- Lapse of the appeal filed by the accused. Being sentenced to a custodial penalty and not a custodial measure. The basis therefor? Article 110/5 of the Federal Penal Code.

- An example of a deficiency in reasoning since the court of appeal ruled the lapse of the appeal filed by the accused while the penalty imposed on him is a fine.

Whereas in the facts - as apparent in the contested judgment - the Public Prosecution accused / .......... and others, of having on 24/4/2019 and on a prior date in the Ajman Department:

In respect of the accused (..........) –

Possessed the two weapons and ammunition described in the technical report attached to the minutes without obtaining a licence from the competent authorities in accordance with the conditions and cases prescribed by law, as indicated in the documents.

In respect of the accused (..........) –

Harmed bodily by his mistake the victim / ......., and this was as a result of his negligence and lack of attention or precaution, by using the firearm described in the documents, without precaution and caution, which caused the injuries suffered by the aforementioned victim and described in his medical reports, as indicated in the investigations.

In the session dated 27/11/2019, the court of first instance ruled to convict the accused / ............ and to sentence him to a fine of six thousand dirhams for the first charge (possession of weapons) and a fine of one thousand two hundred dirhams for the second charge, and ordered his expulsion from the state.

The aforementioned accused filed an appeal against this judgment under No. 1526/2019, and in the session dated 30/12/2019, the Court of Appeal ruled the lapse of the appeal lodged by the appellant accused.

The Public Prosecution filed the present appeal in cassation against this ruling.

Whereas the Public Prosecution objects to the contested ruling stating that it violated the law and erred in its application, when it ruled the lapse of the appeal filed the accused (the respondent) although he was not sentenced to a custodial penalty according to the text of Article 238 of the Criminal Procedure Law, hence it violated the law, and therefore, it shall be deemed defective and consequently, it shall be reversed.

Whereas this objection is valid, since it is prescribed by law, pursuant to the provisions of Article 238 of the Criminal Procedure Law, that (The appeal filed by the convict who is sentenced to a custodial penalty shall lapse if it is not submitted for execution prior to the session set for the hearing of the appeal.), which means that the appeal filed by the accused lapses if the latter is punished with a custodial sentence and not a custodial measure in accordance with Article 110/5 of the Federal Penal Code, and since the accused was sentenced to a fine only as a principal penalty, then the contested judgment ruling the lapse of the appeal filed by the respondent, shall be deemed as having erred in the interpretation of the law, and therefore, it shall be reversed.

Whereas due to this error, the court omitted to discuss the merits of the appeal, therefore the judgment shall be reversed with referral for adjudication of the merits.