit it, and then the state in the absence of an heir.
[1] Victim:
Full Dia (blood money) is required in many cases other than the case of murder, such
as the removal of functions such as the mind, hearing, and sight, and when cutting
two or one of the marital limbs if this results in the loss of their function. In all these
cases, the full Dia (blood money) is a pure right of the victim that no one shares with
him, and he is the only beneficiary of this Dia (blood money) and arsh as long as he
does not die.
[2] Legal heirs:
If the victim is killed, his money will pass to his legal heirs, each heir has his share
of the Dia (blood money) according to the ordinances of God, except for the
murderer, who does not inherit from the murdered, in implementation of what The
Messenger of Allah )‫ (ﷺ‬said:
ُ
.}‫{القات ُل َّل َي ِرث‬
ِ : ‫النب صىل هللا عليه وسلم‬
‫قال ي‬
Prophet Muhammed ‫ ﷺ‬said in the Hadith: {The killer does not inherit}.
[3] The state
This is because the state is the inheritor of the one who has no heir, and it pays his
blood money in the event that there is no clan (aqila) for him or their inability to pay
the blood money, in the application of the words of the Messenger of Allah
ُ َ ُ َ ُ َ َ ُ َ
.}‫عقل ل ُه وأرث ُه‬ ‫ أ‬،‫وارث من َّل وارث له‬
ِ ‫نا‬ ‫وأ‬ { :‫النب صىل هللا عليه وسلم‬
‫قال ي‬
Prophet Muhammed ‫ ﷺ‬said in the Hadith: {I am the heirs of him who has none,
paying blood-wit for him and inheriting from him}.
115
Persons on whom dia is due and
mode of collection therefrom
Article 45 Persons on whom dia is due and mode of collection therefrom
stipulates:
[1] Dia shall be due upon the offender in offences of murder or intentional
wounds.
[2] Dia shall be due upon the offender and his clan (aqila) in offences of semi-
intentional and negligent homicide and wounds.
[3] Clan (aqila) includes the paternal relatives of the offender, or his insurer,
persons who are jointly liable with him, and his employer financially if the
offence is committed during the course of his employment.
[4] The dia of murder or intentional wounds, shall be immediately due, and may
be postponed, or paid in instalments with the consent of the victim or his
relatives, and the dia of semi-murder or homicide caused by negligence, may
immediately be due or paid by instalments, and the person responsible for the
dia shall produce the necessary guarantee if requested by those entitled thereto.
[5] Dia shall be collected, in accordance with the provisions of the civil
procedure Act.
[1] Who is obligated to pay blood money for intentional crimes such as murder
or wounds?:
The one who is obligated to pay the blood money in the intentional crimes of murder
or wounds The scholars have agreed that the blood money for intentional murder is
obligatory for the murderer with his money alone, and the family does not bear it
because the basic principle in every person is that he asks about his personal actions
and no one else is asked about it.
.49}‫ئ‬ َ ‫ {… ُك ُّل ْامرئ ب َما َك َس‬:‫قال هللا تعاىل‬
ٌ‫ب َره ن‬
‫ِر‬ ِ ٍ ِ
The verse was translated into: {... Every person, for what he earned, is retained}.
49
- Surah At-Tur, verse [21].
116
ْ ُ ْ ٌ َ َ ََ
.50}…‫ {وَّل ت ِز ُر و ِاز َرة ِوز َر أخ َر ٰى‬:‫قال هللا تعاىل‬
The verse was translated into: {And no bearer of burdens will bear the burden of
another...}.
As for the blood money for premeditated killing issued by the child or the insane,
the Hanafis, Malikis, and Hanbalis said that it is on his family, and they say that the
child was intentional and his mistake is equal.
[2] Who is obligated to pay blood money for semi-intentional crimes?

