19900302 TZHC Dar es Salaam

IN THB ~UGH CJU~.T OF T;.. rz. ..KL. HC CRL,iI:ii,.L :a.cBuL 1:;7/19e9 JRIGIN~L CRI½ItJL CJ3~ JC. 37 OF 190a JF TJE :JISTltICT CvUi,T JF UL.aliG,. :.:,rSTli.ICT i.'i: ..Ii,.iENGE II~I: A. 1vI;iKL,,.r3I •• - •• , ••.•.•••••••••••• A.?PELLANT . _lj VS• THE RB.J?UBLI1 P'"! '."1! !.,!)t 1 ! ! ! ! ! ! ! ! ! ! ! ! ! !RtS.J?OlDENT LUGAKINGIRA,J: The appellant Halid Maka~bi and anJther -an ware before the ~ist~ict Court·of Ulunga at Mohense convicted on a charge of breaking into~ building and stealing therein c/ss 296 (1) and 265 of the Penal Code and were sontencaC to five years' i~prisJnGant each, It had been alleged th~t on the night of 2a.9.oa tho two broke into the office of the :;:)istrict vvater En 0 ineer <::.t 1fahen[;e ar~.l therein stole a typewriter worth 200,JO0/- the prop0rty of the ~ut~r ~a~~rt~ent. The appellant's oo-aocusei h&.J not appealel. The offi()e :)f the -:1istrict •1 a ter Engin:.:or v, 1s in·:eed broken into and in the weke of this a typewriter went ~isGing- The breaking and the disappearance of tho La0~ine were reporta1 tJ the police on the uorning of 2£ Sapte~ber ••~ 1uy later, on 29 Septu~Jor, at Ifakara Railway StatiJn, the appellant's co-accuso1 was fJund by a wilitiawan (PW2) carryin~ a gunny ~ng in which ·there was a typewriter, On being questioned the co-accuse] state1 that the tyJewritcr belonged to one ·Sauwel Maji who was also arJund in the railway

st~tiJn, The ~ilitia~an led the co-accused to his superi0r Sgt. Ernest (2~3) f~r further queijtionin.,;. ivhen this wa.s in pro 5ress, the: ap_;,;ellant turned up, introduhd hi~self as Sawwel ~aji and c~nfir-o1 his ~wnarship of the ~achine 1 adding' that he was taking it to a ralative at Jar 3S Salaa~. It was also observed, that the ~achine had a scri':..,'clet "T.U1JI 11 • Nevertheless, ?W3 beca;na suspi,iQU.S and ordered th~- two arrestci. Thay were then tEken t~ the Tazara ?011,~ Station at Ifakara where they were rel~asai on police bail. News of this event soon reached ~ahenge. 0n 1 Jctobar Sgt ~ads~n (iWI) of the Mahenge police and a Jriver fro~ the Weter JepartLant urrivod at Ifakara and took possession of the typewriter after the dri veJ h~ 1 re.rlortedly identified the sace. The a~pellant and his c~lleaguo w~11 th8n s~ught outr rearrested and charge~ as stated a00Te, On being charaed and in his defence the u~pellant cave his naue as Halid .ill.idallah J...tlman ivlaka.;ibL In his def0nce he elaiu~d that between 26 and 30 SepteLlber, 1908 he was at a place called Minep~ thereby icplying that he was not at Mahenge when the offence was being co1.1oi tted. He also ioplied that he knew n:)thing about any tyj,)e·.-;ri ter or the events of 29 Septe~ber at Ifakara Railway Static~ f0r ho denioi o~ar Scieing ?W2 or ?W3 before 11 Gcto~er when they identifi~, h~:~ c.t an

