19780322 TZHC Tabora

a, , IN THE HIGH COURT OF TANZANIA AT MVANZAO APPELLATE JURISDI crio HIGH COURT CRIMINAL APPEAL NO,213 OF 1977 (Original Criminal Case No,897 of 1976 of the District Court of.Shinyanga 'District at Shinyanga - before F. M. RUTTA, R.M.) HASSAN s/o SALUMU APPELLANT (Original accused) versus THE REPUBLIC ................... 0 0 RESPONDENT '('Original Prosecutor) CHARGE: 1st. count: Burglary c/s' 294 (1) 'of the PeIäl Code Cap.16 Vo101 of the Laws0 2nd count: Stealing c/s 265 of the Penal d6de:'Cap.16 Vol.1 of the Law J U D G M E N T . MAPIGANO, J: The appellant Hassan Salum was, charged with Dir1avy and stealing, contrary to sections 294 (1) and 265, respectively, of the Penal Code. He was acquitted. But surprisingly the learned trial court made an order for the forfeiture of his vehic'lè, a landrover bearing registration No.MZ 8413. It is against that order that this appeal has been brought. .1 entirely agree with the learned state attorney that the brdér was, to say the least, bad. It was not in Issue that the dwelling house of one Kristina was burgled in the night in question. It was also not in dispute that several of his things were stolen in the course of that burglary. Further, there was sufficient evidence andthere was no denying that on the day following the commission of the offenèes the landrover in question was found abandoned a few miles from the scene of crime and loaded with some of Krishna's stolen goods. There was however no direct or positive evidence as to who had driven it there. The appellant had, he said, kept the keys from the vehicle in a drawer in his house and that is exactly where the police had traced and collected them from. There was no eye witness to the commission of the offences and it seems that the appellant was implicated simply because of the discovery of the stolen goods in his vehicle. He swore to say that he was not involved in the crimes and that he was very far away, Mwanza, ...../2 during -2 - during that niht' He would not kn,ow how his vehicle was taken from his house to the pla.c.e where it was found abandoned. The learned magistrate noted-th8t the alibi put up by the appellant was strong and that it found support from the 'prosecution case itslf He cleared, him' of the charge and surmised that the landrover may have been unlawfully started from the hoüe Of the appellant by another person. If' 'that is the case one is left. to wonder why the, learned magistrate proceeded to make the order for forfeiture, ' He did'not give" any reasoii and, to be sure, there was no basis for the order in law, let alone in justice. Consequenbelv, I allow the appeal set aside the order and direct that ':th'e' vehicle should be releas: to the appellant imrnediately0 Delivered in court. ' Mr. Massaba for the RèpubXic. ' Appellant in persor. TABORA, ,. ' ' ' ' D. P. MAPIGANO, 22/3/78 JL GE.