19850916 TZHC Dar es Salaam

., , • THE UNITED REPUBLIC OF S.1ANZANIA IN THE HIGH COURT OF TANZANIA AT DAR ES SALA.AM APPELLl1TE JUR:,: ..)DICTION HIGH COURT CRTh1INAL /.,:?PEAL NO. 31 OF 1965 ORIGINAL CRIMINAL CASE NO. 344 OF 1985 OF THE DISTRICT COl.J~i:'.1.' OF ILA.LA DISTRICT AT KISUTU Before: K. A. Kassim, Esq., Senior District Magistrate ELIFADHA ZAK.A YO • • • • • • • • 0 • • 0 • ,. .... . . . ' APPELLANT ! versus THE UNITED REPUBLIC • • • • • • • ... . ,. • • ot • • • • RESPONDENT Charge: Stealing c/s. 265 of the Penal Code MAJN11., J • This is an application for bail, made under section 123 (3) of the Criminal Procudure C'ode. 'ihe application waa W?.'ongly filed as an appeal aga.mst· the district court I s orde:..· refusing to grant bail to the accused. I shall· therefore ·treat tl:is_ as an application for bail rather than an appeal. The charge against the applicant is one of stealing cash shs.9,928, 715.25 property of the national Ra.'YJk of Co!ll!"r'.eroe, Lumumba .Jra.nch, Dar es Salaam. It. was ~· 1• 1_eged that 'the applicant, stole the 1/Amoney between December,· 1984 and January, ,1985. The applicant was .rrested in March, 1985. His ap:;;ilicatiori for bail was refused beO'a.UBe as the learned magistrate said il: the,02de~.dated 30.3.1985 "The accused is facing clmrges of stealing •:oJ.losal sums of money. It is true he went into h~.aing and that: is why the Police had i;o o.dvi.ertisc tt:. the Daily News in order to re·~rea.ve him. fujJ_ is re:f'uaed 11 • S';im:iJar aubs~quent .requests for bail were ;ref1:od by the distriot,.court., hence this pr.esent application. Mr. !renga, 1eo.':"n.cc oounsel for ·the applioant 1has submitt·ed that it wns a misd;i..i:eV:ion on the part of the trial court to refuse bail on the ground tr.r..t the amount involved was large· sum of money. With respect I although the. ;na,.~istmte who made the ·1aat order:- refusing bail said he d:i.d oo beC~Ube the amount inv.olv.ed was large, but· the earlier order also gave a·:;)"bher reason, that i;h.e. appl~oant might abscond if grante~ oo:q.. •·Mill,. .,, .. ti ................. ,,., "•. ·;··..... -{ ~ 2 ... It:is conceded by Miss Xoroso,the learned State Attorney tbat 1 bail. is the right of an accused person and that an accused is presumed innocent until proved guilty. The learned State Attorney objected to bail because in the circumstances of this case, firstlY, the amount. alleged to have been stolen is almost· s~illings ten million and secondly~ the a.pplioan:tt who had gone into hidin6 would escape i:f he is released on bail. Leti me state at once that. :_-.1 m.Y View, there con be no doubt:- that the amount alleged to have been stolen is such a large sum of money and that makes the charge a v.ery serious one. It was the prosecution oo.se that the applicant went into hidding immediately af't:ar the theft . was detected and an advertisement had to be put up in -~he Daily News dated 15 January 1985 to seek the assistance o:f the public in order to arr.est the applicant. The applicant was duly arr.est~d in Mnrch 1985 in his village in Kilimanjaro Region., I have checked wit:1 the relevant issue of the Daily News and I noted that the adv-ertiGement was truly mde and rt:. appears in the fr.ant· page vti th the applica::2:t} s photograph. That:: :fully supports the State Attorney's allegation th.~t'.; the npplicont: went into hiding and Police were only able to ar~:-..::s"t him after the adirertise- ment was put up in the Ilews_ya pers., Mr. Tengo. submitted trot there wa2 no affj_davit to support the allegation that applicnnt migh~ interfere with mvestigntions. if released on bail. In.deed th ..:·-3 wns no :.1eed forsuch affidavit,. because nowhere in the record of the district cclU't did the prosecution allege that the applicant would Lriterfere with the mvestj_ga.tions. The main reason for the objection tJ ba~::.. was t'hf., ~ the offenc.e r:as serious in view of the large amount involved and that the applico.nt was likely to abscond if he were released on bail. Miss Koroso, learned State Atto~ey, :lited the case of Republio vrs~ .. A~ 1970 HCD n.342 in which Saidi, J. (as he then was) had cited with approvnl the case of Abd~:g.ajg; Ne.~sor v, I!, I TLR 289 and said that·-~ "In criminnl law, an accused person is prrnumed innocent until and unless he is proved guilty nnr' on this consideration most persons charged with the majority of offences are allowed bail pending ~eir trials. However, the proper test whether bail shoUld be granted or refused is whether it is probable that the cc::use;d will a.ppenr to take his t:rwl" In the Ahmed case bail was refused bec..w.oe the offence wns serious involVing conspiracy to defraud the Government i~he sum of she 886,000/= and it was :felt thnt the applicant might jump ba:U.. In the present case, the offence is even more seri:T 1.~ n.s it involves i teft of almost:· Sha 10,000,000/=_• < i"': .~ .... ~ ..... . ' - 3 - Furthemore the probability of the applloant::.esonping 1s alao more likely than in the Ahmed case because the appi.icont had o.lready gone into hiding immediately after the alleged offence woe oomm:tttedi The learned .magistrate who refused bai4- was 1 in my view, right in ooing so by considering the gravity of the offenge and the likelihood thllt_ the applicmit would abscond i:f released on ball. ~oee were pl'Oper and relevant matters for conside:ra.tion and I oannot eay thot the •ei•tmto. erred in refusing bo.il. It is for these reasons thot bail 1a refused, ~he.epplio~t.1.c,n for bail is dismissed._ w. J. MAlllA JUDGE Delivered in chambers in Dar es Salaam this 16th dny o:f September, 1985 in the presence of ~• Tengn c'ounael fol" the e.ppUOQ.llt and Miss Munisi, State Attorney1 for the Republioe w. J. MAlliA JUDGE 16/9/1985 t