19720126 TZHC Dar es salaam2

IN TITE 111GB COUT OP TANZANIA AT EAR ES SALtAM Coit Criminal Appeal No. 642 of 1 97 1 4C&v1s , ,, tfo.,7/72 Original Criminal Case No. 23]. of 197']. of the District Court of Fungwc District at Tulcuyu before: A. Bahati, Esq., Resident Ma istrate. • __ SEtB SKA!MA APPELLA1T versus THFj RE?IThLIC .....,.. •.. . . ..... S... • • .• ...• ..• •,•* RESPONDENT CBARGEs Corrupt transaction with agent c/s 3(2) & (3)(a) of the Prevention of Corruption Act No. 16 of 1971. N JDGMINT BIBON 3. - The appellant who was charged together with a youth by the name of Men Amos who was convioteld on his own plea, was convicted after a irial of corrup,tion and be was sentenced to imprisonment for twelve months, whilst Men, who as noted was convicted on his own plea, was sentenced to imprisonment for nine months and awarded twelve StrokEs corporal punishment. Be has not appealed. The appellant is a shoptkeeper, and according to Men, who after his conviction and sentence was called, by the prosecution as a witness, he was given bythe appellant a dosn shirts to sel.i at the market cr1 commission. When engaged in selling these shirts he was challenged by a clerk at the market who suspected him of having stolen the shirts, particularly an he had no licence. Ade, who was brought before the Assistant Market Master, told the latter that the shIrts belonged to an Asian, and the Asistant Market Master told him to call this Asian,, Men went to call the appellant, but he refused to leave the, shop as there was no one to leave In charge of its Men was sent back agafi'to call the appellant, who this time save him a note, the contents of which are in dispute, but - it was not produced at the trial - was to the effect that the shirts found in Men's possesion emanated from the appellant. According to a police officer the note was written in English and it reads "Please release the young man I ha& sent him". The market clerk stated that all be eould recall of the note was "I have sent that person, please ....". According to the Assistant Market Mastet the note reads "Please I have sent that person, what he has is my property, please release him", According to the appellant all he had stated in the note wass "Be has taken 12 shirts from me on credit". Apparently this note did not satisfy the market authorities and Men went back aain to the appellant and this time he retined. with Sbs.lO/—, which so the clerk stated, Men said he 2. had been given by the appelltt to give him. Aden in his evidence teatifed that he was given Sh.iO/— by the appellant In order to give it to the clerk and when he handed the Shø.lO/— to the clerk, the latter exclaimed 'this is bribery'. And he was subzeuently arrested and charged. The appellant gave evidence on oath. He admitted having given Aden Sh.lO/.- but stated that when Aden Oame to him he simply said andI quotel "Lend me 10/ ­Ol f and he accordingly lent him $hs.lO/—. He went on to add that Men never told him why he wanted the money. He denied that he had given the shirts to Men to sell on commission, but asserted that he had sold them to him onoredlt at hs.lO/— each. The magis'frate rejected the appellant's defence 9 and after some unusual directions which are not relevant, he found that the appellant had given Men the $h,lO/—, using him as a 'middleman' to - bribd the market clerk. Men Was obviously an accomplice, and as agreed by learned State Attorney., there is no extraneous evidenoe to corroborate Aden' s evidence that be was given the money for the purpose of a bribe, As remarked, the magistrate's approh was somewhat unuuál In that instead of directing himself, as he should have done 9 that Men was an accomplice and his evidence required corx'oboration,be accepted the proseoution' case rejecting the appellant's defence, apparently because he was satisfied that the appellant had not sold the shirts to Men on credit, but had given them to Men to sell on his behalf on commission. An conceded by learned. State Attorney, the conviction obviously could not be supported. on the judgment as it stands, but as I remarked to r. Lakha, who appeared for the appellant, as a first appeal is by way of a rehearing, the magistrate's approach or even his directionS or misdirections are not particularly relevant, let alone fatal provided that they are not concerned with the credibility of witnesses, whom the trial court has heard and seen an advantage denied to an appellate tribunal, but that this Court is not only entitled., but has a duty to consider and determine the appeal on the evidence adduced before the trial court. Although as remarked, the magistrate's approach was irregular and the consequent ooncluion cannot be sustained as such, there is an aspect of the oaee which exercIsed my mInd when I admitted the appeal to hearing, and which !Jr. lweyemamu for the Republic, has pursued rather ingniously. It must have been abundantly clear to the appellant that Adén was in trouble over his possession of the shirts, as he had given him a chit which should have put Aden in the clear, at least with regard to the suapicions aroused. that he had stolen the shirts, therefore itwase.rgued by loarnod State Attorney, even if the appellant did not give Men the Shs.lO/— expressly for the purpose of bribing the market clerk but only as a loan, as according to him it was, if he gave such loan so that Men should blbe the market clerk, or even only knowIng that .Ado would use . the money as a bribe.9 he would be guilty of oorruptiort under the provisions of section 22 of the Penal Code, which reads: "22. When, an offence is committed, each of the following persons is deemed to have taken part in committing the offence and to be guilty of the offence, and may be charged with actually committing It, that Is to say - ..,.,. 