NA TZHC Dar es Salaam2

Il'i THE HIGH Cl~UHT. 0F 'l'il.NZANIA . -· J.JJ.·,.:..1.. L. A. .,~ ,, ·,-~:-) .Li' 1 .ti.Il.-'~l 0 ' . 1PPBLLAT£· J'UTIISTII~TION llIHG CJURT ~li. h~tLAL 171/9.: OF THE DIGfRICT CCURT np ILALA DIS'.rn:i.-cT !i~ KIVUK-JNI ivIAULID ATHUM.ANI AND JTiL8RS. ·••••••••••• • APJ?E:.,LJ~T i\'-·t;.J..~..L 'r1.· .,~ n", · n,·s-:id) 1\.vv\,,.,'O Yt.'TSUS TH& UNIT~D REPUBLIC ••••.. , .•••• , •••••••• 1.~if :'~NDENT (~rigi~~l ~r,socutor} _ .T U T\ 'J-· ' E F 'i: _ .u.uHilTI.~: The two appellants' name l;v ivt. ·.:l .Ej ,~ tL.ih:s.i,i and ..J Ufo[l Ally >Iamisi We:?e ,onVitted of the offence 0f ste,din 0 :.:· · E,gont under secti0n 2~ , ( 6) of the Penal Oode and wera sentenced to t,:rr:;s of i,:,pri sonment for. 4 :· ~arl! each. ·, They have now appealed aBainst th8 coc··iction and sentence. The·faots are that thd appell~nts ~aulidi fithu~ani and Jlaa Ally Hamiei were first accused and second cccused respectively ir the trial. ' TheJ were charged with 5 other persons .1ho were acquitted. rfiH appellaft .· !Vla1'l.io.i Athuman to whom I shall refer e J si,.aply 1st appellan1; and the appella i J'ijma Ally Hamisi to be r0ferred to · as e .mply 2nd appGllant, v E·re employed ~l the ;omplainant_Mohamed Enterprises li3ited. The first app?'lant was plojed as a driver and the second apptllant as a turnboy. Th~ appellant, wep eni!'Uf'ied ~i•h 13J l.age of si;c::3i.ca '. · t~-' ~~ t~.o TaoMnic. ·_

a.r!:'crurs Aijtllofi, 't.Y QJl PW2 Shiraz. 'w.eufu. .Hl.Y, th-.:J ,:ianuger ·::>f 1v1ohamed En~ ( t'prisee l,1mit@o., On the Wf>:I they decided to sell ·'. · co. ·s .. _;:r:3 .Einrnanuel Ernediet a ~e1wfUY J!t14e-r of' Moha •.1ed i:nte:r_;:,rise,~ --;·_... h., .::~..~- been foll., ·ing t•e "eh!ale d.r~ve·n by tho first' appellant Bl1l ·1·1hich v;a.:;' CcJ.rrying th simsim, . ~w ~me cj.ul;;\i,~s ~ansuction being. done l:.1 t'c1e fi:r:;t a 1;pel-lant , r i ano"ihe• 4.i1;1 0£ e Y@h~•~• ~e- went buck to the c;; ...1i,.:::.n_y to n.:.itiiy his f .i loyer. Alt~· PW4 Soi di · Z£iva, who was on the ve~,i"cle with tho 13-J bags o-:. : im.,im a• a w~tehman ~QCOmpaP3i~ the g£?'ods, sc..w th& a!11)ollants selling the ~i-fsim. He ~t,etiijd and· he was_ threa ten_ed to bG pus:1.::;tl off tl',,v rohicle by t l 3nd appui~nt~ A; ~~{ HaJJbour~ off_ices there ·:.'ere only 120 bag~ left. ) !4 informed •;fis empJ..Ol@I ;~ m:1.nagar of ltlc.h!::r,ic;:l Enter_pri~.3s 1L,i -t~:i who1;1 hod s,2. 3.t. the liaf,. . . wil~ ha:d. , t a ~ :pl:~ce. ' :· • / t.. • PW2 Shiraz Yusufu Ally told t~J Court that he went to the Tanzania Harbours Authority where the 13: bags of simsim were destined to arrive when he was infor~ed that sJse ol thoQ had been delivered on the was to the Harbours. He founl 1 ) tL:cs ;_if sL,sim missing out of the total amount. He decided to t&ke the firGt appellant to tho ~olice Station.

