19750801 TZHC Mwanza

- r r---'- -'•'• ' . - ..LJU_ LULJiLL 'J j UALLLAL LJ ATT'JATZA . . • EIGH. OOTJRT CimIITAL JPPEALS No's. 368, 369 & 370 OP 1974 'OiiHal Criminal Case No. 32 of 1974 of.thc Distriêt Court of Kakoma District atKaharua -Before i;I.S. Kabibi, sq., D. 1.1. 1" FABIAN MLING VIA •.- . , . 2 'NY'ASAMTAKI . . APPELLANTS 3 NJLSUKA LnINC-VIA - oru .HEBEPUBLIC:. •.., , . , , RESPONDENT CHE: Store-breaking c/s 296 (1) of the P \Ca.p. 16 of • .tho Laws as Roisod. Nf C KJTITI 2 AG J. The appellants Fian iia'rasa ;Ttaki, Masuka Tflingwa were charged together vfftyio others with store breaking and stealing conrçry to scct;o 96(1) of Penal. C'odo. The ap.pol'lntd convicted as chargo and sentenced to thi'e years 'oaOh, the minimum for the offonco under the iinimum Sentences Act 1972. The appellants aggrieved sock to appeal to this Court.. Their aoals are:- High Court Appeal No. 368 of 1974; High. Court Apoal No. 369 of 1974; High Court Appeal No.370 of 1974. . . These appeals are to be' dealt with as consolidated in the above ardor. Th view 'of the grounds of appeal which on the fact appoar congont and appealing, I shall' go into the evidence with a view, to atisfyin: mysclf as to the propriety of the trial Courtts findings of fact and inforonces made therefrom and hence, the propriety' bf the verdict itself. The evidence has it that on 24/2/74' while P.VJ.1 RASHID WriBJIA a driver employee of JADRUDIN JAPPER. (P.w.3) as on his.duty of.dis- tribuing beei-' to customers including JTJ1& MSAKA, theist appelithat Pabiai T.flingwa called him aside and iritimatod to him of his wish to hire the vehicle P. 1,I.1 was driving, for the collection, of. his bg of wax from Somewhere and delivery of the same to his houso,at 8 p.m. The rendezvous agreed. upon . to set off for this taak was given as hous.e of ImSTAPA HAMISI (P.VI.4) of Kaharna Township. where the appellant No • 1 was actually living or renting a room. The agreed ronuncration ws 60/=. Hence, P.W.i ontertainç suspicions and dutifully and as a law abiding citizcn, he infómod A.S .P. KALE P.W.5 thoroby initiating the wholo machineit for the arrest bthe appellants if eventuality had it that an offence were committed. It would appear tht there is conflict betweon P.VI.l and P'.W.3 SADRUDIN JAFFER whether the Toyota vehicle, in qustion over went out for the distribution of beer on this day, fol' while' P.VT..l says' he did use the very vehicle for the distribution, P.W.3 does not think the vehicle was so used. I do not cenidcr this material as will hereafter be shown for as the trial mgistratc believed, whatovor was the case, contacts between one another for the events to unfold as they did must have taken place. It would appear however O.C.D. Kahama (P.Vi.5) sought lcave from SADLUDIN JAFFER (P.1-1.3) to lot P.VT.i use the. vhiclo for the occasion 'and this is .confiod by P.7.3 himolf Who also rOnders credence that his dr lost the'. windsccen in the operation.' Therefore that this happcned is g1sringl:r clear and the trial Court was entitled to so hold. " The evidence has it that'P.W.i wont to apppliant No. 1 dnh instructions' of L.S.P. Kabale at . 7•45 p.m. at the tim the:aDpoflant wiited 1 only to find the lot appellant in the company of 3rd appcllan 4 Lf 2- .}Ccribod as thci J0'i aj7poLLaflt young brOther. ain it is 0011.0 by the records that the .4th. and' 5th. accused and the 2nd appellant ioro nOU iejo at cli The let eicLL:ac is eaiJ o hove told P. T 1 that" it was too' early. He asked P.7.1'.to cone back at P.7.1 wont off and kcpt A.S.P. Kabale P.1.5..vith a food back on the "see":d.aecording1y P.7.1 wont babi: to theist .appollaiit. at 11 p.m. At this junctu.ro th 1st and 3rd appellants wcrojoson't and they ot o to their th stn' ion - Ibao Shireti ie In hc :approaches of the store 1s 4U- appo2-lcnt is said to have asked P.7,1 to switch off the lights, which ho