19730929 TZHC Dodoma

IN THE HIGH COURT OF TANZANIA AT DODOMA APPELLATE JURISIDICTION HIGH COURT CRIMINAL APPEAL NO.89 OF 1972 ORIGINAL CRIMINAL CASE NO0 174 OF 1971 OF THE DISTRICT COURT MANYONI DISTRICT AT MANYONI Before L.G. Rugimbana 000O0000O00.0 0• 000000000 .District Magistrate JILOYCE s/o I"ILELE 00000000 00 00 000 0 0000 0 000 0000000000000 00000 0 .Appellant 0 (Original accused) Versus THEREPUBLIC 00000 00000 00000 0 0 000000 00 000 0000000 00000000 .Respondent (Original Prosecutor) Charges: Cattle theft c/s 268 and 265 of the Penal Code Cap, 16 of the laws. JUDGEMENT The appellant and another were arraigned when, followitL§ theft seven heads of cattle from a falks on Martins of Nwijili village in the Manyoni District of Singida Region, they were found with the meat of a cow in the bush close to the home of Mebula Mavula. They fled from their carcase on seeing the search party. They fiere subsequently arrested, with consenquences which are the subject matter of this appeal In his submission, the learned state attorney very rightly sought not to support the conviction on the ground that the carcass was not identified to be that of one Jackson's stolen cattle0 He felt however, that the appellant and his friend could be convicted under S0 312 of the Penal Code and that substitution for such conviction was possible under section 181 of Criminal Procedure code. While it is legitimate to arfue that such substition is possible under the law (R.v0 ABDALLAH, 1971 H0C.D.229) it seeme to be settled law that before conviction under 312 of penal code. could be had, s0 tt]4 must be shown that the Police officer stopped, searched and detained the accused .0..00(R.v. ABDALLAH and Hassan 1971 H.C.D. 308). It must further be shown, according to the East African Court of Appeal decision in KIONDO 1-IAMISI v.R. 1963 E.A. 209 9 that, "The accused was detained as the result of the exercise of the powers conferred by s 24 of the Criminal procedure code and that at the time when he was detained he was conveying, or was in possession of a specified thing which might reasonably be suspected of having been stolen or unlawfull obtained." The appellant and his friend were in this case surprised, from their feast by a seach party consisting of civilians. There were no policemen in the party Civilians are not competent to exercise powers under s, 24 of crthminal procedure code. The appellant on his part was not in transit 0 Sohe cannot be said to have been conveying the meat from which he fled Even if the search party had included a Policeman, therefore, that Policemen would not have been in a position to invoke 24 of Criminal s0 PrOcedure code0 As was said in R v MSENGI ABDALLAH 1 TLR(R) 107, " pro€es ceedi'ngs cannot be brought under s312 of the Penal Code unless the accused is brought before court as a result of the exercise of powers contained in s.24 of criminal Procedure Code." . V V • .. PPP 4 Recently, two judges of the Tanzania High Court have aired their dissatisfaction with the law as it stands (see SIMBA v.R, 1971 120, Muba v0 R. 1967 HCOD 167) They have taken the provision of. s. 312 to be unintelligible to our unsoplisticated nasses. They have for that reason called for a change in the law because, as one of them put it in SIMBA v0R0 (supra) "Something is wanting when technical objections are allowed to defeat substantial justice." But onw wonder whether, even in so called soph- isticated societies, the law is intelligible to the masses0 The.law seems to be intelligible only to those learned in it0 And justice cannot be done by additionencroachment on the already restricted freedom of the individual. To relex the strictures of s. 312 would open the floodgates to indiscriminate searches in peoples homes such as are already taking place even without the ination of the law. Only recently a person's money was seized from his house just because he did not bank that money. As it there was a law compelling people to bank their money. V On the whole therefore, I cannot say that the law as it stants, and as it ought to keep standing, does not make it an offence for people to be found in such circumstances as the appellant was found. I would accordingly, with the greatest respect, decline the prayer to sustitute the chae. Instead, I will quash the conviction, set aside the sentence and order that the appellant be dorthwith set free unless there be lawful cause to continue holding him. 1V , 29/9/73 M.H.A. KWIKIM/k AG. JUDGE 4