identifi~ation parade as one of the tw0 pers~ns thay hui arr23t~1 ?ith a typewriter. /~ . t . - 2 • His denials and protestations did nJt i~;ress tho trial ~a:is~rate who proceeded to convict and sentence hi~ as Rforosai1 • Mr. Massati, learned counsel who 2)p,3.1red f:ir the:: e 1.,Jtillent, tJJk issue with the ident!fication of the tJpowriter. It is opportune to ~ention that the Lachine was i~antified in c~urt as th0 stJlen typewriter from the scribble "MAJI" and. the seric.;l nt1,_i:.:.cr 4515JS2 ty -+;lv :·,iotrict Water Engineer (Pw4). mr. Afassati arguoi th:t ~-~ pur~ortol tv i~antify the ..1achine oec~use it wc:.s in courts .tic ~1s0 sJught to u:r:_;e that the appellant 1 s re~~rtel claiD to the owntJrehi~ of the ~achine was ~atle while ~e was un.:1.er restraint: but on reflic-i;Lm ,.1rc .1iias·;'-"i;i C..Jn--·,3.:;.ed. -bhe oontrary and could ther&1ore say no ~ore in the B)pCol- Talking of iientificati~n, I think the:e is co~~a~.nly ~ause f~r unhappiness, bt:t I ;·;ay so fr,J~i a d.~_ffer-:.:nt ;ii;;rspc,.-·~j ,:_, The r.i0st 1 if not the only, unf:::-_·t-.:. nate aspect in this c·J::.nucti.:i:-: is ·: h ~ the tr:!,.al ,:iagistrate ~actually paid no attention to _,,,,-Z:::. tt0 i:.;.e~1ti~'icc, ;J..-:m 01' the typewriter, tha iQpression being that he t~Jk id0ntific~tiJn as c~l~ing for no iiscussion. So far as any al .usion exists on J:Le su:)ject1 it is in the

recapitulation of the evidence wie.o the t±ihl ~aGiatratG st~~et ~n. t PW4 ''identified the typewriter and i:~·oJuced it in c:.mri~" ~,ith ..:,ut u·,r:3~1 ,;t1..~ing hc.w or in what way the ide~tifi3ation was dono, ThrJughout hi~ J'.ldc~cn~: the learned ~agistrate :referred to· th..: .,ac,hine as 11 th0 Gjj_)Gwri t .:-r; '1 c.:.s if tlw t Wdre an adwi tted fa~t, and went on to hJld that ''The eviiJnco ~hich cJnna~t the accused with the offence co~~it~ei is the fact thut on 29,9,GG th8Y were arrestei at Tazara Railway Stati.r wj_th th0 sblon ·.:;y;,owrit:.:r Bxh A",without :r,:::-0··riously findig that Exh.~ was in fact the stolen ty~ewrjte~, I ttink that oy thus taking for granted a fuct the truth of which rcquiral ;rJ~f 58Jond reasonatle 'doub\ the t~ial uagi3trato ad~;te4 a st8n!arl th~t w~s .napprcpriate in a cricinal oatter. · That said_ hJwever, I finl it lifficult tJ E )Ce~t kr. Massati 1s suggestion that the typew::itur was othdrwise nut ~r-~erly i~ ,n~ified. Aduittedl~ this eourt has helC:.. on sev0r2.l occassLms the;. t where i .it: identificatL:m of an article de_t>enC:; on a peculiar .:,ark 1 thut ..1ctrk s.1(.ull ,,:,e discrioed by the conplainant be~cre the article is s~:wn to hi □ s see f~r exawple Nassoro Mohamed v.R. (1967) HC) n. 446v That is certainly a [)Od rule, for, if nothing else, there is hard.J f 1 shortage r..Jf ccupl'.3.inc.:.nts whose integrity

uign', be ov-erw-heloed by greed, but tia ~ule cannot apply t0 every sii ~ation and was never intended to. The present cas2 could and does s~lply an excep~i0n t0 the r~lo. I think that the likelihuod of anyone fro~ the nater ~epart~ent having the urge to be dishonest about the identity of the stolen ~a~~ ~e was non-existent, there being no personal inL)rest ihYJl ved. I would. in any case go further and observe that · t d oes no t ai:1--:iar th a t 1i, h e evia.encG l. . , ., W':J.S_,;so ~o speak:, o f .?\,4 . . assisted by the presence in c,,,,rt of th3 typewriter. The ,.. a te:rj_al par-!; run.s thus: "I 0an identif,v the -:;oev;riforo It •is i,vritten ,,;.•.,:I ~.1n:, it L; i~J, 5159.:,2, This is the lilachine,, Bxh 1~, (Court;:- The witness ,:..1s :~:,l, t· l~l;.jnt:i..i:'y t:10 typewritcr.)11 '3- ~ . 3 I think~ with reipect, that this evidenc& an1 this re~~rk ~y tha trial ~agistrate do not inJicate any adv~ntaGe bein3 taken of the,p~isen~e of the typewriter in court i on the contrary, it a_ppears that .2\14·· testified before he was per~itted t0 view tha ~uchine. There was als0 nu eTiddnce that .PW4 saw the wachine before this occassion for it vms -:;aken fr0m Ifakara to Wahange Police ~tation frJ~ whence it was ?roduced in court more than six weeks before he ca~e to testify. I ac thus 0f the view that there was reliable evidence of identifice. t-ion. Indee 1 the fa·et

