19730907 TZHC Arusha

IC \ IN TI HIGH COUNT CF TANZANIA Al ARUSI3A APPELLATE JURISDICTION HIGH COURT CRIMINAL APPEAL NO. 437 OF 1972 ORIGINAL CRIMINAL CASE NO. 592 OF 1971 OF THE DISTRICT COURT OF KOROCWE DISTRICT AT KOROGWE Before T.B. Mihayo ------------------------Resident Magistrate ALl MOHAMED MATAI --------------------Appellant (Original Accused) 1st Accused versus THE REPUBLIC ----------------------------- Resp on dent (Original Prosecutor) J U D GM E NT t . Makame, J. The appellant 9 Au Mohamed Matai, was sentenced to be imprisoned for three years after being convicted of stealing 76 bags of beans out of some beans he was supposed to be distributing to famine-stricken people in his capacity as a Village or Ward Executive Officer at Mombo. The evidence against the appellant and two other people charged with him but acquitted was long and not so clear. The driver and his turnboys who allegedly carried the bags of beans to Hedaru and Same do not agree as to how many trips they made. Adaiittedly the learned Resident Magistrate who tried the case addressed his mind to the conflict and found that the driver was the most credible of the three. There however remains one problem, a greater one, and it is that, assuming that the number of trips was as asserted by the driver there is still no clear evidence that the release of those beans by the appellant was other than laful because the alleged recepient was not called. That person had allegedly made several trips with the driver and his crew and on one occasion he was even transported right up to his native village. If there was any serious effort it should not have been impossible to locate him, especially when the bags were allegedly taken off the motor vehicle at Co-operative centres. As it is now, there is no knowing as to whether the appellant knew or ha€ reason to suspect that the ultimate destination of the bags was other than lawful. Regarding the last 25 bags, the evidence of Hamisi, Ohanikas turnboy, was that they were asked to take thel load to the Chekeleni Chairman and that it was only on the way, and of course in the absence of the appellant, that they were asked to change route and go to Madumu instead. The driver, P.W 13, does not appear to have been a very reliable witness as, when accosted by the authorities at Mombohe decamped with the two bags the party had not taken off at Madumu. The appellant did buy a radiogram at shs. 1750/- during the material time and this was a lot ofmoney for aperson with his humble salary. I would resrectifully agree with the learned trial.. magistrate that the money the appellant received from the newspaper "Baraza" for hi journ1ibie uUi.hU c'r. would not have made the appellant "much stable in his financial resource cnd I would add -monies arrived in a trickle over a period including beyond the date the appellant acquired the gadget. However, the appellant submitted that be had also received some terminal benefits from the District Council, Korogwe. The learned trial magistrate observed that if such money was at all paid to the appellant it must have been after he had purchased the radiogram because the circular letter announcing the impending payment of ---/2 -2- the benefits was itself dated 24th .Decer,:,97, that,, is after the appellant had bought the radio. On the face of it the magistrate is right but in his Petition to this court the appellant makes a point which may have material substance. He suggests that there wasa typing error and that the date was infact 24th December, 1970 and so the payment was made before he bought the radiograrn... I have carefully gone through the circular letter and having done so lam unable to say with certainty that the appellant could not be right. The circular refers to aeminar attended by ward and village Executive."fficers from 15th to 22nd December, 1970 and the tone suggested that the 3eminar had only recently been held.. The letter is dated 24th December- lt says that "there will be changes .... on 1st July, 1971" and that the six months notice would begin on 1st January, 1971. If the learned magistrate had studied the letter more carefully this might have struck him. The appellant's contention may well be true. The system of distrdbuting the relief was clearly casual and zeal was not matched with efficiency. In his evidence WILLIAM JtJMA, the Deputy Executive Officer Korogwe conceded that prior tothe "trouble" no proper records were being kept. The appellant might have taken advantage "of the situation and pilfered, especially as', according to Juma, ' all the food was passing through Mombo," but the suspicion against the appellant has not been transformed into the hard mould of proof beyond reasonable doubt. I accordingly allow the appeal, quaeh the conviction and set aside the sentence of three years imposed. If the appellant is still in custody he should forthwith be released unless he is interned on account of soae other lawful reason.. Appellant absent, unrepresented. Mr. Kinabo for the Republic. Delivered in Court at Arusha this 7th day of Septembr, 1973. (L,M. MAKAIVi) J U D G E /K I mat hi