PWI PC Benson wus at :i3uguruni J?ollce Stcttion when PW2 arrived there anu.report.ed ;, of the theft of the be.cs of sici~h1. PWI went with .PW2 to -tthe .scene of orime and saw SOwe 0xchanee ~ags. He saw 1CJ bags of sir.rniu1 v;hich were no-t loi..:.ded in a oar a.Q.d other 1.) empty gunn.r bags. He., took thew to Buguruni .eolice 3tatian and he a1'rastetl some of .;· the aoe1.1sed in this case while others ran a.way. In defence the first appellant said that he··made t~o trips to the Harbours in a vehicle be:ongine to fL)hamod Ente!"~ises Limited and that ~here were watchmen ~acorti~g tha eidsim bags in the vehicle. The bag,~ were b~Ji~ off'l.oacled from his vehicl..; when -he went for lunch. When he edme ·., baek he was told thc1 t then1 was a sh<Jrtage of 5 bags.· He was for•ed t~ tu.qi "'J' this"lo.ss" and then taken to the Police Station. Ho was 0-rentua.ll.J" -~rl .. 8haYged with othar persons. The Ind appellant said that he wc:..s in the vehicle driven hy \he f!rst l appellant which wr..:.s carrJing bc!.gS of si1;.1sim to the harbour. 'HJY macle 2 .•~- · - and ei.ieh ·time tl{ere were 2 watchrnen with ther.n to escort the e,,ods. Al,-"'3r getting to th~ hdroour at the set.md trip, the 2nd ap.l,)ellant ·:.rnnt· -par lunoh with the first appellant. When they cai;:;e back after lu1·. •.h, they wel'e t~ld that thor~: was a shortage of g?oas. They ·were fore3d to ,;gn a

doeumen$ 0 eignifyill.g su•h shortage. ThG,Y were th,n taken to the Polit10 -~~ation and '" ~ha.ged along with others. Xhe ~earned trial Magistrate found sufficieni evide¥·~ a.1<tinst the ! i ~ an~ fnd appellants and not enough; evidG(1ce agains'i· the :test ''-··the acCll.aed, He e.onyioted the a1)pellari.ts and acqui tt..:d the otheJ' ~sed 1,:i ·sons. Th~· fi~s t, appellant has given w,.wy c;rou.J:U;ls of app.::,ul. Th(JY' a1·e not 1eallY grouna.,c; of ai,Jpeal as such 1·., cc1usd thdY are siL1ply di sen- ,ing the e~idence in great detail. Tha petition 0f appeal of th0 saeond tppellant,,·. lUlllita._,+; .is wore orderly.. Aa..lo-- ~ ~rst op.pellant_, the evidence clearly ostab::l,~sh, < that 1l.e '.. .. ~ dyopped 1:) bags of ~ i m a11d !e!"t t11ern with othr.,r ~:;eople in a t".'an~act ....;· whi•h was •~thing. but theft. As I said earlier on, the petitior', f appeal is l~ll of ~etails of evidence. It is ~ctually a rc~otition of: ~l the evidence acldw,ed with soine . cor:1:nents that -~:1e a·rida::.'..r.:e is not tr·c 1 But sinoe the appellant;, ad11li ts to hav.·· J.ri ven t :·:.0 vehicle of' ", he complai• nant with the sirosir:1 'bags,· then tho feet tha.t th~r•, ·?1as a shorto.c;' of 10 ~ags of simsim prime facie puts him in ~~:Jtion,. ::Jt only that. Th3re are 2 o:te wi tnes~es who saw the theft tre.nsac-+.:::..cn r;i.•~t:,, per:pe trated, nu ely PW3 • the s~curi t.Y

