Cassations
Nos. 359 and 737 of 2021 - Penal
Panel:
Presided over by Mr. Judge Muhammad Abd al-Rahman al-Jarrah, Chief Judge of the
Circuit, with Messrs. Judges: Ranvi Muhammad Ibrahim and Hassan bin al-Arabi
Faydi as members.
(1)
Court: “Trial court: Its authority to understand reality and evaluate the
confession of the accused in murder crimes.”
Understanding
the reality in the case, evaluating its evidence presented, and relying on the
confession of the accused made by the accused in cases involving homicide lies
within the jurisdiction of the trial court. It is contingent upon meeting
specific conditions.
(2-7)
Crimes: “Crimes against persons: the crime of deliberately causing the
death of an individual”. Punishments for committing intentional homicide:
Retribution. Islamic Sharia: “The provisions of Islamic Sharia regarding
retribution for premeditated murder as well as the pardon granted by avengers of
blood.”
(2)
Averting punishment due to suspicions requires specific conditions. The
punishment is associated with the right of God Almighty. Retribution. The right
of God’s servants which is predominant. The admission of the accused is
relied upon, even if he retracts it. The reason therefor.
(3)
Under the Maliki doctrine, murder is categorised into two types: intentional and
unintentional. Premeditated murder is characterised by three elements: the
offender's liability for criminal responsibility, an infallible victim
prohibited to be killed by Islamic Sharia, and an intentional and aggressive
intent. Causing death by any means, be it lethal or non-lethal, mandates
retribution. This perspective aligns with the consensus among the three schools
of thought, stating that retribution is necessary if the aggression was
committed deliberately using an instrument causing the loss of life.
(4)
Criminal intent. A latent matter. The Maliki doctrine focuses on the
intentionality of the action and its outcome. It signifies that any action
carried out intentionally resulting in the victim's death constitutes
intentional murder, thereby necessitating retribution.
(5)
An example providing a valid basis for the contested ruling's conviction of
premeditated murder with retaliatory killing is based on the appellant's
comprehensive confession. This confession reveals the act of pouring an
incendiary substance on the victim and setting her on fire, despite the absence
of intent to cause her death. The credibility of this confession is
substantiated by the findings outlined in the forensic medical report.
(6)
Retribution is a right claimed by the avengers of blood. The granting of a
pardon, whether with or without compensation, at any phase prior to the
execution's conclusion. Such an act results in the forfeiture of retribution and
its substitution with a discretionary punishment, as prescribed under Article
332 of the Penal Code.
(7)
The avengers of blood (heirs of the victim) have tendered a waiver of
retribution subsequent to the appellant's payment of the complete legal blood
money to them. Consequently, this action leads to the forfeiture of retribution
by means of a pardon and its substitution by a discretionary punishment.
1-
It is prescribed, as per the ruling of the present court, that the trial court
holds the exclusive authority to comprehend the circumstances in a case, assess
the evidence presented, and give due weight to these aspects. This includes
considering confessions and their acceptance if they align with reality and are
willingly provided, supported by relevant circumstances and substantiated
evidence. Additionally, the trial court is vested with the right to derive an
accurate representation of the case based on legal evidence in crimes of
aggravated murder.
2-
It is also prescribed that the crime of aggravated murder stands proven upon
confession to premeditated murder, even if it is subsequently retracted by the
perpetrator. Additionally, it is established by Sharia that punishments are
deflected by suspicions being aligned with the divine rights of God Almighty. In
instances where the exclusive right of God’s servants is predominant,
including retribution, such rights may not be averted by suspicions, and the
admission of an individual, even upon later retraction, is to be relied on.
Further, a rational and consenting adult's admission of a right is binding upon
him. Retribution crimes are an affront to two rights: the right of God’s
servants which is predominant and the right of God Almighty. These rights,
bestowed to the heirs, remain intact despite the perpetrator retracting his
confession.
3-
Moreover, it is prescribed that murder, according to the Maliki doctrine whose
principles are applied as per the ruling of this court, falls into two
categories: intentional and accidental. Premeditated murder necessitates the
presence of intention to commit the act leading to death, done intentionally and
aggressively, with no consideration given to the instrument used, whether lethal
or non-lethal. For a murder to warrant retribution, it shall encompass three
essential elements: the perpetrator, who shall be legally accountable, sound,
and mature; the victim, who shall be infallible and prohibited to be killed by
Islamic Sharia; and the act, which needs to be deliberate and aggressive. In
line with Maliki doctrine, causing harm using any instrument or means leading to
death demands retribution. The unanimous opinion across the three schools of
thought is that retribution is required if the action is deliberately carried
out with an instrument that could cause the loss of a life, given the fulfilment
of all other conditions.
