19780531 TZHC Mwanza

IN THE HIH COJ . diP TiTZiNI - . .. .1 'r ii w wzI . . - APP!]1 LL,3T2 JURi3CT1ON HIGH .fflIJT CR1iIL LPP.L C. 356 OF 1977 (Ori±n3L: Criiw1C - se Nc. . 793 of'-1976 of the District Court of Bukob District 't Bukc1x - Bforc. P L. I1un,y'h, q., District Ii_strote) 1sI ;sH3sIi . . , . . .. . iFPtLLNT . .:, •. ' •- ••• vrss • . ., . T xi.t RxPUBLIC. . . . . • ...• . ................. .. . •. . •..•m .. .R.i3PONDllNT CHARGE: Being in pos.si.onof prbporty suspct:ed to have oeen soicn c/s 312 (1) oft Pn:1 Cod... C - t 16 of t1u Laws. S U D G 13, ii J. "I The appellant and anothcr 'per cn'who. 'ha nt pea 1ud wore ch-rged with and convictd of Doing 'in ppssossion of., proprty susjaoctd to have baen stolen or unlawfully, obtain.d contar•to section 312(1) (a) of the Per. Code as ainbnded .by.'ct No.26, of'171...Tha.ppo11ant was sontenced to two years imprisonment wiicre.as his c—cUsXt .was sentanced to one year imprisonment. The appo11.nt is now 'a ealing to thi cobrt against both sonence and conviction. Evidence w -'-s led t the tri -'l to sow n th'- t o n 18/9/76 - 't bout 114O.a.m. .ih'i1'st on duty one Dtctiv Corporal Claus Nyakrüs" (Pwi) stopped and soarc'cd one iibr-' 3'idi who, 3,ncldLntally appard - s / first ccuscd -t tho trial. The sid ith-'r'a was t1n carry.ng n , . b -'sket h,ch w-'scover..d. s rs1t of th. s - rch motor venc1 pump s re?over3d -'nd seized. Ihen qaizzd iibr-k v nturlly t6ldD/CpleC1'us that he was only holding the b'sket conta.Lf11n the pump fçr th appe] lent L-'ter, on th sme dr, Claus arrested the appell"nt at the bus stand. When questioned the appellant too, ventu-11y admitted h -mndin 'over the ; , Pump to Mbaraka for safe ustod.y In he ';ordsof ,D/Cl.' C131. he asked "ther (i.e. appli. - nt and. hbraka if t}'Y' nd1.znj documants in r.lation to th'-t pump but they f-ilc.d to Lst 1lisn tiis truth. In the course of his inv!stitionsL/Cpl. Claus found out tit tIie )pell'nt wis an turn boy employed by tne T - a'iz -'n;e P a uthori, Bekob. Only a driver, who hinslf was o'.in'lly te ppollnt 4 s co—accused, employed by the Te-' 1uthority aw. calld from the Te. ,a ijuthoxYty, Bukoba, on the prosecution side. The said driver, iloys Gonza L,e (PU2) failed to idertifr the pithp although he said that it looked similar 'tO the pump he used to borrow from the storet his plcL of icrk. The appell-'nt, in his deftnce, sia t"at he borrowed th pump from a mechanic with the Tea 1utioritj, Sospetr John (DW3) on behalf of one flphonbe.B,ernai'd"who .noeclOd, it for the purpose of mpncLin. 'his, punotur.ed. '.tyr,e. The appellhnt' s. story was supportOd .by SospetOr. (DW3) who said that he in ft- ct signed for the pump. This pide of eviclehce doLs not appe-r to have bean disnuted t the tri-l. In conVictan the appollr.nt and his co—accused the learned trial m-gistrbe ddressed himself in the following terms and I quote from his JUdGOflCnt • -,. - , ,,. 'ftcr the closo of the Prosecution case 1 find tht the two accused 1 and 2 manoeuvred to sal thIs: pump Exh..'L the prcprty of the Bukoba Tea Estate for the folio.wingreasons:— , ' ' .• "(a) It.'has been proved that tife first •accised wa fo.und with the sid' tck pump' 3xh.! v.ich he was carrying in a b:ket iixh.B'. s. ••• , - . (b) The first accused dmitted that he vias given the s id pump by tie 2nd -ccused. Jbas Busha5. who works for Bukcb Tea 25'tate 5' - .".'- - a tarn boy at Lioruku. .,. .../2. ""ir I • (c) The 2nd accuud actrnit that h borrowcL the jd pump from one of their factorr mechanica at Maruku for come oa Llphohoc Bernard to repair his -punctured tu w-ho came -jth thu pump to B.ukoba town whuro it cazd from lot accud'o p000sion. the court .fiioto uncand dwhCthor or not Liphoncu B,rnard thu pureon for wiiOrn the 2nd aocuoed had borrowed the pump from DW3 had a private vol'iclo or it wa the proprty f the ustath. If h.. po3oeoed his ercnaL rn/v for wt11px he ,ntnLci to a pun'6turud tyre but how and why he took the särnO pump to Bukoba froja Mar uku about over twolvt s away fioiñ biar uku wheI;Q the pulbp is ordinarily kept by its o-rnr the Bukoba Ta 3otate 9 It night b true tht 2nc& accuouci borrowd the pump from DT3, this is not disputud. But