19800504 TZHC Arusha

covoA IN THE HIGH COUIiT QF TJhiZLHIL. JT iRTj jTTj. 12EIiL[TE JUPJSDICTIO CHIIbIL IIEII JO. 49 Oi h)79 (Orijinal Crininal CaseJc. 92 f I 75 of tho District Court ci O.4ha) HhTI:: ... . • .• .. • . 111 :U3hIC ., .,. • .••eo hiPO1T3LIT/PROSECUTOR - UTLLSIUE[O,J.: On 14th June, 1979 I alloid tho sipcel of 7iatibu Ha.mza, quashed his conviction and set esidc t he senienco with the result that he was allowed to resuLie his liberty unless further inLcrned for SOnG other known and lawfal c a aso • U ievcr, I reserved J5 reasonsf so ordering bU promised. to dive them ma juddoment to be délirered in due course. Today I feel disosed to outline the said roasons in the- coarse of this jsne.et. 1L lObL iiril, 1979 i c/c d Liö by Tana D is- ot ie'rt f3 oo r j s, ariLonG iiaistrate, guilty c ealind D S sorrar •:.... 7... iL the etLic service, i 25 ) I s1 sas sentoroed to and a half yari.:..i1T:.rh arioved by that dcc isi: m bilc convict apcals7. t. :hs: c::..rt hirc.ath the services of Mr. T1raeib; a Tar.:a soi. Th1s feo Iespondent (RenaThlic) w L 3 thly ro.rcs:.Ls by hr. .1 7arrnod State ttornoys It was in evidence boforo the treal C:;art thcat at the material -bLoc the appe11an was a cashier with the Forestry Departarb in Tanda where 0110 E1ireheen hthueiani was the Redio.nal Forest Officer and therefore ; the boss of the appe11at. The abpollant was handlind a fund known as "Forest

Industries Production Unit tmd" and it was sbated in evidence that Shs.75,000/- had been handed out to the appellant in his capacity as cashier handlini bhe above named fund. The money would be asod for buyin. forest products which would then bc sold at a profit. The ap:ollant used to hand over se o ew1s to tio employees of ry Form the Dosart.aent ubon sinins, wiiia u:.s war.......... 'Drcasur No. 10' entitled as 1e isibiuwe dew tear/Ohoqac" and they in turn weald dO out to bay :Lorosi r:•edwet art resell them at a irofit and rofund the oritimal ar::...t ee hoc aeo1lant but bank the profiss. Upon sabceibtirh she cc. :..tal :co.aiere .ich had been ssuod c tno employees s toe Dp ..........ec seed tee aspollant would . -w - ' . .. * J. - -2- hand ovor,. th Treaaury Fo s Io . , .. 0" . dcc; rsnncive :. epLoye .to certify the o te . :cLL12c of the said rienioe. The farlh ted. iate h. cis,a bek joa1d. be loched hC SEfO While t.JCSO CUI CotoC- WOlIlO 00 hODt in the drawei'. Oil 7 0fl OLI t;O5 C0.L Sns.75 2 000/- and a sh.rt:of oho. 25 2 73/35 eas dieeovered. few days prior to find -bi c a euLec; load. yrio i. hahez. rlhoroas he said thc' hit- e Po icic Th T oe (1 .i) d sent h]a thero the I bter edated that iho a. hand had ono there on • his own. Darin that absence of the rappeh1a1; P7.1 rang to the Rerional Crime officer Tanr.a aj:k,. .ascod ho to check the ape11ant's books of

accounts. It is tna ciccchin that revealed the aileded shortade. In hts defence the apeliant adjaitted havin roceived the Shs.75000/- and n1so conceded to the existence of a shoroie of Shs. 25 9 739/3 hut ho o unoen tiat one :oiiey coorisinfie shorteoo hod boon taJ:uei by officiols in the office for the roj oct and that ene :rLccJrcc ri filILind the TF 10 fear had been erdn fuobn:r oadr r fiat when he .H.wont aroe be 1iaezah icr I ft arcot:. if 10 ILL hin table dracr . ac ho c.ae beer: all orb tia..cad 3 had disappeared and he 'eria dma in cocc an aLh. L tb: nnollant tarthor 'i 'b .. ri iady iaatind that his hr on 1: aincu, etboer trio :1 co a. ac _ao:e from. him from lh' •ro cl 'and i b a. ai::i ic t. /r arcs ho iacb left- • in the da:ar;aho'd bci daiLJrJy 2/ia an. J';r:arod. iicod all this bac0OaOLILOO ia. lerro trial naistrate • .saw it f ii to find..:he o:aorblani b:iity and sontoncod hin as indicated.aleovs1 • For the.appo1bLant ii was. c.niando by his learned • . Comse1 I.ir. MraoJa that the learned trial Resident Madistrate • arrived at wronC conclusion in view of the iackroi.uad of the case for it was further contended that the harden vine shifted to the appellant to prove hie innocence. Admittedly this was a fatal nisJiruotion arrh no wonder the learned State Attorney reTiedo: ca his reluctance to support the Conviction. It would erjpocar db.i -: .e a saeoct himself f

o r hr ajar: ransacked the ofiic ,ri rho' i/and in the latter's absenco and taken no/arT sane ibri'no chon: oam'c::nod monies some of which bb:r:ood ins sabject .':atr Ci "ia coerm • .• •• o _ -_ - t -3- He was the one who deliberately sent tee acliant to M1aoza to cause his aesonCo an. the Police. As did ar:ue the learned. Cooncl I. alJa.TL the case raised.a reat doubt in the Th•oseo ;±on OV1L0i1CC and in consonnance 111th 0fl3 CIU.L1J'C.aac;L -. O1rLOS CI cricnnal trials that dcaht should ha :on resolved. in favour of the appella.nt. This the trial count :o±l. to d.o. On his lart the lo ned State A:;tdrney, ac.iond other things, dated that P.1.1 had ec:os -ar ose f his own to serve and.ss such his evidence required soac corroboiation on the material points. In support of'his submission the learned State Attorneyinmy view, ridhtly cited. the se of Paulo Mri.jii v.Republic (1977) 111'& IV LOR.T. n.34 in which 'Hon.. N.S. Mnzavas, J. (as he then was) now J.X.held: "7here it appears that a witness rey have some purpose of his Own tOi:erv0 inivin evidence the Court should warn ite1f as a matter of practice of the dancer. of actin, on his own uncorroborated evidence similar to that which is aivon in the case of accomp1ice&t • In this case the evidence of the Police as to the checking could not be said to hác. corrcboDaed that of P\V.i for the latter had access to the drawer of the

appellant before he called in the Police. Anythifij could have occurred, in between.. The learned State Attorney went on to point out that - in this cae Vl had a terriljle interest of his cwn to serve and that appatently the trial .aitrate also found this . witness unreliable and yot ho 'La8 hot cautioned himself of the daeQf rolyinj on this viitness He concluded his subnissionby statind that for the above teasons the conviction is inuppertah1e. For the saoie conctthrent views of both id.os of this appeal this Court also respectifully found the conviction unsupported by the evidence and the law hence the order for roloasin. the appellant as indicated abovc. I hope since that order the appellant has peacefully rostned his liberty. 1. cjr, .1..) oL3. • L! j!. Tri;ton at. Iiaio,ro. 0: i1 5th, 1930 Delivered in open Court at Aru.sha by •.................. on behalf of the anthor of the jud,:omont this . . :day of .. . .19.. lLuiC ULL '•. .For ApcliLani: