19710619 TZHC Arusha

IN THE HIGH COURT OF TANZANIA APPELLATE JURISDICT I ON HIGH COURT CRIMINAL APPEAL NO.0 •9 OF 1971 ORIGINAL CRIMINAL CAST NO0 494 OF 1970. OF TUE DISTRICTCOURT OF KILIMANJARO DISTRICT AT MOSHIO BEFORE: A.M.A. OMAR ESc; RESIDENT MAGISTRATE. JU1VIA •s/o SAIDI : 0 0 APPELLA]NTS 0 0 0 0 (ORIGINAL ACCUSED) y c VERSUS THE REPUBLIC : 0 (3 0 0 (3 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 RESPONDENT 0 0 0 (3 0 O (oRIGIw.L PROSECNTOR) Wo CHARGE: 1st Count: Burglary c/s 294 of the Penal Code Cap 16 Vol. 1 of the Laws0 2nd Count: Stealing c/s 265 of the Penal Code Cap. 16 Vol 1 of the Laws LQ.iLJ K'WIKIMA, AG0 J. $. The two appellants and two others were arraigned for - 1viirg1ary and stealing in the District Court at Moshi, One of ëir.co-accused jumped bail and dissappeared0 Earlier on, •another suspect had absconded together with the appellant Juma SaidI's (hereinafter referred as the first appellant) - wife. The conviction of the appellants was founded on the fact that they were found with property which was identified by people who had previously complain to the Police that the pro- perty had been stolen h'om them0 The trial tourt held the appellant's to be the guIlty receivers after finding that uth e clothes had been properly identified' The judgment of the learned Resident Magistrate does not explainwhy the appellants were not found gtülty as chargëd, in vie'r; of the fact the-t the prosecution witnesses whom the court' believed stated that many stolen clothes were recovered from the appellants' houes. There was further evidence that the dates of the burglary and discovery of the stolen .articlewere respectively 19th December 1969 and 23rd December, 1969, an interval of nearlj four days oflly. It is clear from this that the learned Resident Magistrate entertai.- fled some doubt as to the, appellants'. güilt His faIlure to give reasons why he should convict them of meré receiving does not help to enforce the appellant's conviction either, o.. fo I. -2- The identification of the clothes allegedly stolen from the oflJinant and his wife was far from satisfactory0 No epecial marks were given, except for two pieces of cloth marked T.P.C. Again these buld be given to any of the complainant's colleagues at the T0P000 Sugar Estate and factory0 The only item properly identified was the bicycle whose frame number the complainant give as FK 13751 It has been offen held that where conviction is founded solely on idntificationevidence of this must be watertight0 I am not contnt thatthe identification of the clothes by the complainant and his v:ife who had seen them first at the police station was wtertight0. Il or this reason aie I find myself unable to uphold the conviction of the appellr There are other cuses for anxiety, however0 In the case of the firs•t appeflaht, the- suspects who witnessed the search of his house jumpéd bail and absconded 9 taking away his wife with them0 These iree would have been useful for the psecution to refute the first • appellant.:al1egation t1t he never consented to his house being searched by the Police, and that the property which he handed to the rl ' V . ice was really his propert eged to have handed some off4e The second appellant's wife is t stolen clothes to P0W0 5e ctive Corpora.1 Dominic Mageuza0 For reasons best known to them, prosecition chose not to call the second appellant's wife to identify the clothes which she gave to P0i05 DominIck This failure went far to weaken the pos.ecution evidence, jttst like the mysteriousdissappearance of two suspects and the fir,t appellant's wife went to render the prosecutions case very doubtl0 With all these mysteries and doubts, it was very unsafe for the learned Pesident Magistrate to convict the appellant 0 The sentence imposed on each appellant was awarded under the Minimum sentences act, presumably an account of the fact that the property was stolen in the course of a burglary0 It used to be held that a guilty receiver should ..only be sentenced under the Minimum Sentence Act if he is showri to have known that the property ich he guiltily received and retained was stolen in the commissi- of a scheduled offence 0 This is no longer the law0 The position w is that where burglary is charged as in this case, proof that h the guilty receiver knew of the burglary is not necessary 'qWah All v R 1968 HCD 474) Indeed th offence of receiving has iThë1- T6The a scheduled offence (RvMohamedNaweki 1964 EA 3 and SaidMekevfl 1967 JICD 37) So that had the conviction of the aellant 5 ; been properly founded, their sentence would have been quite proper.0 In their long and rambling petitions, the app e ll an ts.J11e Very damag.ing allegations against the law-enforcing authorities responsible for their conviction, namely the Police and the court0 It has become quite fachionable for appellants at the Moshi Prison to besmêai the good name of the Police and our courts0 It must be pointed out that appeals are always based on points of law and should on no occasion be based on calumny 0 Otherwise odium would attach to our law-enforcing authorities0 Appeals should be confined on issues of the case only. -3- The conviction of the appellants was not proper as can be seen from the review of the evidence and law made above0 Therefore the conviction of both appellants should not be allowed to stand and it is hereby quashed0 The sentence thereof is set aside0 The appellants should be released forthwith unless they are being held in some other lawful connexion0 / 1 iI /sL •' L---\ —:ç / ( M. H. J/ K.iIKIMA) FPMO I\G O J UD G E. -1 1•-