19931125 TZCA Zanzibar

' ~ .... ' .,·, ~ . . . ' -.A,________ ~~~~;;~~i~IZ~· :i:. .. ,' ~~~~~---==-~----==::::-~~-=~~~·~· - ; ( ·•1 --a -- • , )t:a..'.r.:,._; .;1. 2 commission of the offence. This is his second appeal, in which through his counsel, he ha_s reiterated his innocence ·-- -- ~---. complaining that he was only found to have been tn joint possession of-th-e -lma~. by uia-Goi&tion, ~t the trial, two po]ice witnesses testified on the ., - l~ circumstances in which the appellant was alleged to have been found in possession of the bhang. These were D 5125 station sergeant Peter (PW.1) and Detective Sergeant sadi (PW.,). on 22/5/92 these two Police Officers with one Police constable Kombo who did not testify, were instructed l.. < ~;.. to search a certain house at Kwalinatu, the house where it ~-- t. was suspected the illegal trade in bhang was being condu~~-ea. on arrival at the house and knocking, the door was opened If.. for them by the appellant. In this house lived the first Itij and thir•d accused persons. ···_,:-:t-- the- time the .f.ir_et accused waJ -s·ea-te.d.. on a tnatreae at the ver111nda while the third /'; , ·,.·r~ f, accused was washinP' clothes et the bAolc ,rard., In the p~esence of a local cell leader. ~..geni Fereji (PW.5), they conducted a search of the premises and near to where the Ji I:·} .. ~ first accused was seated, they recovered a tin containing : ~ -34 locally prepared cigarettes which thev sus-pected to ~·· .. ·be bhang. They seized it and alon~ with the three accused i~:·~· ,:i.:-~r ' '.·r ... persons thev took the tin to the Police station. The :··k~: .,;:~: Government Chemist John Steven (PW.4) confirmed the contents of the tin to be bhang. The appellant and his-- coll~agues were charged with this o£fence • • ~· ~ - ·. .= ~- ;·,I• • ~• I ·~-T'~~- 3 In his defenoe, the appellant denied being in any way involved with the bhang which was recovered from the !irst accused's house. He explained that on the day in r question he and hie brother were passing by the first accused•s house when it started raining and they took shelter 1n-the..nouse. They were thus in the house when ~olioemen arrived, e~arohe~ ~h• house and r•o4vtred the tin oontaining bhang from under the matress on which the first accused was lying. He said that he knew nothing else. In rejecting the appellant 1 s a&sertion that he had just passed by the first accused 1 s house, the trial Magistrate stated and held as follows:- . "The first accused apart, another person f ~~~ whom evidence shows was involved, circums- . ·,. tantially though, is the second accused • i : ' He earlier on said in his defence that ~ ; 'I .. ;,_; he just went to the house of the first fi-Jj accused to wish him. J; t another stage however he said the bhang belonged to -.:u:, •·.... -----····· __the.4.u!st .ac.cused person.- He did not ' ' tell how he knew that to be the oase, It seems, Qnd I hotd ~~, thpt he --· pointed an accusing finger at the accused because he had an interest to .-. serve, that is to exonerate himself <1 ! from the crime they jointly committed. .i --,.I An in coming person who was unaware of lI I ! what was under the matress at which I iI 1 the bhang was recovered and who is not 1 1 involved could not have known whose bhang i iI I I that was. In the circumstances, he was also quite responsible"•· •••••• /4 ·-~: :./ rf,' t '. t•:,._.., . • ·---?:·i•.. :,\,.}. 1\ ·: . U:, '•:·.; t ff~.{!'