ahamad hamisi ally vs republic 2007 tzhc 88 26 july 2007

IN THE HIGH COURT OF TANZANIA AT MTWARA CRIMINAL APPEAL NO.3 OF 2007 ORIGINAL LINDI DISTRICT COURT CRIMINAL CASE NO. 107 OF 2006 AHAMAD HAMISI ALLY......... APPELLANT VERSUS THE REPUBLIC.................. RESPONDENT DATE OF LAST ORDER - 03/7/2007 DATE OF JUDGMENT - 26/7/2007 JUDGMENT MJEMMAS. J. The appellant Ahamad Hamisi Ally was charged and convicted of cattle theft contrary to section 265 and 268 of the Penal Code chapter 16 of the Laws as amended by Act No. 12 of 1987. The appellant was sentenced to five years imprisonment. He was aggrieved hence the present appeal. It was the case for the prosecution that on 18th May, 2006 at Sabasaba area within the Township of Lindi the appellant stole four goats valued at TShs.75,000/= the property of Halfan Idd @ Abdallah. From the evidence adduced before the trial court there is no dispute that four goats of one Khalfani Idd Abdallah were stolen. That was established by the evidence of PW.1 - Khalfani Idd Abdallah and PW.3 - Hamisi Ngondo Hassani. There is also no dispute that the appellant was arrested while in possession of three goats. The appellant was transporting the goats from Lindi to Mtwara. The evidence to that effect was given by PW.2 F.3850 PC. Dickson and the appellant did not dispute that. The appellant has raised or rather listed about ten points or grounds of appeal. However since the appellant was not represented most of the points or grounds of appeal are not very clear in their meaning. I have managed to deduce only one ground, namely that there was no proper identification of the goats by the complainant. The respondent - Republic was represented by Mr. Hyera, learned State Attorney. Mr. Hyera submitted that from the record there is no dispute that goats were stolen and that there is no dispute that the appellant was found in possession of the goats. According to Mr. Hyera, the appellant was required or expected to give a reasonable explanation on how he came into possession of the goats. Mr. Hyera went on to argue that, the appellant said in his defence that he bought the goats from a person called Abdallah but he did not bother to call or summon the said Abdallah to give evidence on his behalf. The learned State Attorney conceded that it was wrong for the prosecution side not to present the said goats in court but he was quick to say that, that did not occasion failure of justice because there was no dispute that the appellant was found in possession of the goats. He finally submitted that the appellant was properly convicted because there was sufficient evidence to prove the case against him. During the hearing of this appeal I asked the appellant to comment (if he wished) on the submission made by the learned State Attorney. The appellant said that he did not call the said Abdallah because he had travelled to Dar es Salaam and that the Magistrate told him that there was no reason to call him because it would take time. I will start with the last comments by the appellant. I have gone through the record of the case but there is nothing to support what the appellant said. When the appellant was asked to make his defence he said: “I will give my defence on oath and I will call no witness. I am ready for my defence.” Coming to the grounds of appeal and submission of the learned State Attorney, I agree with the appellant that as a general rule where goods or items alleged to have been stolen are found the proper procedure is to have the complainant give a detailed description of the goods or items before they are shown to him/her for identification. Refer to FADHIL MOHAMED v.R [1974] LRT no.5 AND NASSOR MOHD v.R [1967] HCD 440. In the present case PW.3 stated, I quote: “The bus stopped there and some passengers disembarked and I saw three goats in the carrier of the minibus the same had been kept in the mart (tenga), and identified them to be the goats stolen from Mzee Halfani.” This witness (PW.3) phoned a Policeman called Constanzi who in turn phoned his collegues in Mnazimmoja where the appellant was arrested while in possession of the goats. As to the complainant he said; “Later on the goats were brought to Lindi Police Station where I was called and went to identify them and I found only three goats which were mine.” So strictly speaking the procedure which was discussed in the cases cited above was not followed in this case but from the circumstances of this case it is difficult to say that the goats were not properly identified. Although PW.3 did not say how he identified the goats as those of PW.1, he as the neighbour of PW.1 had information that the goats of PW.1 had been stolen so he was in a better place to identify the goats, as he did after seeing them. PW.1 also identified the goats although the record does not show how, but his evidence is corroborated by that of PW.3 who saw the goats and raised alarm. I therefore hold that the goats were properly identified and this ground of appeal fails. The appellant was found in possession of goats which were, according to the prosecution case, recently stolen. Under our system of criminal law, the appellant is not required to prove his innocence but to give a reasonable explanation on how he came into possession of the goats. The appellant’s explanation was that he lawfully bought the goats from a person called Abdallah. The learned State Attorney challenged that explanation on ground that if it were true the appellant would have called or summoned the said Abdallah to give evidence to support the appellant’s assertion but he was not called to testify. I agree with the learned State Attorney that it was important for the appellant to summon the said Abdallah to support his allegation that he bought the goats from him. That would have been a reasonable account of the manner in which he came into possession of the goats otherwise he was rightly convicted of the offence of theft. Refer to REX v. BAKARI ABDALLAH [1949] 16 EACA. 84 cited with approval by the Court of Appeal of Tanzania in the case of ZUBELLE OPESHUTU v.R Criminal Appeal No.31 of 2003 (unreported). Also refer to the case of MWITA WAMBURA v.R (CAT) Mwanza, Criminal Appeal No.56 of 1992 (unreported). From the foregoing I uphold the conviction and sentence imposed on the appellant. As a result the appeal has no merit and the same is dismissed. Order accordingly.