19700211 TZHC Dar es sam

IN THE HIGH COURT OF TANZANIA

AT CAR ES SALAAM CRIF1NAL APPEAL NO. 24 OF 1970 Original Criminal Case No. 16 of 1969 of the District Court of Newala DistrIct at Newala Be 2 ore S. Wangwe Esq., District Magistrate AMRI CHIBANA ......................... APPELLPN2 versus THE RIYPtJBLIC RESPONDENT CHARGE: 2 counts: Stealing by a public servant, contrary to sections 265 and. 271 of the Penal Code

JUDGMENT MUSTAFA, J. - Appellant was convicted of two counts of stealing by servant of a registered Co-operative Union and was sentenced to a substantive term of two years' imprisonment, together with the stattthory strokes of corporal punishment. Appellant was a clerk employed by a Co-operative Jnion. He was alleged to have stolen .420/15 on the 15th September, 1968 1 and .5, 00,0/ on the 17th September, 1968, The case has been very unsatisfactorily dealt with neither the evidence nor the judgment of the trial magIstrate being clear. Indeed1 on the evidence, it is difficult to know if there was any shortage. Different amounts were alleged by differont prosecutIon witnesses to have been found missing. It is indeed difficult to know the basis on which the alleged lost sums were arrived, at. Even if, for the sake of argument, it is accepted that there is some evidence of shortage of cash from the Union, it would seem that such shortage must have exIsted over a long period* it was alleged, that on the 4th September, 1968, whIle officers of the Union were paying out money, the appellant, who was the holder of one of the keys of the safe, suddenly left the office while payments out were still being made, and. locked the safe and threw the key to another person. The prosecution would seem to allege, because eppellant did that, that is, without checking the cash beforo closing and,

lockIng up the safe, he must have boon the person responsible for the shortage of whatever cash there was when a check was later made of the Union's funds. When a check was made, it was alleged at some stage that funds were missing. Appellant then signed a document atating that he was responsible f or the loss and would refund the loss. Apparently, the trial magistrate equated that document with an admission of theft. All the appellant agreed, was that he was responsible for the loss, not that he had stolen the money. Apart from the occasion when appellant is alleged to have irregularly locked up the safe, there does not appear to have been any occasion when appellant could have alone stolen the money. There is clear evidence that the safe could, only be opened by the use of two keys kept by two separate individuals. One cannot help the feeling that if there was a loss, which has not been satisfactorily established by evidence, other off icialz of the Union were probably more Involved than appellant himself, and one cannot escape the conclusion that perhaps appellant was teing made a scapegoat. After giving a precis of the evidence adduced at the trial, the trial magistrate said this: ./2 * 2- "According to the evidence that has been adduced and all the documents that have been produced to this oourt, showing the financial poeition which was existing in this

Co-operative Sooiety during the time the accused was acting as a secretary, I am satisfied that this case is proved beyond doubt on both counts against the accused person. I therefore convict him." The trial magistrate made no finding of fact in respect of each of the oounts, nor did he consider the evidence or give any reasons for his finding that the appellant was guilty as charged. Learned State Attorney states that the Espublic is unable to Eupport the convioton, and I am not surprised. In the crcumstances, I will allow the appeal, qush the conviction, set aside the sentence imposed, and order that the appellant be released forthwith unless held in some other iawtui connection. Delivered in Court at Par as Saiaam this eleventh day of Pebruar, 1970 (A. MUSTAFA) •JUDGF.