19881125 TZHC Dar es Salaam3

IN THE HIGH CCUI'<:l Oi!' 'i.:.:·. Ai'PELD!1T.E J~:ars:::nGTION H/COUl'i.~ CRL,:INM~ ,~r-rl'i~.L 145/19.:J ORIGINli.L ORIMINAL ij.i1SB NO •. 1iJ69 JF 1987 QF THE :D!STRICT OOURT OF ILAL~ JISTRICT AT KIVUKONI BEFORE KIYEYBU RE$1:·1£HT Mi,.G. JOSEPH SHIRIMJi. ..... ~ • , •••••••••••• .- .• ; •• ll.PPELL.,;".NT . VERSUS (Original Accused) THE UNITED REPUBLIC ••• ;- •• ·• .' •· ••••••••• , , RES.?ONDENT · · (ofiginal ?rosecut0r)

JUDGMENT KY .AND01 .J·.: The ai:)pellant was convicted •.)f a ttewpted. rc/0-oery and being in unlawful possessi~n of afire aru (a ~ist0l) anl a~wu.niti.)r-. He was sentenced to• . -~-,. ,• imprisonment for seven years for a-1-.tei:.1Jte.i r0btery and. fined shs. 1000/=, or twelve months ii,';1:pris')m:.entir;. dofaul t, for unlt:wful possessi Jn of a firaarra ani am~uniti~n. He was ~ggrieve-gy bot~. the convictions and sente••es· . and has appeaLd to this court. lJr. Lamwai alvoca~ed f::>r hiw before me and . ... ' ,\ . . Miss Korosso, learne1 St~te Attorney, apJear0l £Jr the Re~ublic. The case for the ;,r:)secution was that '.)n 4 :2.G7 nt 1':).,0J ,a.·Ll, strae,se men went to the she-.;? ot, ~ali Ji.bdallah (?WI) at ~_;,•:.-:i.hili Street,, The ~lbop · "'. . is in house No,30 at that Street PriI was a~_tho ~hop, with his four aaoi~a,_1~. He told the court below that the strange~s, three in nwaber, went up to hi~ . . ' . one of them showed hiw ~ ~istol anj ordered hi~ to lie down, He (?WI) 1a1d instead fled into his house and locked ci~self in there. lie did ,ot corae out until about four or five Linutes later after he heard people shouting outside. Re testified ",he. t he f~und · he ap:i_,ellant o.u¥1 r eling with policemen, PW2 and PW3~ D2375 D/c Garvas Masolwa (PW2) ar.J. C6913 --:;/c Ricl:.ar1, police dese•i!ve1.· attached to the Urafiki Police 3tation, Daros Salacia,

happened to be ia.ih~_ area and they notiaed people being held. up a j .2'al I s shop • .ilt first they thought those holding tpe pe :Jple ¥:P r0re aska~~is, but on. further ob~ervaiiPI · they started to s~spect_that ·they eight ta rob~er~ •. They decided \o ~d~· ~ up to the shop. ?W2 tt;stified on the points-• "While passing we saw pe~ple lying down while three people who -~ere standing had a pistols On seeing this I told ray colleaguei that thc>se were ·:re.., ,.;e-rs. 11 PW3' testified as f0llows on this sane j_,cint ''.".' •• 1 'i 2 "When we reached near the sight of the shop I saw people •ho had laid down. Three ~e0;le aere standinJ with pistols. We de0ided to check as tJ whether they wer,,, s•,l:iiers or robbers." Both< PW2 ind PW3 testified that they deci~el tog~ knd see what was .happening and that l?W2 is the one who :)roc-.Je:1e'.:. t::- tho :;;ilsne •.ne..ls he was heading towards there, i.e. at the sh~p he ~at the u~Jollant;/(the a;pellant) was running from the shop anj PW2 triel to stJp hi~. Tha a~Jollant, PW2 told the trial codrt in his evidencef drcnv e. pistol and. se+ it ,..1t f·.111 cock; before he (the 3Jpellant) could fire it, hJwover. PW2 s~id he jumped and )ricked the aj_)pellant who fell down ..:lnd. his l)ist:il -~re>;-i)-8d down. -He (appellant) got tAp again an:. picked the pistol; he hi'.'l it i!l his tr.:ir-sers 1 and started to floe. PW2 Bciid he

