Appeal
in Cassation No. 673 of 2019 Penal
Court
Panel: Presided by Judge Mohammed Abdul Rahman Al Jarrah - Chief Judge of the
Circuit - with the membership of judges Mohammed Ahmed Abdul Qader and Abdul Hak
Ahmed Yammine.
Description
of the accusation. Trial Court “its authority in changing the description
of the accusation”. “Qualitative” jurisdiction. Judgment
“valid causation.” Reversal “of the non-accepted
grounds”.
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The Court does not adhere to the legal description made by the Public
Prosecution concerning the act assigned to the Defendant and does not
adhere to the indictment of the Articles of the Law that the Public Prosecution
had requested the punishment of the Defendant thereunder. However, by looking at
the reality of the incident as stated in the documents, it adhered to the
material incident stated in the indictment report.
-
The rules regulating the Court’s jurisdiction to settle a specific type of
crimes. Result. Proof of jurisdiction of this Court to settle these crimes. When
it is proved in the facts that the material incident of this crime stated in the
indictment report does not fall within its jurisdiction. Ruling
non-jurisdiction.
Whereas
it is prescribed, in the jurisdiction of this Court, that the Court does not
adhere to the legal description made by the Public Prosecution concerning the
act assigned to the Defendant and does not adhere to the indictment of the
Articles of the Law that the Public Prosecution had requested the punishment of
the Defendant thereunder. However, by looking at the reality of the incident as
stated in the documents, it adhered to the material incident stated in the
indictment report. Whereas it is prescribed that the rules governing the
jurisdiction of the Court to adjudicate a specific type of crimes, shall prove
jurisdiction of such Court to decide on these crimes, and when it is proved in
the facts that the material incident of the crime stated in the indictment
report does not fall within its jurisdiction, then it shall rule
non-jurisdiction.
Therefore,
whereas the contested judgment had confirmed the appealed judgment and ruled
non-jurisdiction and return of the documents to the Public Prosecution, to refer
the case to the Misdemeanour Court, after considering that the victim is a
doctor, considered an employee having a normal civil profession and is not a
member of the police or security force. Then it is valid according to the Law
and the objection made by the Public Prosecution is groundless and the appeal in
cassation shall be rejected.
Whereas,
in the facts - as apparent in the contested judgment and the documents - the
Public Prosecution accused the Respondent that on 23/09/2017 at Sharjah
Directorate,
1-
He attacked the Civil Servant ..................... while performing his job, as
he threw the seal at him as stated in the investigations.
2-
He publicly insulted the above-mentioned civil servant with the expressions
stated in the documents during the performance of his job, as stated in the
documents.
It
requested his punishment under the provisions of the Islamic Sharia’a and
Articles 9/1, 249/2 and 373/2 of the Federal Penal Code.
On
30/04/2019, the Court of First Instance ruled non-jurisdiction and to return the
documents of the case to the Public Prosecution to take legal procedures as
prescribed, to refer the case to the Misdemeanour Court for jurisdiction.
The
Public Prosecution appealed this judgment under no. 1381 of 2019.
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On 07/08/2019, the Court of Appeal ruled to accept the appeal in the form and in
the merits: to reject it and confirm the appealed Court. This judgment was not
accepted by the Public Prosecution so it appealed it under this appeal in
cassation.
Whereas
the Public Prosecution objects to the contested judgment for violation of the
Law and erring in the implementation thereof, as it confirmed the appealed
judgment and ruled non-jurisdiction on the basis that the victim is not a member
of the security or police personnel, despite the fact that the victim works as a
doctor at the penal and correctional facility in Sharjah at the Ministry of
Interior, then paragraph 2 of Article 249 shall be applied, which renders the
judgment defective and shall be reversed.
Whereas
the objection is not valid, as
it is
prescribed, in the jurisdiction of this Court, that the Court does not adhere to
the legal description made by the Public Prosecution concerning the act assigned
to the Defendant and does not adhere to the indictment of the Articles of the
Law that the Public Prosecution had requested the punishment of the Defendant
thereunder. However, by looking at the reality of the incident as stated in the
documents, it adhered to the material incident stated in the indictment
report.
Whereas
it is prescribed that the rules governing the jurisdiction of the Court to
adjudicate a specific type of crimes, shall prove jurisdiction of such Court to
decide on these crimes, and when it is proved in the facts that the material
incident of the crime stated in the indictment report does not fall within its
jurisdiction, then it shall rule non-jurisdiction.
Therefore
,
whereas the contested judgment had confirmed the appealed judgment and ruled
non-jurisdiction and return of the documents to the Public Prosecution, to refer
the case to the Misdemeanour Court, after considering that the victim is a
doctor, considered an employee having a normal civil profession and is not a
member of the police or security force. Then it is valid according to the Law
and the objection made by the Public Prosecution is groundless and the appeal in
cassation shall be rejected.