N

IN THE HIGH COURT OF TANZANIA - -

AT ARUSMA -j APPET.JTJATE JURISDICTION -- .. HIGH COURT. CRIMINAL. APPEAL NO. 174 OF 197 (C/F MISC. CR, CAUSE NO.27/7&) - (C/F CR. APPEAL No.187 OF,1978) ORIGINAL CRIMINAL CASE NO 0 298 OF 197 OF THE DISTRICT COURT OF ARUSHA DISTRICT ATg ARUSHA \ BEFORE: E. N. MUNUO (MRS), E5q0 9 Resident Magistrate PATRIC MASA1E c ) ç,4683 P.C. WILLIAM MAGOTI) (uild) versus THE RPUBLIC ............................... RESPONDENT '(Original Proseou.tor.). -_

JUDGEMENT MROSO J. This is acon,solidated appeal inwhich both appel].aitt$ 4 were jointly charged in the lower court and convicted as are chau1eriing the tonvictions. and sentences imposed on te The appellant Patric Masawe whom I shall henceforth in udgmeñt refer to as the first appellant for convenience was . sharged with and convicted cn four counts, on the first co$t he was chargq4 jointly with one P.C. William, henceforth to be referred to as the second appellant, for soliciting shillings k4i/ as a bribe. on the second count he was charged alone with re.tving shillings 2,000/= as a bribe. on the third count sharged, again alone, with defacing bank notes • and in th.. sourt he was charged alone with destroying evidence. W The first appelant was a Primary Court Magistrate at tke A.risha Urban Court and the second appellant was his court ,roeJ,w t was a,leged before the trial cOurt that the first appe1ai* been hearing an assault case involving an Indian businessm Aiusha. While the case was adjourned for judgment the second appe'lant allegedly approached p.w.3 1 a brother of•the Ind&aWe e was pending before the first appellant, and suggested t e should see the first appellant for a possible lenient sejpe ?,W. 3 claimed he saw the first appellant who indicated he ige&4 si.3.1ings 2,0001=, in the meantime the Indians had reported 4 the A.nt.4-Cerruption Squad in Arusha of the

intimations by the seØ appellant. The Squad therefore handed to p.w,3 shillings 2,Mjf. all in lOf= notes whose seal numbers had'been recorded ftc dentJ.tication in the event of a trap which they were layiz sueedirg. The money was to be h5nded by P.W.3 to the first appeli.ant in Levolosi Bar in town later in the evening as had alJ.egedly been m xtu ALly agreed upon by the fitst appelLant a*d squa4 officials were around at the bar to - arrest the recePiQAJ' of the money. the Later in/night of that day the first appellant was arree by squad officials at Levolosi Bar on the claim that he had v5se the trap ffi4y as a bribe. The arresting officials also c1ae4 that on confrontinç tha firt apPellant he took from his pc the bundle of th 2,0001- shillines notes nd started teartrtg a gçod number of thera, intenc:-v- - o estrcy evi -ience. The scZd offi.cials nevcrthcl.s er-- -- apellant and afte e second appell - rt hc.d en dO following -day, 2 were The learned resident Magistrate made no reference at all to this alibi. She did not say if she believed or disbelieved the appellant and his two witnesses when they averred that the first appellant was not around in r.evolesi Bar during the period P.W.3 slaimed he met him there and the demand for shillings 2,001 as.a bribe was made. Certainly the two versions - the defence and the prosecution cannot stand together and the learned Magistrate

was dy • bound to make a reasoned finding as to which.of the two stories she believed. Having not done so, it was a misdirection on her part t arrive at the conclusion that p.W.3 met the fIrst appellant at Bar in the afternoon of 29/3/78 and that the latter solicited fe bribe without considering the whole evidence on record relating • e •fence of soliciting. LookIng at the whole evidence myself, paaticul.arly the ünreliab1L4y of P.W. 3 who had claimed to haye k(w •Viat shillings 2,000/— was requir9d even before he met the first appellant while in another contett he appears to have knowfl of te amount of money rEiquired only after he met the first appeflan, 'I çap bJerefore say with certainty, though it is not necessary to be that the alibi put up by the first appellant could not be trie. As regards the offences in the second, third and fourth COyo in the charge sheet, all against the first appellant, the 1eaned re5.de magistrate made so many serious. rnisdirections of the law that t#e *wtins cannot stand. First there was the evidence of P.W.I, which, if acceptd squarely the defence of the first appellant. This wes letacted a statement he had earlier made to the police. The Pir which was led by a Senior off icet of the Anti—curruption Squad wh. 4so a lawyer, did not think it fit to seek leave of the court 4p him (P.W.I) declared hostileo In event the prosetion left the with two

conflicting versions of their case. The learned trIal Ma while at first she appeared to be of the view that P.W.I's evideçe "must be taken with reservations if justice is not miscarried" Ioeeded to pick and choose the earlier statement of the withes ' to 4te police as the correct evidence for she saJ4 " We do not believe that P,W.i read and certified his •wn earlier statement because he was threatened that he would be put in custody by POW.8. The statement, zxbt. J. was recorded soon after P,W.I witnessed the arrest of accused No.1. His memory was then fresh and it is most unlikely that the 0 sad officer, P.w.8 would antagonize a witnes he had requested (sic)". There are at.least two errors here. First the contents Statement whieb P.W.I made to the Police was not evidence in eefore 3ald not be used as supporting the prosecution case ai presented iA court. Second, as the witness had already retraçed f the court had no right to consider it as his true and correct Vep Leaed £ounsel who appeared for the first appellant cL*ed tJe tria, magistrate various case authorities among which was Julius Matendechere so Nasekhu v. Regina Vol.XXIII (1956) E.A.C,4, p• o3 Tme p ption trat the prosectt.on ..4d zo ppesent and case, leave to court two alternative and confli le • " sly e trial magistrta Jushed aside this argument by sayiflg " tat (Matendechero case) was a murder case which d4.nquishos it from the ç9rrup.tien cr-so before us". that was a liisconception of the law formulated legal priripe z% inapicable merely because the cac in which the principle ijag , ppQundd was on a charge different free enother in which it is sueqUtiy cited. I also find tnc' in the defence argtimeitt ja 4j since the psacution claim to aye rr c th first appellant i* •- 4 bar futt