.; ... I 4 I In dismissing the appellant•s appeal, the High court endorsed this view, the learned judge stated:- "Mkata rufani anaonekana akijua kuwa mshitakiwa we kwanza akiwa na bhangi chini ya godoro alisema bhangi hiyo i ni ya mshitakiwa we kwanza na bila I. shake anaonekana~kuwa ni·mshiriki Ir. katika biashara ya bhangi 11 - I It is qui~ clear that 'b.otb the' -trial court and th-e , 1.I. i ~Ua~e RJ,~h aourt found the appellant guilty of the - ----- offence charged because he suggested to the search-party- tbat -tho·-bhalloS .wh:l4h th,w i'fl4tl~il t40m UMO~ \Al'_.~ on which the first accused was lying or sitting belonged to the first accused.· This indeed was Mr. Mbwezeleni 1 s ~ain complaint in the memorandum of appeal that his ~ - -,,~ ~oi;..a, tllaJJ-l~ oa o~~w:u,-e:r ~ ~ . . , . . knowledge of the ownership of the bhang. We also found the reasoning of both the trial court and the High ~ ~c b-e singulariy curious. If the appellant•s evidence that on the day in questfon he had just hep~ to })ft- mi- <t:h.o £.i,ra,t f'tC~-.wod 1 8 house and took shelter from the rain and to say hullo iB a~ted, -then there is nothinp: stran1?:e about such a person savinP.: that 'I he has iiothlri"a:-----£o. o:o wi tr:i + he··bnang and what is_more natu~el than. for s110h e peraon tn atiiv thRt he dnes not live there 1 ·7 'I that he is just a 'pesserbv #lt\d th.et thettefo:r.e Wh.11t .j the search partv bAd recovered mu~t belon" to the owner or occupant of the house who in this case is the first ·' accused? On what basis -can such a statement be interpreted to mean prior knowledge of ownership and therefore denoting ..•t?, • . . .•••/5 ... ,'(. . ...,... . . ,; ' ; . ~ ..... ·e• . -- -· -·-~··-;-~--··~'- - - - ' - ' - ' - - ' - - - l ~ ~....""1,.~ .,.I, ---fl ... ~ ,;, . H.:. ........ ,,:. ,;;f •.J • '".'t 5 ----·-· / guiltv? we thinkthis is what anyone in 8 similar situation would have told the polioe ~e~~ch pertv. tr1a1 Magistrate and the learned judge on first appeal Indeed, Lt the had read the evidence on record with some concentration, they would mnat certainly have found that the appellant was arrested simPlv because be happened to be at the e-c~~. D/Segt. sa1a1 (PW.3) had the following to say, 11 We told these two persons (i.e. the appellant and the third accused) that because they were found there at the ~ne • ~~ we.r·,:i also bound to &<lcoznpaey us to our station. we took them to our station, regardless of their pleas that the stuff belonged to ~~~~is who was --- ·i'ounc:r-Tyrrig on it. On arrival at the station it was deoid~d that oha~ge& were -to--be prei'errttd 111gainat them all as they now stand 11 • ~~ ~ia.-crxamlned by the first accused, he stated that although tooy ~Qlr thP.JTt -+.<.> thA l:)Qli.Ce- i!Lt.&1:ion,. h9 did not think the boy i.e. the appellant was in any way inv9lved. In the light of this clear eviden.o~ 1 ~r, Makungy, learned state /, ttorney> who appeared for the SMZ, quite I ~operly informed us that he did not support the appellant•s 'I' conviction, stating that it was based on mere speculation. l we agree, on the evidence the appellant appears to have simplv stopped bv the fi:rat accnsed'B house and he should not have 'bee??-_~subte.c.ted to this tralfffoti; at the Ch)lo cha ~. Y-•~-i:-. Matunzo. ,, "' •••••• I 6 I I .• ~·'- l . • ~ I I .. ;~·:;l f :~·.:.· . '',,.!'':1- ~ ...J'. ♦ -~ •.r-.; ,_:\ ~ .. ,,.,.. ,,..~· f-'· ·./.~.- • .,J, • .... ,..-. 6 For these reasons, we allow the appeal, quash the appellant•s conviction which as indicated is not supported .by th~~?1!., --~ aside the sen:!;~'.!'Cle and order his immediate release from Chuo cha Ma:f'unzo unless he is lawfully h~:ld on loJlle ot·her-gro\Uld., !)fi:fED J.T ZANZIBlJl THIS 25TH D.".Y OF NOVEMBER, 199'• l •• M.l. • OM.t.R I JUSTICE OF .\PPE.!',L N ,S ~ MNZAVJ.S JUSTICE OF 11.PPE/,L ti •1'1 • MF1, LILA JUS~tCE OF APPlll~& .] ·! I c.ertify that this is a true copy of the original. ·.1 ( L. B. IULEGEY..".. ) SENIOR DEPUTY REGISTRjR ff~~:( .~