did after hesitation 'and roluct- • ence; At the storc some ot1t'r accus'o'cs like the 2nd tppè1lánt and others joined in and began loading 13 bags' of wax Afte the 1oadin: the let aprollant is said to hElvo told P.7.1 not to switch on the car but push it for some distance iich again P.7.1 did with hesitation and reluctance and fearing' vio1nco at the hand of the appellants and ptiors. A short distance cff, thoy wore intercepted by th police bffiers that had boonorgenisô'd and detailed for the in.tãcoption by. P.7.5 A S .P. Kcbalc. Thet this hap Dencd ia the finding oC the trial court and I have no 'roasoft to 'think the court errad" ii so nolding, the crcdibiity of P 1 having been righcly rated high. P.7.8 No A.5062 D/Cpl Ludovick, P 7,9 No A.7763 p/c TTaltcx ? and P.7.10 E.9207 P.C. Aufi are the officers *ho wore detailed to d the job.' They lay in a'bush, not C. long' distance fon the store in uostion, they saw P.7.3's vehicle cono'- they saw 'the loading, they saw the pushing of, the' vehicle and intercepted, theill a. 'they were driving off' by shootiig in the air sonding, the occupants of the vehicle taking to their heels including 'P.7.1 who shortly came 'back. The narration of what they saw while in hiding tallies \r,rith that of P.7.1 who was actually at the scene. Those officers went to the SHIF,ECU store only to meo .IIi,TIIIAS TH0IAS P.7.11 who confirnod. the 'culprits as having been the let, 2nd and 3rd aprollants and on chOking, all the doors wore found' securely intact. The appellants were •subsoq,uently a±'rostod on diverse' days. It would appear ,esultant from the, ambush was the oscOpe of :ho culprits and.. the 2nd, appellant Nyasa Mtaki and two others who .,woro also in the pick-up 'sii away only :o end at the house of P..6 •STE1I2N'L'IAGEZI at:about.l.30 a.rn. olily to toll him that they had been ackJrby armod.gangsters. P.7,6 advised thom to go,to tb.0pOlice station and reportand he must have been surrieod.to so'thO'-2nd' ape11ant Nyasa Lffltaki arreSted as a weed manat the police stati For the surprising thing should be how Could the 'gangsters tttck him alone and leave MATHIAS THOBIAS P.7.11 hi co-watchman. Accordi.g to P.0.11 the 2nd appellant and •hime1f were both "oii duty 'as from 6 p.m. At about 11 p.m. the 1st' appellant is said to have come there with a torch saying he had a .prblen which he would not disclose to thorn. Ho told .thO Court that he was later beaten up by a gang and 'told not to shout. He saw the 1st appellant open the wax store with a key that 'was' handed to him by 5th accused 1TICIB1 BUZURUG!i.'' HO" added he was forced to help in the ibading intd the vohicje which he recognized as proorty of Saddin Jff or (P.0.3).'. !1or loading s the vehicle was pushed off and that they. had hardly gone' a, long die tnco when he hanrd gun shots., That 'this haponcd was a finding that was inevitable. cross-examined P.0.11 told the court, that it was the 2nd appellant who openod the gabc for the 1st appellant. As to he position of the keys o have the evidence of P.7 7 BENEDICTO i!JBO who told thO court that oii '2 3/2/74 he was' handed 'aUthe godovm Cnd allothOr store koy$:'by, 'Stephen Magezi (P.17,6) who' was about toloavo for UyoC' village' and on this same d,ay at. 12.30 he locked '11 the doors ol' the stores including the wax store and when hcre'poDtcd on 'duty: on 25/2/74 tho de'ors vrore;still:securoly locked but the snoim of wax shorG y about 13 bags of 51 kilogramir standard' weight, each. p.17,7. still 'had. the kers with him'' Howover P.7.7 further told, the court that the othór sot' of 'keys had' been los'; by PETER MLiYtJT'Tc-A the 5th accused. This can only mean that either It is the key allegedly lost or some other key instrument that was nose. - in -bh . oponing, The list eppc1Jaat?c cfcnco is an slibi 1 that he 1 ft a 73: p•a. escorting his young brother -. 