caught hi~ and shouto~ f0r iGlJ. PW3 arrived and at that sacetii..e two ;.,;,rwy soldie:rs ·.vere ...,assint.. ,... T:· ~.i .st.::,t1iJed to rendir assistance to PW~ end ?W3 9 PW2 testifie~ ~s f-JlJ~~ JD this particular points- ·11G )Od enouJh one JJ.autenant :Jf the, i;.:.: iY : 1 assed there wit~ cne private. He ~8lJ8d us tJ tc~r tta trouser of the accused to.:ik out thci ::_-;istol. '' we Under cross - ex~uination he said:- 11~.he Lieutenant is th.:i one wh0 Ji·:1.:acl tlw pi.stol fro.:J· the i.ccused. after t':iring his tr0us0:::-s .• 11 PW3's evidence was by and large ~icilar to that of P~2 on how the appellant · was apprehended. Only that he said the ::..ne wn0 "cxk the p-i.:stol fro.Iii the appellant was PW2. 0 PW2 and PW3 lad the e~Jellcnt to the ~olice: tation at ksi~bazi where they handed him over to the ?~lice. To reyert ';o ?WI, he testi~ied that after h~ case ou~ of his house he found the appellant quarreling wit~ ;Jlica □ en, H0 hada~istol and aru1y raen assisted in a:--resting hi@. He explainecl iurthe:...· ";.'.1at he also .found that about T0,000/- of his hai been stolen- frbu his sh~P: HJ snid he had counted 50,000/-, and had kept it aside for purchasirte gc0ds~ He fJund that money raissing but he could not ~e sure if taken together with tho □ onay he did not count the a.u.nmt stolen totalled ;:i·hs. 70, 'JJ-:J/- or not; "]e was certain of the shs, 50

,ooo/- !t1he appelL.1.nt was then ?barged with the -::ffences of r·)bbery and being in unl&wful possession of a firourw and. aui;.:.mn:·_tion,, In his defence the c:1.i)i.)ellant gave the folL>Wing s·t;:,ry :- 1:r rewe:.uber it was :m 4/12/c.7 at 1 2,30 afternoon when I was coming frora K@ngo Bar headine tc A.ariakoo I.iarket. When I reached Twiga_and Congo Street junction where so~e youngmen stay there I s:aw oneb-::,y wh::irJ I knew~ He was selling "ci turaba 11 (second. hand clothers). wni1'<) I was talking to him those .other ~oys who were thera started loavingn I saw so~e two men come t-0warda us~ Tbe one who was tul~ing to oe wjun he saw those _;_;:ec;,:,le h" rnn i,wuy as welL ,"i1H::~1 t.i1..>se ,)eo·vle reached ;:.ie they aekel ue -,-;hy t:-:e . tL0.:o ha~'. ru,:~ _;,;.;..y\, I rt1...-,lied· thut I could 3 They asked me ·where I vrnrked. and I repli0d theia., Thl:..t I worked at the auction. When .they asked for ·.an identity ea.rd and could produced any as I iid not ,.~ve one, they asked me if I knew whei-• the o·thor per:;:Jn wh,) had. run away stayed.,: I replied that I did not know., When they asked :..;.; as to whethe?", I knew the~, I replied that I did not kn.:w the,:i •. They' took I.le to the l?olice Station sayitid 1'u.tat·.1f;).:.e za wanakaa wapi,. 1' At the tolice dtation, they boat we asking ~e to tell then where th-:,se othors stayed and. 1ir,:1 they ran

away • .-'1.ftar be~tinr: we ouch I told. tne@ thai; ~r.;L.::'.:lly "they w.:,uld trace there at the sa □o place as they us0d. to fr.equent there. Su:i:lenly there oaue so::Je tw.:: ilr"tbti one .. a.:.ng PW.I. The poli•e asked theiu as to whetr.0r they hal s,~en ,_,c ~ The '"rab replied · that he ne-er saw ~13. One ~1olice .Jal~ .e---iJ. 1 "Leta kaoe.ni Ye¥e llwnweli kuw 1hu.u::u. n The '"'ra.b lo.:>kod a: i.je v-...ry closely and said tha:t he l).e~rrr saw l'.Je. I was put int,.:, t:10 1.,,·r~ , ;i up to 8._)0 pu. and wbe,_..;. it ras o.JJ pra. they t,J.:;k !.le c:.~1.l ;,ut r...: in ti::e wotor vehicle a-,l wa mJnt to Jancwani C. mgo 1..nd '.::'v!ic.:.t. S1,~7eets, Thereafter., they ::.-et·,1rned we to the r..}li.ce .:itatic=i. I r1tayed in the look up !o:r 4 d,1yi,t, when I was b~ought t_.-> Court. They charged me as this• Never robbed ari.Y·oo1y and ::: ""s n::-t f::mnd in :1oaseseion of .. I don't k:::ow £J.nything about the .i:>ist.;;l which was o, .i'i::-ea~m. produced·here . in court. .. In his eonsideration of the cuse, the le~rned trial Magistrate was ~able to £ind, on the evidence be;,fore h:!.~1, that the she. 70,.00'J/- or she 50,0'JO/- OJI &'IJ1 money at all, was stolen at· the shop ot' PWI. He fourld that there was C?· evidenoe to su~•port the allegations that w,:mey was st.:,len, He held theref'oye tbat the off~~ce cf robbery ehc.r3ec1 in the first c.·urt in

