19770527 TZHC Mwanza

IN T-id HIGH COURT OF TANZANIA -AT NbNZA • ' AiPELLATE JURISDICTION • HIGH CoUf.T C 1 1I1':INAL - PPEL NO. 19 OF 1977 (Cf. Crimin1 ieal No 0 20 of 1977). ('Original .criminal case No-a 742 of 1975 of the District Court of Bukoba District at•Bukoha Sefure "G 0 Koyaga, - Fsq 0 , DISTUCI GIT T. E'LNANUEL NUTA}SING -IA -. APbL,L.NTS ..000,o000o0000.a.000000..o 'UG•RUSINN - versus TIE REPUBLIC o , 0 00 0 0 0 0 0 0 0 0 00 0 0 0 o o 0 0 0 0 a 0 0 0 0 a a o a' RESPONDENT CHARGE: 1st Count: Stealing c/s 265 of the Penal Code 2nd Count Unlawful possession of part I poison c/s 25 (2) of the Pharmacy and oáisons Ordinance Cap 416'of the Laws0

JUDGEMENT LIL , J Ip the district court t"t 1ukob, the_ two a 1 )éllants were coPrcJLd in Count I "ith stealing shs. 3,000/= the property of one ieGUPii1E 1TANDII1 ( ?3) They were convicted and sonthnccd to -Four years imprisoamnt subject to confirmation0 In count 2 tue 1st aopellant EHJ' TJTUL MTDING1\ was charged with the offence of Unlawful Dossession f Part I poison contrary to section 25 (2) of the Pharmacy rid Poisons Ordinance Cap 416. He was convicted . rae sentenced to e fine ofshs. 50/= or in default 2 weeKs imprison- , me t. Both then rpcloc1 against these convictions. • At the trial the evidece against the 'llant-was' provided mpiniy by the"comlairtant himself AUGUSTINS ErTANDIKA (PW,3)o- H s111c' that he iscnployd as issistant Shop keeoer by the Ushirika ho and that in tnis cpac1ty he normally travels into Sukoba town to uy merchandise for his shop0 He irided that the min sup )liers of this rmrchnndise M/Z West Lake RegionaL Cootativ•e Union ("ERECU), On 18/9/75 he went to Buko-ba for this purpose and went irect to Were.cu 0 its usual he sii th a t he as acccmpanid by the two appellants wh3 were to cart the goods for him to the bus stand0 . On 'arriial. at Werocu the three of them enter ed th: fl ager's office, They did not find him in, they therofore sat' and waitd, as' they were thus waiting, tb 1st apoellant knocked ]ai'm down, when he fell, the 2nd anpeliont

snatchad a -bag which he was carrying, this bag on t aine d shs. 3,000/=. The two then ran out o the building and 0 0 disappeared0 When 'hd go. t up and went out, he rhised" an-alarm., but accrding to him ho recoived no assistance at'- the 'scene.' He therefore decided to go and re ort tt the iolice Station, where he d'ecribed the two appellants0 He added that among the money stolen from him were nine 100/= currency 'nh.tes with the folloking numbers H 378670, G 262132, G 33275-1, 8 687093, r 094547 C 705376, G 061272, D 103310 and J 480675k He did nt record the numbers of the other currency notes of lesser denominations0 When on the following day i.e., 19/9/197 he went to Kamachumu Police Station, he immediately identifIed the- to r';oellants who were alrey under arrest. No. B. 8622 D/C SELEiTINE (PW.2) arrested the apeliants and took them off a bus. t'Jhcn he searched them he found"t'hOnr ivith shs. 420/80 md 412/40 respectively, and when he scarched.the hbü:f the 1st a.~ 11ant he found a bottle of chioroquine phosphate for which he was charged in Count 2, —'2 Path a ellants do.doad the charges, but the trjal Nogistrate accaj:ted tho evi uco of P3 and convicted them 0 The main basis for the Mapistrata's decision was his finding that when thO corn- plainont arive.d at' imachurnu Police Station, "he -irmrtediatoly identi- fied his money whari ho saw it .... on a counter0-' This

finding if corr.ct provided the str acest' link btween the a oellants and the thoft'of hs0 .'3,01 00f But with res ; ect it is 'd t'sppo'rted by the evidence on the record0 ''f'iow'here in the record is it Sho..ro that the complainant identified any of the money seized frorrr the a,eallants by 0/C EL.E3TINE - indeed a:art from his own alleqations that he had rucrdec1 the numbers of some of the currency notes, ther- o was no tdmpt mddd'to liLkbJsb numbers to the currency nJtos found with the apoell arts0 00 the cent oary the comolainant cateooric ally stated that he was not shown the money seized from th., cp 'eilant0 How then could he have identified any.rnorioy? The cornolajnant's alloqatiora -that he had recorded 'the numbers of some of the curro ocy notes to me souñddd'hhbtfuI 'Apart from th, fact that it wis a very unqsual thino €0 dO., 00 record of such numbers was aroduced at the trial unless ±he' cbrnplainnnt k(_!pt all these figures in his - with regard to rho act of stealing in the NanQger S office at derecu, this to 'no yet a ,oiri sounded a little suspect0 Hw could the a p,: ellants have accemllshed'suh an act in a pulDlic building without so much as being seen by anyone else unless the donager who was aJ)sent is the solo .)ccuiant of this huildino. If the incident had taken place the way. the.. comalainant described it', somebody else could have nhtic.edit and

should have testified0' It could not have rL.mained an affai r tw en th a ellants araP the cmplainnt0 If the shs 0 3 ,OOO/:pere.. ever st'nlen from the cornalainant, it could ncmt have been in to circumstances narated by him 0 This then makes. the anpell.an€.s involvement, extremely doubtful 0 I resolve these riounts in their, f - v ur 0 find a wh a red fr the Repunlic did not sua art tn a )ollant's c-nvictirn and for the above reasons T agree with his -ss ssnient 0 Accordingly the a, als ac oinst convictions in count I by both appellants are nllowed The covi- .,.cticns.are quashed and-the sentences set as-ide 0 ' The cnvlctl)n of h 1st apoellant in count 2 was .au"lly had Only hearsay evsdcuo.- was relied uen to su art this c rivaction 0 I ye no idea un r oht rvision of Law th ltt r E,cnsbit D was emitted in evi ac cid its cntrits tr - tc1 as true, withut their maker being summon'd to give evidence0 I . should perhaps add that so such COSS all ti L thi cuort requires is tnc ichntification of the drug in qunsti -fl by somebody. qualified0 The court would then so from the current list, whether that drug was in the appropriate part cited by.tho. charge, For those reoscns the a oal oqeins€ conviction in count 2 is allowed,' ,th0 conviction quashed and sentence set OSjda The ap;ellants should be. ,rolased from prison immedia - ely unless they ar... othLrwise l-oifully b t a iol e d If any fine was naid by ao1'-ellant 1, this should e r fu led t him Delivered in Court at w'nz this 27th dy of N1-Y, l377 L. MFLIL JUO '_'