4-
It is prescribed that intent, as per the ruling of this court, is a latent
element, leading to varying disagreement within Islamic doctrineupon its
invocation. The Maliki doctrine, as per the ruling of this court, focuses on the
deliberate nature of the act and the consequential outcome. In this context, any
act intentionally leading to the victim's death is regarded as premeditated
murder, requiring punishment and retribution. The crucial determinant is not
whether the perpetrator had the specific intent to kill, as long as the action
was not committed in jest or as a form of discipline. Likewise, the instrument
employed for the act, whether it is typically lethal or not, is irrelevant in
determining premeditated murder.
5-
Given the circumstances, and whereas it is evident, pursuant to the perusal of
the notes of the contested ruling, that the court examined the circumstances
leading to the establishment of the charge of premeditated murder. The
evaluation was grounded on the validity of the evidence, specifically stemming
from the defendant's detailed confessions, arising from the inferences and
investigations conducted by the Public Prosecution and presented before the
court of first instance, acknowledging the allegations. Additionally, supporting
documentation detailed a dispute between the defendant and his wife, originating
from her relationship with another person. Subsequently, the defendant poured a
burning substance (thinner) that he obtained near .... Garden over the body of
his wife... and another individual present in the room. In a state of distress,
he encountered his wife with a stranger, as per his detailed statements to the
Public Prosecution. According to his account, he learned about his wife's
involvement in a relationship with an individual from Sri Lanka through
Facebook, which they both shared, while he was in Sri Lanka. Subsequently, he
called her, and a disagreement transpired between him and his wife. Upon
returning to the UAE, he received information from a colleague about a visitor
at his apartment. Upon discovering a substance that he assumed to be thinner, he
arrived at the apartment and found his wife and the individual sleeping
unclothed in the same bed. As per his confession, he poured the substance over
them. He then learned from a neighbour that he used the thinner on her.
Subsequently, in an attempt to escape, he headed to Dubai Airport where he was
apprehended, notably while in a distressed state. These confessions were
supported by the findings in the forensic medical report concerning the
deceased. The report indicated that an examination conducted at .... Hospital
reflected deep second-degree and third-degree burns encompassing 30% of the
body's surface due to exposure to a burning chemical substance on September 21,
2017. The victim was subsequently admitted to the plastic surgery department for
essential medical treatment. The victim's critical condition led to the
implementation of life support, placing her on a respirator. Unfortunately, the
patient's pulse and respiration ceased, resulting in her demise. A comprehensive
examination revealed bandaged arms and legs, exhibiting signs of healing burns.
Post-analysis of the victim's body determined extensive burn injuries,
attributing her death to exposure to a burning substance. The fatal incident was
corroborated by severe physiological shock and the subsequent cessation of vital
signs. Upon reviewing all the gathered evidence, the contested ruling determined
that the incident was characterised by lawful and legitimate elements. It was
established that a dispute had arisen between the accused and his wife, where he
purportedly prepared an incendiary substance. The accused allegedly entered his
wife's room to find her in the company of an individual known to him as being in
a relationship with her. Upon encountering them unclothed, he purportedly poured
the incendiary substance on them, resulting in the injury and death of his wife
as confirmed by the forensic medicine report. The contested ruling, based on
this, convicted the appellant of the intentional and aggressive killing of the
victim and sentenced him to retaliatory death. The conclusion drawn by the
contested ruling is supported by substantiated evidence and documented
facts.
6-
It is established by Sharia that entitlement to retribution and the subsequent
right sought from blood avengers encompass the prerogative to grant a pardon,
either with or without compensation. This act nullifies the imposition of a
retaliatory penalty and substitutes it with a discretionary punishment, aligning
with the requisites of public rights. This is in accordance with the specific
provision found in the third paragraph of Article 332 of the Federal Penal Code,
which specifies that “imprisonment shall not exceed a duration of seven
years if the blood avengers forfeit their entitlement to retribution at any
stage of the case before execution completion”. This clause clearly
denotes the right of blood avengers to waive retribution at any phase of the
case or before the execution is finalised.
