19760211 TZHC Arusha

/7 Tt1 IN THE HIGH COURT OF TANZNIL. .L.T ARUoi{. • JPPELLATE JURISDICTIGH . HIGH COURT .CRILIINAL APPEL NO. 136 OF 1974 •ORIGI1FAI CRIMINA CASE NO. 142 OF 1973 OF THE DISTRICT COURTOF ROLO DISTRICT AT 15M BEFORE: N. MXERO, Escj.,' District Mistrato Cil 10 ALPHOIWE ASENGA AI?ELLPI.NT ... . (Original .Lc.eusod) ...............versus . ... . . THE REPUBLIC ..-'... .•. . . . . . . . . . . . . .. . . . RESPONDT (Original Prosecutor)

JUDGIZENT 1'TJLTCATEE, 'J. - The applltilt LLI'EIONCE ASENGL.• was con icted for Giving False Inforivation and wa boluto1y diachaged unaer Section 38 of the Penal Code. He has appealed to this Court. The appellant reported to the Police at 1flau Ronbo that while he was rid.,ing his mer cycle ne complainant in tha case, one ELLTUEL IKiIOYO, who was driving a Peugot oar, tried to imock him down. The Police investigated, the allegation and decided not to charge Lakamóyo, whereupon the latter instituted a private prosecution against the appellant, which led to the conviction. The appellant was in fact tine-barred but because my brother judge adi.iittecl tile apca1 this court found itself obliged to decide the aieal on merit • I answer in the affirnativo the question posed by my brother judge as to whether or not appeal lies to the High Court where a person is given an absolute discharge. Under Section 38 of the Penal Code quite cloarly a discharge, whether conditional or absolute, must be proceeded by a conviction s and Section 38B (2)(a) removes any doubt there nay be that a person so convicted and discharged nay appcal I an not ciurprisod that the Republic refrained from prosecuting the appellant: There uas really no good evidence on which to proceed with the charge of Giving False InfonLation. Chrietian.Peter, who testified on behalf of the complainant and who at the tine of the

alleged in'cidont was the appellant's passenger on the motor cycle, agreed that in his statement to the Police lie said that when the two vehicles wore crossing "Wl (the complainant) was trying to dodge something infront and I was shocked thinking that he would knock us down'. In the circumstances revealed the appellant may be forgiven for thinking, perhaps wrongly, that the. complainant was intent on doing him harm. It was not established beyond reasonable doubt that the appellant gave the information knowing or believing it to be flse". The . •1 •.,• • • . • . ./2 • —2— -: • The more fact that oaticrnwas -o might have been falso rould. no f coi,rse sustiri a coiavic.ion In the prcont css, one Lacy iish to- add bh b the, in\rcs igators did not corc1tc1e that the informatioi.. was false. They moiely found that the allege ion c'.ainst ha co iplainant could not be proved, which is sayin, a sinL[icnt1y doff ocnt thing. The learned trial magistrate expressly partly, ha ;aed his finding o aseerLiem thot alb±iouji the allced incid.cnt was oi 2/9/73. the appellant, did not rLakc a report to the Police unoil on 4/9/73. iith lespect ho overlooked the fact that ':fl hi.,.fence the appllant conteided that he made the initIal repOr on 3/9/73, which contention was not challenged and which in fact finds support in the testimony of the Police Officer Cpl. IbrahiLl, .17.2. This appeal is allowed. I Thb conviction is therefore quashed and the ordor.for discharge is oct asi,.X.b follows also that the order allowing the a onIinhht to take 5tL.S to recover costs is also eeL aido. Ti. JUDi. ' Asha: Februay 11, 1976. • ' • '- .1 LI3J/MTPTv1.