the charge had 4qt ·1an i)ro;red/the eYi-1ence bef·.:,re ;1:....i.r 'Je felt, howeYer, that the evidence established atkGl:i-'ted r0,/be::.- unx:.;er s. 2:17 of th~ ienul Code, and theref'oye convicted the a:·pellant of that offence as c;h:.:wn ear:!.ier on above, Un:fortv,~iillt the learned cia:::istrate did not indicate in hii;; analysis of the evidenae how .or why he felt ·:;bG offence of a. ttern,.:;tec r:;bbery ha 1 been established. The appellant and ~is group went to a shJp and are alleged to have pointed a ..pistol there, It waQ alleged also that they:were f!C'•,n □ :.::::!.r.g tha attendant of the shop lie C:own. Under these circu.asto.tes 1 :~t is easy to be of the impression that the appellant and his ~o~le guo..lJ nad gone there, at the ahop, to rob. May be that is why, without givin reasona, the learned ,rial magistrate presu.::.,od and concluded, and. also~ f;;4hd, that attewptod ro·obery had been OOLllilitt0d. Ho,vever, on a closer oia1,1inati:m 0£ the OGl.se, it is not possible to reach that oonolusion at all. ~s the learned Magi~trate himself found, there was n:.i theft of tha sha. ,.,J, x:..~/.. cy the appellant and his group. There ia no e,rlclonce o:f c.,·ct.::iuptad. t.heft of thA.t .:nnoy either •.As for the attendantg wh(, t.r.) sai ~ 1,c. he.-: 1• b~•.;n · ::.:•c..9<! :.··r ""'~:•... t·:, lie down, there fs •~ ••·.• / 4. 4 We do not knuw i: i:in'Y

dewa~1d for i."l•)ney or E..:::ything a": l::ll fro:-:. them was 1,. made bv " the a~-,ellant .-r and his colleaaues, t.:i eyi·~ence So th~re is no CvU (;. . of atta1.1pted rol,bezy f'rGm the attendants., Thes0 at·~tmd.an.iis /hc.7G been, if they indeed were: f'orcad to lie dow~ fJr uny other r3as~n a~ar~ frora that of atterapt to rob fr~o them, the attac~~ra JCY~ fsr ~~-J~anco 1 have wanted to kill thee~ without r:.1bl,1nG -thew of -:--.'~~~t .,inu. Or. i::;-... 'JVi :onco so ciany specu- lations can be ~a 'e o~t why the bt,r.f:Lts f,:· c0i thcj 2.tts.1.:'..c..nts to lie 1own. Aa f'or ?WI, h0 3.} ..,,.J does n::it d.3Y in his tl:.c. +, any ::1.ewa_nd for any..- .;Vl.,".-:r.~(• thing was made t ..:, L'im when he was sho7U 2. 1 }ist :1 11;~: ::.:1f·-:::-o he fled inside-, his house as he £,.v::. !Io only ·bl~l ti:e t:-L,~l ,.i.:,.;istrr:~e -~-hut ho was shown a pistol and orderel -~o :i.iP. dcrn, Sc.: fr:iw hi:.i t-;;0 7 there ~ B no e·-ridence of' any attem,pts to fake a;. yt:u.n.L,; froi.i h,.J und th0:~r:: Wfl.S thereL,re no attempted robbery against hi; sith0r~ So tha o~t~iction i~r ~tteuJtGd roboer7 was unsupported by th, eYiden.:;e ·J'?"J..-J ..::? t:1.e lec:c_eJ ,... _; .st::s.~e. M: I hu-:e said, the i@pression of -3.•:- ,·,3r.1~)tec~ ::::-:)l:1?er;y', ,:ir i, :: /.:·:~rY f,~r b···;; .::,a.H~r 1 was created rs by the fact that h..:1 a-ctack8 we,~o c.r,.:3·.: u~-l th.:;y