officer, anci 2 .:~, the . - i.:.:n.,.c.:. ·. ~~s escorting ~~e ~imeim. Xh~rij ia also the evid8ncu ... .[,·.. " 0.L .... .,,i.i10l :..,.,·t until the appellant effered to Show where ) Like the trial court I, ioo do not find that the evidence leaves any room for a reasonable dotlbt. The f~;t tn~t the persons to whom he is alleged to have ·sold the si~si~ WGr8 2cq~ittad at tho trial doos not ~hange the pd~ition at all. I would th0~efore dismiss the appeal against ~onviction. I come to ttJ second appellaLt. He; to6i is covere1 adequately by the evidence which wcs adduced at tho tri&1. Re;· toof doen ad~it to have been on duty on the vehicla which was carrying the bags of sicsim to the Tanzania Harbours Authority. He.has st£>.te-::. in ground 2 of .bis p•:Jtition of appeal that he was not res:i:')on:.si'Jle for th0 custody of the goods as he was a mere turnboy. That may be so, tut the evidence of PW4 shows ·'.;ho.the took an active part in disposing of tho stolen bags of si~sim from the •ehicle and that he even threatenad to push .?V14 off tho voh::clc if he went on with hi! protests at wh&t thay war~ intendinc to do with soLle of the bagB of sim~im • .Although he says in this g:::-ound tr.at PW4 1 s evidence was mere :abrication, there is no reason given why .l?W4 would want to iillplicate the :.2nd appellant .... nd first appellant fb.lsely. The 2nd appellant has al~o stated in

ground 4 ~hat no\sim~i □ was sold because tpe alleged 'buyers were acquitted in court~ Tho a,qy Lttal of the alleged ln:yers ce.nnot be proof of the alleged fact that no f i.:isim wais eold. What is more decisive is th3t what was entrusted t0 the appe::ants wa~ not all there. It was short by ten bags. / In ground no 5 the 2nd ~Jpellunt clai □ s to have bean 16 , ars at the material tiraei and question~ thJ widso~ of ontrusting goods ••rth millions of shillings tJ such n youth. Tho fuct of the ~utter i; tha+ 10 where in the record has there been such ct ~:ui~ of ~cinJ a taenuge M ; ·~. The appellant oa1mot introduce .such "evidence" on a 1 -1JGB.l dr:d ::i.<.:act of all i.·1 a grot:i.nd of appeal. Secondly, nowhere in tLe evid:-r;GG i::; .:. t shown that ·.. :' 2nd appellant .. ~as entrusted with the simsim b~c~. The evidence is that the iim3im bage ~ppellant .~i in which PW4 ,,;ere being taken by a V:.Jhic~.e ,~::-iv:rn ::y th'3 f~_rrt/there as tl.~ watchman.was The _case against th>::: 2.~d a.;_i1,0lL.nt ·-ras a.,o s tr:;:·:g 2 ::i that 1 ainst the l!!t appellant.· The witnesses for thJ ~rJs2c~tion hau t~0ir eviden E accepted by the trial Court as tru0. On my avelt.'.atLn ::;f the ovid(..ticu; I .:. ) not ~hink that the trial Magistrate was wrong in acceptins ttG p~osec~ti >.\ &vidence and rejecting the defence evidence. I tterefore upt:ld the coL :~tion of the 2nd appeltant

as well • .As for senterine, al though fou::.· years I i,uprison;JEmt may be f' i ·ere, I do not thigk that it is ex~essive when you take into ~ccount the L ,~re of the offen~e and the a111ount of goods stolen; and of cour~e the v_ ·. 1e of such goods. I would therefore disilliss even the appeals against srrtenoe. ,~~ appeals of the two app6llants ure ttcref~ro dismissed in ;. eir entirety. - · ·:-:.~------,< ,l ~ ·--·-:,~:L!ft:. ~;-· Order·: Ju.:;,u,.,0nt cielivt:12·-.,;'.i. • . ~ .,,: I• ., .. I ~ilr K,, .· u:d· f oc:- •1- t::.'.Jlic 1· ., } ...