19951129 TZHC Dar es Salaam

IN LiE HIGH OOUR'.E OF .i:Al{3.ANIA GI\.~ Al: JUR ES SALAAM HIGH COURI CREUllTAL APPEAL NO.123 O:E' 1994 Original Criminal Case No.84 of 1993 of the District Court of Kilombero aG Ifakara • LU.ASA FELIOIAN MAG.AlJGA . . . . . . A?PELLANT Versus THE REPUBLIC RESPOJffiENT JUDGEMENT MWAIKASU ,_ J. In the District Court of Kilombero, at Ifakara, the appellant one Luasa Maganga was charged wi~h and got convicted on two counts: fir_st, of burglary, and second, of stealing, c/ ss 294 ( 1 ) and 265, of the Penal Code, respectively. He was then sentenced to an omnibus sentence of eigln yeFJrs of imprisonment. Dissatisfied wi-i:;h both such conviction and senten_ce, he .. appealed to Ghis court against the judgement bf Ghe lower court. At the centre of this appeal is Ghe comylaint by the appellant that there wa8 misGaken identific8tion of his person. and_ that he had been charged twice for che sam~ offence. When ·Ghe appeal was called for hearing on 2/11/94, lihe Republic, through Mr. Mtimbwa, learned State Attorney, declined to support both the conviction 8nd sentence of the appellant on the ground that 'th':> c0r._vj_n1;j tr, was bad in law ori ~he principle of autref~c::.8 t'~qu~_-;; am:refois convict, a~ provided for under s.137 of the CPA, 1~85. It was further the argument .,.•- of "the le8·:·ned counse__ l --'- sij_oned bv ·Gh_is court, ·Ghat though in ~he first ca8~ ~-~ ~y~nda ~he offence was one of being found in w1lawfn~, 1Jos,session of of'fensive weapon, :vet the.same gun was tl:e .,utJt:Ct of both earlier charge and the one that constituted ,;he offence that is the su'bjecG of "Ghis appeal and the same person was involved. This court allawed the appeal, reser~ing reasons. As to the facts of the case ,;hat mav ~riefly be siated as follows. In Ghe nighG of 5th February, 1988, the house of No.5548 S/Sgt Athanas was broken in~o a"t Kiberege ~1llage, within Kilombero Dis tric·t, by an w1known person, and various properties including Jne shor~ gun 12 bore·wiGh mark NOD 172299 ~odel Be~etta, ~ot stolen. ihe □ Gt Ger was accordinglv reporiea - 2 - to prison authorities and to the police. No detection of the culprit for such theft could be made until Ghe year 1992j about five years laterA There was prosecuGion evidence that ~etween the years 1986 and 1987 the appellant was serving a five year prison term at Kiberege Prison after being transferred there from Bukoba, where he appeared to have been convicted of an Economic and Organized Crime offence on 29/5/1984 by the name of Felician c. Bakebula. On 12/3/93 the appellant was arrested at Mpanda with a . parcel ·chm; turned out to have contained ·che shot gun in question. He was then subsequently charged at Mpanda District court with the offence of being in possession of an offensive weapon. Upon trial the appellant was acquitted of such off~nc~. It was, howe~er, later discovered that the gun.found with the appellant was the one that had been stolen at Kiberege Prison, within "Kilombero District. Information was GhErefore relayed to such - place after which ~he owner of the gun and other Prison Officers proceeded to Mpanda to identify the gun Rnd the suspect. The gun in question was then duly identified as the one whicih had been stolen at Kiberege prison on 5/2/1988 and the appellant was identified as one who had ~hen be~n serving his prison term at Kiberege prison. ~evertheless~ Ghe appellant denied Go have been the one who had burgled 1.ihe house and to have stolen the gun in question a-t Kiberege prison.. lt was also in evidence that the appellant was rel~ased from prison at Kiberege.prison on 1/5/1987, following a Presidential Arru1es·tv. There was no evidence, however as GO whether between the date of his release from Kiberege Prison and the date of the alleged burglary the ~ appellant .Jont _inued liu _ , (. •..i;:; Kiberege village.. 1 Subsequent·lv the appellant was taken 'O .K:Llombero District Courv and got charged with th~ offence on the two counts stated, above •. He was ·then upon trial convie; ~eu of the offence on ·che two counts but was sentenced to an omnibus senGence of eight years of imprisonment~ .. On i;he facts, while this courG would not go bv the argument of the learned Si;ate At·Gorney "Ghai; this was a case of autrefois acquit autrefois convict as provided for under s.j]7 of the CPA •. It is however to be no~ed that the onlv bssis ·Go fourid ~he appellant's conviction is the principle of recent possession of stolen goods~ Yet in this case about five years had elapsed ever since the ~Un; which is at the centre of implicating the - 3 - appellant wi·Gh the offence in question, ~as later found with him. Bearing in mind i;he case with which arms and ammunii;ions, particularly civilian ones as the one i~ question, change hands the period of five yeais is i;oo long to be considered recent, so ~s to warrant the possession of the gun in question after such period, to be considered as recent possession, and provide a sound basis for the conviction of the appellant. Apparently, in an earlier case at Mpanda DistricG Court, Ghe appellant gave a reasonable explanation as Go how he came by such gun~ which then led ~o his acquittal. It is therefore for the ab,v-0 reasons that this court allowed the appeal and set the a~pellant at liberty when the appeal was heard, reserving my reasons which i now give. ln passing and for the benefit of the irial magistrate, I am minded ~o fuake the observation Gha~ where an accused pers6n _bas been charged ori distinct counGs as was in che instartt case, upon convibtion i;he proper procedure is for the court to pass sentence in respect of which count, which may then be-ordered to run consecutively or concurrently as the court imposing such sentences thinks fit. It is wrong ~o impose an omnibus sentence as the learned trial magistrate did in the itstant case. R. J. Mwaikasu · Judge na-~ed 29/11/95 At Dar es salaam. I cerl:iify tha"t thi: · j :-: a true copy .of Ghe original.