maganga edward mwiga another vs republic 1996 tzhc 35 5 june 1996

IN THE HIGH COURT OF TANZANIA AT DAR ES SALAAM APPELLATE JURISDICTION HIGH COURT CRIMINAL APPEAL NO. 40 OF 1995 ORIGINAL CRIMINAL CASE NO. 238 OF 1994 (OF THE DISTRICT COURT OF ILALA DISTRICT AT KIVUKONI BEFORE MAPUNDA ESQ., RESIDENT MAGISTRATE) 1. MAGANGA EDWARD MWIGA 2. AMBROS KOMBO .................... APPELLANT VERSUS THE UNITED REPUBLIC..................... ...RESPONDENT J U D G E M E N T KALEGEYA,_PRM IExt. Jurisd.) The Appellants, Maganga s\o Edward Mwiga and Ambrosi s\o Komba (hereinafter referred to as 1st and 2nd Appellant r e s p e c t i v e l y ) were jointly charged and convicted in count one with Being m Possession of property suspected to have been stolen or unlawfully acquired c\s 312 (1) (b ) of. the Penal Code sentenced to 3 years imprisonment each. Aggrieved by this I haV® preferred this Appeal. As regards the 2nd unt m the charge, though the 3rd accused was acquitted and hence not subject of this appeal, as I will have an occassion to comment on the charge sheet as a whole later on I find it proper m mi stage to touch him as well. The 3rd accused Katale t?® c.harg®d with office breaking and stealing c\s 5 t6 Pena* Jode. The suspected property in count one ^ q u q t u°i W o1 j Brid9e Computer valued at 45 million S TA 7 m ff 2nd count maintained that Katale had broken n u eEL- rs various Properties including the weighing Bridge Machine forming the subject matter of count one. tr*-iAfM»0r- *learlr,g the evidence of four witnesses the learned trial Magistrate acquitted Katale on count 2 and convicted Appellants on Count one. The Appellants in their joint memo of Appeal which they adopted in whole during the hearing of their appeal challenged their convictions on 3 grounds - that the trial Magistrate should not have acted on the evidence of a sinale witness (PW1) without corroboration and cited the case of Tinga elele v R (1974) TLR No. 6; that the magistrate should not have relied on the evidence of PW2 and 3 for none testified as having : 2 : seen any of the Appellants with the alleged property, and finally that the magistrate did not direct himself properly on whether he arrest was lawful and that the offence was not proved beyond all reasonable doubts. In reply Miss Mkwawa, learned State Attorney for the Republic\Respondent, brushed aside all these claims as baseless in that PW1, a police officer arrested the Appellants m his normal course of duties; that" PW2 and 3 came in as witnesses to prove ownership of the weighing Bridge Computer and that the offence was proved beyond doubt as required by the law. ^ I should start by saying that this is an interesting but unfortunate case as it suffered various uncalled for 11regular1 ties right from the time of arrest, investigation prosecution up to the Courts of law. While the Appellants' argument that the Court should not have acted on the evidence of PW1 without corroboration is unfounded because this is not the type of a case where 1°n uS rue(2uired asguidedly pronounced in the case of LincLa_Kelelt which principle concerns offences committed when powers of vision are impaired, the other grounds ie. that the trial magistrate relied on the evidence of PW2 and 3 seem to have substance. In order to appreciate the picture in entirety let me reproduce the charge as presented even at the danger of making this judgement undully long. s 2-=— 1st— count_for 1st accused and 2nd accused OF FENCE,_S ECT ION_jyfD_JjAW Being in possession of property of having been stolen or unlawfully acquired c\s 312 (1)(b )‘o f ‘the Penal Code (doted emphasis mine). PARTICULARS of offencr- That Maganga Edward Mwiga and Ambrose s\o Komba are jointly nn°H r charged on 16th day of February 1994 at about 16.00 hrs at Kurasini area, within Temeke District Dar es Salaam Region, were,found in unlawful DosseRsinn of we}gUlng_Bridg e Comput er_valued_at Tshs. 45_t000.000/= the PfQPert.y--QX_the_said Tanzania Zambia AnTh^r Which ha_ve_been_sto 1en__ (emphasis mine). ?nd,_Count for 3rd Accused O F FTHE r,AWSKING A"D STEALING CXS 296 ( D ° F THE PENAL CODE CAP. 16 PARTICULARS .OF, THE. OFFENCE v j Tflat^ .S^° Hamisi Mombasa charged on 18th day of Z^rnhfJ R a 3 fcime at Kurasini Railway Station, Tanzania Re a ion d id hrefair 1 ^ ' within Temeke District, Dar es Salaam Region did break and enter into an office and steal weighing 3 bridge computer, one Air condition and Battery charger valued at Tshs. 50,000,000/= the property of the said Tanzania Zambia Railway Authority". Now turning to the evidence - PW1 is a police officer who testified that in the course of investigating theft of a weighing Bridye computer belonging to BP Shell he got information from an informer that at Kurasini there were people who had a weighing bridge Computer in their possession. He duly left for the scene in Company of 2 police officers and that (let his own words paint what transpired). "On our way we saw a motor vehicle heading to the same place and at a back seat we saw the 1st and 2nd accused holding weighing bridge Computer and we stopped the driver infront and we arrested the accused person namely the 1st and 2nd accused". Finally this witness said that at the police station the TAZARA people (who turned out to be PW2 and 3) identified it as their stolen weighing Bridge Computer. PW4 was simply handed over a police case file as an investigator. He found Appellants already arrested. That was all the evidence adduced by prosecution. All in all therefore the only evidence linking Appellants with the offence as framed is that of PW1 and the question is whether this evidence proved the offence beyond all reasonable doubts. At the outset of this judgement I called this case interesting