19780829 TZHC Dodoma

IN THE RIG-H COURT OF TANZIA AT DODOMA APPELLATE JUISDICTION / (DODOMA REGISTRY) 1 5 NOV 1978 CRIMINAL APIEAL NO. 97 OF 1978 ORIGINAL CRIMINAL CASE NO. 377 OF 1977 • •• ••• OF THE DISTRICT COT OFDODMA SALE• BHAJ ............. Appellant versus THE REPUBLIC ... . ........ Respondent JUDGMENT CHIPETA, J Before Dodma District Court, the appellant, Saleh Bahaj, was charged (as second accused) jointly with another (who has not appealed) with the offence of being in unlawful possession of hffensive weapon and naterials c/s 8(1) of the National Seurity Act, 1970. They wei'o both convicted as Charged and were each sentenced to fiveyoars imprisonment. The appelInt now appeals against both conviction and sentence. In brief, the prosecution's evidence was as follows: on 14th July, 1977,- one Simon Msilili (PW4) was approached by the first accused. 1st Accused requested PW4 to take part in & robherr which he, the first accueed, was planning. The first accused wont on to'tell PW4 that he had already • recruited thre- people; that they would use a pistol, and that on a Saturday they would go to practice how to rob. The first accused said that he had 1000 rounds of ammuniti•on and actually showed PW4 a pistol which PW.,4 later identified •.' at the trial. On receipt of that information, PW4 went and informed t thevillage chairman (PW5) as to what the fi±st accused had told him, and PW5 in turn reported the matter to the Party Office and laterto the police station. The following day they were both arrested: At the time of I hisarrest, the.appellant was asked if he had been given a ,'• pistol-by the first accused, to which question he answered in the negative. • I On arrival at the plice statii, the appellant told the iolice that the first accused had given him a parcel to ake. to one MbeIele d/o Maulya. O n receipt of that information, on ' 1 - 6/7/77 thè police and the two accused persons proceeded to Mpunguzi village, where Mbelele (P142) told them that the appellant had brought to her a parcel and that he had told her t , . that. she should keep it for him. PW2 produced the f.arcel, and when opened, they found 116 rounds of ammunition and a dismantled pietol. The first accused was told to assemble it and he did so. However, one vital part of it was missing and this was later found in the first accused's house. In his defence, the first accused denied having given any parcel to the appellant. His story was that that pistol was brought to him by one Albert who asked him to repair it, but the first accused declined to do so. In his defence, the appellant said that on 15/7/77 at 2.00 p.m. he was going to a shop on a bicycle to go and change his money. On the way he was stop ed by the first accused 1 1 +- -2- who then gave him a parcel and asked him to take t o PW2. The appellant then took the parcel to PW2 and did not know what it contained. On 16/7/77 they went with the police to PW.2's house where they found the parcel. When the first accused opened it, the appellant saw pieces of iron. Police told the first accused to assemble it, and the first accused did soa It was then that the appellant saw the pistol. Police saw one part missing, and that part was found in the first accused's house. On that evidence, the learned Senior resident magistrate held that the two accused persons were in joint constructiv possession of the offensive weapons. Before this court, Mr. Mwakingwe learned counsel for the appellant, challenged the appellant's conviction on the following grounds, inter alia:- 1 • That the 3earned magistrate wrongly invoked the doctrine of constructive possession in respeot of the a appellant as the evidence laid before him did not warrant such a holding. That the learned tr ial magistrate wrongly concluded that the appellant had iuiowledge of the contents of the parcel containing Exh. P1 and P2 merely because the appellant never told PW2 as to who was the owner of the parcel. That had the learned trial magistrate properly analysed the evidence that was laid before him and properly addressed his mind to the law, he w ould have come to an inevltable conclusi that the appellant was no more than an innocent carrier just a s PW2 was/inrocent custodian of the parcel containing -- Exh. P1 and ixh.P2. That the learned magistrate erred in law in convicting the appellant of joint possession of the offensive weapon and materials when there was no evidence before him from which a n inference of joint possession could be safely made. Like the learned counsel for the appellant, and the learned state attorney who felt unable to support the appellant's convic - tion, I feel distinctly uneasy with the appellant's conviction. The central question here is whether the appellant had Imowledgo of the contents of the parcel which he took to PW2. There is no evidence that the appellant was with the first accused at the time the latter tried to recruit PW4 into the planned robbery hand, nor is there evidence that the first accused had ever mentioned the appellant as one of the people he had recruited. One, of course, may ask the question why the appellant denied having been given a pistol by the first accused. The a•ier to that question, and a plausible one, was given by the -.ppellant himself in cross—examination s He said that sioe police had asked him about a pistol which he had not soon, and not about the parcel, he could not tell them about a pistol. AnQther question that arises is whother the appellant could roasnably have imown the contents of that parcel. There is no evidence as to how the parcel was made. But if PW2 herself could not Irnow the contents of the parcel, it would certainly not be reasonable to assume that the anpellant ought to have irnown the contents of tho parcel. .,/3 - 3- The only evidence that tends to sug.est that the appellant imow the contents of the parcel is that of PW2. PW2 said that the appellant told her to keep it for him. and that he did not say to whom it belonged.. Prima facie, this would tend to suggest Imowledge on the part of the a:pellant. However, the subsequent conduct of the appellant throws doubt on the veracity of PW2' s story. It was he who was instrumental to the discovery by the police of the parcel. Besides, as the learned magistrate remarked, PW2 is ean elderly woman, and from her cross-examination and subsequent final submissions, it would appear that PW2's imowledge of Kiswahili, the language she and the appelant used, is erratic. In those circumstances the question as to what exactly the conversation between PW2 and the appellant was about ought to have been probed further, but it was. not; and yet that w.s crucial to the prosCcution case against the appel'ant. On these grounds, while there can be no doubt that the evidence against the first accused was monumental, that against the appellant was such as to warrant giving the appellant the benefit of the doubt. I, therefore, hold the view that it would be unsafe to uphold the appellant' s conviction. The same is accordingly quashed, and the sentence is set aside. The appellant must be released from custody forthwith unless otherwise lawfully detained. a B.D, Chipeta, JUD GB t Dodoma 29th August, 1978