19880627 TZHC Dar es Salaam

IN THE HIGH COURT OF TANZANIA AT DAR ES SALAAM HIGH COURT CRIMINAL APPEAL N0.39 OF 1984 Original Criminal Case No.47 of 1984 of ihe District Court of Ilala District at Kisutu Bifore N. Chacha, E~q~, Resident Magistrate ALLY·JAWABU BILAL! •••••••••~• APPELLANT Versus THE REPUBLIC •••••••••'••••••• RESPONDENT J U D G ME N T MREMA, PKM (Ext.Juris.) The appellant, Ally Jawabu Bilali, was_ charged with thre~ offenees 1 together with two ot~ers in the District Court of Ilala at Kisutu, Dar es Salaam. The first count alleged "stealing from a Motor vehicle c/s 269(0) of P.C. 11 , the second tiunt 11 Malicious.damag~ to property c/s 326(1) of the P.C., and third count ''unlawfully foun~ in possession of instrument with intent to commit a felony e/s 298(d) of the P.C.". The learned trial.Resident Magistrate, on the evidence adduced befo~e him, was satisfied that the appellant and the third aceused were guilty of the 1st and 2nd count, and the appellant alone guilty of the 3rd coun~. On the 1st count they were sentenced to seven yenrs imprisonment and on the second codnt a custodial punishment of l year was imposed. On the 3rd count the appellant was sentenced to 5 year~ custodial punishment. The sentences were ordered to run concurrently. The. second I accused was acquitted ~ of a11· the counts. The appellant, aggrieveft by the conviction and sentences has appealed to this court. The memorandum of appeal, as set out by the· Learned Counsel for the appellant, , alleged three grounds as hereunder reproduced for ease of reference:- - 2 - (1) That the trial Magistrate erred in Law in allowing inadmissible evidence regarding alleged previous offences by the appellant as testified by ~Wl. Such evidence adversely affected the trial court's analysis of the defence case. (2) The trial court erred in Law and on the facts t~ hold that the prosecution had proved its· case bay9nd reasonable doubt. (3) That the sentence is excessive and u·nde served. The appellant, therefore, prays that this Court quashes the conviction and set aside the sentences. Or, in the alternative, reduces the sentences. Mr. Mc&ora for the appellant, and Mr. Chiza for the Respondent, argued the appeal. Before I resort to consider and decide whether or not there is any meritous in the appeal, it is perti~ent to re$tate briefly the facts of the case as stated at the trial court for easy reference in this appeal. It was on 31/12/83 when the coi:1plain.2n-t, Mary K. Egan (PWl) who worked for UND? in Dar es Salaam parked his car at Ohio Street near the Old Post Office, at around-11.15 a.~. She went to the Post Office for postal matters. On coming back she found her car's door broken. The lock was destroyed as the key was not opening. PWl entered the car, immediately she noticed that the .radio ~- cassotte, . which was affixed in the car rcooved. According to PWl, there was in the cassette a cassette di~c~ on which PWl had inscribed har name. This cassette disco was tendered and admittea ai exhibit. A. PWl reported the matter to Salander Bridge Police Station. Two weeks later she was called ~o the pQliCe and was shown a cassette recorder and a cassette disco ihich she identified as those re~0ved from her on the material date. Sho was also shown throe suspects whom she did not identify. . . On the same day, that is, 31/12/83 around 10.00 a.m. tho appellant and t~e ~econd accused were arrested. They were sighted by Colp Kirnaro (PW2), Sgt Lymo (PW3) and PC Pascal (PW4) Who were on a police _patrol car along City Drive. According to these three witnosscs, they saw the appellant carrying something.wrapped in a newspaper. When the appellant and his - 3 - coleagous su~ the police following them, the appellant quickly passed that parcel to the sec0nd accused. The appellant ran towards an UDA bus but was arrest~d before entering it. The· second accused who had ran away was caught bY Pascal (PW4) at quite a distance, whereas· tho 3rd accused ran away and was not seen until was arrested the following day at his home in Temeke, At the police station (Central), the appellant and tho 2nd accused, according to the evidGnce of PW3, admitted that they took the tape recorder together with the third accused. They led the police to Tomeke, the police team included PW3, D/C Saidi· and Joseph. The- third accused was arrested and brought to the Central Police Gt~ti0n whore it is alleged he (3rd accus~d) admitted having participated in the breaking of PW1 1 s car and stole from there in the said tape recorder. The three persons were then charged with the three counts I have cited above, I ~ In defence each of the three persons, including the appellant, gave. a different story. The appallant claimed that on 31/12/83 while passing at New Africa Hotel he met PW2 - Kimaro. The aJpellant•said that he knew PW2 as a C.I.D. Ofticer f6r a long time as they had a coml!lon girl friend. That PW2. was not happy with the appellant with this sort of a thing, so enomity developed between them. It was claimed by the appellant that when·PW2 arrested him, he (fW2) 6ategorically told the appellant th~t he had had him and now was tnking him (appellant) to police station to punish ·-him