7-
In light of the substantiated documentation presented in this case, it has been
confirmed that the blood avengers involved in this legal proceeding have filed
records that clearly indicate their renouncement of retribution. These records
include a duly certified affidavit validated by the appropriate authorities and
an Arabic translation thereof. According to the provided documents, the heirs
heirs....... , ......., ......., ......, ....... and....... have expressed that
the accused appellant has duly settled the blood money in full, absolving them
from seeking any further compensation, thereby pardoning him. Based on the
foregoing, and whereas it is legally prescribed that pardoning by blood
avengers, whether with or without compensation, leads to the waiver of
retribution. This aligns with the tenets of Islamic Sharia and, within the legal
context, is in line with the specifications stipulated in the third paragraph of
Article 332 of the Federal Penal Code. This pardon hinges upon the abandonment
of retribution for the loss of a soul, where retribution is averted by the act
of pardon. This pardon can occur at any stage of the case or prior to the
completion of execution. Consequently, provided that the blood avengers furnish
duly authenticated and certified documents concerning the act of pardon and the
receipt of the blood money, such pardon results in the waiver of retribution. As
a result, the ruling of retaliatory death is to be annulled. Subsequently, a
discretionary punishment shall be newly imposed on the appellant, in accordance
with the provisions outlined in the specified paragraph of Article 332 of the
Federal Penal Code, as stated in the enacting terms.
Whereas
in the facts - as apparent pursuant to the perusal of the contested ruling and
the remaining documents - the Public Prosecution lodged charges against the
defendant (the appellant and respondent) for events that transpired on 21/9/2017
in the Department of ........ The charges were as follows:-
1-
The defendant was accused of intentionally and aggressively killing the
victim/....... by pouring an incendiary substance over her with the intent to
kill her, causing her fatal injuries, leading to her death as per the anatomical
report from the investigations.
2-
Additionally, the defendant was charged with attempting to murder the victim /
....... by pouring a burning substance on him with the intent to kill, resulting
in injuries described in the forensic report. The impact of the crime was
mitigated due to external factors beyond his control, specifically due to the
medical treatment received as documented.
These
charges were registered as felonies in accordance with the stipulations of
Islamic Sharia and Articles 34/1, 35/2, and 332/1 of the Federal Penal
Code.
Subsequently,
during a session dated 31/3/2019, the court of first instance passed a ruling in
the defendant's presence, sentencing the accused appellant to one year of
imprisonment for the offences of killing his wife... and attempted murder of
.... Moreover, the court ordered the defendant to pay blood money amounting to
one hundred thousand dirhams to the heirs of the victim and one hundred and
sixty thousand dirhams as Arsh for the injuries to the second victim, with his
deportation from the country after serving the sentence.
Both
the Public Prosecution and the convicted defendant filed separate appeals
against this ruling under No. 1061 of 2019 and No. 1065 of 2019, respectively.
The
Federal Court of Appeal, on 1/7/2019, accepted the appeals in form, and in the
merits, modified the appealed ruling to cancelling the legal blood money granted
to the victim's heirs and the damages awarded to the second victim, confirmed
the remaining aspects of the appealed ruling, and imposed on the appellant to
pay the appeal fees.
Subsequently,
the Public Prosecution filed appeal in cassation No. 650 of 2020 (Penal Sharia),
and on 22/6/2020, the Supreme Court ruled to reverse the contested ruling and
remand the case to the Court of Appeal that issued the decision to rehear the
case with a different panel.
In
a session dated 28/2/2021, the court of next instance ruled in the presence of
the defendant, to accept the appeal in form and, on the merits, to cancel the
appealed ruling and to convict the accused ....... of both charges and sentenced
him to one year of imprisonment for the attempted murder of ..... and
retaliatory death by available means for intentionally killing the victim. The
execution of the sentence was to be conducted in the presence of the blood
avengers or the legal representative.
Unsatisfied
with the ruling, the convicted defendant filed the current appeal in cassation
against it. Simultaneously, the Public Prosecution also filed appeals against
the two present appeals in cassation. The Public Prosecution presented its
memorandum requesting the dismissal of the convict’s cassation.
First:
Cassation No. 737 of 2021 filed by ........
