19830830 TZHC Mbeya 1

- • • fl T iGiI COURT 02 TZNI iT banY PFDLL!TE JURISDICTION Mbeya iegistry) CRIL'iINL allDL NO.. 105 OP 1982 ORITIN;J CRDVaNAL CASE NO. 57 OF 1981 OF THE DISTRICT COURT OF CHU1'JYA DISTRICT IT CHURY. Before: P. lViwamagod.a, Esq., District IViagistrate. MOHAEDS/OIV1TENJI ... ....................... .PPELL.tNT VERSUS TELHEa'UBLI C ........... . . . . ...................B.ESP0N]DE.NT CR.RGE: Stealing by a person employed in Ptthlic Service c/s. 265 and 270 of the Penal Code, Cap.16. JtflJcViENT MUNYhRA 9 J. The appellant was charged with stealin.g by a person in public servicQi- It was stated that between 3d ati th June, 1975 he stole an injector pump property of hawasiliano, Chunya. On 13/6/75 one liloses 'wamtobe (Pw3) got news that the appeaiiant had been seen with an injector pump sending it to Mbeya. It was alleged that he sent it to one hdwardMwasaga (PF.5) fore sale. The punp was traced in possession of le,5 In his defence the appellant said he was sent by his boss Nosses 043) to send the pump to Mwasaga (1.5). That ho gave him a letter to this effect. He argued he produced the letter in court but it got lost there. He was convicted and sentenced to 3 years imprisonment. he appealed to this court and was present during the hearing. From the appellan -bs submissions and the record, the alleged theft took place in Ji.ne., 1975 and the appellant was charged in the same month. The case proceeded up to the defence and then adjourned pending judent. No judaent was pronounced. The file, together with doOureentary exhibits disappeared. On 30/8/81 a fresh charge was preferred and the appellant sent to court again. In his defence he arued that the letter which he produced in the earlier trial could not be traced He said the letter was important to challenge the evidence of his boss (Pç3) who was the author of that letter. Since it was missing his defence was prejudiced. He also aked the magistrate to allow him call a defence witness Tatu, who saw the appellant's boss (lhV.3) give him the pump and the letter to send to PW.5 The mpgistrate refused the appellant's request on grcund that he was proceeding on transfer and could not adjourn the case. These two facts; the disappearance of the letter in court record and the magistratc refusal to allow the appellant to call what appeared to be material 1. 7. (2) defence witness prejudiced the appellant. Had the letter been before the trial magistrate and the defence witness called, a different conclusion could be reached. I allow the appeal. I quash the conviction which the Republic did not support, set aside the sentence and order the appellant's immediate release. At Mbeya, F.i N hR, 30th itugast, 1983 JUDGJ.