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Colonial Cases

Kanoush, 1930

[murder, self-defence]

Kanoush

1930
Source: The Palestine Bulletin, 7 July 1930

 

MURDER AND SELF DEFENCE.

    What is somewhat rare in the Criminal Courts of Palestine occurred recently when a murderer was acquitted on the ground of self-defence.

   The facts of the case are perfectly clear from the Judgment, which was delivered by the President of the Court and which we give below.

   Mr. S. O. Richardson, with him Mr. Turtledove, appeared for the defence.

   The name of the prisoner was Suleiman Issa Kanoush.

Judgment.

   The accused in this case is charged first with the wilful murder of Khamis Jamal and secondly with attempted murder of Subhi Jamal.  The death and wounding occurred at 9 o'clock on the night of the 12th May last in the lower Ajami Road, Jaffa.

   We have heard some ten witnesses for the prosecution.  These ten witnesses have told us at least six different stories: Our object must be to try to extract from those varying testimonies one coherent story of what actually took place that night.

   Some of the prosecution witnesses were obviously perjuring themselves.  However, two of them at least told us what we think they may have seen or at least what they believed they saw, but after consideration, we have come to the conclusion that the true facts of what occurred on this night are as follows:

   Khamis Jamal was killed by a bullet wound which entered his body on the left side between the tenth and eleventh ribs, penetrated the spleen and the stomach, and lodged in the left kidney.  Subhi Jamal was wounded on his forehead.  The person who fired at Subhi must obviously have been at some considerable distance away, because the bullet merely lodged under his skin.  It would not therefore have been shot at close range, but it is clear that the man who shot each of these two men, was just in front of them and not behind.

   We are satisfied that there was a considerable amount of enmity (in fact great ill-feeling) existing between the Jamal family and the present accused.  The reasons of that enmity it is not necessary to go into.  They are (as one usually finds in this country) to our minds, extremely insufficient.

   The best witness, or the most truthful prosecution witnesses was undoubtedly Zein Bakri.  This man said, that he was sitting down and not very far from the cafe, and that two men who were shot were sitting close to him, together with others.  He certainly saw a man running down the street whom he did not recognise.  The man passed and simultaneously Khamis and Subhi Jamal who were sitting in the cafe got up and pursued him down the street.  Witness looked round, found the cafe empty, and said, "What is the matter?" Somebody told him, "Oh, they are pursuing the son of Ahush."  He then heard five or six shots up the road and he is quite certain that these shots were not fired until the crowd had started chasing the man who was running.

   If this tale is true, this disposes of the suggestion of the prosecution that these men were shot when they were sitting down in the cafe.  This tale is borne out, to a certain extent, by the testimony of Khalil Demato who, in cross-examination said that Subhi was shot after he had left the cafe and had given chase to the accused.  Zein's evidence is also confirmed on other points by the evidence of Salem Batikka, who said that people started chasing the accused who fired shots, and that later on Khamis came back and said he was hurt.  Selim Batikka could not give us any information as to how Subhi was wounded.  The evidence of these two witnesses is quite clear on this point, namely that neither of these two men were shot when sitting in the cafe.

   The other witnesses for the prosecution, relatives of the deceased and the wounded man, of course stated that without any warning the accused appeared and shot them while they were sitting in the cafe.

   We do not, however, believe these prosecution witnesses.

   We think that what happened was this.  The accused met one or two persons on the hospital side of the Malawani cafe and that he was there beaten and very severely injured by them.  That he was beaten is proved by the evidence of the doctor who found many wounds upon him when he was arrested and also by the statement made to us by the police officer who is prosecuting and who himself saw the accused and said he had undoubtedly been severely beaten.

   We think that the accused having been assaulted, ran down the road trying to escape from these two or more persons.  He was making for the police station on the Ajami road and to get there had to pass this cafe.  This cafe is apparently used as a meeting place or club by the Jamal family.  Seeing the accused passing and their own relations following him, they all with one accord got up and joined in the attack.  That some of this attacking party were armed, and actually fired was proved by the evidence of Mr. Cramp who saw the flashes from a revolver among the pursing people immediately underneath the balcony of his own house.

   The position therefore is that the accused, who had already been attacked, suffering severely and possibly having suffered from loss of blood, retreated before his attackers who were then joined by a fresh party numbering about eight, ten, twelve or more, some of whom were armed.

   They all started chasing him and possibly were gaining upon him.

   We are satisfied that the accuser had a revolver and we are satisfied that in order to keep off his attackers he fired in their direction, and from the position of the wounds we are satisfied, that bit was the accused who fired the shots, one of which killed Khamis and injured Subhi.

   Now if the defence has rested on the theory of self-defence there would, in my opinion, have been very little difficulty in this case.  I agree that there are certain obvious difficulties in getting the accused to take that line.  One of these difficulties is that it involves the admission that he possessed a firearm, but though that defence has not been raised, the majority of the Court find that these shots were fired in self-defence.

   One member of the Court holds that the prisoner fired a shot or shots in retaliation.  Therefore these should be considered excusable under Article 189.  The majority, however, hold that these shots were fired in self-defence.

   Under the Amendment Article 42 of the Penal Code the accused must be acquitted of responsibility and is therefore discharged.

Published by Centre for Comparative Law, History and Governance at Macquarie Law School