19790402 TZHC Arusha2

IN TtIIJ I(.±.1 (JUKJ UiTIJNZ14JN.LA

AT ARU SHA APPELILTE JURI Si)ICTION HIGH COURT CRIMINAL APPEAL NO0 190 OF 1!78 (Original Criminal Case No0 127 of 1977 of the District Court of Babati at Babat&) BEFOREz J. N. NIMKAZZA Esg., — DISTRICT MGISTRA.TE ISSA B.A.LENCHE APPELLANT 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 versus THE REPUBLIC e..o 0 0 0 0 0 o 0 0 0 0 0 RESPONDENT

JUDGEMENT NESIUMG, J0 On 17th October 1978 I allowed the appeal of Issa 5/0 Baleehe, quashed the conviction, set aside the sentence and finally ordered his immediate release unless he was to be further interned for some other known and lawful ause0 I, however, reserved my reasons for so ordering and now I feel disposed to give them in the course of this judgement. Issa s/o Baleche appeared before Babati District Court charged with an offence of stealing by a person employed in the public service contrary to section 270 and 265 of the Penal Code, it having been particularized that between 12th February and sometime in August 176, at Babati, within Hanang District of ArUsha R e gion, the accused person. being a person employed in the pi.blic service as an Assistant Forester within the Ministry of Natural Re sources,. did steal Shs07,583/=, the property of his employer, the said Ministry of Natural Resources which property came into his possession by virtue of his employment. At the triaL seven witnesses testified for the prosecution and from their evidence and on certain points from the evidence of the appellant himself certain facts are uncontroverted Such facts include one that at the material time the appellant was a forester within the Ministry of Natural Resources and he ws.s stationed at Babati. Among his duties included that of collecting revenue eceruing from salas of

Government forst products Fe would then issue receipts acknowledging the receipt of the money and then he wou'd bank the money using pay—in—slips which 0 0* 0 0 w S were, in a book form, As a fee d-beck in the banking procedure the bank statements and the used pay-in-slips were kept not by the appellant but by another Government officer daignated The District Finance Officer in another Government building. At some stage one auditor called Hassani called in the office of the appellant and audited his books of accounts. He then took the books and went to make a report which reflected a sum of Shs,7,583/= as allegedly not having been banked. When the appellant was asked about it he replied that he had banked the money and that he had passed on all the relevant pay-in-slips to Hassani, the said auditor who went away with them to compile his report0 The appellant stated before the trial court tht he had also informed the auditor that some other relevant information, if wanted, could also be obtained from the District Revenue Officer. On hearing about that alleged shortage the District. Development Director, Hanang District, one William s/o Kisanji (P0w07) summoned the appellant and told him to refund the said money with a promise that that would be the end of the matter for as far as he was concerned his interest was centred only on the aspect of surcharge and the refund of the

money. On this the appellant said that he opted to pay the money to avoid uhnecessary querries and problems and he entertained a hope' that when the books would be made available to him he would show and prove to them that the money in question had been duly banked and then he would claim bcck his money. It is surprising that though the prosecution heavily banked their case on those documents and the auditor's report they neither produced the said documents before the trial court and nor did they summon the said auditor to testify before the trial court. That naturally left a lacuna in the chain of the prosecution evidence. With -such a gab in the prosecution 1 chain of evidence any reasonable trial court should entertain a reasonable doubt as to the V I - —3-- commission of the alleged of 4fence0 The shortage, if any. was not systematically proved how it sprang up for there was no evidence as to how much revenue the appellant collected; how much he had banked and how much he had not banked o r accounted for in any other lawful way. Under such circumstances his version must remain correct or presumably correct for to hold otherwise would mean convicting him on the weakness of the defence which is contrary to the laws of this land. An accused person, it is settled law, must be convicted on the strength of the prosecution case. The man who tendered the audit report

(Prosecution Exhibit 6) on behalf of the auditor confessed that he could not answer questions arising from that report for it had just been brought to him for signature. If, that is what really happened then it as pathetic on the part of the prosecution in the conduct of their prosecution,, On this aspect of the case the learned tria.l District Magistrate had this to say among others: "Since Hassani, though the person who checked the accused's books of account did not testify alleaed books and if he seized themor no Having expressed, in my view rightly, that reasonable doubt and further having stated ihat no such books were shown to the trial court hence the court was "deprived of one of the good things which could have helped it to decide the case" the court would have been in a safer position.legally to resolve thot reasonable doubt in favour of the appellant (accused in the court below). Surprisingly the trial court after attacking the defence for lack of water—tight evidence capitalized on the weakness of the defence and concluded: "Though the accused says th•t he banked the money prior to the audit, I am far from being persuaded th:.t what he is saying has any merit as this is in contradiction to the content of exhibit P or, - '' " From the above extract it would be easily gathered that the trial court shifted the burden of proof to the appellant • -4-- - to fill the gap

left by the prosecution in not tendering the pay-in-slips and in not summoning the auditor to testify before that court0 Worse still how could the appellant prove the alleged bank when the documents were no longer in his custody and were not before the court for his perusal. TTnder such circumstences his allegation that he had 'banked the money stood unchallenged0 Mr. Iviwale, learned State Attorney who appeai - cd for the Respondent (Republic) had this to say, among other things: "The learned Magistrate shifted the burden to the accused. That was a fundamental misdirection. Any weakness in the defence cannot strengthen the prosecution case, It is for these reasons th t the Republic is unable to support the conviction This court, for the reasons outlined herein above and which reasons tally with the conceding views of the learned State Attorney and the learned counsel for the appellant, respectfully allowed the appeal imLediately after hearing submissions from each of the two learned legal minds. I hope by now the appellant is 'bock to hi normal liberty. Finally this court now is ordering the Hanang District Development Director to refund to the successful appellant all the money he hd paid to him in the wake of that panic and the alleged promise for ciemency for now it is transparently deer that the appellant had nothing against him for which he should have bowed for clemency. Delivered in open court at .Arusha this 2nd day of April 1979. E. A. W I EIUMO

JUDGE O PorAllant: Mr, Mirambo, Advocate for Mr, Mahatane, Advocate. Esondt (Republic) Mr. Mwale, State Attorney.

PTSO / A