19740429 TZHC Mwanza

IN THE HIGH COURT OF TANZANIA AT MWPNZA - HIGH COURT CRIMINAL APPEAL NO0 348bF 1974. - Otiginal Crimihal Case No0 164 of 1972 of the Dstrict' - Court of Kigoma District at Kigoma Before C. G. Ntenga, Esq0, R.M. MASUDI ALl MALOLA 000000b0000000000 0000000,o APPELANT versus. 0 OF 1•-'-' THE REPUBLIC I QJ)ENT — AUG 1974 J U D G M E N T •.. 0 r'iFALILA, The appellant, MASUDI ALl MALOLA, was convicted in- the District -- Court at Kigoma of the offence of "Being in possession of property susocted to have been stolen" for which he was sentenced to two years imprisonment which sentence was subject to the confirmation of this Court0 He is now appealing against his conviction0 - Before I deal with the substantive part of this appeal, I will first consider the procedural aspect of the case in the lower Court for on perusal several defects came to light0 In the first place, it is not -- 0 correct as shown in the charge sheet that Act No 0 26 of- 1971 amended Section 312 of the Penal Code0 Section 312 of the Pehal Code was not amended, it was repealed and replaced by Section 5 of the Administration of Justice (Miscellaneous Amendments) Act 1971 Secondly it is not entirely clear nor is it understood why the appellant had to be charged under both sub-sections (a) and (b) of S.312 for each of these sub-sections provides a complete offence in itself -under different conditions0 Sub- section (a) is applicable in circumstances where the accused was by virtue of powers confored under section 24- of the Criminal Procedure Code, which power is given to all members of the Police Force0 On the other hand sub-section (b) which is a new orovision, applies only where the accused is found by a oolice officer of or above the specified rank i0e0 Inspector, in possession of or having control over the property in question 0 The two sub-sections then provide for two different situations0 Under (a) there must he a detention under S. 24 of the Criminal Procedure Code by any member of the police force and consequent upon such detention the accused is found in possession of, or conveying in any manner anything whereas under (b) all that need happen is that the accused is found, but only by a police officer of a specified rank, in possession of or having control over any property Therefore sub-section (b) refers to static situations only and sub-section (a) refers to both static and motion situations 0 In the result to combine the two situations in one count is to say the least confusing 0 Thirdly the statement of the offence was laid differently from the particulars,the idea of motion is introduced in that it is alleged that the apl:ellant was found carrying the property in question0 These irregularities in the way the charge was laid'ernphaize the need for trial Magistrote-sto scrutinize charges laid before them In /that an effort to see not only///they make sense but that they are in conforthity with the law in question 0 However I am satisfied that these irreqularities did not prejudice the appellant as the evidence led in the course of the trial clearly indicated that the prosecution had sub-section (a) in mind and they led evidence tu that effect0 The appellant understood the nature of the charge against him 0 - - - I will now turn to the merits of the cse0 The appellant's defence in the lower Court was a complete denial of the prosecution allegation that he was found in possession of this box, and that therefore the question of his explaining the circumtances of his nossession did not arise0 He repeated the same thing in his memorandum of appeal to this Court0 However the trial- Court rejected the appellant's denials and found as alleged by the prosecution that he was in fact in possession of this box in circumstances which raised the suspicions envisaged in 50312(1)(a)0 In my capacityas an appellate Court, I have no materials on which to base a different conclu- sion from that reached by the trial Magistrate who saw and heard the wit- nesses0 The appellant offered no explanetion of his possession, he was Ia 0 0 0 0 /2