wer,: ~c o.. shop. iioweTer, on the e-t"idence . -;;cJ:d, no su·,h Jfior.00 .'ff.3 c )cui:;. tt )d I allow the appeal of the a;,pellant m ·i:he ou~nrictio1. :/.Jr atte..:.L)t,d r,Jbbo-r,v, I quash that conviction and se · ':.s.i.1e the sent12rcu of sey,,n )'earr:. : ..np:!'.':.r-:o~..;:.o:rt. On the count o~· rrnlewful po'3S:JJs:_'."n )f f~::•3a":'1::l a'.:: an::.:iu~ii.iivn, there · was more th~n oi:-c ~W'1.eluing evi.1.ence t-,..... ·., ·;ho c.~,.J-c·lJ .;:-.·,1.1; was ..; . -,ught in possession of the pistol pr2 uced ~n cJurt =~- .J~ ii~ t~• ~i. ~he evidoice of PWI, PW2 and PW3 referred· o herei~ab0va pu~q t~e c~tt~~ j~<J~l acY rational dispute or arguQ.ent~ Lre ,e.,.Jvai Chal~.0,1cel -c!'lt.; r::viJ.enr;,; cf tl...::i:Jo witnesses, saying first, that it ,... s .:Alf contrc.. dic·i·,)rJ'~ lfo ,11gt~J.. -4-,':i.,- .•: whi:!.. e PWI ,and PW2 said the pistol ': 1s :: ac·w8.,...,·, :i :f:~ ,,·__ the ap_?ellant ·u., ne of the ,arr.iy soldiers, ?W3 said it had :· ;}W, tc.ken out fror;; hii.:. ( the .::._;pell _nt) by :i?W2. 'He contended further the.t whil ~ .··v:? sai:l. they ~hec:1:i:-::_ the :~ist)l at the place where they arrested appella~; .1J found it to cJn~cin 7 ccrtrifges, PW3. said they never checked the piste L .-.':' ?W2 had. st&tAd., DraLai.iwai co-,_~anded that these contradi• otions in the pr,·· 3f cution evi:ience are casic and t:1c, ,, go to ~howing that the • . .

. concoe,te1l . three prosecu.tior. w:i. Gnesaee • . their r~tory a ,a: .•1st the appellant, possibly he oontendedt wit1 motives for coramendationR and ;rcm~tion~, In reply, Mi3s Korosso conceded that the:::-e wor~ discrepancies in the prosecution a·JiJence but she contended that these diacrepancie~ are i.1inor and ~at1:ra:.j ·.1. a ::,i tu.at.ion of confu.sio:--. such as gripped thPae invloYed at the time of a~·,rclla.:r.:d: 1 s arrest,, I agree w:.-th M~.ss Korosso enti~ely. The disorepanoie:, uri) m:tv.or and -~hey :lo nut at all dQtract fr'.)m the i3eneral proseeution case t'..c.a t PWI Bav.r a pis to:.. being ret:d.1ved frora the appellant and that PW2 and F::5 also Cc•.\'.ght riiI:J. ( the Ui)-;,.;:" L.r :::-ed - handed with that pistol. The ,:~ntentio~~ ab~ut.PW2 1 ~ and PW3'~ 6otives are without basis and they ';;r,~···:: n0t even .,:,__;t"·-exa,j;)i:r.;:!c1 on ih,.,-;G ".:y Mr,, Mbuya, who repre- sented the ai?pe1.L ..!n ;- ::_i1r.~.nf t.r:.3 t:dE..l. 5 i;r. Lat1wai contended furlher that· the· art1y eoJiiQ,:,l!J ~bo 13.;:.•,:, said . to have assisted in the a:pprehe.nsion and seizing· ;the gun fr.J:.1 tl,i= app.-1~, should have been called as proseoution·witnesses t::i cJrrotJrato the evidenee of the ~irosecutor wi tnesser: who testifie.:l. I find ,J,Yself that ··the proaeoution evidence on the pistol was suffici.::nt an:l coger.t enough not to require corroboration

by fu=ther witnesses I dJ not agree with Dr.Lamwai that PW2 and .i:'W3 were interestel :;.::c:=:-S'.)n c.:nd. ther~fore thei-r - .. evidence should have ·been backed up by tha.t o~ th0 dOldie.rs. These people we;re Urafiki .t>olica Station J?olicem 1 n lind.:.i_:t w:..s ur..2.y b:y. Cha\\l).O that they happened to be in Ilala and oa□e upon the. a;;pellant. I· d.:i not u&. a~ personal i•tercst at .all on the ~art of those two pol!ce men in relation to this case and ~Jr.La.awai 1 s contentions on this point are also bas.eless. For all thes-J reasollSo I am of the· view th..:tt the app~llant was rightl~ eonvicted of the offence of bein.s in unlawful r,~s-$"lSsion of a :'i:-earo and amratll'lition and I disilliss his a~p8al to this 00~~~ in relation to that offenoe, When the aj_,:peal w:as being ax-gued I i!lvi tcd lear:.-..ac:. counsles I views on the sentence impoaeq o::i. the c·om1 t in role. tio::.1 tu thi:1 of:f€nce 0£ liJU:-..w:fu.l F-9-l-"~4>0.f,-<> of l:!firearu and a.w.u1unition. Dr.Lawwai counte!'ldeJ that as there h.::s been no appear bb" the ~epublic against the c~rn;.anc<.! i:...j,,osed this court should not it. . interfere withfM.tss Korosso on the other hand, su~~itted that even though' the Republic did not appeal, the sent0nce im~)osod is 80 ,r.ianifestly inadequate that 1 t requires t.) be revise.l u:;_:nvards. She asked ,.ie therefore to invoke the revision.

powers o:? this court and reviso the sai~ s~ntence by eJili-an.cing i_t. It is not clenr und.er which provi.sions of the law the learned trial magistrate ioposed tl:o sen te·nce of a fine of shs. 1 1 Y'JJ/- or 12 monihs jail for unlawful posse3sion of,. firearui and a.1,:ounition • .de did not indicate in Dis judgment the a:ntenoi~g provisions which he u$ei. The sections of the . - and Ar.lwunit~.o··-.s Ordinance, Cap. 223 cited in the charge, i.e. ss.1,3(1) .,.- Arcae ~-J 31 (2), pr0Tid0 for penalties which have since been repealed •. s. 31 (2}· provideo for a f::.no o f t 2,)J or twelve oonths io.i.)rj soru..en, AK ,J.t {s.,31(2) ) has been repealeJ.. Through gxpei,ience, have foW"i.d -tha-t most magistrates still use thes'e re~ealed provisions to 1n1ss sente.noes !or unlawful possessjo of firearras. The Pl"osecution also continua to refer to the old provisions ·• withou·t. indicating the a.i.::-iending legislation. No doubt the learned Llagistrate used the.ae repee.lo.:l provisions to iupose the sentences he imposed in this oase-. This aentence is accordingly illegal, o~ if he used the repealing provisions then it is manifestly inadequ,ate and requires revision by this oourt. 6 . ... The provisions repealing s~ 31 (2) of the ;,.r:-.Is and. Li:: L'\.!nitiona 1 Ordinance are in the third Schedule to the ~cono~ic anl Organis~d Criraes Control .u.ot. Ho, 15 of 1904 Un~er thos13

i:)rov-isions t1.e .Jer:alties for an. offence under the ... ros and A1.1wuni tion<. Ordinance are a dlerm not exaeedi.cg ten years ioprisonJent or a fine not oxcoeding one hundred thousand shillings, or to ,b.:·th that fin.a e,nd i:1pris'Jn:.1ent.. '.:.1his be:'..!lg the position. I revis~ the s~ntences, of a fine of 1) JJ/- fine or 12 month3. ir.1_prisonment by setting tl.ese asideo I will p&ss sentE-nca or. the basis of the repealing provisions of the law refarr~d to a~o~3, P})e off en :e of being in unli:.wful ..,)DsseS8J. Jn J~: f.ir::.. o.~ne and ammunition te frighteninc_;_y prevalent i~ tb~.s c )Un try a·> the : Jme.::.t,. In the ins tar, t ca8e, the ap;,ellant. ill.fact uc;ed -the pistol to fri:~J~-::: :1 l-·EOJle, at the shop when 1 he and his gro1;. ·Nere see-:-\ by PW2 un:l P1i3 f~.::cin.3. mAking the attendants to lie down 9 ar 1 when he tried tQ shoot PW2 with ::.. ~ vmen .J?W2 at1,ompted to apprehend hia. fhis calls for a stiff. sent~r.co to oe imposed an~ I sentence the appellant 1~ impri~onQent for 9 y0~rc ~n placu cf the ~entences of 1000/• ,I :fine or 12 m0n·, 1s imprisont1ent in, ,~Gfaul·t i.cr;_)01 ~d by the co.ur'!: below and. whioh ' I have just soi aside ·1n ±ovision • ... .. . - ,. J",O. J, ... 1Jjll·,)· 1r·~-< // 'l i.,e,.,vt ~ (c) " 'I i t. ... . . -- .. , i .• J~. KYJ.N:bu , . . . . .. __ ___... ...,;._ __ .. ,·t - 1 • 2~TH NOVEMI B::ll, 1 988 •. t .•