Blood money is obligated to the offender and his clan (aqila) in semi-intentional
crimes. Al-Shafi’i said, the killer does not enter with them, but his clan (aqila) bears
it all without the killer. The blood money is obligatory on the offender initially, then
it is transferred from him to his clan (aqila) in order to relieve and support him. And
because preservation of the killer is in fact a duty to his family, if they do not
conserve him, they have neglected him, and this neglect requires them to bear the
consequences of his sin, and this is the opinion of Abu Hanifa and Malik and Ahmed.
Therefore, we see the text of Article [45/2] consistent with Islamic Sharia. The
Sudanese legislator bears the offender and his clan (aqila), the blood money together,
and this is the doctrine of Imam Abu Hanifa and Malik and Ahmed.
[3] The clan (aqila):

According to the text of Article [45/3], the clan (aqila) includes the paternal relatives
of the offender. The paternal relatives are the relatives by the father who is given
blood money for semi-intentional and negligent homicide.
The majority of jurists from the Maliki, Shafi’i, and Hanbali said, the clan is the
relatives of the murderer through the father, and they are the relative kinship like the
brothers from another mother and the uncles, without the people of the Diwan 51.
50
- Surah Fatir, verse [18].
51
- People of the Diwan: They are the army whose names are written in the Diwan.
117
[4] Fulfill the blood money:
Paragraph 4 of Article 45 stipulates that blood money is obligatory for intentional
murder or wounding, provided that it is paid immediately. And it is not permissible
to postpone it, but if the victim or the blood guardians agree to pay it in installments
or delay its payment, then it is permissible.
As for the semi-intentional or mistake blood money, it may be paid immediately and
may be in installments. In this case, the person obligated to pay the blood money
must present a guarantor accepted by the victim or his guardians to ensure its
fulfillment.
[5] How to fulfill the blood money:

According to Paragraph 5 of the same article, the ruling for blood money is a civil
right (compensation), which the legislator decreed that it be obtained in accordance
with the provisions of the Civil Procedures Law of 1983.
118
Restitution of property or
benefit or compensation
Article 46 Restitution of property or benefit or compensation stipulates:

The court shall, upon conviction of the accused, order the restitution of any
property, or benefit obtained by the offender, and it may, on application by the
victim or his relatives, order compensation for any injury resulting from the
offense, in accordance with the provisions of the Civil Transactions and
Procedure Acts.
Article 3 defines Injury: as "means any hurt illegally inflicted upon a person in
body, mental or psychological, health, honor, property, or reputation".
The same article defines Offense: "Includes every act punishable under the
provisions of this Act, or any Act".
Since the convict does not have the right to benefit from the proceeds of his crime
and thereby achieve a benefit for himself or harm to others, the court must remove
the effects of the harmful crime, depriving the convict of the benefit he obtained and
also removing the harm from the victim of the crime, and this matter is obligatory
and not permissible. The permissible part of the article is responding to the request
of the victim or his guardians in order to award them or him compensation.
The judgment for compensation for each direct personal injury is distinct from the
social harm that befalls the community from committing the crime.
119
Measures prescribed for juveniles
Article 47 Measures prescribed for juveniles stipulates:

[1] The court may apply the following measures, against an accused juvenile,
who has completed seven years of age, at the time of committing the criminal
act, but not eighteen years of age:
(a) Reprimanding, during the sessions in the presence of his guardian;
(b) Whipping, not exceeding twenty lashes, by way of discipline;
(c) Handing over the juvenile, to his father, or any other trustworthy person,
after undertaking to properly look after him;
(d) Placing the juvenile, under social supervision, for a period, not less than one
year, and not exceeding two years;
(e) Sending him to be detained in any of the reformation and social welfare
institutions, for the purpose of reforming and educating him, for a term not less
than two years, and not exceeding five years.
If a minor who is more than seven years old and less than eighteen years of age
commit a crime, he may not be inflicted with one of the ordinary penalties, but the
judge shall pass judgment by one of the methods set forth in Article 47. The judge
chooses either a reprimand in the presence of his guardian at the hearing, or whipping
as a disciplinary measure, not exceeding twenty whipping, or handing over the
juvenile to his father or any trusted person after undertaking to take good care of
him. It is noted that the corrective penalties for juveniles are lighter than ordinary
penalties.
It is based on this that the ruling on sending the juvenile to correctional and care
institutions is lighter than ruling him with imprisonment or a fine because the
purpose of sending the juvenile to the correctional institution is to discipline, and
care to restore his social balance, modify his behavior and combat early criminal
tendencies in the young. Also, sending a juvenile to care and reform institutions is
only in the case of the juvenile committing serious crimes, and it is not permissible
in any case to keep him for more than five years or less than two years during which
he acquires a profession or craft or obtains a degree of education that helps him in
his life to follow the right path.
120
Measures prescribed for the elderly
Article 48 Measures prescribed for the elderly stipulates:

