20161011 TZHC Mbeya

j IN THE HIGH COURT OF TANZANIA AT MBEYA PC. CRIMINAL APPEAL NO. 9/2016 IN THE DISTRICT COURT OF MBEYA AT MBEYA CRIMINAL APPEAL NO. 17 OF 2015 (Originating from Mwanjelwa Primary Court in the Criminal Case No. 254 of 2010) MUSTAFA s/o SONGAMBELE ....... ...........................APPELLANT VERSUS THE REPI.JBLIC ......................... ............. ..............RESPONDENT JUDGMENT Date of last Order: 0311012016 Date of Judgment: 11/10/2016 A.F. NGWALA, J. The appellant was convicted and sentenced to six months imprisonment of the offence of escaping from Lawful Custody c/s 116 of the Penal Code CAP. 16 R. E. 2002. His appeal to the District Court of Mbeya was dismissed on 3rd day of September, 2015. He has now appealed to this court on the same grounds of appeal that both trial and the appellate magistrates believed the evidence of PWI, the warder and PW2 the Prisoner. Page 1 of 3 They did not take into consideration that the evidence of PW2 might have been forced as he was a prisoner. The learned Attorney insisted that these two prosecution witnesses proved the case against the appellant I beyond reasonable doubt. The appellant is saying that the appellate court erred to uphold the decision of the trial court, the Mwanjelwa Primary Court. Miss Thomas the learned State Attorney did not support the appeal. She insisted that the Prosecution side is not duty bound to call all the witnesses without regard to the weight of evidence. She fortified her submission by citing the provisions of Section 143 of the Tanzania Evidence Act CAP. 6 R. E. 2002 which provide that:- "Subject to the provisions of any other law, no particular number of witnesses shall in any case be required for the proof of any fact." The appellant escaped from the lawful custody, but PWI and PW2 managed to apprehend and arrest him. As regards the sentence, the learned Attorney submitted that the sentence of six months imprisonment was improper, as it was not in accordance with the law. Miss Thomas contended that under the law it is provided that a person who escapes from lawful custody is liable to a sentence of seven (7) years imprisonment. For this reason she prayed this court to vary the said sentence and imposes a sentence of seven years imprisonment as required by the law. Page 2 of 3 In view of the foregoing, I must agree with the learned Counsel that the appellant's grounds of Appeal have no merit at all. The appellant who was then the accused person did not raise any reasonable doubt against the prosecution case. There is nothing of substance in his grounds of appeal to challenge the truth that was established by the prosecution witnesses that he had indeed escaped from the lawful custody. As regards the sentence, much as I agree that the appellant should have been given a stiff sentence however in the circumstances I do not think it is appropriate at this stage to fault the sentence imposed without special reasons given by the Prosecution to warrant such a change. It is for the foregoing reasons that I find the appeal to lack merit. I must therefore dismiss it. Accordingly the appeal is dismissed. A. FtLA JUDGE 11/10/2016 Court: Right of Appeal to the Court of Appeal of Tanzania explained. A.F. NGWALA JUDGE 11/10/2016 Page 3 of 3