and unfortunate. To start with the charge sheet, one really wonders whether its author paid it another eye-cast after drafting! Count one is so mixed up and it is surprising that even the trial court went head on tail with the prosecutor's presentation. Once you say that the property is suspected to have been stolen or unlawfully obtained the question of knowing the owner is automatically excluded for if the owner is known then it becomes a different offence altogether. On the other hand the particulars of the offence are at variance with the offence charged. At most the particulars would come closer to an offence, section and law under s. 311 but not 312 Penal Code! It has indeed buffled me that the charge sheet was drafted and presented in the form it is. It is not of insignificance also to note that while Appellants are alleged to have been found in unlawful possession of the TAZARA stolen weighing Bridge machine on 16\2\94, in the same charge it is indicated that the office breakage and theft took place on 18\2\94! One of the Appellants' complaints against the trial court is that it relied heavily on the evidence of PW3 and 4 when this didn't concern the offence with which they were charged. I think there is substance in their complaint. The trial Court having admitted a defective charge (at least in count one) went on to : 4 : w"i \Wr<2nS Pr,inciP les not applicable to offences under S. Jl/(1)(b ) of Penal Code. As I have stated above the only relevant evidence is that of PW1 but in convicting, the trial cour? omnibusly considered other evidence as well. At one stage the trial court stated in the judgement, "The prosecution witnesses and the accused had stated m court that it was the 1st time to see each other and under this circumstance I find no reason why the -PrO-Sgcu1 1 on_witnesses should fabricate evidence against the two accuseds" (emphasis mine). What prosecution witnesses is he referring to apart from PW1! as rnfprr^S1? ^ on the weighing bridge machine as referred to by PW1 the trial court had also this say, This piece of evidence was later clarified by PW2 who identified the property as the property of TAZARA and there is another evidence from PW2 and PW3 to the effect that one of the TAZARA offices had been broken into and a weighing Bridge Computer machine had been stolen. CourtBYD n i ^ r f ^ : ? n ^ ^ g~ f ^ i^ ghJjig-^-— gQ ComPuter machine in mine)"' ~glgh t J ^ „ e ^ ^ and pw3„ . (emphasis- ' complftfPm i L i r neC tfonllantS' ^ "0t 90 far than thls speakA for i t a e l f Wr°n9 prlnclples of the law- the trial court "The law in this offence is clear. The prosecution side is only required to show the following a) A police officer must suspect the curprit who has a property that the property is a stolen property. b) pur. out* into custody. the pr°Perty must be arrested and c) Later, Property suspected to have been stolen must be identified by a person who claims to be his property or her property. to hntfi m«I1nii«ned earli®r ' th* accused persons had been suspected rSatodv custody and later the sameanproperty th0Y Were arreflt0d and was identified by put PW2 under This evidence was not challenged by the accuse d i ! V examination nor in their defence"! accu^eds during cross 5 He..fud n0t 8nd there ~ in sentencing he said. The property found with.... is the property of a special authority and the law has prescribed a minimum sentence under this circumstance I have no alternative but to comply with the law.... ..... accused are jailed for 3 years” ! accused a) Accused should have been detained by a police o ficer in exercise of his powers under s.25 CPA. b) tCfUSSK f^ould have been ^ the course of journey whether on street, private land or building.' c) Should have in his possession the suspected property upon being detained. d> proDertv S I I J h °r circ™ 8tances the suspected stofen or unlawfully°obtained.suspected to have been e) tSetheCc to tne court ^ tS^on Uid how hKVe refused he came to property by the 9ive a” ^or count u n r e a l a?(rount which was so improbable as to be unreasonable or which was rebutted by the prosecution. have been stolen ^or u n l a w f u l ? h property suspected to the property is known obtained but where the owner of b . 312 cannot apply at al 1 ^ h6re < P ™ P erty of T A Z A R A ) "penalVcSdi°ifCfhn0t ^ f^ntained under s. 312 identified f!?6 artlcles ln question can be If ?hi a s .the P roPerty of any known person. If the owner is identified, it is no lonoer a laid u n d e r V U S P r i0nr 3 n d t h e c h a r 9 e s h o u l d be w??h s e c t l o n o f t he P e n a l c o d e d e a l i n g property" property /JackRon°7SeSSi° ( J a c k s o n J a m e s v.n R. °r receiving ( 1 9 6 7 ) ( u r natolln \ 97^ The authorities on this are abundant i f ’ 2 73 )' Rv Misengi Abdallah {1952) I TLR (R) 107! ' Mussa s\o Mgonjwa v. R (1968) HDC 108). ' tainted" the U 'e i*0" had not 9 of this judgement is not free fr"C0 ° f PW1 8S qUot8d in P « “ identify the weiohino , °m SU8plclon ~ b0ing able to Appellants naively h o l d i w it ^ iV*6 ^ * ™oving Vehicle and the sa.e to be stolen property9 or to h a v e ^ n o ^ r ^ " -i*ft? o ^ r " Iff 6 Be that as it may, as detailedly convictions and ensuing* ' s e ^ t e n ^ T ° ^ thtev,laW l6t alone shaky evidence they can’t be left Aon«n t i T are accordi«9ly quashed and set aside. Appellants are to be set at liberty unless otherwise lawfully (L. B. Kalegeya) PRINCIPAL RESIDENT MAGISTRATE WITH EXTENDED JURISDICTION. AT DAR ES SALAAM 15TH MAY, 1996 Delivered to day t h e . 5 # ^ % f r ? . < i n the presence o f State Attorney for Republic/Respondent and abjHH^e/presence of Appellant. (L. B. Kalegeyaj PRINCIPAL RESIDENT MAGISTRATE AT DAR ES SALAAM WITH EXTENDED JURISDICTION