that the □ achine was labeled "l;i.AJI 11 i..11.1e.:;.iately SU'..:::-istd. that it ·uelonged to the Water ~e~art~ent. It will be recallod th~t at first the appellant had naued hiLlself as Sa □ wel Maji 1 peihaps tJ -3kJ it ap~ear that the machine bore his nawe, tut he thareaftor assu~eu a different naQe and has never since been hear~ to claiu ownership of the ~~chine. I ac satisfied th~t the -0ircuwstances ~ointed to none but the Water ~epartwent as the owner of the ~achine. The evidence hence justified a finding that the raachine tendere_ at the trial was th~ stJlen I typewriter, As indicat~d earlier tho appellant. also went ip to i~3, a police sergeant, and clairaed own ff ship of the typewri tore I ha,·e n~ roer.:::n to fault the trial· magistrate in finding that the claiu was Llade. Signifi,antly, howeve~, the appellant carefully avoided to repe~t the cluiu at tho trial and this ~an only iw.ply that he had not lawfully cou1e ty the uachine, i think also that the doctrine of recent possession was properly invoked to ~jnvint the appellant as charged as a □ ere t~enty-four hour1 ~r SJ so;Jrated the material events. As again previously indicated 1 Mr. Massati ha~ scucht to argue that the appellant's claiJ to the ownership ~f the ~achine was wbde while the latter was unle:::- restraint but he :::..::,;andenGJ. :bh:; .. irJu=.a.-it 0n further refl~ction. I consider learned

counsel's decision well advis -~int~& oircu□ stan~es of the case. I would a1so observe that tha c'rgu_ent w :E .i.n f~1ct not previ::iusly indicated in ~he petition of appeale ~11 in ~:1 1 ~ ~:n~~dGr the conviction cirited in la 1. Iri i □ posing a five-year prison sentence thE. triLl ~~gistrate o~served that the type·Nri ter was worth 20'J 1 :Y:nj.- whict bj:-our;.!1t .the case un::ler s. 5 (d) of the 1\1i:.1iwuw Sentences iwti ·1,972,: 'Lk! .r'rJ'·ision provides for a wandatory mini@uD sentence of five years' i0prison~Jnt wha J tha v~lu0 J~ the property obta.in0d in the COwl1issio:1 of D.11 ::dfor.ruc.. ·- cr.::c _;~ __;_.._ ur:i,,r J;he .Aot exceeds fi7e thousand shillin~s. I wuull tavJ 1.J ~~~ird~ dith ·he sentenoa imposed if the jOSition were that cle~r on tho rclue ~f the typewriter, but my perusal of the rec0rd has not r.3vealed 1:;.ny evi.1en0e on the subject. The only stateJent on the value Jf the ~~chiLe is to be found in the oharge shee\ and I believe that it is this state~3~t upon which the trial □ agistrate proceeded. It ..illst be e1:.phasizedr however, th£ t a chnrge s.l:J:Jet does not forin part of the e~idence but is a set of 3llecations that the prosecution have to prove., In thd sai:1e wa;f that a cunvicti:m cnw·;t be rec0rded on the bas~s of the char{se sheet alone, a sentence cannct te _.·_:.1posed. on tha-, basio either. The prosecution h~ve to adduce

0vi!~~c~ t. ~rJvG tho allecation~ in the their t: C.) SC 4 'f ' _,1 t?tis case the prosecution never -ad.duced evidence on the value of the typewriter; indeed it is not even known whether it was new or otherwise se_rvic'eable or whether it was old and. disused junk. In the a0sence of such evidence the appellant was ontitloi to the henefit 0£ the dJubt as to_whether s.5(d)··of the ~ini~ULl Sentences 4Ct a~plidd, By reason of·the foregoing, the a;,}.Jeal is dis.Jissecl as re 6 ard.s oonviction. Howeve-:,l. the sentence is ru:.iuced. t•.) on·e of three (3) yearS'i~prison~ent. JU:;:;GB DAR ES SAL.AMII 2nd March 1990 Mr. Kamba for Re~ublic.