19710219 TZHC Mwanza5

IN THE HIGH COURT OF TLNZLNIL LT MWLNZL. Lppellatc Jurisdiction, CRIMINLL LPPELL NO.359 OF 1970 Original Criminal Case iIc.68 of 1969 of the District Court of Kibondo District at Nigoma Before M.J.Lungombc Eq District iIa(:istrato, ISSL LMRI o a . . . . . . . . LPPLLLNT(Origina1 Lccus0d) vs. Tifli? REPUBLIC. . . . . . . . . .RhSFCNDENT(Original Prosoc,) A CHLRGE: Bu2c;1ary and stealing contrary t sections 294(1) and 265 of the. Penal Code (2 counts). JENT. /2 KISLNGL, Lg.J. Thc appellant Issa uimri was charged with two counts of burglary contrary to section 294(1) and stealing contrary to section 265 of the Penal Code0 Ha was, however, convicted of receiving property which was stclon in the ursc of housebreaking and was sentenced wider the kinimum Sentences Lct to the statutory minimum of 2 years iniprisonmcnt with 24 strokes of corporal punishment, with a further order that an axe and a knife Wi1c!i wore found in his possession at the time of arrst be forfeited to the Government. lie now appeals against both conviction and sentence0 hara appeared to be sufficient evidence to support the conviction for receiving and the appeal was admitted to hearing only in order to consider the propriety of the order of forfeiture. ht the hearing, however, learned State Lttornoy while supporting the conviction submitted that there was no evidence to show that the appellant know that the property he was convicted of receiving was obtained in the course of a housebreaking, so that the lack of such knowledge amounted to special circumstances which would entitle him to a reduction of the sentence0 In support of this view he cited the case of Shah Lii vii (1968) H.C.D. N0.4Th in which Biron, J.hcld that lack of knowledge or reasonable belic on the part of the priconer that the goods in question ;roc obtained in the course of committing a scheduled oifcnce constituted special circumstance. There was in the present case evidence that on the night the appellant was arrested he had a lamp which ho was lighting on and off as he walked along in a manner which aroused suspicion and in fact it was this suspicion which prompted the two police officers P.i.3 and P.i.4 to walk up to him and to question him. Both police, officers furtlicr testified that when they interrogated him about the property which was found in his possession he ran away and they had to chase after him and eventually&rcstted him. Furthermore, after he was so chased and arrested he was again asked wlieeo he got the goods found in his possession from but he refused to give any reply. This kind of. * _ p —2-- behaviour on the part of the appellant would tend to suggest that the appellant know or reasonably bolicvod that the property ho was found with had been stolen or unlawfully obtained, but it would not be sufficient from which to infer that he knew or reasonably believed that the property was taken in the commission of a schedulod offence. Pollow- ing the decision in the case of Shah Lli cited abovc therefore I would agree with the learned State Lttorncy that there was a special circum- etanca in favour of the appellant in this case. The appellant was a first offender.. The property in respect of which he was convicted consisted of one lamp only which was adequately id.entificcl ac belonging to the complainant. The value of this lamp, howevor, was not given and was not assessed ; and therefore it is to be aesurnod in the appellant's favour that its value did not e k_ exceed shs.100/— ThUS those two factors coupled with the special circumstance as indicated earlier would entitle the appellant to a reduction of the sentence. The appellant was sent to jail for this offence some eleven months ago. I think that this period which he has already served would "o:: sufficient punishment in the circumstances of this case. Lccordingly, the appeal adainsi conviction is dismissed but that aGainst sentence is allowed to the extant that the sentence is reduced to such term of imprisonment as will result in the immediate discharge of the appellant. Regarding the order of forfeiture, it Ia not apparent under which provision of the law the learned magistrate made it. Ls stated earlier the axe and the knife which were ordered to be ±orfeitod to the ovarnmont were found in appellant's possession at the time of his arrest. There was nothing to suggest that either or both of these • instrwncnts ware connected with the offence of which the appellant was convicted or with any ol±'erice. Under section 179(a) of the Criminal Procedure Code if an accused person upon being arrested was found In his possession of property which appoars to tiio court to belong to the said accused, thc court may order that the said uroparty be restored to the accused or to any other person of his choice 4 There was nothing to suggest that thcc items of property belonged to any one other than the appellant who was found in possession of them. In such circumstances it would scorn that the provisions of section 179(a) of the Criminal Procedure Coda could Npig properly apply so as to restore the property to the prisoner s Lccordingly, the order of forfeiture is set aside with a direction that the trial court restores the axe and the knife in question to the appellant. Delivered in Court this 19th daf Februay1971. (R.H. KISLNGL. 1cting Judge.