3 3, evex' person who actually does the act or mkes the o4ssion whIch oontItutes the offence; every person who does or omits to do any act for the purpose of enabling or aidIng another person, to commit the offnoe; every person who aids or abets another person In committing the offence; any person who counsels or pootu'es any other person to commit the offenoe* nthe last mentioned case he may be charged either with committing the offence or with counselling or procuring its commision. A conviction of counselling or procurIng the oommifl3Ion of an offence entails the same consequenoee in all respects as a conviction of committing the offence. Any person who procures another to do or omit to do any act of such a nature that, if he had bimelf donethe act or made the omIsIon, the act or omission would have oontituted an offence on his part, it guilty of an offence of the aame kind, and is 3. able to the sane punIshment, as if be had himself done the act or made the omission; and be maybe charged with the act or making the óits ion. 9 According to learned State Attorney the appellant woul4be a principal either under subparagraph (b) for lending Men the money in order to bribe the market clerk, or under subparagraph (c) for aiding or aettIng Men to bribe the market clerk. As rmarked, this aspect of the case which exeroiaedny mInd when I admitted the appeal to bearIng, hag occasioned ins not Inconsiderable difficulty, as it must be conceded at once that there Is considerable substance in the submissions of learned State Attorneys even so, as submitted by Mr. Lakha, before the appellant could be oonviote4 as a principal for, etker atding or abetting Man to bribe the market cerk, or for lending him money for him to do so,, at lowest it must be establIshed that the appellant knew at the time that Men wanted the money in order to bribe the clerk. The appellant oategorioafl.y stated that Men did not tell h3m what be wanted the money for, And Mr. L&tha anbmitted that insofar as the appellant was concerned, Men could have wanted the money for a variety of purposes. In the circumstances, bearing In mnd that the burden is always on the prosecution, that in this case it must be establiShed beynod reasonable doubt that the appellant when he handed the Shs,.lO/.- to Men knew that It was intended as a brib the evidence cannot be said to establIsh to that degree of certainty requIred in a criminal case, that the appellant had cuch guilty knowlodgo, and I am left with an uneasy feeling that it would not be safe to uphold the conviction. The appeal IS accordingly allowed, the conviction is quanhed and the lentence imposed thereonis sot aside. If the appellant is not otherwise lawfully detaIned in custody, he is to be released forthwith. •1• 4 4. I now propose to deal with the oasof kd.on who was ocivIcte& on his own plea and was sentenced to imprsnrnent for nine monthe and. awarded. twelve strokes corporal punishmeiti A he has not appealed, I propose to deal with his case-Intheexeroise of the Court's jurisdiction In revision, The convIoton was perfectly proper a&4en unsqyuvocally pleaded guilty, but the sentence is ultra vires, Men was a firstoffendér, the sum involved. *as far less than the presc'bed Sha.lOO/— - it was only Slis.lO/— - and magistrate was perfectly entitled to find as he did, that there were special eiroumstanôea empowering the ooirt to e5cisO It.S dIscretion and impose a sentence less than the prescribed minimum* even so, this discretion is not entirely unfettered., as in such cases the court Is constrained to impose a sentence of either ten strokes corporal punihment,or ' such term of imprisotiment as may appear to the court to meet the requiremen -ts of the case' in the wording of sectIon 5(2) of the MInimum Sentences Act, 1963, to which the attention of the magistrate is directed. Theoporal puniahment will doul:tless have been i.nflicted. by now, as Men has not appealed.. The sentence of imprisonment imposed is accordingly set aside. If for some reason contrary to practice, the corporal punishment, which incidentally is excessive even Btand.inE alone as. a punishment, has not been inflicted, none the less the sentenQe of imprisonment Imposed is reduced to such term as will result in the immediate discharge of Men, that is, in either ca5, whether or not the corporal punishment has been inflicted, Men if not ]eld on any other charge, is to be releaed forthwith. 'DelIveed in Court at Dar es Salasin this 26th day of January, 1972. (PflILIP BflION) JUDG1