for his 1rnd conduct/behaviour. The appellant finally lamented that the prosacution failed to bring an independent witne~~ - from the civilians who were at the scene When the appellant was arrested to corroborate what PW2, PW; and PW4 told the Court (they werd all police officers). The 2nd accused who was acq~itted clai~od that he was coming f~0m the Burns and Blame Pugu Road to Tnncott house. On reaching Post Office he wet the appellant who at orie time was his neighbour. The 2nd accused stopped to greet the appallant and after such greeting the appellant geve him a parcel wrapped in a gazette. The appellant said he was going to the Post Office and while going, the sscond accused suddenly saw the appellant running. One of the policemen, ~W4, approached the 2nd accused who was asked as to why the appellant was running. The answer - 4 - was in the negative. The appellant, ·,, .. f' 'l.rrosted within a short distance and brought wherv tht: 2n.j_ accused wos. According to the 2nd accused, PW2 said th2 t -at last "we hcve got them, I was looking for them for a long time". Neither the appellant nor the 2nd accused admitt8d what each one of th.:;::o told the Court. The 3rd accused told tha trial Court how police arrested him on 2/1/04 at about 4.00 p.Q. in a pombe shop and brought hi □ to Central Police Station and charged him for an offence he did not know together with two others. Ho denied any participation with the two accused to co~oit the alleged .crime~ Having given tho back ground of the Case in a nut-shell, I will now denl with the grounts of appeal. Whe~ the appeal came for arguoent, Mr. Mchora, learned counsel fo~ the appellant, made an application to have the additional ground of appeal f~led on 6/7/87 withdrawn. By corisent the application was granted. Th0 connael then co~ .r: _:::t and second ~ would start by correcting th~ · · -·"' of the trial court which referred.No. B 6755 Colp Kimaro as PW1. Infact he was PW2 as PWl was the complainant Mary Kete Egan. It was therefore errcnous for the trial magistrate to refer throughout in his judgcent and even in soQe parts of the proceedings Colp Ki □ aro as PWl. Consequently this error has also been repeated-on this appeal during the Advocates' submissions. I will th~refore, for the avoidnncc of doubt, refer the police investigator as PW2. It was Mr. Mchora's submission that the evidence of PW2 included an assertion that referred tho c.pp::;llant tls "a habitual thief .• " This was in admissable ovidenc0 as it relates to evidence of chaT~~ter. The Learned Counsel submitted that it was his view th-- out of his evidence lenrn~Q ~:L~ magistrate proceeded to make opinion on tha cri0inal liability~~+~- ~nnell~nt. For example, he referred to a coramorit by the magistrate at page 4 of his judgement, it says:-. •• ••••• From the fan~~ . · ifiod here th6re :.L. ~ J.J. V U 1t..J '-"- ..., 1.o • PW2 t0ld us th::-.~- -·~-- ..,v ... --- ----- habitual thief of ts~- ,carders from vehicles for ~G has arrested hi~ ~~vcrol tim0s •·••• • • t e • • • • • 4 • • • • ♦ • • • e • o • ~ • • • l • • ~ • • • • ■ • • • • • h~ _, must have some gu~,~T consciousness •••• , o • • • • • • • • • • • o • • • • • • • • • • • • e • • t • • • • • • • • • • • • • .. 5 - Froo such state~ent, ao~ording to Mr. Mchora, the oagistrate's reasoning was fainted by the inadmissable evidenee ••••••••••• ·habitu~l thie~. That as the Publie Prosecutor told tho magistrate before tho s0ntcnees were passed that the appellant was first offender, this was a clear evidence that the appellant had no previous bad reeord, In this regard, he submitted, the appellQnt was not a habitual thief. ThAt the trial a~gistrnte relied heavily on PW2 1 s evidence who simply said that the appellant is.a habitual thief 1 yet no evidence was brought to support that stateracnt at all, Mr. Chiza, Learned State Attorney, ¥igorously ~ttacked Mr. Mchora 1 s submission to the effect that although the learned trial Resident Magistiate referred tho appellant, basing his opinion on the evidence of PW2, as a habitual thief, that was only~ remark or a hint. Section 56(1) of the Evidence Act, No.6 of 1967 provides: "In criminal proceedings th0 fact that the aaeused person has a bad character is irrelevant, unless evidJnce has been given that h~ has a good ~har~cter• in which case it' be•omes relevant: Provided th~t a previous convietion for nny off enco be co~e s r·e le van t after eonvieticn in the case under trial for the purpose of affecting the sentence to be aw~rded by the Court." Applying this Law in th~ piesent ense 1 there will be no doubt thnt a trial Court will undoubt~dly go wrong to admit that portion of evidence by Kioaro (PW2) which says: • " • • • • • • • • I know this ·1 st a cc us c d , on several oceasions .he. has been . arre s to d for c.,c. ta of s te a1ing from motor vchio'les ••••••••• II It is true, as· suboitted by ~r. Mchora that the trial oagistratc referred this piece of ovidcnce in his judgece~t. Mr. Chirn was not also wrong when hG snid-thnt the @agistratc only nade a rcnark or a hint of what PW2 told the Court. But with due respect, I find it diffieult to· resolve ~etween the two, but eerteinly I am bound to oake a