19760402 TZHC Arusha

- rn4 IN THE HIGH COURT O? TANZAN]A AT iLRUSHA APi2ELLATE JURISDICTION HIGH COURT CRIMINAL APPEAL NO. 148 OF 1975. MISC CRIMI1AL AlT. NO. 13 OF 1975 ORIGINAL CRIMINAL CASE NO. 34 OF 197 . 5 OF THE DISTRICT COURT OF HANLTG DISTRICT AT BABATI \ BEFORE: J. N. NIiIKAZZA., ESCI., District Moistrte .iai s/o AHME2) . . . . . . . ........ . . • . • . APPELLANT , ld . (Origiil Accused) versus THE RE?UTDLIC . . . . . . ... . • ... . ESI>ONDENT (Original osccutor) TT1TY'fl\cTT\Trn JONATL1.N . J. ... The appellant was convicted of being in unlawful pOssession of Govennent Trophy c/s. 67 (1) and (2) of the Wild . Life Conservation Act, 1974. He was sentenced to 3 years' inprison out. .1 It seous agreed that, P.W1, a polIce officer, on the noterial day, acting or.i. a tip-off, stopped a bus travelling from Singiá to Arusha via Babati • That was a short .istanco before th: bus reached Babati. The appoIJant was travolling: onthat bus • The witness had th bus proceed direct to the olico station whore he ordered all the passengers to .disombsrk, and to take down all their baggages. • They complied except that one suit case, red in colour, was left in thoijus. 11 .1-1.1 asked to know who the owner was, whereupon according this witness, the b: conductoz told hin it bo1oned to the appe1lan pointing at him. The suit case was taken dowm and the appellant ordered to open it. Apparcntiy, it was not

locked; it was only ticd u. with a rope, which the apcllant duly undid. There is no dis pute that inside suit case two rhinoceros tusks valued at hs•8OOO/= were found. Exce ~ - b ­in one respect, the accounts of the bus 4. conductor (P.W.2) and the ttirnoy (P.W.3) are in agrcomeit with the evidence of .'.T.l. The point of disagreement is whether he appellant was pointod out by the conductor as the poIice officer says. .W.2 and P.,17.3 in their evidonca said,, on the, other hand, that it via the lal;ter who had po inted out the appellant. Apart fro::.i the appellant there. were several other Somalis on board that bus but P.W.2 and P.W.3. were clear the person who hod boarded thobus with the relevuit suit cas€ was the e.ppellant, this bocauso, according. t them, there had boon a disagreement betwean the appellant and the turnboy, the latter insisting that the suit cso shoud heput on the roof carrier of the bus while the.. former was pressing that it shouldbo put inside the bus. Ulti;atcly. . . 6 . 0 0 • 6 6 0/2 -2- Ultiiotoly, _the t,JtfloSS say, the bus conductor intervened and the suit case. Was put inâicic the bus. The apo1lait in his tesiindny aid he had walked to the bus stand at. Singd.a bumg accoipaniod by D.W.l. The ap-pcllant was carrying only a br.icf..caso:'while D..l had nothing in his hand while escorting hiri. i was, not true, thero±'oro' casowas .his.- He went on

to say that he was "travelling to Babati and not to Jrsha as the turnboy had said. D.W.1 in his evidence coi±'irned that he .hd escorteã: e appellant to the bus station. ThO only b'gacg the appellant had, he said, wa s a brief case which the witness hipcd hin to carry. Mz. Mahatane arguing in favour of the appeal has attaceed the conviction on two.. or.three grounds. Firstly, he says there was riatorial contradiction in the prosecution case in that, whilo POW.1 said the appellant was 'ointed out to hin by P.W.2 the latter and 1-.W.3 said it was the turnboy who had pointed hin ot • I an, however in agroenent with the learned state attorney when he said that the distinction between a bus conductor. and turnbor is often blurred and that the police officer was in fact referring to the turnboy. In rey view the con1lict arose froei cone coafusion on the • part of I .W.1 and is not . otherwise •aaterial. . The learned advocate argues secondly, that the turnboy or the conductor had in nind a Sonali travelling to Arusha and th:i the witness wer u:Lota].en when they pointed at the appellanG as being that Sonali. He says that it may he..ve been one of the So:ealis travelling to i'usha who had the suit case. The appellant produced his ticket. It showed no was travelling to Bacati • Tno turn1oy was therefore ieistaken wnon he said tllo appeLLant was travelling to Arusha. Again, this to n.y

auind, did not go to the root Of the ia iter. Ta wi n 'n a i'ot .a sell' Lsauod the ravol ticket to ft appellant - it had been issaed to hi.'" byan agent - and. he coud not be, expected to be clear if the 40 appel:Lant was travelling to Babati or Lru.sha, which was really isnatorial to the case. It ooLIsclear to no, therefore, that P.Ti.2 and 1'.73 were referring' specifically to the appellant when they pointed hiil out and they were not nerely preoccupied with a Sonali who vice travelling to 'usha.. It :aakos no difference in n.y view .that• another sonali was questioned briefly together with the apellant, as conceded by a prosecution witness,.' .. As. the anpcllant conceded, the turaboy and the 'bus conductor had no reason falsely to iriplicate hint and the case depended on whether they had had sti±'ficient opportwiity to identify the owner of the suit öaso. It scans that there was considerable between the appellant and the turn-boy as to whether the suit case should be put inside Inc bus or on tne carrier. lathe 'ond,,,the bus 'conductor intei"venod in favour of the appellant'. That in n.y view affOrded the witnesses plenty of opportunity for being clear who thd owner was of the suit case. I For assurance that the appellant was the owner, he opened it when asked to do so. If it had not been his property it is unthinkable that he would have agreed to open it even under sOLlo

pressure. All considered, I ar.i satisfied that the defence was'z'ightIy rejected and the conviction entered. The sentence of 3 years, in view of the type of trophy involved and its value exceeding hs.5000, was the nininun that could have been imposed. Accordingly, the appeal is dismissed in its entirety. I notice, however, that the learned district magistrate in disposing of the suit case ordered it to be treated as found property, this because the appellant in his defence had disowned it. Now, the court having found it as a fact that it belonged to the appellant it could not subsequently say it did not know who the owner was. The • order to treat the item as found property is replaced with an order that it should be returned to the appellant. (P. i. JONATHLN) TT.TTV t' U tJJ.JU.LJ . Judgraent delivered in open Court at Irusha this 2nd day of Apr11, 1976 .1 (. M • JONATHLN) • PMJ/MTPM. JUDGE. I -t