the director of public prosecutions vs john mtungi 1985 tzca 15 20 november 1985

CEIMIILjL .iPFUiL NO. 5 1 /8 3 Hpr.'JlTJN THE DlIt2CT02 OF PU'LIC PROSECUTIONS. . . . . . iPPELL^NT

VERSUS JOHN MTUKil. ..........................................................iiFSPOIffiUNT (Appeal from the Order of the Hi^h Court of Tanzania a+ Tabor a) ( P a t e l, J . ) dated the 20th day of December, 1977 in „ Criminal^ he a sio n s _p_a.s g_ Ko* iP 3 /j,2 JTJIJC^nrNT. 01, THE JJCU.^T MUST^ j _ J.-4. : This i s an appeal by the liep u b lic from an order made by P a t e l, J. on 20.12.77 i n Criminal S essions Case No. 103 of 1972 Hepublic v . John Mtun^i. John Mturyi was charged with the-murder of Kinono s / o Psra on 1.6|71* John pleaded not g u i l t y t o the in fo r m a tio n . Than Counsel f o r the .Hqp u b lic informed the-C ourt that John had committed the o f f e n c e while he ^was s u f f e r in g from mental i l l n e s s and asked f o r a S p e c i a l i s t re p o rt t o bo produced. .Then a Court Clerk appeared as a witness and produced a r e p o r t from a S p e cia list P s y c h a t r is t from .Isarya I n s t i t u t i o n . I t xvas admitted as E x h ib it P . l . Then another r e p o r t of' a subsequent date was a l s o adm itted. Then Counsel fo r the J e p u b lic i s r e p o rte d t o have sta ted "On the stren^h o f t h i s r e p o r t I req u est iihe Court t o make an order under s e c t i o n 168 of the Criminal Procedure Code” . Then the Court made an order: :’The court make a s p e c ia l f in d in g that the accused did the act charged

but by reason of h i s in s a n it y he i s not g u i l t y of the o f f e n c e . I t i s ordered that the accused b e"kept in custody as a crim inal l u n a t i c and record of p roce ed in g s be sent t o the M inister concerned under s e c t i o n 168 of the Criminal Procedure Code". / The a c c u s e d 's Counsel, one IU IT. -Patel seemed t o have acquicseccl in the} order made, as he mads no p ro te st* The R epublic has appealed from that order on the ground that no s p e c i a l fin d in g of g u i l t under s e c t i o n 168 of the Criminal Procedure Code can be made without evidence baing adduced in support of the charge, and th a t the t r i a l judge erred in fin d in ^ the accused g u i l t y but insane without conducting a t r i a l when the accused had pleaded not g u i l t y . There i s m erit in the iie p u b lic ’ s a ppeal. The order of thd judge i s c l e a r l y mis cones iv c <3 a n d -in v a lid . The judge i n e f f e c t had found John guiltj^ of murder and con victed him as a crim inal l u n a t i c when no evidence that he had committed the crime had been adduced b e fo r e him* In terms of s e c t i o n . 160 o f-t h e Criminal Procedure„ Code under w hich-the judge-had purportr-c! to act i t i s pertinent t o note- thq^fe- tho f o l l o w i n g words upps-'sr then i f i t appears t o the court b e fo r e which such persnri in t r i e d that he did

thG act or made the om ission cli_r0 3d, but was insane as a f o r ; s a i d iriicn ho. did or made the same........... " Obviously b e fo r e an accused person could be found t o have done-an act ormade the omiss<bnr. there must be evidence adduced t o show that he hadso acted or omitted t o act# act J s p e c i a l f i n d i i t that an accused did the churned but by reason of in s a n it y i s not g u i l t y of the o f f e n c e i s in su b sta n ce-a c o n v ictio n . So the judge in t h i s case had con v icted a man without any t r i a l or hearing any evidence in support o f the charge and h is order i s c l e a r l y in e rro r and i s hereby quashed and set a s id e . D-iTIfl} at t h i s 20th day of November, 1985 .

4. MUSTiJLj JUSTICE 01' jFPE4L L. IT. M-IwOT ^ J S T IC J ^or 4L 3 S. H. EI3..K-.J JU STICE1 ..., CS? jPPSiiL I c e r t i f y that t h i s i s a true copy of the o r i g i n a l . i'1 // ( A. i l ^ m /S H ^ T O ) WFUTY/iij::i3Ti^,,i CCUriT OF JFPZJL 01= M Z i ii'I I i.