decision of my opinion, and that is~ that as long as thcLcarncd Resident Magistrat~ referred - 6 - PW2 1 statement in the eburse of writing his judgement, the Magistrate's mind was no loqger free to look at the appellant•~ conduct as if that statement of charaetere against the appellan1 had not been repeated by the Magistrate himself. His mind was polluted. The trial Magistrate ought to have rejected, that piece of evidence as being inadmissable and in that way he woul~ not have been tenmpted to refer to such inadmissable evidence. Be that as it may, however, the lear~ed tiial magistrate did no1 centre his mind on that irrelevant evidene~. The rest of PW2's ' to evidence was corroborated by the evidence of PW3 and PW4 as the manner and way the appellant was arrested with two others. The evidence of these witnesses was further eocented by the ~vidence of the 00-aecu~a~ No,2 who very clearly told the court that the appellant was the one who passed the tape recorder to him when the appellant sighted the police. Although I am not happy with the way the magistrate handled the o~se of the 2nd accused which ended in his acquittal, I am neyertheless confine~ \ to the subject matter of this appeal. As Mr. Chiza correctly submitted, the evidence against the appellant was cogent and overwhelming in that_the app~al has no any chance of success~ The appell_ant, apart from being seen passing the stolen tape recorder to the 2nd accused, he was found with breaking instrument,. namely a screw driver, and car key9 - eight of them of different make and size. He could not give a reasonabl~ and acceptable expla~ation as how he came_ by the same arid they were for what at that time of the day when arrested. The complainant 1 s car was ,broken and tape ree6rder removed from the car and then after a shot~ \ period of that unlawful transaction, the appellant and two others were suspeciously noticed by the police. It was when the police wanted to be sure against that suspecion, thai the appellant started to run away; so were the other two companions. The ~~cond accused was arrested shortly thereafter and was found with the radio cassette which also contained a cassete tape that bore the name of the appellant. There was no difficulty of identifying these items by PWl. The third person who escaped from police arrest, but, on the following day the appellant and the second accused volunteered to take the police to the 3rd accused's home at Temeka._ Police iould not have known - 1 - the home of the third accused if it was not the help of the appellant and his accomplice - the 2nd accused. The claim by the appellant that Kimaro (PW2) gave the evidence he gave against 'him because of a grudge over a woman by name of Fatuma is baseless because the accused was explained of his tights under section 231 of the Cr.P.A. 1985 whereby he had the option to call Fatuma as his witness so that her veracity could be tested in court. Yet, there were other witnesses, PW3 and PW4 who did .not harbour the same alleged grudge by PW2 but gave evidence against the appellant. What about the 2nd accused? Was there any ill-feeling on the part of this witness (though· accomplice) towards his co-accused? The evidence against the ellant was so direct that it required no circumstantial evidence to draw an inferrence to no any other hypothesis bu~ irrestably towards the appellant's guilt. Without further ado I hasten to conclude that this appeal was filed without any merit and . accordingly it has to be dismissed, which I ao order herewith. I now come to the aspect of sentencing. Mr. Mchora submitted that the sentence was manifestly excessive, that is, it was on the heavier side. The appellant was sentenced to 7 years imprisonment for stealing from a motor vehicle under s.269(c) of the P.C. which creates a punishment of 10 years imprisonment at maximum. According to Mr. Mchora, to sentence the appellartt to 7 years out of 10 years is to ignore the sympathy the Law provides for the Courts to exeicise judicial discretion on sentencing. He has therefore prayed that tho sentence be reduced to meet the justice of the case. Mr. Chiza, as usual, ~pposed this motion and reiterated the importance of ''deterrent sentence''• He said, this case befits such deterrent measure as observed and executed by the trial Court. I agree. This offence occured in 1984 when there was a high waive of stealing motor vehicles, and also stealing from motor vehicles. The property stolen was that of an ex-patriate lady and the act itself in my opinion, was a shame to us in the•eyas of the expatriate lady. Tha offence did not de&er~e any mercy at all, and like the trial magistrate, I ~ould no choice but to - 8 - impose~ stiff and deterrent custodial punishment. The sentence of 7 years imprisonment which was ordered to run concurrently with the lessei ~entences of 1 ysat and 5 year~ on the 2nd and 3td bb~rits tespectively, was, in my o~inion adequate and app~opriate in the circ~mstances of the case. Accor~ingld ths tentences are left undisturbed. I I/ \~h../·,A/ A~C.· Mfeina, PRM (Ext.Juris.) 27/6/88 Mr. Senguji fot the Republic present Judgement delivered, 27/6/88 at Dar es Salaam. PRM (Ext.Juris,) 27/6/88