19800613 TZHC Dar es Salaam

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IN THE HIGH COURT OF TANZALIA AT dAR ES SALAAM ?PP ELLATE JURISDICTION HIGH COURT CRIMINAL APPEAL NO0 66 OF 1979 ORIGINAL CRIMINAL CASE NO0 19 OF 1979

OF THE DISTRICT COURT OF ILALA DISTRICT AT IKISUTU Before W. S. Mandia, Esq0, Resident Magistrate B AKARI ATHUMANI 0 0 0 0 0000 0 00 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 00 0 0 0 0 0 0 0 0 0 APPELLANT versus THE REPUBLIC 0000000000000

RESPONDENT Charge: Bein2in pdssession of property suspected to have been stolen or unlawfully obtained contrary to Section 312(1)(a) of the Penal Code and Corrupt transactiOn with Agent contrary to Section 3(2)(a) of the Prevention of Corruption Act No0 16/71

JUDG EMENT KIMICHA, J. - This is an appeal against conviction and sentence The appellant in this case Bakari Athumani was convicted on two counts0 He was on the first count convicted of being in posses- sion of property suspected to have been stolen or unlawfully obtained contrary to Section 312(l)(a) of the Penal Code ..nd sentenced to t;e1ve (12) months imprisonrient0 He was cn the secotid count convicted of Corrupt Transaction with Apent contrary Co Section 3(2)(a.? bf the Prevention of Corruption Act No0 16 of 1971 and seritcncd to three years imprisonment0 The facts of the case as found by the trial court are as given in the lower court judgement which is reproduced belcw for easy reference: "JUOG EMENT "Bakari Athumani is charged with twu counts0 The first count is Being in possession of property suspected to have been stolen or unlawfully obtained c/s 312(I)(a) of the Penal Code, as amended by Act No0 26 of 1971 The second count is Corrupt Transaction with Agent c/s 3(2)(a) of the Prevention of Corruption Act NO 16 of 1971 The particulars of the first count allege that on 4/1/79 the accused was stopped, seardhed and detained by C 2949 Detective Corporal Florian who was exercising pwers conferred upon him under s24 of the CPC0 -2- 4 On searching the accused D/Cp10 Florian found the accused in possession of three pairs of vitenge valued at about shillings 906/ propetty

which is suspected to have been stolen or unlawfully acquired0 in the second count the accused is alleged to have corruptly given Shs0 130/= toCpi.0 Florian as an .ihducement so that Cp10 Florian does not report the accused to the Police Station for the offence whose particulars arequoted in the first count0 The facts of the case are simple and. straight- forward: On 4/1/79 Detective Corporal Florian (PW1) and Dtective Constable Frank (PW2) of Port police and HarboUrs Police respectively iee on pattol 'thside Dar es Saleam port0 Constable Frn was riding a motorcycle with CorpOral Fldanon the pilipn At Yard number Eleven the two de€d'ties h6E the, accused and another person not brought to dourt0 Cpl0 Floria'n testifies that he found these to pOrsoñs had "swollen" legs and he suspected these 6 swel1in.gs0" He therefore stopped these bersrins, for a search. Cpl.F1.-'rian 1 s suspcions were confirmed0 One of these two persons that is the accused BAKARI ATHUMiN had rollec a pair of kitenqe around each leg and then worn, trousers on top0 A further search showed. that, the accused had, rolled enother poir of kitenge aoUñd his waist0 "IThe three pairs of kitongc were prbded as Ehibit A0 Afte this search Corporal Florian and Constable Frank took the accused to Gate Number Eiqht to await a vehicle to take the to Port Po1ie Station0 Gt•u Nueher. Eight was mnne by Corpore.L lien (2W3) This

was a chac1cpint for persons goinq into aad oUt of the port. area0 Corporal Florian, Constable Fenk and Corporal: Wiiiiarn each testified that while at Gitu Number Elgat the accused prooucad shil1inq i3C'/ and offered the same to Corporal F1ori:ar so that the latter does not report the accused to the Police Station T cUrrency.nots making Shs0 130/= ware produced a Dchibits D, E, F, G, H, J, K, L, K, N, and 00 Co'rbai Fl;orien had made a list of the nurthers of the notes offered to hirnat the scene0 He produced this list as Exhibit C. In his defence the accused admits he had been arrested by Corporal Fiorian as alleged0 The accused also admits he was taken to Gate Number Eight as alleged by the prosecution witnesses0 The accused how- ever denies offering a bribe0 He alleged that Corporal Florian searched him and took the notes from his shirt pocket and said the notes will be a bribe0 The accused brought as his witness Ali Musa who is the other person arrested with the accused but charged separately0 All Musa alleged that Corporal florian took the money from the accused by force and said the money will be used in a chrge of bribery0 Th above is the outline of the whole case0 0n. ...ct stands out clear0 This is that the accused was stopped and searched0 He was found to have conceled the clothing ffiataials0 The presumptien that the materiel was stolen or unlawfully. acquired has

