[1948] EACA 87

## APPELLATE CRIMINAL

## Before BOURKE, J., and MODERA, Ag. J.

## THE HON. THE ATTORNEY GENERAL, Appellant (Original Prosecutor) v.

## (1) S. M. BASHIR and (2) S. F. HASSAN, Respondents (Original Accused) Criminal Appeal No. 529 of 1948 (Case Stated)

Criminal procedure and practice—Magistrate's ruling of "no case to answer" at close of prosecution—Case stated—Criminal Procedure Code, section 367— Question of law—Case stated not in accordance with section 375, Criminal Procedure Code—Restatement—Criminal Procedure Code, section 372 (a)— Proper form of case stated on question of law whether prosecution evidence established prima facie case.

The accused had been jointly charged with offences against the Game Ordinance, 1937, and at the close of the evidence for the prosecution the Magistrate held that no case had been sufficiently made out against them to require them to make a defence in respect of two counts, and acquitted them under section 208 of the Criminal Procedure Code.

The Attorney General, being dissatisfied with this determination, applied to the Subordinate Court under section 367 of the Criminal Procedure Code to state and sign a case for the opinion of the Supreme Court, and the question which was required to be submitted was: "Was the Magistrate correct in law in holding at the conclusion of the Crown case that there was no case for the two accused to answer in counts 2 and 3?".

The Magistrate purported to state a case, but exception was taken to it on behalf of the Attorney General on the grounds that it was not in the proper form in accordance with section 375 of the Criminal Procedure Code, and application was made to the Supreme Court to send it back to the Magistrate for restatement.

Section 375 of the Criminal Procedure Code reads as follows: —

"A case stated by a Subordinate Court shall set out—

- (a) the charge, summons, information or complaint; - $(b)$ the facts found by the Subordinate Court to be admitted or proved; - (c) any submission of law made by or on behalf of the complainant $\frac{1}{2}$ during the trial or inquiry; - (d) any submission of law made by or on behalf of the accused during the trial or inquiry; - (e) the finding and, in the case of conviction, the sentence of the subordinate Court; - (f) any question or questions of law which the subordinate Court or any of the parties may desire to be submitted for the opinion of the Supreme Court; - $(g)$ any question of law which the Attorney General may require to be submitted for the opinion of the Supreme Court."

Held (19-10-48).—(1) That the case as supplied was defective, and did not set out the question of law which the Attorney General required to be submitted for the opinion<br>of the Court, and should be sent back for restatement.

(2) That it is a question of law whether the evidence led by the prosecution in a trial was sufficient to establish a prima facie case, and the only way in which an Appellate Court can resolve that question is to look to the evidence that has been heard and recorded.

(3) (a) That in setting out this question of law in a case stated under the section 375 (g) of the Code, a subordinate Court should render the whole evidence verbatim offered by the Crown in support of the charges and pose the query whether such evidence makes out a case against the accused sufficiently to require them to enter their defence.

(b) That in stating the case the subordinate Court should comply with section 375, paragraphs (a), (c), $(d)$ , $(e)$ and $(g)$ in this manner.

(c) That paragraph (b) of section 375 does not arise as there can be no finding of fact at the close of a case for the prosecution.

(d) That under paragraph (e) of the section it need only be set out that it was held that there was no case made out to answer and that the finding was one of not guilty.

(e) That the Magistrate should refrain from setting out any views on the evidence heard or matter indicative of the process of reasoning he followed.

Case sent back for restatement.

Todd, Crown Counsel, for the Crown.

Nicoll for the first Appellant.

O'Brien Kelly for the second Appellant.

JUDGMENT (delivered by BOURKE, J.).—The Attorney General applied to the first-class Subordinate Court at Narok to state a case for the opinion of this Court arising out of the proceedings determined by the subordinate Court in R. v. R. M. Bashir and S. F. Hassan (Cr. Case No. 102 of 1948). We are told that at the close of the case for the prosecution the learned Magistrate came to the conclusion that no case had been made out against the accused sufficiently to require them to make a defence and that accordingly the accused were acquitted. The point of law which it is sought to have reserved for the opinion of this Court by way of case stated is apparently as to whether the Magistrate was correct in law in coming to the said conclusion. Before us is a document which purports to be the case stated, but exception has been taken to it on behalf of the Attorney General on the ground that it is not in proper form and does not constitute a case stated in accordance with the requirements of section 375 of the Criminal Procedure Code. This Court is asked to exercise its power under section 372 (a) to send back the case for restatement. There can be no doubt that the case as supplied is defective; it does not, for instance, set forth the question of law which the Attorney General required to be submitted for the opinion of this Court. The learned Magistrate appears to have set out certain conclusions of fact when there could be no such findings made at the stage the trial had reached, namely, the close of the case for the prosecution; but in fairness to the Magistrate it is probable that he was only making assumptions as to the circumstances for the purpose of the arguments he adduces in support of his ruling. The question for the Magistrate at that stage was, under section 208, Criminal Procedure Code, whether a prima facie case had been made out sufficient to put the accused upon their defence. It is, no doubt, a question of law whether the evidence led was sufficient to establish a prima facie case, and the only way in which this Court can resolve that question is to look to the evidence that has been heard and recorded. It accordingly seems to us that in setting out the question of law under section 375 $(g)$ the subordinate Court should render the whole evidence verbatim offered by the Crown in support of the charges and pose the query whether such evidence makes out a case against the accused persons sufficiently to require them to enter upon their defence. We have considered whether there is anything in the provisions relating to case stated to preclude the determination by such procedure of the question raised and have come to the conclusion that there is not. When restating the case the Court below should comply with section 375 (a) (c) (d) (e) and (g) in the manner indicated above. Paragraph (b) of the section does not arise for there could be no facts found—it is, at the stage the case had reached, a question solely of the sufficiency of the evidence and a conclusion either in the negative sense under section 208 or the affirmative sense under section 209. Under paragraph $(e)$ it need only be set out that it was held that there was no case made out to answer and that the finding accordingly was one of not guilty. It is not necessary, and the learned Magistrate should refrain from setting out any views upon the evidence heard, or matter indicative of the process of reasoning he followed, for the important reason that if in due course this Court is of opinion that the case should proceed the trial Magistrate may find himself in an embarrassing position when he comes to weigh up the whole evidence in the case. For like reason this Court will be careful, should it consider that there is a sufficiency of evidence to make out a prima facie case, which would entail the case going back for resumption of the trial, to express any such opinion in few and guarded words.

The case is sent back for restatement accordingly.