19820414 TZHC Tanga1

11¼T. THE HIGH COURT OP TANZANIA

AT TANGA I. . ./. ti) ... ----– I . . APPI4TE JRISDICTI 1 Y I. • .-- CRIMINAL AppEAI ..NO-78 (Original Criminal Caë No. 28 of 1980 of the (District Court of Lushoto Djtrjct at Lushoto - Before. P.Z. Kag1i. Esq, D/Magistrtte. .... KAUTO ALLY....O.O....., . - APPEIJJANT (Orig. Accused) - Verths - THE REPUBLIC ............... ESP0NDENT . (Orig. Prosecutor) -. CHARGE: Obstructing a Police Officer due to his . executioh of duty c/s 243(b) and (e) of the Penal Code ,. •• JUDGEMENT - . •1-.. . - Sis3raJ:... his case wasa bungle right from the beginning. The charge as laid reads:- Obstructing a Police officer due to his execution of duty c/S 243 (b) and (e) of the Penal Code. are twocbvious errors here The first is the wording of the offence itself'23This Is so glaring to the extent that it makes me *bndr how it escaped notice of the learned trial Magistrate, at • least at the time he read it over to the accused; that j5 to say, if at all he p'operly arraigned him Or, if the learned trial Magistrate nticd it,why he did not correct the error accordingly. The second e'rror ié in the law cited Each of the paragraphs of section 243 of the Pdnal Code paras (b) and (e) included - create a separate and distinct offence. At most offences under these paragraphs may be charged in the alternative but not in the same and single count as wadoné in this case Perhaps it may be argued that these

errors did ..../2 4 not embarasa. the accused or occasion any miscarriage of justice. That however, is not the end of the story The particulars of offence read as follows and I quote from the relevant charge sheet: The persons jointly and toether äharged on the 7th day of February, 1980, dt,albout 730 hrs at Ikulu(Ndogo), Lushoto DjstrjcV and Tanga Region, did wilfully resist the lawful arrest of one O 7745. P.C. Plorian a Police Officer employed in the government •Sdrvice, as a result they assaulted the said Police Officer on his ±ighi leg and all the arms by pushing him from the bus Reg, no. TZ 49 93 Usambara Bus Servjc and caused him to suffer.grjevous harm due to his execution of duty: These partiu1ars arei so to speaki pregnant With errors - grammatical as well aa s.nbs:tantjye 2o quote but a few, it was actually the arres. and n'o-t the arrst of P.C. Plorjaii'tbat the accused are Said to have resisted Secondly, there are three overt acts lumped together in the charge, namely yi1ful resistance toarrest, assault and doing grievous harm Each one of these is a separate and dis tinct off ene under the Pna1 Code; the last one being chargeable under section 225 The importance of a charge as the central point in êve±'criminalproceeding;.is well mown and, therefoe, it hardly needs a restatement. The rsponsibility for the correctness of the charge, undoubtedly lies Ofl: the

prosecutor This Court s however, wihes to draw the attention of. all Magistrates to the des±rability, of their going through the charge before admitting the same. This is not ànly priident but it is also one of the ways of lessening the possibility of criminals subsequently getting away either withou't being punished adequate1r or even without being punished at all, purely on technical grounds In the instant matter it could ;very well be argued that the charge is bad for duplicity I will however, leave • .this point at tbat •ow turning to the facts of the case, there can be rIo doubt that th6 star witness is the complainant, i.e. P.C. Plorian (pWl), 'F I / - 3 himself. His story is a sad one s On the relevant day and at the material time he was on guard duty at the State Lodge, Lushoto when he saw, a bus t egitration no. TZ 493 approach, heading towards the direction of Lushoto there werèaleast three persons somewhat precariously perched on the roof 'raok It ithmediately dawne -d upon him that the said bus must have carried more .passeger.s than it was otherwise authorised to carry He, therefore, Waived at its driver to Stop; Which he did at such a distance from where he stood,,as to en.ble those on the rcck to get doWn and wade through into the crowded ,buS When P171 got to the büs'he ordered its ocpcn,ts to get down and be co'unted Five persons get'down At-that st z-i ge he

