19701002 TZHC Dar es salaam

IJ2- Judgmeat or Order on Appeal (s.

320) Criminal Form No. 33 (Approved by the High Court under Section 352 of the Criminal Procedure Code). Summary rejection (s.

317)

IN THE HIGH COURT OF TANZANTA

AT DAR ES SALAAM

APPELLATE JURISDICTION CRIMINAL APPEAL,No ... 46. ................ OF Original Criminal Csae No........ 85?. ............................ of 19.69 of the District Court of.1lr..e5..$a1fl ......... District ....................... before ..... t .11 .. .BwhB.Wa ..................Esq., Resident Magistrate/in,ietMagistrate. . Appellant (Original Accused) versus THE REPUBLIC .......................................................................................... Respondent (Original Prosecutor) cHARGE: Stealing by Agent c/s 275 (b) of the Penal Code. ) JUDGMENT/ORDER ZIRON, J. - The accused was charged on the 27th of May, 1969 in the Dar es Salaam District Court, with stealing as agent, a radio, He pleaded not guilty, and the hearing was adjourned. After a nuniber of adjournments, when the accused appeared in court on the 14th of August, 1969, he changed his plea to that of guilty, and he was convicted on his own plea. The facts were briefly, that the accused, an elderly radio repairer, was entrusted with a radio for repair, and he sold tt In breach of trust. The magistrate took Into consideration the accuseds good record, the niber of dependents on hIm and in the exercise of his discretion and I may add, mercy, he placed the accused on probat ton 0 P Dam 10224/12-65/60m/4up .12 -: for twelve months. On the 8th of January of this year, in the Kariakoo Primary Court, the accused

was convicted of burglary and stealing and he was sentenced to imprisonment respectively,for two years and three months, to run currently. He escaped the award of corporal punishment, as he was over-age. On this conviction by the Primary Court being reported to the Dar es Salaam District Court, that Court on the 2nd of February, 1970 having found that the accused had breached the probation order, sentenced him to imprisonment for twelve months. However, the conviction by the Primary Court of Kariakoo was quashed by the District Court Dar es Salaam on the 14th of February, 1970, and the sentences imposed on such convictions were set aside. As the convictions were quashed, the accused had not in fact breached the probation order. Tte sentence of imprisonment for twelve months imposed for the breach of such order., is accordingly set aside. In view of the fat that in both cases a radio was involved, there was the possibility that the two cases referred to the same radio and the case before the Primary Court constituted res judicata. Accordingly the proceedings before the Primary Court were called for, and these now to hand disclose that two cases were completely separate and unre1ated4 The probation order made on the 14th of August, 1969, was therefore properly made and stands unaffected, though incidentely, it is now expired. As the senteñce of imprisonment for twelve months imposed on the 2nd of February, this year has been set aside, the accusedif not otherwise lawfully detained in custody, is to be released forthwith. Delivered in Court of Dar es Saiaam this 2nd day of October, 1970. (PHILIP BIRON) JUDG1.