19770818 TZHC Dar es Salaam

ilow-, IN THE HIGH COURT OF TANZANIA AT ARUSHA L- APPELLATE JURISDICTION HIGH COURT CRIMINAL APPEAL NO 93 OF 1976 ORIGINAL CRIMINAL CASE NO. 308 OF 1975 OF THE DISTRICT COURT OF MUHEZA DISTRICT AT MUHEZA Before A. M. Mbaruku, Esq., ......... District Magisttate AIVIIRI JI.JMA 000 ............................ * APPELLANT versus THE REPUBLIC . . a a a. os 00 00 0 • • cc. • eeo..... 0000 0 RESPONDENT Charge: Grievous harm contrary to section 225 of the Penal Code0 JUDGMENT/ORDER BIRON, J. — The appellant who was charged together with another man who was acquitted, .ith cai.Lsing 'grievous harm, was convicted as charged and he was sentenced to imprisonment for three years. He is now appealing. Two police officers testified to the effect that they had received information that the two accuCed intended, according to one of the officers, to commit burglary, whilst according to the other, to break into a godown, which incidentally, would not constitute burglary, and they accord- ingly went to apprehend them at about 9.30 p.m. on 23rd November, 1975 One of the suspects was found in a bar whilst the other was found in the house of his girl friend. The two police officers enlisted the aid of a militiaman hereinafter referred to as the complainant, and all succeeded in •apprehending the accused, 'end each of the accused was handcuffed to a hand of each of the police officers, they having only one pair of handcuffs between them. As the police together with the complainant were forcing the two accused who were resisting, into a police car, the complain- ant received a stab wound in the thigh and a knife was subsequently found. The two accused in their defence denied having used any knife, but asserted that some bystanders intervened in the struggle between the police and the complainant and the accused. The magistrate, however, found that it was the appellant who had stabbed the complainant. W. -2- Even if it was the appellant who strUck the complainant, the conviction cannot be sustained, for as condéded by learned State Attorney, the arLest of the two accused neither of whom incidentally, was informed on what chargle he was beihg arrested, was unlawful ab initlo. Therefore, the appellants were per- fectly justified in resisting such unlawful arrest. It is a pity that the complainant who had so very public spiritedly assisted the police should have been injured, but that does not alter the position in law0 The appeal is accordingly allowed, the conviction which as noted is not supported by the Director of Public Prosecutions, is quashed and the sentence imposed thereon is set aside. If the appellant is not otherwise lawfully held in custody, he is to be released forthwith. Delivered in Court at Dar es Salaam this 18th day of August, 1977 <-'- • i (PHILIP BIRON) JUDGE