th.. priicipaLquos-tibn is whether the same 2nd aused udorstoOd that Brnard intundd to take the pump ;utfito ordinary piece and if so d hb2ñd accused) inform DW3,, thu person from whom he borrow d the s-m_ or his factory rnanar With rspct, th is pacog- bristo L with misdirctions both in law and in fact. To bugin utn it ws wrong for tii iLarn-d trial ragistratc to make up his hind ebr -ut thu guilt of t appliant and his co - accused at tn- clos of caoc for tne procutionand rfu tQ tuk into acco tho defence story. It was incumon on t ie çrnd trial inagistrate to consid-et all the evidene uforu h.i m ,r that is that ad.ciu,c.d by both the prosucution and the defiice, bforu saying that tne appellant was guilty. Failure on th 4 part of , thu icarnud trial 1nagi8.to to do so was prjudicia1 to the appullant. Further, the so—calld ieasons 'showing tit'lst and 2nd accubud manouvrod to steal • . are, in fact non reasons and, if anyhing, thy ar all in favour of the ap j uiIant. Futhrmor thu mere fact that the pump was borrowed givs rio. to th implication that ie, i.e. the pump, had. nocss-rily havu to Cu moved from i -to usual plact of stor-ge or von it's ordinary place of use. Thrfoz, unless it wa ezprssiy mdictod it would h folly to assum. otnorwice. In the instant base tec re is no vioñc.to show that the appelian± as flQt allowed, afto 'the borrowing o toke the pump to Bukoba town. In view of the foroa,ng whet the ivarnad trial magistrat doscribuci s "thu principal question' is throfo'- irrelovant., , ... . If I may yet go futhar having found that !'it might be true that the 2nd accusud oorrowud the pump from Di2 it meant that the appel1ant had succuödad in raising a rL.asonablo doubt the bnfit of which he was ent,tied 'ocording to lw. In fact I would. go further and say that the appellant estblihd that he borrowed, the pump. His teotimony as - confirmed by that of DW3 was not 'contradicte. bnithis . - pointe Thrfore, by not at the very least giving 'the appellant the benefit of doubt -the learned t'ial mag-strate erred. In fact the d.oubt which th,b learnod -trial magistrate exprss3d in nisjudemCnt 's ropatd by him hcn passing Ss,flL-flCCs This is evidt nc from the senthnce which reads - - uThe irst acc,ud 14a s ohy hnded the .pum by . the 2nd accusad H could eithr bul..iev that that pump as a otoln one or h could not." On my uvaluation of the evidncc I em not satifid that the chargu had been establishd Ca11ibt th appciiant. I am, in fact, inindd tnat had the 1ssrnodtriairsratC reviewed the evidence. bfore him with judicial objctivity hu would net h ;avj coivictd t appellant* t this juncture I. may pauJe to coint out to the luhrned trial magistrate that, gonrlly, heru ownershia of propurty wuich is the suboct of the chrgo is 1known tocn the charu of suing in poasession of proprty suspected to have ben' stolun or unlawfu.-ly acquired has xio place to stand. In such cass the propur ohrgu is tiaat of t ______ • . -.-_- - - 4- —3-- Ill in all, for the reasons given 1 find, that there is merit in this appeal. 'The conviction cannot therefore be allowed to stand and the same is hereby quashed and the sentence imposed thereon is accordingly et aside. z It is further directed that, aunless he is being otherwise lawfully held the appellant be set at liberty forthwith. The reasons given in this judgement also apply to 11araka Saidi: However as aforesaid he has not appealed0 Lven then there is not even a gram of evidence to shdw that when he held. the basket he knew what it contained. This is so 'because the appellant said in his evidence at the trial that he only asked ivibaraka to hold the basket for him as he himself went round looking for cigarettes and. D/Cpl Claus said that the 'baslçe -t, was, to use his own word., "Sealed.." 'Mans rca' on the part of Mbarak•a was therefore not established.. it anyrate his conviction too cannot be allowed to stand.. In the event I exercise my powers in revision and. - quash the conviction and set aside the sentexce against Mbaraka Said.i. Unless he is being held on some other lawful charges he too should he set at liberty forthwith. Delivered, at Mwanza this 31st May, 1978. S t H. E. . SIY JUDGE. A'