19750702 TZHC Mwanza

,ci&i/ CAaer

IN THE HIGH COURT OF TANZANIA

ATMWANZA '

APPELLATE JURISDICTION HIGH COURT CRIMINAL APPEAL NO0 501 OF 1974 ORIGINAL CRIMINAL CASE NO. 26 ...OF 1974 OF THE DISTRICT COURT OF GEITA DISTRICT AT.0....0 OGEITA BEFORE• *1.' H'BAKARI' ;Esq., ..,......DISTRICT MAGISTRATE INNOCENT.SIZYA LUBAMBAZA4.................................AP?ELLANT • '• :' : (Original Accused) - versus THE REPUBLIC.. . . . .,. .. . . • • • • • • • 00 0• 0• - '•'...... . .,.• . . . . RESPONDENT - -' .. (Original. Prosecutor) -OoO , .•• ' -••_;.. - CHARGE: '1st Count:_ Being in poss;essin.of property -"suspected.to • have been stolen or felonlou:sl-y obtained c/s. :312. of the Penal Code, Cap. 16 Vol.1 of , the Laws, 2nd Count - Stealing by a person in public service cjss 270 & 265 of the Penal Code, Cap. 16 Vol.1 •ofthe Laws, . 3rd, 4th, 5th, 6th, 7th, 8th, 9th, 10th, 11th, 12th, 13th • . and 14th Counts - Stealing c/s 265 of - the. Penal :.Codèj Cap'. .16' Vol.1 of the Laws. •-••--• •.:

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JUDGEMENT LUGAKINGIRA, Ag. J. - The appellant was charged with 14 couts& the first of which was being- &n possession of preperty suspected to have been stolen contrary to section 312 of the Penal Code and the rexaining thirteen being thefts of the same property, that is, the s.ibject of count -one, He was acquitted on the first count and corwicted on the rest for which he earned various prison sentences rangin from 6 moiths to 3 yearS.. He has appealed against convictions.:" ,-: . , ' •': The facts of the case were not greatly disputed. For sometime, the appellant had been suspected of being in possession of stolen corruga- ted iron sheets. On 15.7.74 two police officers called at the Geita Comworks workshop where the appellant worked as a mechanic. They announced their suspicions arid asked the appellant to take them to his rs1dent. He did:' A.sear'ch was then conduted and..it unearthed a ' good number of used and new corrugated iron sheet,a number o,f locks, ;a box contairiing an assortment of spanners and siznilar*ools and finally, cash shs. 2.,700/. - The ,fficers. were. not i'rnpres&sed:bythe.-appl1ant's.. explanation as to the acquisition of thee items. He was therefore taken to the Police Stat&oi and detained in custody along with his property. Later his coworike tthe.workshop were c'alled'nd hownthe spanners. They purported to •- &dentif-ythem as theirs or the

property Government. . The::'app'ellant. was accordingly charged. • ,.: ....:.. ' • - The charge in the first count reveals a number of technicalities worth mentioning albeit the appellant's acquittal thereon. , It has been pointed out that he was charged with -"Being in P:05$i0T0f . P -: perty juspéc€ed .tO. have been stolen or:feloniously obtained.e/s. 312:of-• the.,Penai-,Code." - The .cherge. thus: failed- to :spect'fy. w,hether.the:pp'ellat •.....:.•'-...••., , -2- was being charged under section 312('1)(a)' or 312('l)(b) which have a different import. Under the former the accused person must be stopped searched and detained by any police officer in exercise of the powers conferred by section 24 of the Criminal Procedure Code. Under the lat- ter any police officer of or above the rank of Inspector must find the accused in possession Or control Of the'offending property0 There is no requirement' 'for 'stopping, searching and detaining in this lat- ter provision. The diffe'rence 'between the 'two "provision's is not a tech- nical nicety. It brings into question the very 'jurtsdiction of the court. Ifl't'he former case anaccused person would.not.be properly before the cour't' unless 'he 'w'as stopped,• searched 'and detained :wht'l'ir possession' or conveying property that evoke suspicions.. It is noted, however, that the particulars of of'fence alleged that the appellant was

