19990512 TZHC Arusha

-~ •. IN THE HIGH COURT OF TANZANIA AT ARUSHA CRININJµ,)A,f:PlBA.L NO. 88 OF 1994 (original :Be.pati· District· Court ·Criminal Ca.se. Noc.4,16/93) HIITI GADIYE 0 •• •• • ... " 0 O O . ~. 0 • 0 • ... CO 0 •••• 0, APPELLANT ..::versus -- ... .. TIIB REPUBLIC ... 0 e 0 ... • •·11· ... (l·e o e·o 0 .e O 0 • • 0 RESroNDENT :. / . ) .... '• ,·.. ·_ MSOFFE, J •. . . In this rather old appeal the appellant VJElS convicted-of cattle t.~,9,:t:t c/ss 268 end 265 of _the Penal Cod.e and se~tenced to the stat.utory five year term of _impr_isonment. This is an appeal against· ·conviction ·±n the tr-ia1 District,. Cp-µrt, the · complainant PWl Morgwe Tluway • • ••-•I •• l .. .r· tes't:i.Ti-ed and· stated th,i;l.t on 19/10/93 his c:.)'W was stolen... As .expected, • • ; ~ .•• .•'.;,,• •:.-. I•• •· he began a· search for the same. In the :pro~es~,he received some . '· .' : ' :. . '. -:· . . :;·r.. ....: in.fdtma.tion that, there w::.s a. cow similar to h~s that wa.s sold to one Julius Me'ss8.y at: Kiru Jmction 9entre. He went to the home of the said Julius.· 'The :latter confirmed to .have bought the cow from the 1st .. . . . . . ! . :. .. :· ., r · ·. \ accused ( who 'is not eppec?.J.ing) using p permit that had tJ:,e appellant I s name.- In:· the· premise, the appellant was 2._rrested, charged and convicted simply because.;his name· appeared in the permit. Of--course in.his . defence. the pppellant i.··· . ! . •,, denied . . . committing . . the effence arguing ,inter alia, that the whole ca.se. against him was a fabrication or cooked up storyo •••••oooeo/2 2 Mrs. Neema Joseph learned State Attorney has appeared for the respondent R·cpublic~· . 'she ha;, c;teg~_;i~ai'.Ly > sti.t~ct' th~t the R~epublic is not in support of the appear. To this extent she has In my judgment, there is s€nse in the su'bmission of Mrs. Neema Joseph. The appellant ought not to have been convicted for the following re2-sons:- First, it is noted the.t no preliminary hearing WcJS conducted. ·Thik · - · · certain],y went .s.gainst the spiht-°<ff s~· '192(1) cM _(2) of The Cr:i.minal Procedure -Act, -1985 · as amend:0ri ·hy A<:::t · Nci. 19/92.- • In future, 'the '· trial mag±strat~ .:i:,§, warned not to·. repeat this' ini'stake. Second, a.s correctly submitted by f•irs. Ncema Joseph, no stro'ng evidence was forthcominc t_o Rh~w or establish. K:Lru.. whether . . - ... the appellant was seen and identified with the cow e,t\_L:'·,. ~.ction Gent-re.. The only evidence against him, as _earlier .?tate<}., wps. simply theft h:i.s ne.me. appeared in the permit. Surely this p~ece of evidence --fell· shor~ of esto.blishing the appellant - ~ gt}~lt baygnd rea.i;;Qnable doubt more so because in the . evidence _.. .• of ·..PltJ4 ; .; ·,.the .. 1st. ,accused . . ,_.1_. . assured 'him. . that the cow belonged to him b'qt.had simply chR!?.~n to use the name of the. appellant in the permit. In the, midst -of .this piec.e of evid,e!lce it could not there fore be safely said, that ,th.~ appellant was party to the stealing and eventual_~~ale• of the cow in question.·. For the above reasons, the a:ppeal is aliowed, conviction quashed and sentence set aside. If the appellant has not finished serving '\ 3 sentence he is to be released from prison forthwith unless he is lawfully held therein in connection with other lawful cause(s~ • .p~~~ J. H. MSOFFE JUDGE 12/5/99 Delivered this 12th day of May, 1999 in the presence of Mrs. Neema Joseph - State Attorneyo JUDGE 12/5/99