19880506 TZCA Dar es Salaam2

J ( IN THE COURT OP APPEAL OF T.!lNZAlUA AT ZANZIBAR CRIMINAL APPEAL NO. 55 OF 1987 . , MOHAMED IqIALFAN .KHAMIS & HJ\SOOD S}-IAMIS· HABIB • • • • • APP:SJ:.LI.1.rPI'S VERSUS S. M. r; l.J O • (AppsaI from the conviction and s2ntence of the High Court of Zanzibar at Cm ke Chake 9 Pemba) (MuJr..ri 9 J.) datEd the 1st day of December 9 1986 in Criminal Sessions Case No. 1 of 19~.5.. JUDGM1~.f OF 'Tf:IE CDURT OM.AR 9 J .A. g This is an appeal by two appellants Mohamed. Khalfan KhaE1is and Masoud Shamis Khamis against conviction and sentence. In the rose of Mohamed he face·d two counts; one of using the vessel for carriage of cloves without permit contrary to section 6(1) and 9(1) of th0 Cloves Control DecreG No. 11/B5 and the other of exporting -cloves out of Zanzibar Islands without permit contrary to sections 5(1) and 9(1) of the same DecrGe. Mohamed was convicted on both·counts. Masoud was charged with and convicted of the latter count only. li.ohamed was sentenced on each count to 10 yars and one day to run . .. concurrently and MDsoud was sentenced 'to 10 years an,d one day·~ Hohamed. . \ was ordered to plant 100 clove trees on each count for which he was convicted 9 and Masoud was ordered to plan~ 100 clove trees. Mohamed's boat was also confiscated. These were mand.ator,1 sentences. The prosec-.1tion story is that on information rE,ceived P .W .6 b'u1)erintendent· of· ' lice Juma Abdalla Hassan of Cb.ake Cbake, Pemba 1,Jok'a squp:'.-,i:i:' seven policemen four of whom were C.I.D. and. 1 in plain_ clothes 9 and +:he other three were in police. uniforms. rhey . went to a place called Ndagoni where they got the assistance of CCM 0 Chairman who provided them with two boats and men. They set soil • c e .e • • o • /2 - 2 - ..Spotted towards Kiuli Harbour where -~ .. · .L ': :·, an anchored boat ,.at Jche other • end called Tondooni Harbourf. ri'bGre th~y saw a Tall C81_10G i;oing- towards . who the ,mchorecl boat and saw two men Earne out of the canoe and ,-rent into the boat, then the c1cmoe returned to its former place. The anchored boat then hoisted sail and ,-hmt towards the deep waters and. in the direction ·of the police boats. The police on seeing this c1'iro2cted ,· their boc'lts towards this boat~ P.W.6 Juma then saw tvio men jump from· , tho boat he was after and he shouted to thEm to stop. As morG peo1)le continued to jump shots were then fired into the air. Five otternpted ' escapees surrendered to the police, they included the second. appellant_ Hasoud Sb.amis Khar.1is. Three managed to make good their esc_ai.)e. First a::,ipe:llant \-,ith two othEr peo:::ile did. not leave the bo2t and oll eight t were arrested and th0 boat searched and 22 bags of dried. cloves fo~nd. First appellant who declared hinself the owner -of the boat one'! heJ: Captain W8S questioned about the bsgs of cloves and he: stii~1 -chct tl1ey be:lonc;Ed to the peovle in the boat. Eig·ht people: were al together chorged for these t:wo offences. Three were acquitted: and five wc,re convi_ctcd. 'I'he two appelJ.ants are appea 1 ing to this Cou'rt • Ti1eir grounds of appeGl "~re substa,.1tially the Sf1me. First· a_ppellant ,'3-Lntd that he was .forced. at !JUn point by one Dowoocl Khamis who was one of the escapees to carr-J thG cloves inspite of his .'.'.'Gft:sril to do so. This explanation was given for the first time in court wllen first ap·'.JBllant !I!Gde a statement in his defence which was not on oath. l-'i:cr3t ap_nellant , did not tell the police or the ccn Chairman while he was in their compan,y that he was octing under durens end compulsion but he chose to :c1;ep quiet. Even aftEr he had heard :r:Jrosccution witnesses h(' stiE foiled to cross-examine th0m on the allegE:c dttt'ess. r.rhe seconj•appel1.ar,; was the fifth accused. in the tri,al court;, he too cl3iroGd th,1t he \-;as • 0 ., 0 • 0. /3 3 forced to remain in the boat after he was till'eatcn,::d with a pistol and that he had remained in the company of the clove dealers under compuision. It must be remembered that· the second appellant was among the five people who jumped into the sea at the sight of the police boat. If 9 as he claims, he was forced to remain in the boat one would have thought he would have welcomed the appearance of the police. But not a word was forthcoming from him about duress till he wDs called upon to give his defence. There are also the statements of accused 2 and 3 who had entered this boat as paasengors before the a1JpGarance , of the police and they said they found people in the boat includ.ing 1st and 2nd. appellants sitting and chatting peacefully without any signs of any one threatening their lives or compelling them to do anything•. We find therefore that_ the .onus placed on .: the two appellants to establish duress has not been discharged. He think the two appellants 11ere willing participants in the offences for which they were charged. We therefore find that the trial judge was justified to conclude that both appellants were guilty 8S charged. Both the 8ppeals are hereby dismissed in their entirety. DATED at ZANZIBiffi this 6th day of May, 1988• A. MUSTAFA JUSTICE OF _APPEAJ:, L. M. HAKlJl'JE ------------ JUS'rICE OF APPEAL A• M. A. OM.Lill JU"~ OF APPEAL I certify that this is a true copy ~~(//inal, (J. H. MSOFFE) ~"![ OR DEPt.IT! Rffi IB'I'R!ill •·