solomon jackson vs republic 2008 tzhc 147 7 november 2008

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA IN THE DISTRICT REGISTRY AT MWANZA APPELLATE JURISDICTION HC. CR. APPEAL NO. 146 OF 2006 (Original Criminal Case No.580/05 of the District Court of Tarime District at Tarime, before A. L. M. Ma/iya, PDM) SOLOMON JACKSON......................................... APPELLANT (Original Accused) Versus THE REPUBLIC ..... ....................................RESPONDENT (Original Prosecutor) JUDGMENT 07.11.2008 - 07.11.2008 G. K. RWAKIBARILA. J The appellant Solomon s/o Jackson was convicted in Tarime Criminal Case No. 580 of 2005 of being in unlawful possession of firearm c/s 4 (1) and 34 of the Firearm and Ammunition Act, No. 2 of 1991 and sentenced to suffer ten years imprisonment plus twelve strokes of corporal punishment. He felt aggrieved by the conviction and sentence and lodged this appeal. Records of the trial District Court show that on 19.11.2005 from around 04:00 am, a group of about five detectives who included D/ssgt. Makole were on a special operation to arrest suspected illegal owners of firearms. In course of that exercise, an informer told them that appellant was one of the suspects at that time. The detectives proceeded to appellant's home in Sabasaba village in Tarime District, l arrived there before dawn on that day and required him to show them where he was hiding the firearms. From that juncture, appellant led the detectives to various places in that village and Tarime Township where several searches to recover firearms failed. Later at around noon, the detectives met a militia commander PW1 Mniko Sabai who joined the operation squard. At a certain stage when appellant and PW1 were talking in the indigenous Kurya language, the later assured the former how detectives would not injure him if he disclosed where the firearms were hidden. Then appellant led the squard to a place to his compound where a defective Peugeot 504 car with Registration No. TZ Z9595 was parked, on moderately big stones. Appellant crowed below that car and picked a bundle which was wrapped in malboro nylon papers. He threw that bundle to detectives who opened it and found a small pistol with Serior Numbers 4412 wrapped therein. On the basis of that background, the change for that offence was preferred against appellant. Appellant stated in his defence how he was not found in possession of that pistol which was tendered during his trial as Exhibit P2. He put it that the said pistol might have been placed at the place where it was found by another person. During the hearing of this appeal, he opted not to attend. But in his memorandum of appeal, he reiterated what he stated in his defence and on top of that, argued that the principle of recent possession couldn't apply against him. 2 Mr. Mamti, learned state attorney who appeared for the Republic supported the conviction and pointed out how appellant was implicated in this offence mainly through evidence relating to I discovery after he led the searching team to the place where the Exhibit P2 pistol was found. The learned state attorney further pointed out how the principle of recent possession didn't apply in this situation. It appears from what were evaluated above that appellant is the one who led the searching team up to where the Exhibit P2 pistol was found. It was after he had misled detective to other places. He led them to that place after an assurance by PW1 how he could not he harmed. He is in addition, recorded to have informed the searching team how he was keeping that pistol on behalf of one Juma Mgendi, his co-accused who was acquitted after the close of the prosecution's case. The offence of being in unlawful possession of a firearm is proved where a person is keeping it even as an agent. Appellant could have exonerated himself by reporting immediately its true owner to relevant authorities. Failure to comply with the same suffices to implicate him in the offence of unlawful possession of a firearm. He is implicated in the offence in his own capacity and not as a receiver of the pistol. Mr. Mamti was therefore right on that point when he pointed out how the doctrine of recent possession was not applicable in this matter. 3 This appeal is therefore dismissed. The sentence of ten years imprisonment and twelve strokes of corporal punishment are confirmed. G., K. Rwakibarila JUDGE 07.11.2008 Judgment delivered at Mwanza this 07th day of November, 2008 and right of appeal is explained. G. K. Rwakibarila JUDGE At Mwanza 07.11.2008 4