endrew marwa vs iqbal m jafery 2009 tzhc 18 27 april 2009

IN THE HIGH COURT OF TANZANIA AT MTWARA CRIMINAL APPEAL NO. 173 OF 2007 ORIGINAL MASASI DISTRICT COURT CRIMINAL CASE NO. 164 OF 2007 Before: F.N. LAMTEY, Esq; PDM MUKESHI AUSI MILLANZI .............. APPELLANT VERSUS THE REPUBLIC............................ RESPONDENT Date of Last Order - 16/3/2009 Date of Judgment - 27/4/2009 JUDGMENT MIPAWA, J. The appellant Mukeshi Ausi Millanzi was charged in the District Court of Masasi with the offence malicious damage to property c/s 326 of the Penal Code Cap. 16 R.E 2002 it being alleged that on 16th September, 2007 at about 22.15 hours at Masasi Police Station the appellant willfully and unlawfully did damage lock-up door by breaking it the property of Tanzania Government. The appellant reaped upon conviction a sentence of three years imprisonment hence the appeal. Briefly the gist of the matter in the lower court was as follows, the appellant who was brought at the police station charged with the 1 offence of armed robbery and put into police custody on the material date of 16/9/2007 caused havoc chaos and tension at Police station lock-up according to PW.1 No.F.1027 Sergent Isaya. He told the court that the appellant was kicking the door with force that the door got broken and has been insecure to date. He alleged that inspite of asking the appellant not continue kicking the door he [appellant] continued to kick it and hence PW.1 alleged that the appellant had intended to cause the remandees to escape on that day as they were about sixteen of them. The story of PW.1 was confirmed by another story of witness number 2 who was also a Police officer. E.2558 PC. Paul also like PW.1 of Masasi Police Station testified more or less that the appellant who was brought, at police station with allegation of committing armed robbery broke the door. PW.1 himself told the court like this, when appellant was put in police custody or lock-up: ...... The accused caused chaos in the lock­ up by kicking the lock-up door till its hinges loosened and I beseached him to stop kicking the door but he persisted with kicks and the door got broken..... His counter part PW.2 E.2558 PC. Paul is recorded by the learned Magistrate in his evidence that: [confirming the story of PW.1:] .....Accused caused trouble by kicking and banging the door.... I tried to beseach the accused not to continue kicking the door but he turned a deaf ear till now the door has not been repaired waiting for court decision...... In his defence the appellant decided to keep quiet but he called two defence witnesses. Aloyce Ayubu DW.1 and Mustafa Bakari DW.2 2 all remandees at Masasi Police lock-up. According to DW.1 the appellant who was brought at the lock-up on 16/9/2007 at about 10.00 pm had at first refused to enter inside the lock-up whereupon the police used force'and succeeded to put the appellant in lock-up. He said further that when the police tried to hit the appellant with a stick he evaded and the stick hit the door and the piece of the door shutter was broken it was then that the police decided to charge the appellant. The appellant’s witness DW.2 told the court in his evidence that: .... on 16/9/2007 at night I was in police lock-up asleep... I heard.... One saying enter another saying I will not enter for I do not know my offence. Accused was assaulted... at the same time he was being pushed to enter. The door to the cell were open. I then heard something hit the door and accused entered but part of the door was broken... police decided to charge him.... The appellant in his memorandum of appeal asserts inter-alia that the prosecution failed to bring any civilian witness to testify as they were many suspects in the lock-up who could testify and generally the prosecution failed to prove its case beyond reasonable doubt. I have opted to deal with only the two mentioned grounds of appeal because the appellants memorandum of appeal is coaxed with a lot of complaints, requests and what-have-you. The learned State Attorney who appeared for the Republic Mr. Mkude did not support the conviction of the appellant. He submitted 3 that only policemen testified against the appellant that he damaged maliciously the lock-up door at police station, inspite of the fact that there were Independent people at Police who could also been called to testify as independent witnesses. The appellant’s witness had told the court that the appellant was being beaten and forced to enter the remand which shows that there was a fracas that caused the door to be slightly damaged. The learned State Counsel ended by saying that there was no malicious damage in the real sense of the word regard being had the evidence on record. I have carefully gone through the record of the lower court and considered the grounds of appeal [though mixed in form] of the appellant. According to the prosecution witnesses the appellant when locked up in the police lock-up caused trouble by kicking the ¥ door and banging until its francs loosened. It appeared that when the police were trying to lock-up the appellant they encountered a resistance from the appellant which caused a tag of was interparties. The appellant’s witness DW.1 had told the court that the appellant was resisting to be locked up and one of the policeman who was forcing the appellant to enter the lock - up tried to hit the appellant with a stick but the appellant evaded and the stitch hit the door and the piece of door shulters were broken. The evidence of DW.1 was corroborated by DW.2 who told the court; .... I heard... one saying enter another saying I will not enter... at the same time [accused] was being pushed to e n te r... then I heard something hit the 4 door and accused entered but part of the door was broken..... On the totality of the evidence above it seems to me that there was a struggle between the police who were trying to push the appellant inside the lock-up while he was resisting. One of the great ingredients of this offence is that the act must be intentional and deliberate that is to say the act should be supported by evidence that it was done deliberately and intentionally. I have [I must confess] found no evidence pinpointing to the extent that the act of the appellant was intentional and deliberate in the circumstances so to speak. In the case of Juma Ramadhani v. Republic 1968 HCD No.147 the accused was convicted, inter alia of disorderly conduct iri a police station and malicious damage to property. After accused was brought to a police station he resisted being put in the lock-up and during the struggle he tore the uniform of one of the officers, this court held inter alia that I quote: .... To support of a charge of malicious damage, there must be evidence that the act was done deliberately and intentionally... This was not clearly established here. Conviction of malicious damage to property quashed [emphasis added] As rightly pointed out by the learned State Attorney in such a case it was prudent to add an independent witness to support the evidence of the policemen PW.1 and PW.2 rather than relying on their 5 evidence alone and purely although this depends on the strongest or weakness of the prosecution case. Equally I have been unable to find out any deliberate and intentional act by the appellant which could have had proved the offence of malicious damage to property. In the event I entirely and respectfully agree with the learned State Attorney that this conviction cannot stand. I proceed therefore to allow the appeal quash the conviction and set-aside the sentence imposed upon the appellant. I order his immediate release from prison unless he is lawfully and legally held in connection with other matters. • > I.S. Judge 27/4/2009 Judgment delivered today in the presence of the learned State Attorney Mr. Mkude but in the absence of the appellant. I.S. Judge 27/4/2009 Date: 27/4/2009 Coram: Hon. I.S. Mipawa, J. 6 The Republic: Mr. R.M. Mkude, State Attorney Appellant: Absent B/C: Namanga, RMA Court: Judgment delivered in court today in the presence of the learned State Attorney Mr. Mkude. I.S. IVnpawa, Judge 27/4/2009 7