boarded the bus and stood at the stairs In his right hand he 'held a gun whereas he had a note book and a pen in the other,' At the same time he heard and saw a person "order" the bus driver to drive on.' The bus took off carrying PVL away with it,' He i.e. PWl,.inanaged to find hie1f Some support where he ptoodin theb 4fter ; covering a phort distance a man e however, apprdached him-and 1 without any exchange him ôut. P. fela off the bus while, it was still in motion and sustained - as a res'ult:thr eeof, among other, injuries - ,a fracture of the left fibula The bus moved on as if nothing had happened However, by what must have been a quj±k of fate 1 it did not go far After covering a' bare 112 metres i,t careered on the road and subsequently it hit a wall on the road side There were four accused'persons who appeared in the Court below answer to this same mangled charge. They clii pleaded not guilty At the trial that subsequentlyfoilowed PW1 identified. the first accused as being the conductor of the bus and the person who "ordered" the bus driver to drive on before the count of the passengers begun; • thy, secoid accused as being the p0Son who pushed him out of the moving, bus; and the fourth accused' as being the person who drove the : .- .4 - bus at the 'torjal •time' .. told- the trial. Court' that after the acciden'.the''th±i'd'accusEedaccompnjed by -the first accused

returned to where elay with his .brken leg and, began to '!oxder" him to go to the"Thiice stction.and report the according to them e be was the one -who cised the accident 411. -the accused raised the enera1 defence of mere,denial' . In his judgement:which, With respect . , requires ectra..power of perception to comprehend,: the learned trial Magistrate acquitted the third and fourth accused. . He, however, convicted the first and second çccused persons "as..charged" and sentenced them to nine months and fouryears imprisonent, respectively The latter, i.e.. the second accused whop incidentally, is the appellant in the instant appeal, was given a stif'.er sentenc?. for pushing the Police officer from the moving bus "tomeeth±sdcith' Without ging into. thc merits and demerits of this appeal I feel constrained' to, first of call, de'il with one point which to my mind s 1svIylik'ely to be dispositive of this appeal In short it is the idenifiöaiiOn 'of this.appel'lantas being the very same person whom both PWI and the trial Magistrate referred to as the second accused' Thi state of affairs has been brought. 'about by the fact that according to the relevant ch"trge $hcet this appellant was the third accused, According to practice one would expect that would alsbbe the way he appeare..inthe dock at-the trial: That is to Sy, Sit 'fter or next to the man who 'Ippeared as second

accused, -. on'the one hand s and the ma'i,Who appeared as fourth accused, on the other However, in his judgement, both; typed and manuscript forms, the learned trial Magistrate, for rasons beyond my comprehension' labelled this appellant s Kauto Ally, the second accused; The third accused is shown to have been, one Ham-ad Mngazija' To add to this confusion the re&ord of-proceedings itself appears to. shoW that the - . , - '•' '' 44 sitting arrangement of the accused was not as listed in the charge For example, ParajiOmari, who is shown as fourth accused in the judge- zis ment and was acqujtted.,-, shown as second accused in the charge thheet e which was read out in Cou2't It will he recalled that pWl identified the second accused - no names were mentioned - as being the persons Who pushed him out All in all I entertin grave doubts as to whether or not this appellant was indeed the same person both PW1 and the trial Magistrate had in mind when they talked of the second accused in the case, In the circumstances it will be dangerous to uphold this conviction which is hereby quashed 3nd the sentence passed thereon set aside; It is further directed that unless the appellant is being held on some other lawful charges he should he set at liberty forthwi1i Delivered in open Court at Tanga this 14th day of April 1982 41 (H.iI.i. Jude