stopped and searched and that this was pursuantto section 24 of the Criminal Procedure Code. In that event the omission to set out the section in 'full did 'not 'alone embarrass the appellant. But what is'kiors'e is that included in this count - were some propertieB whose owner- ship and fact of theft were allegedly known. In those circumstances the charge in the 'first count was unsustainable: Mohamed v. R. (1971) E0'A. 42'. it was first bad for duplicity in combining properties that should have been subjects of two 'distinct offencés. It was secondly bad in bringing under séti'dn 312 properties that should have correctly been charged under sction'265. But.as'the appellant was acquitted on this count Ido not feel seriously invited to devote more time'.ri,, this. A' difei±ëh' réu1€wouldertainly not have attracted the blessings of this Cèurt. ''• ' " '''-' ' ' The remaining counts on which convictions were entered depended wholly on the identificatin of the spanners.', I will state generally that the so-called identification was the most farcical I have so far encountered. In the second count it.was alleged that the appellant stole several spanners, the próprty of the:Government. P'...2'a comworks watchman who purported 'to identify the spanners never t9ld the trial court how he recognised them. It would appear from his testimony that Government spanners were supposed to be

markee "TG" or IISTII but none of the spanners he identified and tendered had any such mark or label. However, the learned trial 'mag,srate had this to say: "Turning to the rest of Exhibits which are garage spanners 43 spanners Exh. "C" pro- - duced' by PW.2 are said 'tÔ'lDe Government ones, although these span- ners have no marks on them'%u'ch as T.G. or'S.T. Exh. "D" corroborte their ]ess in the garage w1iere accused is eiTplyed." Exh. "D", incidentally, wasa' register of 'the'workshdp which.showed the number, not the des,crip- tion, of the Sp'nner 'missing. ' The register could nt',ir'those crdurri- tances'af ford Corrobb1'at'ive evidence as 'it.did not connect-the pel- lant and the spanner-s i'n'court 'with the offence charged. 'There was', -. nothing on the register to show that the spanners in court were some -' df :the spanners which were listed 'missing.' - 'The 'learned magistrate mis- di'rected himself when he acepted 'a useless register 'to proper up the use- less evidence of'P.W.2. He should have found that the spanners, Exh. "C." had not been' :poved to'. bel'org to the Government and : should hqve ptbcéeded to acquit the appellant on the second count0 ' I will for that reason quash the convictIon thereon and-set aside the sentence imposed. Ir the third "d-fourth counts, the appellant was alleged-to have.. toleñ spanners of 'Hamisi Kid.iku'and Peter Pephan

'resp?dtivly.. These - 'two men, if at all they"existed, were never summoned to testify. In short, not a scintilla of e\ridence was adduced to prove these counts, And yet' the learned tfl'.1 magistrate entered convicti.,n. 'in çffect. ' the burden of proof Ws 'shifted' to. the appellant to prove his innocence when the prosecution had not bothered to establi.si- his guilt. The cOnvictions cannot then be sustained and 1 quash them and set as.de the sentence •n 'each; Incount five, six, ;.seven and eight th appellant was again alleged to 'hàestolensp'anners of 'persons named therein. : Jnhike in countsthrèe andfbur,.the'allegedvictims were this time.urnmoned and they gave evidence. It' is the manner they identified their ; s,panners that I personally find very unreliable 0 In'count five, P,.W4 managed toshOw cuts on'two spanners out of thirteen. - In the sixth count, .P.W65 r . V a -3- was completely silent as to how he recognised his four spanners, one screw driver and one puncht In the seventh count, P.W.6 managed to show the letters TZS on one spanner and cuts on two spanners out of. twelve wpanne.. And ii the eightcount, P.W.7 showed wo spanners . "whichhave sjmiiar marks by punch.". With due respect, the above mode of ide€ification cannot be said to have been sufficiently strong and credible to found convictions. It is essential where identifica- tion of the stolen article is

