19920824 TZHC Dar es Salaam

, ',I' _, -. ~- :.:..-.-~- -. '::~ ,,,, .- -· .. ,.... ~· . IN THE HIGH Ci.UrtT CF TANZANIA AT DAR ES Sii.LAAM ·~-- OHIGINAL JUi1ISDICTICN ECCNC-MIC APPEAL NO., 15 OF 1990 v (Original Kilosa District ourt Economic Crime Case Fc"24/89 Before: E.-Matemanga, D"M~) DIRECTOR OF PUBLIC PR,~-SECUTIONS •••••••••• APPELLb.NT versus MCHAMED NASSORO KAFUA ••••••• , ••••••••••• l{ESPONDENT JUDGMENT, MK-UDE , ~.:..::· This is an appeal by the Director of Public Prosecutions against the order of acquittal by the Dist:r:-ict Court of Kilosa. The respondent MCHAMED UASSC2C KAFUA was charged with unauthorized possession of a fir_ea:.cm c/s 13(1) of the Arms and AinL1uni~ions CrdiL.anoe (CE].p 223) read together with ~aragraph 21 of the First Schedule alld section 5] of the Economic and Organized Crime Control Act, 1984~ The particulars of offence alleged that oL or about 27th day of June, _1989 at Kidogobasi Villg,ge wi th:i,n Kilosa district the respondent was found in possession r..;i.· a firearm, make rifle 40, with :ciaker's No.02987 wit110ut h~ving q licenceo The respond~nt had pleaded not guilty to the charge. I~he pros0cution called t~o witnesses, Juma Hassan. and :9:amiEJ., Mgambo, both of whom are TPDF soldiers engaged in a spec·,iaJ. cam:pai.gn against por-tchine: called "Operation Uhai" e According to these two witnesses, they had arrested the respondeLt n~ his hou:se and that he surr,endered the rifle to them after interrogatio~o This is denied by the respondent who is support Jd by his C~ll Leader, one Clavery Peter Mak11mbi, who· tes tiiied as DW2. According to this witness "'.1he .,.:wo soldiers had arrested the two wives of the respondent w:ne~-:_ they vs-::i·e ta-ken to his home and the two wives were used as a bait to get the r4spondent who was not at home when the. soldi8l'S arrived. When the respondent rettxned home he . I ' - 2 - found his two wives had already been arrested and were kept at the.house of one Libwana together with several other people who were .suspected of poaching. The Respondent decided to go and see his wives and on arrival at Libwana 1 s house he was arrested and his wives.were released. DW2 did not witness the alleged surrender of the rifle by the respondent. The learned District Magistrate who heard the aase ~· did not believe the two prosecution witnesses who claimed that the respondent had surrendered the rifle to them. The respondent stated in his sworn statement that the soldiers took hie to their store and fcrced him to admit that the rifle was hisi He did not admit the rifle was his. Miss MRkwaia, learned State Attorney submitted that as it was the respGndent who had surrendered the gun to the soldiers then he ought to have been convicted as be did:not have a licence making his p·ossession of the gun lawful. With due respect to Miss Makwaia, the question whether it was the accused who surrendered the gun to the soldiers was dealt with by the learned trial magistrate and he d-id not 1 believe the story given by the two TPDF soldiers. The learned t'rial magistrate analysed the evidence tendered and chose to believe the respondent and the Cell Lead.er who testified as DW2. I see nothing wrong in principle in·. the way the trial court dealt with the evidenc;e an(~ so I have no reason to question his findings. When the decision. on a particuJ.ar point turns on credibility -of witnesses the trial court has an advantage over the appellate ~ourt and so findings of fa:ct w~ll not be reversed unless ;the trial court has acted on wrong principles or has omitted an ioportant point of consideration in its eva1uatio_n of the evidence. In the-present case the learned trial' magistrate had good reason to doubt the credibility of the two prosccuticn witnesses. This is hpw he dealt with the evidence: .•... /3 - 3 - "The two prosecution witnesses in this case have stated that they visited the accused's house; net him at hone and arrested him, They took him to their camp, from there the accused took them to where he hid the firearn tendered as exhibit PIJ Despite the testimony of DWI we have the testinony of DW2 Claver~ Peter Makur.1bi i the ten cell leader. DW2 has stated that he was invited by the soldiers to accor,ipany ther.i to the house • of Libwana, there he saw the wives of the accused under arrest. From the house of Libwana they went to the CCM Office, there he was allowed to go home. On his way home he rr.et the accused 2.nd inforr.ied him that his wives are at the CCM Office. Later on that day, he saw the accusedrs wives at home bu~ he did n~t see the accused againQ his piece of evidence \ "' refutes what has been stated by PWI and PW2 who are TFDF soldiers engaged in Cperation Uhai. The soldiers invited DW2 to accompany them to the COM Office, but they did not see that it was important to invite DW;::, the ten cell leader, to accompany the:cl when the acc11.sed was going to show them the firearm,. 11 The practice of arresting wives as baits when it is their husbands who are wanted by the law enforcement officers is to be condennc~ in the strongest terms. Like the learned trial magistrate I find the story by DW2 the ten cell leader, to be the more credible one and reject the version narrated by the two soldiers. This appeal therefore fails and it is hereby dismissed. Delivered 'in chaubers at Dar Es Salaam this 24th day of August 1992 in the presence of~ Miss KIWJ-1.NGA STATE A.TTCRNEY for AppeJ 1_p".'.l ·0·. Respondent '.l bsent. '------"'M~ T" L. MKUDE \ JUDGE ..'. 24~8.92