19770326 TZHC Arusha

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IN THE HIGH COURT OF TANZANIA

AT ARUSHA CRIMINAL APPEAL NO. 147 OF 1976 Original Criminal Case No. 1082 of 1975 f the District Court of Moshi District at Moshi Before W. Nathan, Esq., District Magistrate HIDI DAUDI ...................... . .o.o APPELLANT versus THE REPUBLIC ........, O 0 • RESPONDENT CHARGE: Being in possession of forged note c/s 348 of the Penal Code.

REASONS FOR JUDGMENT SAIDI, former C.J. - lallowed the appellant's appeal on 26th June, 1976 when it came up for hearing at Moshi, quashed the conviction, set aside the sentence and directed that the appellant be set free unless he was lawfully held in other oonnections. At the material time .the appellant was employed as a salesman by Meru Bakery and ConfectionaryCo, at Moshi. On 17th August, 1975 he sold bread and other food stuffs and received a total of shs.1,500/= which he handed over to theManager of the Company, Mohamed Alli Jaffer, P.W.2. On the following day Mohamed sent shs,15 1 000/-. to the bank through one Hamisi, another employee. At the bank one shs.lOO/- note bearing No. E 555777 out of these moneys was suspected to be forged. The manager of the Moshi Branch of the Bank of Tanzania, Mr. Ilushi, P,W.3 1 was consulted and confirmed that the note was a forged oi4e. Following this di.covery investigaion was carried out and it was found that the appellant had received the note from an unknowin customer of Meru Bakery and Confectionary Co. the previous day. The appellant was therefore charged. . .. In defence the appellant gave.evidence on oath and stated as follows:- "On 1 /8/75 I was doing buiness at Mru Bakery depot. I was selling milk.bread and other confectlonaries. It..was Sunday that day.. I stayed in dep,ct till 8.00 p.m. 1 closed my account and took money to

my emplzyer Ma.kamudu Adhalla Jafferal, I remitted about. 1500/- to JafftaI- 10 notes were of shs.lOO/-. On the fol'owing day 1/8/75 I went to c'. as usual. I continued with busirss till 8.00 p.m. I remitted money to Jafferal, After I had giren him money Jafferal said to me "Did. you receive any note yesterday which you suspect!" I said .to him "Yes I t6ceived one note of shs,lOO/- this note was sonThow white incolour, 1. showed other businesman this. note of shs.100/- but they told me that if the note has blank line I should not suspect it. I examined the note and saw a blank line ani I accept it." Jafferal told me that the note has been siezed by bank and that I must go to police and explain ow I receive the note. We went to police station at C1 9.00 g.m, that dy. Police asked me if I could identify the man wh gave me tI'e note. I said to them "there were many people that time and I can't recognise the man who gave me not€ . Police told me to go "0 home, Later I was charged With this offence. It was the "irst time that day to seethe fr1 ed note .002 2 - "XXD Pros. I admit that I received the note which was tendered as exhibit in this case. It is true I suspect the note when I receive it, The note was somehow shite0 I thought the note had been washed in clothes. It was not the first time • to see a note of shs,100/—. It is true I took note to Jaffer. It is true I made a

statement at police station. I tender Iny statement I made as exhibit F. XD Court: I don't know who gave me the note," From the evidence of the appellant it was obvious that he received the note from one of the bakery customers without knowing that it was forged. Although he suspected it due to its whitish colour ether employees at.the bakery who also looked at it assured him that it was a proper note and all of them appeared to think that it had been washed while it was in the pocket of the customer. Unfortunately the note was not available for examination by this Court as the trial magistrate ordered that it be destroyed soon after his judgment. I think on those grounds it was obvious that the charge had not been proved against the appellant and it was for this reason the learned State Attorney declined to support the conviction and the Court allowed the appellant s appeal. L (A. SAIDI)

FORMER CHIEF JUIICE .26th Ma'ch, 1977