3rd 4pollant and that he subsequently loft :fcr Shinranga by the 8 p.m. bus and ended up at Ia1ya to noun-i. the doaih - ci- his relative. His wife ILRI.L LLE cane to confirm .Jas. But biLlO sane MIL had bold hc police that hor husband 1st appollan -b had left with-.Lxis - youn brotherd aDpcllant and Sadrudin Jaffer' a driver for an unimown destination. What the Republic is saying is that .P.VJ,1 took them to the ki-'ccu store. How can she toll a different otory now. Jssuming the police are tolling lies what reason would the appollanb advance for what i-flJSTLL HMISI P.7.4 said. He said confirming what the i.opub1ic is saying -G1a -G at 8 P.m. P.. .1 won -b to the ls appel- lent' a place to collect iiiii and MUSTLPA HJ.ISI says he saw SADRIJDIN JTR'S vehicle and driver P.7.1 there at 8 p.m. Ho also says that the 1st appellant talked to him after which the driver loft and at no tine has P .4 said that ic appellent never left his horc II all this was a just more domonsration of grudge and hate what reason would be spurr g-'P.W.ito tell lies. P.1,7.l 1 s evidence that they wont to store andLidedwax bags is confirmed by P.7.11. In my view I an satisfied that the trial court was entitled to make a finding that the 1st appellant was not away as he contends.. Its finding that he was seen at the- :tore was inevitable. I en mindful of the contradiction between P.7.1 and P.7.3. P.7.1 told the court that he was on 24/2/74 distributing beer and that is when he cane to see the 1st appellant who was with the 4th accused while P.7.3 told the court that his vehicle never wont out the whole day that day. I do not at any one moment consider this to be material to the case nor is this a ground for declaring the witness unreliable as I do not expect him to border a tape recorder in accuracy or to have a perfect sense of memory qualities that are rare in human beings. But whatever nay bo the ease, on the evidence there must have been the beginning that initiated all this otherwise P.7.1 would not have found himself at MtJSTL.FA HtISI'S place for the appellant. Now I cie to 2nd appellant - Nyasa ita1ci. P.7.1 did not toll the court that the 2nd appellant opened the gatà as he wants to have him say in ground 7 • He said that the 2nd appellant gave a hand in pushing the vehicle. This is confirmed by P.7.11 MLTHIAS THOBIiIS who also told the court in cross-examination both by the 1st and 2nd appellant that it was the 2nd appellant who opened the- gate for the 1st appellant. It would appear that when the vehicle was ambushed the 2nd appellant was in the vehicle and took to his 110018 together with othors otherwise why was MATHIL.S THOBLS found alone and while they are two watchmen - himself and P.7.11, how did he adquiro the company of two people before going to P.7.6 Stephen Magozi unless they wore his co-thieves. In my view the 2nd appellant was properly involved otherwise I cannot see how ho would have found himself in the vehicle, or willingly and enthusiastically loadiax and thereafter pusbho vehicle. I have scrutinised the evidence of P.71 with great cauti'n but as it is given further credence by the evidence of P.7.1, I agree said concur with the trial magistrate in the finding ht didn-- as it was actually inevitable in the circunstanccs ie contention tha -b this was planted is just an extrication exercise after the event. Now I come to appellant No. 3. The evidence of P.7.1 is vary material. P.7.1 went to the 1st appellant at 7045 as pro-arranged and found the appellants (1 & ) together. He went back at 11 p.m. and both were still together. Ho -drove to Kahazia Shirocu were both said they had their luggage. The 3rd appcllan -ectually involved in what, was going on including the pushing of the vehiclq. When they were intercepted and P.7.1 ran away, the 3rd appellant was in the vehicle. In the face of -bhe evidence from witnesses rightly rated