19761030 TZHC Tabora

jj .. /_ IN THE HIGH COURT. CF' TANZANIA - AT TASORA - '• APPELLATE JURISDICTION (Tabora Peg.stry) CRThINPL ?PPEAL NO. 104 OF 1976 OPTGINJL CRD'INIL CASE Nt. i14 OF 1976

OF THE DISTRICT COURT CF NZEGA DISTRICT AT

NZEGA - Before: E. K. Kwilahya, Esq., D/ragistrate: MSALIKA SHABANI •O • 000• • • • ... . •... APPELLANT versus . . THE REPUBLIC .. 0*•• • • ... . . •. . . . . . RESPONDENT CHARGE: 1.Atternpt Robbery :c/S 287 of the Penal Code. 21 Obstructing a Police Officer in the due execution of his duty c/s 243(b) of the Penal Code. ., JUDGr'ENT MAPIGANC, J: The appellant herein, namely Nsalika Shabani was convicted of attempted robbery contrry to Section 287 of 1he Penal Code and of wilfully qbstructing a Police Officer in the due execu- tion of his duty, contrary to Section 243(b) of the same code. He was sentenced to seven years imprisonment on the firs.t count and to one year imprisonment on the second cotmt. The sentences were directed to run t concurrently. r0 has lodged this appeal from both convictions and sentences. There was abundant evidence as regards the charge of attempted robbery. The prosecution cas.e shows that the appellant followed the complainant, one Madeleka, in a public lavatory where he proceeded to hold him by the necc at the sametime demanding a Shs.20/= currency note which Madeloka had in his shirt's pocket. Madeleka resisted and he raised an alarm. His colleague Hassan who was nearby heard the alarm and rushed into the lavatory. ne found them still engaged in a struggle. He intervened and the appellant then fled from the latrine. He was pursued by the people who

were around and who included a Police 0 fficer and caught. The appellant agreed before the court that he entered and found the complainant in the latrine. But he denied tht there was any scuffle whatever in there. He claimed that he was subsequently picked up at a bar by the Police and that he did not then know why he was being arrested. The trial court was of the view that there was no likcljhood of the prosecutien witness having cons.. pired to frame up the charge of attempted robbery, in th't they were all strangers to the appellant. The court therefore choce to believe the prose- cution case and to dismiss as a lie the story of the appellant, It then convicted him of both offences. 0.* 0 . . -2- It seems to me that the trial court was partly right. As I have observed herein abcvc, there was overwhelming evidence with regard to the charge of attempted robory. Once the c;urt believed thQ prosecution Itneses, arid on the evidence it was justified to do so, it could not have escaped concludthat the appellant's conduct araunt.e.d, 1n law,., to. attempted roobery. The appellant cannot, in my dpinion,.:succe'eci to challenge the conviction on the first. count.T However, as properly observed, by. both the Judge ho admitted this appeal for hearing and the 1rnëd Counsel for the Republic on this appeal, there was no trce 'of evidence- - at all to show that the appellant obstuted 'a

Police Cf uicer in the due execution of his duty. Ali.tht he•.-çid,,fQl1owing the alarm was running away from the scene. Surely that was not an act Which can be described as obstruction.- As shown,: the cowd ga*e chace aiid 'caught up with him. The Police fficer who arrested him and brought him to-the Police Station did not say that the appellant ever put up a resistance. The trial Court therefore grevely misdjrected itself-on the, facts infinding that the appCllatit did obstruct a olice Officer. To conclude,- I find th- t there is no merit in the appeal from the conviction on the first count -,ne will dismiss it. The sentence thereon Is 'tbd minimum under the law afiO cannot be disturbed. •There is hoever merit in the appeal from the conviction on the second account and I will allow it and set aside the conviction and the sentence thereon. it is ordered accordingly. -. p.-- • ,, Delivered. Ir. Teemba for the Republic. Appellant in person. Tabora, '- - . D...,P.. hAPIGANC', 30th October, 1976 - ' 1 JUDGE. - -,