Whereas,
the appellant objects to the contested ruling asserting an error in the
application of both the law and Islamic Sharia, particularly in convicting him
of the charges of premeditated murder and attempted murder. He maintains in his
defence that he had no intention of committing a criminal act and that his
actions were aimed at intimidating the victim and the individual with her. He
further claims that he had no intention to cause the death of the victim or to
pour the substance intentionally. Moreover, he argues that the evidence and his
statements do not indicate any intent for revenge or the use of an incendiary
substance. He contends that the ruling, in convicting him, failed to adequately
consider his defence, rendering it flawed and justifying its reversal.
Whereas
the objection is found to be invalid, since
it is
prescribed, as per the ruling of the present court, that the trial court holds
the exclusive authority to comprehend the circumstances in a case, assess the
evidence presented, and give due weight to these aspects. This includes
considering confessions and their acceptance if they align with reality and are
willingly provided, supported by relevant circumstances and substantiated
evidence. Additionally, the trial court is vested with the right to derive an
accurate representation of the case based on legal evidence in crimes of
aggravated murder.It
is also prescribed that the crime of aggravated murder stands proven upon
confession to premeditated murder, even if it is subsequently retracted by the
perpetrator.
Additionally,
it is established by Sharia that punishments are deflected by suspicions being
aligned with the divine rights of God Almighty.
In
instances where the exclusive right of God’s servants is predominant,
including retribution, such rights may not be averted by suspicions, and the
admission of an individual, even upon later retraction, is to be relied on.
Further,
a rational and consenting adult's admission of a right is binding upon him.
Retribution
crimes are an affront to two rights: the right of God’s servants which is
predominant and the right of God Almighty. These rights, bestowed to the heirs,
remain intact despite the perpetrator retracting his confession.
Moreover,
it is prescribed that murder, according to the Maliki doctrine, whose principles
are applied as per the ruling of this court, falls into two categories:
intentional and accidental. Premeditated murder necessitates the presence of
intention to commit the act leading to death, done intentionally and
aggressively, with no consideration given to the instrument used, whether lethal
or non-lethal.
For
a murder to warrant retaliation, it shall encompass three essential elements:
the perpetrator, who shall be legally accountable, sound, and mature; the
victim, who shall be infallible prohibited to be killed by Islamic Sharia; and
the act, which needs to be deliberate and aggressive.
In
line with Maliki doctrine, causing harm using any instrument or means leading to
death demands retribution. The unanimous opinion across the three schools of
thought is that retribution is required if the action is deliberately carried
out with an instrument that could cause the loss of a life, given the fulfilment
of all other conditions.
It
is prescribed that intent, as per the ruling of this court, is a latent element,
leading to varying disagreement within Islamic doctrine upon its invocation.
The
Maliki doctrine, as per the ruling of this court, focuses on the deliberate
nature and the consequential outcome. In this context, any act intentionally
leading to the victim's death is regarded as premeditated murder, requiring
punishment and retribution. The crucial determinant is not whether the
perpetrator had the specific intent to kill, as long as the action was not
committed in jest or as a form of discipline. Likewise, the instrument employed
for the act, whether it is typically lethal or not, is irrelevant in determining
premeditated murder.
Given
the circumstances, and whereas it is evident, pursuant to the perusal of the
notes of the contested ruling, that the court examined the circumstances leading
to the establishment of the charge of premeditated murder. The evaluation was
grounded on the validity of the evidence, specifically stemming from the
defendant's detailed confessions, arising from the inferences and investigations
conducted by the Public Prosecution and presented before the court of first
instance, acknowledging the allegations. Additionally, supporting documentation
detailed a dispute between the defendant and his wife, originating from her
relationship with another person. Subsequently, the defendant poured a burning
substance (thinner) that he obtained near .... Garden over the body of his
wife... and another individual present in the room. In a state of distress, he
encountered his wife with a stranger, as per his detailed statements to the
Public Prosecution. According to his account, he learned about his wife's
involvement in a relationship with an individual from Sri Lanka through
Facebook, which they both shared, while he was in Sri Lanka. Subsequently, he
called her, and a disagreement transpired between him and his wife. Upon
returning to the UAE, he received information from a colleague about a visitor
at his apartment. Upon discovering a substance that he assumed to be thinner, he
arrived at the apartment and found his wife and the individual sleeping
unclothed in the same bed. As per his confession, he poured the substance over
them. He then learned from a neighbour that he used the thinner on her.
Subsequently, in an attempt to escape, he headed to Dubai Airport where he was
apprehended, notably while in a distressed state. These confessions were
supported by the findings in the forensic medical report concerning the
deceased. The report indicated that an examination conducted at .... Hospital
reflected deep second-degree and third-degree burns encompassing 30% of the
body's surface due to exposure to a burning chemical substance on September 21,
2017. The victim was subsequently admitted to the plastic surgery department for
essential medical treatment. The victim's critical condition led to the
implementation of life support, placing her on a respirator. Unfortunately, the
patient's pulse and respiration ceased, resulting in her demise. A comprehensive
examination revealed bandaged arms and legs, exhibiting signs of healing burns.
Post-analysis of the victim's body determined extensive burn injuries,
attributing her death to exposure to a burning substance. The fatal incident was
corroborated by severe physiological shock and the subsequent cessation of vital
signs. Upon reviewing all the gathered evidence, the contested ruling determined
that the incident was characterised by lawful and legitimate elements. It was
established that a dispute had arisen between the accused and his wife, where he
purportedly prepared an incendiary substance. The accused allegedly entered his
wife's room to find her in the company of an individual known to him as being in
a relationship with her. Upon encountering them unclothed, he purportedly poured
the incendiary substance on them, resulting in the injury and death of his wife
as confirmed by the forensic medicine report. The contested ruling, based on
this, convicted the appellant of the intentional and aggressive killing of the
victim and sentenced him to retaliatory death. The conclusion drawn by the
contested ruling is supported by substantiated evidence and documented
facts.
It
is established by Sharia that entitlement to retribution and the subsequent
right sought from blood avengers encompass the prerogative to grant a pardon,
either with or without compensation. This act nullifies the imposition of a
retaliatory penalty and substitutes it with a discretionary punishment, aligning
with the requisites of public right.
This
is in accordance with the specific provision found in the third paragraph of
Article 332 of the Federal Penal Code, which specifies that “imprisonment
shall not exceed a duration of seven years if the blood avengers forfeit their
entitlement to retribution at any stage of the case before execution
completion”. This clause clearly denotes the right of blood avengers to
waive retribution at any phase of the case or before the execution is
finalised.
In
light of the substantiated documentation presented in this case, it has been
confirmed that the blood avengers involved in this legal proceeding have filed
records that clearly indicate their renouncement of retribution. These records
include a duly certified affidavit validated by the appropriate authorities and
an Arabic translation thereof. According to the provided documents, the heirs
heirs....... , ......., ......., ......, ....... and....... have expressed that
the accused appellant has duly settled the blood money in full, absolving them
from seeking any further compensation, thereby pardoning him.
Based
on the foregoing, and whereas it is legally prescribed that pardoning by blood
avengers, whether with or without compensation, leads to the waiver of
retribution. This aligns with the tenets of Islamic Sharia and, within the legal
context, is in line with the specifications stipulated in the third paragraph of
Article 332 of the Federal Penal Code. This pardon hinges upon the abandonment
of retribution for the loss of a soul, where retribution is averted by the act
of pardon. This pardon can occur at any stage of the case or prior to the
completion of execution.
Consequently,
provided that the blood avengers furnish duly authenticated and certified
documents concerning the act of pardon and the receipt of the blood money, such
pardon results in the waiver of retribution. As a result, the previous ruling of
retaliatory death is to be annulled. Subsequently, a discretionary punishment
shall be newly imposed on the appellant, in accordance with the provisions
outlined in the specified paragraph of Article 332 of the Federal Penal Code, as
stated in the enacting terms.
Second:
Cassation No. 359 of 2021 filed by the Public Prosecution:
Whereas
the present cassation pertains to Cassation No. 737 of 2021 where the Public
Prosecution sought confirmation of the ruling of capital punishment of the
appellant..... by retribution for the murdering the victim...... However,
considering this court's decision in Cassation No. 737 of 2021, the act of
retribution was forfeited due to the blood avengers pardoning the accused in
exchange for blood money. Therefore, this particular cassation appeal shall be
dismissed as the contested ruling confirmed retribution that was forfeited by
the act of pardon, as stated in the enacting terms.