thare fore not bn expiaine away by the accused0 I find the first c:unt r)rcl.'en d I con ar s c ' 0 S -3- As for the second count another fact stands out0 This is the fact that there was a movement of money Shs0 130/= from the accused to Corporal Florian0 What is however disputed is how the money moved why the money moved0 The three prosecution witnesses testified to the effect that the money moved by the accused himself Offering it to Corporal Florian0 The prosecution witnesses also give the reason why the money moved0 They say the accused himself said he wanted Corporal Florian to forgive him and not take him to the Police Station0 On the other hand we have a diametrically opposed oxplanation as to how the moneymovd0 This explanation comes from the accused and his witness Ali Muse0 These say it was Corporal Florian who took tie money from the accused's pocket0 As to why Corporal Florian should take the money the defence says Corporal Florian said the money will be used in a briberly charge0 :1 have examined the evidence and the demeanour of the '.itnesscs for With both the prosecution and the defence0 I did not see any hint of animosity between Corporal Florian and the accused before the accused was arrested0. What the accused alleges is actually a frame up0 To frame up somebody, one must have a motive0 The court did not see such motive0 The evidence on record shows that the

accuse,d gave the notes in broad dayliht and intimated that he wanted Corporal Fiorian to take the money and drop the, charges against him0 .1, accept t.e prosecution as rc-presenting.the truth as tohowthe money .chargod.hnds and why it changed hands0 'I. : dismis the defence allegation of frame up as a baseles,s lie o... ; Tie accused gave the accused the money with tIeirtentioñ that.-.Corpora1 Florian, who had arrested him,. shoud drbp. the charges he knew he was to face as he (accused) was at Gate Number Eight on way to the Port Police. ,5tation0 . The money was therefore an inducement..for..'. Corporal Florian, an agent of thegovernment, to dsit from performing his duty of preferring charges against the accused0 1 have however noted that the offence was. laid down under s3(2)(a) of the prevention of ccrruption4cto To my mind there is no section 3(2)(a) of the said ACt as subsection (2) of section 3 of the Act has no sub- sections0 It is sub-section three (3) which has sub- sections0 This is not the first case where I have castigated the proser.ution for citing the wrong sectioz0 The proper citation should he section 3(2) for the section creating the offence and section 3(3)(a) for the section providing 'for the penalty0 I h.ipe the court does not have to remind some inept drafter of a charge of this elementary thing0 The failure to cite the proper section is however trivial and has not embarrassed the accsed in his trial0 The particulars uf the charge are very explicit so I rule the mistake to be inconsequential0 I / I. - 4 - .., Save for the castigating rèrnark the cou't finds that the Second Count has, also bedn. proved and the accused is hereby convicted of the second count. .s well Dated this 8th JANUARY, 1978 sgd0

RESIDENT MAGISTRATE COURIt Judgement read in open Cburt this 8th.Jnu.ary, 1978 s gd RESIDENT MAGISTRATE..; P:ROSECUTON;: No previous record0 MITIGATION: I finished Form Four last. yea0 I have six brothers0 My fathe,± is not -1p gOod health0 My brothers depend on me0 I am a fits€ offendeL I pray for leniency0 s gd 0

RESIDENT MAGISTRATE SENTENCE. The.accused.is a firstOffender and a youngrnan Of ticr1rone who has just fixiihrad Form Four at the ehd' f 19.78 it is a pity that. at his age the accused .has'ire'dy lea'ned smugg.linq tricks like concealing clothinc r-tateraals around his body and also offering bribas When arrested Such bLhaviour has to be rn-peed in.the bud and the arresting officer Corpnral Fl3riañ has:to he.commended for realising this fact and brin ingtheaccusedto book.0 The accused app.:arS to haV lethed:dishonesty very early in life so despite his relative youth he must pay for his crookedness0 The court therefore sentences the accused a. follows: - 1st Count - Imprisonment for twelve (12) month0 2nd Count - Imprisonment fur thrca ye7iis0 Sentexices to be served concurrently0 sgd0 RESIDENT MAGISTRATE0" 0 4 -5- After reading the record and after considering the appellant's submissions before this Court, I a-rn satisfied that there was sufficient - yiderce before the lower Court justifying the appellant's conviction on the two counts0 The appeal is therefore dismissed in its entirety0 Delivered in open Court this 13th day of June 1980 atDar es Salaam0 I (N0.P0

JUDGE -:.. ...•L:. . •0 4