19881031 TZHC Dar es Salaam

.,. DJ TEE III GE COURT Otr TAHZANI11. AT DATI ES .SAIJi.i'J\i APPELLATE JURISDICTION IIIGII COU"TIT ~C()i'JOJ:0:C APPFil.L uo .. 4 OF l~G7 (RJYI Econonic Caso lfo .. 64 of 1986 o-: the District Court of Ual2. District a~ Kisu~-u) -· JCJIDJ JAJi,fESo o • o o. o o a 4 o o o., o • • •,. u e o o b o o • o Cl o • C- ... ~ o O o o lb o O o "> O o o • CJ r.1 -1 u- o• llf,l\.PP]lLI.JtJifl' (Orig:i.11.c."ll Accused) versus l Tl:l.G Ul'JITED REPUBLIC .. • o • • • • o • o o • • 6 •co• o 1> "•,., e o o , o , o o • o O , o ~ o o ~ u .,..; RESPONDENT 'll. (Orig:inal Prosecutor) JU])GMENT BfUJATI, J, Tue appellant was convicted of the offence o:f being ·in 'llliJ.a·wful poasossion of a fine am cont:rn.ry to section D (1) of First Schedule to the Econonic and Orsanisod. CrL':le Control Act No~l3 of 19G4 and section 59 (2) o:f tho sane Act,. He wo.,s sentenced to seven years in prison. Ifo is now appoalill6 aeainst conviction and. sen-Gc110e. Tho prosecution en.so was that tho appellant approached one Private Mango PW3 vho worked :for tho Ta.112111-ua Peoples Def once Forces (TPDF) as a soldier-> Tho appellant inforned Pl13 that he hac1 a brother i.i."1. law who wnntcd to purchase a e,,.m. Pll3 told the appellant to 001:1e back on ano·bhe:r date.. Tl'hen tho appellant cane to PU3 again, PW3 wanted to see the 'brother in law, and the appellant took hit1 to his brother in law. Then PW3 reported. this oa tter to tho Jvuli tary Police Cor:1nand.er.. A trap was laia. after the Military Police 1 Cou"Jn.nder had also infornGd his Cor:uJ.n.;1di:ne 0fficer~ PW3 was nado to raoet tl:e appellant and his brother in lmr D.Gain, and ho did. so~ PIO told then that llc would brine the ffU.11 at a place called I1fr10.r3,ni on 29/4/85~ ]}J the way, the appellant was al.so a soldier in JGho se,De ui1i t as PW3. Ma.r\jr people wcro invo- l ved in the trap w!:lich waG la.id to catch the appellant a111.'t his brother in law" PW2 1'..J.li Jnf'fa.r Pruld.e tho Officer Cor.manding District at IG.sa.rawe arraneod the trap., Tho ciu1 uhich was to lJe used to catch tho culprits was pla~od in ?, G'lll11,Y ba-:; and hid.don in the bush near the place whore. the appellant ho..cl cl.{;Teod to neet PW3. T1.u.on the ap11olla.1.1t cnno thoro at tho c1t..,--reod place~ :;:Ie was handed over the [,l'Ull b3r PW3. The appellant in turn "gave the gun to . his brother in law• Thon tho trio wore ordered to put up their hands., The appe- llant DMD.god to escape. He, houever, -:·ras eventually c..rrcstca..: This is tb.e prosecution case., T'!.lo clef once cane is that the app0l10..nt ha.cl nothing fo cl.a ui tb. whn.t ho is alloc-ed to have done. On, 29/4/84 .._ho b.acl done his usual chores at ·the nili tary canp and ia the. eveni1-ie ho !10.d gone :~0 ~ c1 r . ~ Tb.en at 11 p.,n., sor.1eone 1-mocked at his d.ooro The. appellant opened the door ~1d one Lioute:10..nt Patrick m'Tested lun. 0110 clef'enoo wi tnoss gave ovide110e corroborating tho story of the appellant abou:li the novie, 2/o~""' . _._ ... .,.. - 2 - T1J.ic trial court assessed the evidence and found the appellant guilty as charged• .In his petition of appeal the appellant has advanced several grounds of appeal. ll'Ir, Rutashobya, learned counsel for tho appellant argued that PW3 did not say that he saw the appellant at the scene of crime,. With respect to the learned cOU11sel, the e'tj.