Without prejudice to the implementation of Hudud penalties and the provisions
relating to retribution (qisas), the court may where it sees fit after the conviction
of an elderly who has attained seventy years of age, take the following measures:
(a) Handing the elderly over to his relative or any trust-worthy person, after
undertaking to properly look after him;
(b) Expatriation for a term no exceeding that of imprisonment prescribed for
the offense;
(c) Consigning him to any of the reformatory and social welfare institutions, for
a period not exceeding two years.
In the text of Article 48, the legislator equated the old man (Al-Sheikh) who has
reached the age of seventy with the juvenile who has reached the age of seven and
has not yet reached the eighteenth, in terms of the measures taken against him, even
though the old man (Al-Sheikh) is qualified to bear criminal responsibility.
This is because, usually, if a person reaches a certain age, such as seventy, his mental
faculties often weaken in terms of perception, so he becomes more like a juvenile
because criminal responsibility lies with the mind. However, the legislature
considered the old man (Al-Sheikh) at this stage to have become after the knowledge
that he does not know anything
َّ َ ْ َ َ َ َ َ ْ َ ُ ُ ْ َ ْ َ ٰٓ َ ُّ َ ُ َّ ُ َ ْ ُ ٰ َّ َ َ َ َّ ُ ْ ُ َ َ َ ُ ‫َ ه‬
‫َك َّل ي ْعل َم ب ْعد ِعل ٍ ٍۢم ش ْي ًٔـا ۚ ِإن‬ ‫ {وٱَّلل خلقكم ثم يتوفىكم ۚ و ِمنكم من يرد ِإىل أرذ ِل ٱلعم ِر ِل‬:‫قال هللا تعاىل‬
َ ٌ َ َ‫ه‬
.52}‫يم ق ِد ٌير‬‫ٱَّلل ع ِل‬
The verse was translated into: {It is Allah who creates you and takes your souls
at death; and of you, there are some who are sent back to a feeble age, so that
they know nothing after having known (much): for Allah is All-Knowing, All-
Powerful}.
Therefore, the old man (Al-Sheikh) reaching this age was considered a reason for
mitigation, with the exception of hudud and qisas crimes.
52
- Surat Al-Hajj, verse [5].
121
Measures prescribed for
persons of unsound mind
Article 49 Measures prescribed for persons of unsound mind stipulates:

The court may, if satisfied that the accused does not appreciate his acts by
reason of mental or psychological disease, order his detention in any of the
institutions designated for the treatment of mental or psychological diseases,
and it may entrust him to the care of his relative, or any trustworthy person,
after undertaking to properly look after him.
Maturement requires the mind as it requires puberty. If it is proven to the court that
the accused is unconscious, that is, he does not realize the nature of his actions, then
he is not considered to have committed the crime of Article 10 Nevertheless, it poses
a danger to society and in order to protect the accused from himself and to remove
the danger from society and achieve his safety, the legislator decided to put certain
measures to be taken against the mentally ill person.
The court may order his admission to one of the clinics or treatment institutions, and
it may also hand him over to his family to take care of him, provided that they
undertake to do so before the court.
122
First Schedule
Limbs and Wounds for which there is Retribution
1- A sighted eye, where wholly pulled out.
2- The nose, up to the tip.
3- A sound ear, hearing is immaterial.
4- A lip, where wholly severed, part thereof is immaterial.
5- A tooth, where the competent medical body decides that no alternative,

