Arusha Mwashilindi Mbela vs Republic DC Criminal Appeal No

IN THE HIGH COURT OF TANZANIA AT MBEYA (DC) CRIMINAL APPEAL NO. 48 OF 2004 (From Mbozi District Court at Vwawa Original Criminal Case No. 218 of 2000) ARUSHA MWASHILINDI @ MBELA ................ APPELLANT VERSUS THE REPUBLIC ..................................................... RESPONDENT JUDGEMENT LUKELELWA, J. The appellant Arusha Mwashilindi was on 12/3/2004 Convicted by Mbozi District Court at Vwawa, in Mbeya region on a charge of Unlawful possession of fire arm Contrary to section 13(1) and 31(2) of the Arms and Ammunition Ordinance, Cap. 233 as amended by Act No. 10/89 and Act No. 30/1992. He was subsequently sentenced to five years imprisonment. The appellant is not satisfied with the findings and sentence of the District Court and has preferred an appeal to this Court. PW2 Sabasi Mbinde told the trial Court that he was the Ward Executive Officer of Nyimbili Ward. On 2.12.2002 he was in his office when he received a report from Mpanda Kitongoji Chairman one Luzi Mboya that at Mpanda Izewa kitongoji there was a man who had a gun and was threatening to kill people using the gun. PW2 asked the Kitongoji chairman to conduct detailed investigations. This was done and on 16.12.2002 at about 12.00 noon, the said chairman Luzi Mboya reported back to PW2 that the appellant Arusha Mwashilindi had a gun. PW2 summoned two militiamen, one being PW1 Tanzania Mboya. The two militiamen together with the Kitongoji Chairman proceeded to the home of the appellant. The appellant was not present at his home, his son one Failinga Mwashilindi was present. A search was conducted in the house of the appellant, it would appear that nothing of interest was found in the appellant’s house. However a muzzle loading gun wrapped in a pair of trousers was found hanging above the pavement of the appellant’s house. This led to the arrest o f the appellant’s son one Failinga M w ashilindi on accusation that he had aided this father, the appellant to escape arrest. th The appellant had told the trial Court in defence that on 16 December 2002, he returned at home at about 12.00 noon from Mlangali village where he had gone to visit his ailing grandchildren. When he reached home he heard that his son was looking for him, as there was trouble at home, and militiamen were also looking for him. The appellant decided to go to report to the police station. The appellant returned home in Company of a policeman, and after reaching home, the Ward Executive Officer ordered his arrest because a muzzle loading gun had been retrieved from his homestead. Mr. Mwamwenda, learned State Attorney who appeared for the respondent Republic declined to support both conviction and sentence. The learned State Attorney pointed out that there were contradictions in the prosecution case. While during preliminary hearing it was stated that the gun was retrieved from the appellant’s cattle kraal, during the trial it was stated that the muzzle loading gun was retrieved from above the pavement of the appellant’s house. Although the said contradiction appear to have not gone to the root of the prosecution case, there are some aspects of the case which needs to be addressed to. The appellant was charged under the Arms and Ammunition Ordinance Cap. 223. The above ordinances was repealed by the Arms and Ammunition Act, (Act No. 2 of 1991) which came into effect on 4th May 2001 . However, being charged on a repealed law does not in itself vitiate the Prosecution case, simply because the particulars in the provisions of the repealed ordinance are on all fairs similar to section 4 (1) of the Arms and Ammunition Act. Hence the appellant conviction can be deemed to have been found on the appropriate provisions of the new Act. The only tangible evidence tending to connect the appellant with possession of the muzzle loading gun, is the same being found under the gutter of the appellant’s house. However that alone could not be a conclusive evidence of the appellant’s possession. That place was easily accessible to anyone, at any time sometimes being unnoticed. It was reported by the Kitongoji Chairman that the appellant had used the gun to threaten killing people. However that evidence was not adduced in court. No witness who gave evidence that he had been threatened by the appellant using the gun. The muzzle loader was found wrapped in a pair o f trousers but it was not said whose pair of trousers it was. The above short comings in the prosecution case, coupled with the conduct of the appellant of going to the police station on his own to make inquiries about the arrest of his son, clearly creates reasonable doubt on the prosecution case. This doubt should be resolved infavour of the appellant. I therefore quash the Conviction of the appellant and set aside the sentence of five years imprisonment imposed on him. It is ordered that the appellant shall be released from prison forthwith unless held therein on other lawful charges. Appeal allowed. Order accordingly. JUDGE 30/8/2006.