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_.. ..L. 4q C_ 1"-~ IN THE HIGH COURT OF T1:NZLIL 'I AT ARUSHA. APPELLATE JURISDICTION S . . ... HIGH COURT CRIMINAL APPEAL NO. 430 OF 1974. • ORI GINAL CRIMILL. CASE .NO. 59 OF 1974 OF THE DISTRICT COU1T OF KOROGWE DISTRICT AT KOROGWE BEFORE:— J. ,E. C. MASAPCHE,.Esq., Resident Magistrate MAVTJNGJI ABDALLAH........................., APPELLANT I. (Originel Accused) • ..• verus THE REPUBLIC . . . ..•. . . . . . . . . . . ......... RESPONDENT . . . . • ...• . . . (Original Prosecutor) JUDGMENT p. JONATHAN, J. The Distict Court convicted the appellant, MATU1GA ABDALLAH, of beiig in possession of property siThpeôted to htve. been stolen, c/s. 312 of the Penal Code. It was uni.süted that he was on the material day found by the Polie being in possession of a wireless et the seria1.nmber of which was.missirg and for which•he did not haVereceij?t of purchase. It was the Prosecution case that, the appellant at first said it was not his but that a little later he said it was his own. The apellant in his sworn evidence said he had received the radio from a relative called HAMZA OMLRI who had brought it from Mombasa where he'wo.rke 1 and who had left it with him upon leaving for Moaibasa,appare,ntly because it was defective. However, the ler'cdesident magistrate in his judgment rejected the defence, :his for two reasons. Firstly, he noted that as t:ho.t ias a ubeautifll radio........ the appellant should have had recoipt for possessing it if in fact he got it from the said relative. Against this it is to be noted that the radio was only entrusted to him and it was not given to him as a present, snd that he was clear in his evid once the sa.id relative had the relevant documents in Mombasa. In my view it was to demand too much of him to expect that in circumstances as those he should have insisted to be given the receipt of purchase as well. Secondly., the court seems to have taken judicial notice of the fact that there is a customs office at the Kenya/Tanzania border and that if the radio had been taken across that border some hlfeostl would have been paid., for whIch the apjellant should have had the rel,evant documents. However, there was no evidence either that any duties or sales tax ought to have been paid for the radio or that they were not infect paid., arid it is pertinent to point out that the point was never referred to the appellant when he was giving evidence. He has, however, stated in his petition that such customs documents as there might have been were with HLMZA. I am accordingly of the view the't the appe1it was convicted on insufficient evidence. ........... ... .../2 I. The appeal should be allowedalso for another reasons Although the provisions of S.206 of th• C.r.C. were explained to the. apjpellat the record doe not show what his election was as regerds the calling of defence witnesses. In the event, he save his evidence without it beinS shown in the record if he W'ishe'd: to hava any• •w.itnesses called.. In his petition he com'laiñsthat he did ask to have HAMZA summoned but. that. the court refused his application on the ground that it :would be t:o.oexpnsive to Government :te cause him to appear. Clearly HAMZA's evidence if it had been obtained would have been .decisive...of the case and' in the absence of indication in the record as to whether or not the appellant said he had witnesCes to call, I would think there is substance in the comp1a.int.th•at his request to have HLMZL called was refused. The conviction and sentence are quashed and the appellant should be. set at liberty unless he iotherwise lawfullyhel . ... .. . .. (r. M. JONLTHJN). . . /MTPM JUDGE I