therefore, is expected.
6- The tongue, where wholly severed.
7- A hand, where severance is from a joint, and the victim shall have the dia
of the part exceeding the joint, in case of excess.
8- A foot, for which the provisions of the hand shall apply.
9- Fingertips, fingers, toe tips, and fingers and toes of hands and feet, where
severance is from a joint.
10- The penis, where wholly severed, or severance is from the glans.
11- The testicles, and one shall be taken, for its counterpart; on condition of
guaranty of the soundness of the other.
12- Exposing wounds, which such as end with a bone.
123
Second Schedule
Dia
1- Dia shall be full for murder.
2- Dia, for wounds, shall be full in the following cases:
(a) Upon severance of one of the unilateral limbs of the body;
(b) Upon severance of two of double limbs, or one thereof, where the same
results in the loss of the function of both;
(c) All the fingers of both hands, or toes of both feet;
(d) Upon loss of the functions of the brain, senses and limbs;
(e) Upon loss of all the teeth.
𝟏
3- Dia, for wounds, shall be half in the following cases:
𝟐
(a) Upon loss of one of the double limbs;
(b) Upon loss of function of one of the double limbs.
𝟏
4- Dia, for wounds, shall be one-tenth , upon loss of a finger or toe half one-
𝟏𝟎
𝟏
tenth , upon loss of the tip of the thumb, or big toe, and one-third of one-
𝟐𝟎
𝟏
tenth , upon loss of one tip of the other fingers and toes.
𝟑𝟎
𝟏
5- Dia, for wounds, upon loss of a tooth, half one-tenth .
𝟐𝟎
6- Dia, for body wounds, shall be as follows:
)a) Ja’ifa”, which results in wound piercing up to the chest, or abdominal
𝟏
cavity, one-third .
𝟑
)b) Where a “Ja’ifa” pierces through to the other side, the same shall be
𝟐
deemed two Ja’ifas, and for them, there are two-thirds .
𝟑
7- Dia, for fractures, shall be as follows:
𝟏
a) Dia for “A’mma”, which reaches the brain cortex, one-third .
𝟑
𝟏
b) Dia for “Damigha”, which reaches the brain, one-third .
𝟑
𝟑
c) Dia for “Nagila”, which dislocates the bone, three one-tenth .
𝟏𝟎
d) Dia for “Hashima”, which smashes the bone of the head, or face; one-tenth
𝟏
.
𝟏𝟎
𝟏
e) Dia of “Muadiha”, which exposes the bone, half one-tenth .
𝟐𝟎
8- Dia for a fetus, shall be as follows
(a) Dia of a fetus, where miscarried and died, full.
𝟏
(b) Dia of a fetus, where miscarried dead “Ghurra”, half one-tenth .
𝟐𝟎
(c) Dia shall be multiple with a multiplicity of fetuses.
124

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Mahgoub Gamal El-Din Mahgoub Hamid

Crimes on money: whether movable or immovable, tangible or intangible.

Article 2 Repeal stipulates:

Article 3 Interpretation and explanations stipulate:

Article 4 Retrospective effect of the Act stipulates:

What is the beneficial law to the accused?

[2] After the final judgment:

[3] Hudud crimes:

Article 5 Offenses committed within Sudan stipulates:

If a crime occurs in Sudan, it is subject to the Sudanese criminal law, without

[3] Air Territory:

Ships and aircraft flying the state flag:

Conditions of application of the text:

Extradition of the fugitive from one country to another for trial:

The Ministry of Justice v. Mubarak Al-Hadi Muhammad1

.‫م‬1992/22 / ‫ط أ س‬/ ‫ م ع‬-1

Article 8 Basis of criminal responsibility stipulates:

Article 9 Act of a child stipulates:

Elements of using insanity as a defense:

Government of Sudan v. Ahmed Al-Obeid Saghiroun

Partial defense of insanity in the crime of murders:

Contemporary insanity rule for the crime:

Rule of insanity before judgment:

Rule of insanity after the judgment:

The insanity stops execution on two grounds:

Epilepsy and hysteria:

The position of the criminal law towards drunkenness as a barrier to

It was decided in implementation that in the case of:

Government of Sudan v. Euwrba Modua 4

Government of Sudan v. Deng Mangwen 5

Government of Sudan v. Hassan Al-Sayyad 6

It is clear from these precedents that voluntary drunkenness is not accepted as a

Article 11 Performance of duty and exercise of right stipulates:

[1] There must be discretion authority:

When is public servants' work illegal?

Exercise of personal rights in law:

Right to discipline a minor:

The right of a husband to discipline his wife:

Right to conduct medical works:

Elements of the right of self-defense:

 Conditions of the assault:

 We will talk about the conditions of the assault:

Government of Sudan v. Al-Amin Kajo Humis 8

Government of Sudan v. khatam Mohamed Hassan 9

Government of Sudan v. Mohamed Hamza Abdullah 10

We will talk about the conditions of the defense:

[2] It must be proportional to the assault:

Government of Sudan v. Taha Harun Ibrahim 11

Causing death in self-defense:

Government of Sudan v. Antar Mahmoud 12

[2] Permissibility to cause death in defense of money:

Article 13 Compulsion stipulates:

Types of compulsion in Islamic law:

Conditions of compulsion in Islamic law:

Offenses not affected by compulsion:

Elements of compulsion in law:

Article 14 Non-voluntary acts stipulates:

Elements of force majeure and sudden illness: