19740219 TZHC Mwanza2

• IN THE HIGH COURT OP TAi ZARIA AT I5WA1iZA.

ARP LATE JURISUICTION HIGH COURT CRIMIUAL JiPPi1L NO 455 OP 1972 Original Ciinna1 Case No. 687 of 1972 of the District dourt Of Mwanza District at Mvanza Before S VJangeBsq., District 'Magistrate. AJLY HfiIi1I 5 a.,, a: a o. ...........•. ... a'* . . • ........... APPELIJ.AN'T ('originEa Accused) vers. THE REPU:EIC •• ". .-.;' . . . . . a .'' •O •.• • • • • • ... RESPOND1T (Original Prosecutor) CHARGE Giving false information /s J2 (b) of the Penal Code.

DGEIIET 124 ALILA, 3 The appellant Ally Hamis was convicted 01 the offence of giving false informatIon t 6 a perbon employed 'in" the üblic service c/s 122 (b) o bhe Pcnal Code for which he was sentenced to 9 'nonths impriancnt The allegation was that on 9th May, 1972 2 the appellant save false inoimation to No A 8717 Corporal Bernard to the effect that his two wrst watches one'Ronc-rvalued at shs". . 150/= and the other Oris valued at shs 75j= and cash shs. 60/= were stolen from him by onO Kale.. /o John while imowing or believing that this information was false. The £cs of te case briefly e: 'follos:' 'During the afternoon of 9th May, 1972 the appellant visited house NOo 51 . Rufiji Street. In this oue, live three gi1s that is to say Kafe John (Fyi), Paturia Rashidi (P2) and.Regina John (PN3). He was invited and welcomc.d by Kale and Paluma whOh he immediately . started to solicit Kafe's f'iendbhip Accoding iioKa±'ets evidence, she accepted the appellant's 'offer to'become"his girlfriend. Later'. that oven±n TthQ appelant invited the two girls to accompany him to a bar for dhnks. Bdfore'they left for the bar, the appellant 'gaTE Kie, his newly acquired girl friend, a wrist watch for her to wear. On their way to the bar, the appeilantsuggested that Patunia should go back because he wanted tpremain alone with Kale. But in order both to placate and toa uóaiuma of his good

intentions, he gave her his own Jacket to kecip until he and Kale returned to the house after their drinldng session Vth this, Fatuna returned home, and two of them proceeded to a bar ci1ed Tip Top. At Tip Top hart th '.. c... appellant-ordered beers fOr himself and his girl friend but it was not long before Kale started to suspect the appellant. In the first place the appellant refused, to pay for the beers he had ordered and she saw him associating with characters whom she considered to be hooligans a She therefore decided to return home unnoticed. She slipped secretly out of 'the bar and returned home because she feared that she might be hurt by the appellant and his hooligan friends. When the appellant noticed Kaf a had left without notice, he started looldng for her and eventually he traced her at her house but she would have nothing to do with hin o There upon, the appellant went to the Police Station where he made a report of theft against Kale and her friend Patumae When the two girls got to hear of this they proceeded to the Police Station with the appellant' s articles and handekhem at the Police Station and :plained the circumstances under which they ctme to be given the said articles by the aprellant himself. In the ricantime the appellant never reported back at the Police Station until he was arrested in connection with some other offence .. . . . -- - _...: -.--

-• - - -•-'- - 2 - In his ovrn defence the appollant.mintedned that Kafe John ws his long standing girl friend and hac'on'9th May at about 8 0 00 pm 0 he had gene to sec his sieter at. Liberty Street 1 Thi's sister of his gave him an One wrist v:cch Since he had one wrist watch of his own, he thus had two at the.c;bime. -'fte this visit to' hi's sister ho Iroceedod to Kafo' s house end csk-d her to caine with him or a drink and he left behind the Jacket which-. contained ohs, 60/= .and.th tio wri'tJt watc1os Aftor spending sorictpie in te''bar, Kafe, disappeared and tho appellant started looking for hr- He ix4led to..ce her but . met 'Kafe' s sister who told him that Kafe was ahooUgan, It was on the strength of this information he sr'id that he made this report at the Polico Sta±ion J1 . question ien as did "ie appc1 ant hiow or believe that the report ho mdo at"thd "PcJ.iee Station against Kaf a was false1 I think that the circumstances a:n such that tht2 appellant must have Imown' the falsity. of hiss idt hd thado thic report when he was iiii'o:dc'd that Kafe was a hooligthn must be untrue beco'. - if as he claimed Kafo was his long standing girl frieid, surely. 'he. - would hav, 1nown long before this anch in' any' 'case Peöle dont mcJce accusations of tft against long standLng girl friends at the mere word of third parties 1 I therefore accept. -did' the leamd ti'i.nl ici s

trat' that th circumstances leadi.ng u ' -: s report at the Police Station were v.ry rrni d-nr:Lbod oy the two girls and that' therefore the appellant of his own free will han1.ud over these .articl,cs to the two gir-:Ls and this he hnCW at the' time he'ndde the report of,. theft agrinst ±i',omat th - PoJicc Station. His 'intentioi cduld only have been to caus arr ;j"C. "a tiid gi.rl for"haviig jilted him.. 2he offence unecr cacti ci 127 w 1 s t}ir efrnc ccipl''to In the circenstances the ap1 irtt "c"-i - ct on h- no IflOTL + Land it i 1i herr_'Iby disnissed 0 '41-tuh JWS rera a PrIll.tence the 'earned tiial magisrato etenccd the apnellan -t to nine (9 mont's impnisonnent, This was clearly unulawful as the madinum sentence for this type of offic'is 6 noiiTh'- It is important Zcr mis±rai3s to check penalty sections before passirg sentences as this ensures-the avoidance 'of -paesing'unlawful sentences which in certain. cacec ,'e t Pr:eeflt ct.cause undue hardships. . .. In tho resuj..t the sonteiace Of ... months impnioiñncnt is set asiè and substitutod therofor* a.sentence of 4 mbnths'iutpnisonnent but 'as" indicated eolier the appeal is othc'rse dismissed. Delivorcd in Cour U az Iffwanza this ( day of Pebruai, 1974. IlT7N ZA.' LL)Ai L .. ,1iALILA, - .. .- JIJDGE . '-.. — Pebruary 197 4 / I — — - ' , •1I