~ence of PW'3 c1ocs noJG support this stand. Pif3 clearly stated that he handed over the gun to the appellant. Then when they were told to put· up their hands the appellant ran mrccy-,. Ilir. Rutashobya also sul:ni tted that the majority of the Prosecution witnesses denied t.lJ.at the appellant was at the scene of crine and that if he had been there they would have said so. The evidence is that Pt-1'2 saw the appellant at the scene., · FW2 knew the appellant as he used to pley- football with b.itl. PW2 saw the appellant hand over the gun to a civilian. Even in cross examination he Mintained the sa.'J.e story, PW1 took no part in the trap and hQ did not see the appellant at the scene. That does not nean that what FW2 and· PW3 said is false. . 1'1-11 simply had no opportunity to see. the appellant . at the scene because when the handi:r,i¢-., over of the gun and the subsequent arrest ··\••· were taking place he was not there. S ~ F W 4 had no opportunity of seeing the appellant even if he was at the scene because he only ran to the scene vrhen . the OCD shouted "hands up 114 .Again his failure to see the appellant at the scene does not mean that the appellant was not there. Similarly Pi·T5 was too far to e~~ ~~ ~PP~l~t and identify hin, for he said that ho saw three people n.nd then he found on'.cy' 2 lying d01m. _Finally, the evidence of Pt-1'6 in examination in chief clearly states that he saw the appellant at; the scene in coopany with ~f3 and a ., civilian. I11 cross~nation he says that he did not see the appellant at the scene. Miss P1...1illip, learned State Attorney said concerning the evidence of Pi·T6 th2.t what PW6 rae~ns is that when the order to put up tho hands was given that is when he did not see the appellant. But before that he :1ad seen him.. That mey be one way of looking at the evidence. In axiy case the argument by Mr. Rutashobya that most of the witnesses did not see the appellant at the scene and therefore he was not there is not correct. Concerning the 2nd and 4th grounds of appeal, Mr. Rut~shobya argued that the appellan·b was fotU'ld. to be in possession of the gun eVe.t"'l before his defence.· IIe stated that after the close of the prosecution case in the ruling of a case to answer, the trial Magistrate fmuid. the appellant to have been in possession of the gun.·. Tb.is mea.J.1t, accordi11g to Mr. Rutashobya, that the Magistrate had already made up his nind. I do ~10t think that these grounds have a.J.13' merit. because I _see nothing irregular in the Magistrate holding 011 th~ evidence before hin that the appellant was found in possession of the ·gun. T1.1e appellant could in his defence show that he was not in possession of a gun or ho-i.r the possession -was law:f'ulc1 In ru:ry case even if this is termed as irregular it did not occasion any ·fn.ilure of justice. With regc1rd to the aJ.ibi of the appellant, the Ma.gistro..te was certainly entitled to ignore it in view of the evidence for the prosecution 3/...•.• - 3 n.ncl in View of the fact tlmt the appellant did not i;ivo notice of such alibi. to the court or the prosecution as required by section 194 (4) (5) and (6) of the Crininru. Procedure l\.cto Fron what I have said alJove I find no nori t in this appoo.1 and I disniss it inits entirety,. Tho ground of appcc.11 rogardine soveriizy' of sontonoe 1-78.S I wi thcl:rmm by Mr,. Rtrbc.sllol.zy-a 7 which means ·that ho has no c_ru.n.rrel with tho sentence if the conviction is upheld.~ ..:?~(AA~~-~\ _ -_·_ _,._ ·- · ., ..~. ·... -M ·•• 0 / " I JUDG~ ~ 31/10/1900.