19820203 TZHC Mbeya1

£ i-imn COUFT OF TINZJIUIA P AT I'U3EYA APPELLATE. JUFThDICAION 143 OF 1979 ORB'cINAL APPEAL ITO. (ORIGINAL CRflNAL CEAE ITO. 66 OF 1q79 OF THB DISTRICT COURT OF IRINGA DISTRJT AT IRI1TGA) BEFORE H I. MUNBIRI, Eq DTRIC ELIBABfl S/o BENITO •,... •... APPELLANT Versus THE REPUBLIC .....,. •.. ...., RESPONDEIlT JtJD•'TT . SANATTA, J.,- This is an appeal from a decision of the district court of Iringa distric wheebi the a,ip'e11ant nina convicted of cattle theft, • contrary to s. c 265 and 268 of the Penal Code, and was sentencd to a term of five years' inpriso-rnent, There was no ,dispute imthis, case over the N:ct that the complainant?s three head of 6httlé -The question which •cried out for an aiiswer waso. Was it the appellant who perpetrated the theft? The learned trial magistrate based to -bi ituti6nri the ttimony of ir the complainant's son 9 R12. The witness asaerted that two days after the theft had been committed he saw one of the stolen beasts at a local abattoir. The man who iIas found in possession of the beast asserted that he had bought it from the appellant. According to the witness, the appellant admitted to haves.1dthe animal to the man. Unfortunately the man did not give evidence at the trial, , In his defence the appellant admit -bed to have made the admission that he was the one who sold the ........:.-., '•',•. i.:f, beast to the man at the abatto±r but asserted that he had made the admission following the•. torture he had been subjected to by the police. This assertion was not challenged -by t1 1 o public proseutor. With respect - 2 the offence. Lii the same the accuseds driving licence is suspended for 12 monihs In the inerim period he is disqualified from fobtaininj a driving licence ofnyother description." In stating the view that the reasons advanced by t1e appellant could not constitute special reasons for not .nakng a dioqualification order in this case the learned magistrate would appear to have followed the decisions of this court in Olairivan s/o lIoliel R (1967) HC 0 D.n. 259, Dr M.H. Iskander v R (1968) H.C.D.n. 1539 nr.d .Toac.him Gregory t R 1975 LRTn 44, inter alias which are to the eff ,-i cG that for then to constit.te special reasons the factors put forward by an accused psrson mt.st relate to his offence and not to himself. This court came t discover, however, that this rule sometimes led to a kind of justice hat the man on the UDA omnibus was likely to be strongly tempd to laugh at, and that there are no - sufficient groiindc why c,27 of the Act should be construed so narrowly, In Sadrudin K.L. 0 Ln:ani v Republic 1977 LRT n, 58, the late BIRON, J.,. convincingly c:i szd the rule and wont on to hold that the term special reasons .nc .ide roasons relating to the offender 9 If I may, with respect, cay .o, th .s ieciion as a great triumph for justice int1.iparticu1ax fil. of the, criminal i::I am awaDe.'of' courasin makig. that observauirn. ;ha t in I'Ioorsom v:Kyiner.: (1814). 2 ?i&S.. 1.30/ LORThELLENBOR.QIJGH C, , voiced a. camiion .agaitst departingfrm establihe rules whon..he said (the: : pasage i.cited.in WestHam Union v E dmonton Union / i9O8J4O0i.t pp4 sj it .ie±tretheiy. angeous-±osha]:e thLuthcrity of, decided cases In rry view a bteguidce-is to be found'i, tle olIping:obervation:by : L9RiI04RIS:QF BOUT EST. in Conmay ~uminer . LT9.6Q72 0 L.R998a.t .. . -. . :.. .. Thoug precedent iO:;an indispensable fcund.a tion upon which to decide what is the Ia R there may be tines 1eñ a . . opart V u from a recedent.isinheinterests. of jv ice and proper dovelopmet of . . t'e la •, - - . Any decision wRit-h "inconsistent wi t h the decision in Pirani 7 s case -' should in, my opi.ndn --now be cOnsidered- as being. 1a.d1 law. The apeB.ant in the case -at .the.Ba told this court ring the, hearing1. of the. appeal that he has been driv. .ng since 1946, and that before he was involved in the present case h had lever been in friction with the traffic 1ai, No one who kno s the difficulties involved in driving motor vehicles on our roads can, I thanl', hesitate to deoc.eibe±hat record as an extraor- d.anary achievenont. `Iearinj this fcc t i i mind and takin into consideration he f a c t ,-at the ac.c1Lot was, comparatively speaking, a minor one, and not ag'iorlrg the Lact that the appellant as a driver *.,.. / ( f .- 2" -' to tha learned, trial magistrate, I find it impossible to share his opinin that the appellant's guilt was demonstrated beyond a reasonable doubt. The aflegation by the appellant that the admission he made was extracted through torture was not in any way challenged or denied by the prosecution. The alleged admission was not therefore capable of carrring any weight against the appellant. In any case, no evidence regarding the identification of the stolen beasts was laid in the scale against the appellant. Upon the evidence on record it cannot be said for sure that the beast seen at the abattoIr was, as was asserted by 4 W2, one of the stolen head of cattle. Mr Teemba, counsel for the Republic, did not support the appeUants conviction, and I think, for the reasons I have given, that the learned state attorney was perfectly entitled to take that stand. The appeal is allowed, the conviction is quashed and the sentence i.Ja.:a ...t ib L: 4 o . '': . . • imposed thereon is set aside 0 Unless his personal liberty is otherwie lawfully assailed, the appellant be set at liberty forthwith. thikra d 6f 192, in the pre . ence 3-1 •:. : B. A. SM'1AA JUDGE. 1 . ' .. :. - .. . . .- . . .