19830210 TZHC Mbeya

0 IN TUE HIGN COLTHT OF TANZANIA AT LN3EY APPELkATE JIIAISDIGTIOH CRIMINAL A2PEAL NO.53 OF 1981 (Ofiginal Criminal Case No.169 of 1975 Of the District Court of Mpan.a District at Mpanda Before: A. Mohamed, Distict Magistrate) LAURIAN LVJEI1YENDELA 6 ... 0 0 0 000 . O...APPELLANT ... (Oginai Accused) versus TUE 00.00•..RESPONDENT (Orginal Prosecutor) Charge: Stealing by persola eiip1o'jd in Public Service c/ss 270 id. 265 of the Penal Code. JUDGMENT MROSO, J. When I heard this appeal I allowed it, quashed the conviction, set aside the sentence of three yearsim.pris.onmnt as well as a compensation order. 3elow are the reasons for that decision. . The appellant was a clerk employed :y the Land Office at. Mpanda. It was alleged against him that between 1st July and 26th August 1974, being a person employed in the public service, he stole shiilins 1,2207= which came into his possession by trirtue of his erjJloyment. He was charged nd convicted by the :DistIict Court of .Mpanda. 0 He was sentenced to three years imprisonment and ordered to compensate the government the shillings 1 1 22O/ he was supposed to have stolen. He has appealed lgaiit the order of compensation. The evidence on which the cbniction was founded wa that as a revenue collector the appellant had collected shillings 3,140/=. An auditor who checked his work found that shs.1400/= had been banked and shs.520/= was found in hand. There was a difference of shillings J..,220/ which according to the audior's report the appellant failed to account for. He was therefore prosecuted for the theft thereof. . . . . ... %, 1' •1 - 2 - The prosecution case was therefore based on the findings and stateme.t of the auditor. The auditor was not called as a witness but his report was produced in evidence although it is not clear on what rule of the law of evidence it was produced and admitted as evidence, The appellant denied that he stole the money and suggested that it may have diappoarod from a t'bookshelf where he usually kept revenue collections. It is quite obvious, and this waS admitted by the learne. State Attorney for the respondent Republic in this appeal, that there was no proper evidence, before the trial court on which the anpollant could have been found guilty of the offen bharod.. Since the auditor was not called as a witnes hi resort which was produced in evidence was sheer hearsay and oupit not to have soon admitted. as evidence against the appellant. So, if the audit report and the aud±tor'a claim that the apsdllant failed to explàin the s1iortad of shs 4 l,220/= arc discounted then there was no evidence to provo tao charde against the appellant. That was why the appeal was allowed., J• idIO 50, Mbeya JUDGE 24/1/83 Mr. Kapinga, State Attorney for the Repondeit. Ji'i/ATI' lima. ,g - 3 - It was also cnce dod by the Republic that thre were special circumetmoes which oiatitlod the appellant to a non—concellation and non—disqualification of his driving licence. I therefore allow the appeal only to the extent of setting aside what thu trial magistrate termed revocation • of the appellant's driving liccnco, It was also argued by the learned Statd ittorney that the magistrate should in any case have ordo'ec1 that the cancellation of the driving: licence and disqualificatIon of the appellant to obtain or apply for a driving licence to donimonco on completion of his prison sontoncoe The counsel for the appellant counter—argued t.iat the trial magistrate would have no power to delay the coeuoonbement of the concellation and disqualification order. He cited the Handbook on Sentencing by Slattory at page 114 but the loarne.d author does not appear to be clear on his authority in this country for that proposition. In view of the decision I have already taken on the question of the apellants driving licence, I see no need to decided on these arguments. J. MR3s0 Mbeya JUDGi 10/2/83 JAM/dTM I urea,