19880505 TZHC Zanzibar

IN T1 C0UTh OF APPEAL OP TANZANIA •!.T ZA•rzIBPR (CO?g NUSTAFA, J.A. HiM1,1E J , An40 1 IAR 2 J.A). CRII'flNAL APPEAL NO, 101 OF 1987 MiJINYI NOHAM U) ABDLLLA, . . . A2.NLLANT

VERSUS S. N. Z,, . . , . . . . . , . . . OM ] LIP (Appeal from the conviction and Sentence of the High Court of Zanzibar at Zanzibar) (ilamadhani, cJ) dated the 7th dy of March, 1987 in Criminal Ao.1f1986 JUDGMEI'TT OF THE COURT MUSTAFL. % j4A. The appellant was charged with and convicted of stealing by servant contrary to section 248(4) of the Peiai Decree (Cap.13) of Zanzibar in a Resident Magistrates Court and was sentenced to 5 years imprisonment. He appealc-ci to the High Court and the High Court (Ramadhani, c.J.) substituted. a conviction of being in possession of property suspected to have been stolen contrary to section 285 A of the Penal Decree and. reduced the sentence of imprisonment to three ycars The appellant is appealing from that judgment to this Court. that The case for the prosecution wasLthe appellant was an employee of the Zanzibar State Trading Corporation. The Corporation dealt in various kinds of articles for sale, among which were motor vehicle spares 4 The appellant, one week end, was alleged to have brought a box to the shop of F,N.2. The box contained various kinds of motor snares, steering racks, engine mountings, armatures and carburettors. There was a theft at the Corporation of motor vehicle spare parts, which included items similar to those allegedly contained in the box brought by the . . . . . , - 2 - appellant to P.W.2. P.w.2 was a thop

keeper. It was alleged, that the appellant had asked P.2 to sell the spres on his (appellants) behalf. PW,2 had agreed, and the transaction was still in progress when the Police, on information received, caine to the shopof P,W.2, about 4 days later, and discovered the motor vehicle spares. P.W.2 alleged, that the appellent had brought those motor spares to his shop. P.1.1.2 ws supported in that testimony by P.11.1, and. P.W.4, both brothers of P.11.2, However, P.11.3, a neighbour, had also seen the appellant carrying a box to the shop of P.11,2, and soon thereafter saw the contents, which were motor vehicle spare parts. The appellant admitted, that he was an emrloyce of the Corporation but denied that he had ever brought a'box containing motor spares to the shop of P.11.2. He alleged that p.w.1, P.w.2, P.11.3 and. P.11.4 had all told. lies to implicate him. The trial magistrate concluded, that the appellant had stolen the various motor vehicle spare parts contained in the box he had. carried to P.11.2's shop,, and that, in the circumstances, although the spare parts carried, no identification marks, they must have been the property of the Corporation. He accordingly convicted the appellant of stealing as charged. The learned Chief Justice, on first appeal, was not satisfied,. that the motor vekicle :pare parts had be I properly identified. as those stolen from the Corporation

and could not support a conviction for stealing by a servant. He treated. P.11.1, p.W,2, and P.W.4 as accomplices but he found, corroboration of their testimony in the evidence of P.11.34 The learned Chief Justice was satisfied that the appellant had taken the box of motor vehicle spares to the 'ehop of P.1.1.2. Since the appellant did not explain how he had obtained, those spares, in fact the appellant had denied he ever had had those spares, the Chief Justice substituted a conv:iction of being /3 -3- in possession of property suspected to have been stolen in purported contravention of section 285 A of the Penal Decree, Mr. E1—Maamr3r appeared for the appellant before us. He submitted that there was insufficient evidence athiuced at the trial to support a finding that the appellant was in possession of the motor vehicle spares. He contended that the Chief Justice did not give any or any sufficient consideration to the evidence tendered by the appellant. Since both the courts below had found that it was the appellant who had brought the motor spare parts to P.W.2's shop, Mr. El—Maamry's submission has no merit. He also submitted that the term of 3 years imprisonment imposed by the Chief Justice was excessive, and he suggested that the Chief Justice had er:ed in assessing the sentence since he had relied partly on the value of the said motor vehicle parts said to be worth shs.

100,000/=. He said the value must have been less, as abs. 100,:0004 covered 19 items, and only 4 types of items Were allegedly in the possession of the appellant. the ' Mr. Mtembei forL Republic began his eddressp us by , submitting that the learned Chief Justice had. erred in substituting a conviction of being in possession for one of stealing. He submitted thot section 285 A was an additional :', section immediately following section 285 of the Penal Decree and was brought in by an amendment to the Penal Decree by Decree No. 1 of 1980. Decree No, 1 o 1980 was further amended by Decree No. 10 of1985 and in section 6 of Decree No, 10 of 1985 a prosecution for an offence under inter alia section 285 A Tshall not be instituted, except by or with the' sanction inwriting of the Attoxey Gcneral. We think that Mr. Mtembei's point was that in the absence of such a sanction by Li —4-- the Attorney General the appellant coui not have öcen convicted under the provisions of cection 285 A. We are satisfied that the learned. Chief Justice had erred to have purported to rely on the provisions of section 285 A. Section 285 of the Penal Decree is invoked by reference to section 18 of the Criminal Procedure Decree, n:offence. onneted.wit.h the conveyance of, property-suspected to have been stolen or unlawfully obtained. Although the, scope of Section 285 A would seem wider than that.of section

285 we think that section 285 A was basically designed to enhance punishment and for forfeiture of goods L'ecoverd to the Government, in respect of offences of the type caught by section 285. The Chief Justice could not have invoiced the provisions of Section 285 A in this csc. . iiwever thd Chief Justice bcould have invoked the provisions of section 271 of the Criminal ProcedurcDecree in .suietituting a ponviction for possession of suspected stolon property. I Je, will correct the order of the Chief Justice by setting aside the :aforc-nce to section 285 A of the Penal Decree and in place thereof substitute the reference to section 271 (1) (a) of the Criminal Procedure Decree. Mr. Mternbei othc-rwise supported the conclusion of the Chief Justice, an8. sumifted that the accomplice evidencc of P.\i.1, P.W.2 and P.w.4 .. . ... . . .. .. . . .. .. .. . . . . . . ... f.. was corroborated. by the testimony of P.W13. He also submitted that the sentence of 3 rears imposed wa not excessive. In: our View, the order of the Chief Justice, as corrected, was justified on the evidence. \Je do not think that the terms of 3 years imprisonment as sosever as to cafl frThterfence d1ths the açipeal i1i its itirety. ........:' ........ . , a •oft• /5 .. ... ,. . . . I DATED at Z TZ.IDJR this 5th day of Hay 1980. A. JTUSTiVFA J.USTIC_OFAPPE • L.r N. MAKkIE

JJJSTICE OF LPPEAL A. M. A, OiT:R • JUSTICE OF IiPPUAL • I certify that this is a true copy of tue oriins1, • // <J, H, MSOPFE)l SENIOR DEPrm R[flISThiUi.