20001002 TZHC Mbeya

IN THE HIGH COURT OF TANZANL~ AT- MBEY.A (PC) :GRI~·:IJ.'U,L i'.\l?PE-11 Nv,_11 OF 2◊-00 (Fl:tOM · CHUNYA :JIGTB.ICT COU'tlT CRI;,III'TAL APPEAL · · N0.10 OF 1999, ORIGINAL IvTNAM:J?ANI PRIMARY C09'RT CRH::IF\~ CASE NO. 57 _OF 1999) ~;LPHONCE AUZEBI ••••• • ••••• ~ ••••••• , •••••• A?PELLU,;T VERSUS THE REPUBLIC§ ••• •. II ••• •••• 0 0 6 e • .- • • 0 e e e. -RESPOl'TDEl'JT J1JDG iVtE NT The appellant and his co-accused who clid not appeal, vrere - convicted of cattle theft c/s 268 and 265 of the Penal Cou0. The fc:cts d.o not pqse any cont;r~versy. · Three head of cattle belonging to Bahati I Silasi vvere s stolen while children were grazing them on 21st February, 1999. Efforts to· trace them was hmapered by dusk. So ;I?Wl souc;ht ::md obtained a permit to search fqr the~. In the meantime Luchibila LJinzi (-PW2) and Ma.Tungn Slli ja (P\v3) test~fied that they s2w one me..n driving three head_ of cattle under sus12ecious circu..mst~'.nces. P':?2 and PW3 stopped and: the suspect and required him to the village Office. As they were c:oi.ng there the s~1spect cunningly duped PW2 and PW3 that he was gains to attend a call of nature. Iv.chumbila Iviinzi (PW2) Muyunga Shia ja (PW3) never smv t4e man again; he had succeeded ;to flee. PW2 .~·md PW3 were emphatic, however, thst 'tha"i man :;;,;8s neither. the appe ll;;.mt nor the other convict who km not so far appealed. On t;the 24th FebruarJ, 19~'9 a person who posed as the owner of the cattle which were seized by PW2 and PWJ. showed up from Tlll-igwe. Village which is in 1'.'ibo'Zi Distriqt. He was armed. ,:1ith a •·• .. /2 permit to se:?.rch for his cattle". No doubt he was PWl. Shortly, the first E;ccu.sed who did not ;~ppeal, also arrived there; he was also carrying a search perrni. t \r/ojn {~, ,: his Nambul-cv-.,-e Village Executive ~-~.; Officer. Both permits were tender...~ in evj_clence as exhibits. It / ' seems to be -the case that the ap~ll~nt 9 s co-accused found himself in troubled waters because he faJ,:;.w.d:Ito niec.::su..re up to the interrogGti on. According to the defence the first acCU$r3d had accompanied one Jackson :C::kcsela, his neighbour, to look for ~attle which had been stolen from him. They were two :.:.oxen and n cow. They had a per;ili t. ' .As they vrorcJ viewing the cattle, which the s~id Jackson Mkesela said , were. his, onG other person appeared and le.id claim to the same head I of cattle. It would app;:;; ar that the 1st accused vs claim over tho cattle sounded improbable. He was, as a result, made a suspect. On his p;:~rt the appe llnnt was arrested while he was at the Police Station whe;re he had gone to stand bail for his wife who was accused of having f~1.lsefied a per:m..it which, it vms 2.llegedt' was later used in a cattle theft~ He fom1ci Bit:lyunga Shi j<1 (J?W3) there; whereupon PtV3 asked him if he ( the appellant) still romanibered PW3. It was then tho. t P':13 claimed the, t the appe llant "re so mb led the man who had been caue;ht with stolen cattle. The appellant's denial could not save his skin., The foregoing was the evidence upon which the appellant antl his :;'' co .... accused were convicted. His 8,IJI)Gal to· the District ' Court was dismissed·. I..~. Ifoago, learned Principal State' Attorne;y-; I has declined to support the convi cti ons w.hi ch, by ne ce ssar y inferrence, are considered to be unsou.ndo When '.:.1rguing this appeal Mr. Mb'ago 1 loG.rned Principal State Attorney~ posed the pentinent issue to be· rotating to who the stolen bo.:::sts belonged. He submitted, quite co·rr~ctly, that the ..• /3 3 appellmr'c w2,s not found in possession of the stolen cattle O In fact PW2 and PW3 stated catoforically in the.1r testimonies that the mah ·Nho fled was not. the appellant. Indeed, it was the first .. ). accused who producecl the sc:::;rch permit., He, therefore, joined issue . ... ·- with the appellant in the first ground of appeal that the trial court should ho.ve acquitted the appellant if it hsd made a ·correct analysis of the evidence. He, therefore~ .invites Il@. __ Jo allow the appe;~t~•-i •I; - ,::;fter cqnsiciering ... : .; :-· . the reasons· 2,dv2.nced 'b1 learned Counsel . ··,· .. and upon porusal of the re cords of pr8ceoc1ings: df -the subordini.:'.te courts~ are t8mpted to accept the intimation., : - In his .view ,.Mr,. ,Mb~go opines that th~ c~nvictiori of the first So ---he___ ha. s. . ,· ,.,,. l.L·1 e ..,_he Ji.lo\,.-\ ~ .;:.;o· -ir-n·t that tlu.' s ·-:f.~1... +,: . . . Court do consider invoking "·.,:, its' revision~lpowcrs . --' under section 30 . (1.). of- the .· Llae;istrates ' .•. . Courts Act,· 1984, -- by quashing the conviction and settine; aside the _sentence as relates to the first accused. I have ci vsn careful consideration to this plea and I think that indeed the evidence against the first accused is not more than suspe cion. Since he had a permit and its source was known, the prosecuti,o:n could only prove mens rea if it ·~ou.ld have proved beJond reason1eble ;doubt that the permit was a forgery. This they could have G8sil;yr done by calling the officer who, it is alleged, issued it. Failure to do so hns created a doubt the bebefi t of which I must give to the first accused. In the result the appeal is allowed,. -·- Conviction in relati.on to the appellant is quashad and the sentence is set aside. ··And.? in the exercise of my revisional powers in terms of section 30(1) of the magistrates Courts Act, I quash the conviction in respect ,. of the first accused ._._and the senten:ce c1Go.inst him is set asife • .Accordingly, each of the a1Jpellant and tho first accused is discharged from prison unless they ie further held on acco-unt of .. "./4 4 some•• ot+'ler Lwvful execuse,. · . ' . Jud 6111ent shall be de livered by the District Regi(3tn~r ..:,pn 2nd Octobei-', 2000. 'JUDG:Ef •·: ' •·. 29;.9 .,?00Q Coram: :J. V. G. Karua 9 Ag. DR . Court: _; :;Juct~~A;E/rit deli wrecl l'n Chambers this 2nd day of Octo"ber, 2600: in the p;~ senme! of the Sen_ior State i\ttorney_ an9- .·· ,~r ~-. :_.: _: __ ; .Ag. D.R. 2.10 .. 2000 - , . .•> DISTRICT REGISTRAR .'\ ' \ ..