the sole evidence of the prosecution to be sure that it is accurate and reliable as to leave no doubt in the mind ofthe presidinmagistrat. It is for instance dan:gerous to rely on cut marks an spanners .hen the nature of their .ise- tihtening: and sometimes kioâking other metals - can only result in multiple and unintentional, cuts0 . In. count seven, too, there should have beenivi- dence of the significance of the letters TZS, in particular their association witl P,W 6 There was a reasonably 'Strong doubt as to whether the letters were peculiar initials of the witness for they had no connection with his name or anything and he could not exhibit similar or any letters onthe remaining eleven spanners. 1 therefore think th identities of the spanners were not satisfactorily established in these counts. The convictions and sentences are accordingly quashed and set aside. Count nine repeats the earlier pathetic Esituation. It was alleged that the appellant stole spanners of a certain Daniel Kavula. The fellow never gave evidence and no other evidence was offered in support of the charge. But the learned trial magistrate willingly convicted the appellant and gave him.as.ix-month prison sentence. For .reasons already stated I quash the convjcion and set aside the sentence aforesaid.: In the tenth count it was said that the appellant stole three pliers and one screw driver the property

of Mwita Sarisi (P.W.11). It turned out in evidence that P.W011 was a Police Corporal who in March 1974 took a Government Landrover ST 1913 to the appellant's workshop for repair. The pliers and screw driver were in fact part of the tools of that Landrover. P.W.11 testified that when he later went for the vehi- cle the above tools and some spanners were missing. It is evident there- fore that if the tools were stolen they were not the property of P..11.11 but the Government. The appellant was therefore wrongly convicted as charged. I will observe that there wasn't in any case sufficient evidence of any theft. P.WO11 did not in any way tell the trial court how he was able to identify those items. And even if there was any such evidence this Court would have no power to substitute a conviction for stealing by public servant as this is a more serious offence carrying a minimum sentence of three years' imprisonment. I will there- fore acquit the appellant on count ten and set aside the sentence imposed. The eleventh count assumed the same attributes as counts three, four and nine. It was alleged that the appellant stole six spanners the property of a certain Luhende Sene. No such person ws called to give evidence. Earlier on the appellant had admitted this charge but he denied it as soon as the facts were stated 'by the prosecutor. It was not open to the trial court to convict on

the testimony of a police officer about what he had been told by a third party who himself not called to testify. That evidence is hearsay and inadmissible: Bugi Rioba v. R,, (1967) HCE n. 68, and Kiecha Njunga v. R., (1965) E.A. 773, are cases in point. Luhende Sene should have been summoned to corroborate the police officer's story. As this was not done, there was no evidence upon which the court coul4 act and convict the appellant. The conviction and sentence are there- fore quashed and set aside0 Finally, we are left with the twelfth, thirteenth and fourteenth counts. It was.again allegations of theft oE spanners of named per- sons who gave evidence at the trial. It was once again the question of identification. In count 'twelve, P.W03 only managed to show a cut on one spanner out Of twelve he alleged to be his. In count thirteen, PW.12 stated that none of his nine spanners had any mark of identification. . . .14 -4- It is not understood by what intuition he adjudged them to be his. And in count fourteen P.8 identified sic spanners one with a letter "C" and the rest with'cuts. The argument already offered in connection with. counts five six, sev&i arid eight applies equally here0 The identi- fication was of very inferior quality and it was dangerous to act on it There is nothing which encourages me to think that the witnesses did firmly believe that they were identifying

their real tools. I will quash the convictions and sentences on these counts s well. In the etent this appeal succeeds in its entirety. The appellant should be forthwith released unless further. held on some.otherlawful cause. It also transpires that the learned 'trl. Magistrate made no order concerning the money, shs. 2,700/=, although he made remarks indicating that it was the appe1lnt's lawful property. It is then ordered that the money, Exh. "K", be restored to the appellant. (( L\ MWANZA. K. . It 'LUGAKNGIRA 2nd JULY J 1975- AG. JUDGE I -