19750607 TZHC Mwanza

IN TELE HIGH COtJRTOF TATZANIA I • ATT!A1TZA . APPELLATE JuRISDICTION HIGH COURT CRINAL J.PPEAL No. 514 OP 1974 -original Criminal Case JTo. 134 of 1974 of the Distrit Court of Shinyanga District at Shinyan.ga before H.A. Msuni, Lsq. R.M. RA.SIIIDI KAPTJITLO . . . . . . . APPFLL1NT (Original Lccusad) versus TT i1HThLIC . . . . . T?ESPONDE1TT (Original prosocutor) ,CHJLRG-E 1st Count' Consp1racr to accuse a person falsely of a ___-- crrne c/s 110 (a) of tho Penal Code. • 2nd Count &. Giving false infomation to •a person onp1oyd, 3rd Count: in the public sorvico c/s 122 of the Penal Code. 4th Count' Fabricating evidence c/ 106 of the Penal Coc1 0 J1JDGiITT iATITI, AG.J.: The ppo11ant Rashid Iaiu2.i10 hereafter to be roforred o as the appellant stood charged at1i another as hereunder — lt Cunt: Conspiracy to accuse a p9ro 'faey of a craiz c/s 110 (a) of the Penal Codo. 2nd Count & 3rd Count:- Giving false iniornabion to a person onployod in the public ecrvc fs 122 of the Penal Code 4thCowit: Fabricating evidence c/s 106 of the Penal Code. Thus on the above indict onts the appellant and another wore tried before the District Court Siinyanga. Th e applant el wa convicto1 on all counts whilo the 2nd accused has acq .i .uttcd on all coun -uab ho appellant having boon convicted on all counbs, was :sontenced to. 5 noi-i -ths' inprisoient in'±'sect'of counts 1 9 2 9 3, each and 12

months' mprisonnont in respect of Count No. 4 sentences to rim concifrrontiy. The appellant ggrioved söeks. to appeal to this Court both age inst the c onvic Gions and sentences. Mr. Tukunoba, advccato for the appellant did 'forcefully and construe uively at.ack the learned Resident Iagistratc's judient on one hand and the procecution case on the other, contending inter alia that the magistrate Tadiroctod hjsolf on the burden of proof, that horo wac no evidence that dia'onds had boon planted, and that P.1-7.14 should nOt have been relied upon and that the learned trial Roidont LTagistrate fatally failed bo consider the defence case. I must say tho sub±issic.ns for end against groimds of PP1: have received duo \caht in bhc consideration of this case and I add thereto, n Oxprossions of ray indebtedness to their efforts oxhibited in the hearing of this appeal. In view of the round'3 of appeal and sulriissiono by. both :advqcato' for 'the appe1lsn and ,Stato Attorney for the Republic subjoct.uig the evidence to critical analysis as is roquirod of me is not only desirable but a must. • 'In this case the control figure was p..vi.8 Bonavontura Salala tho General Manager 'of Taa1znia Cotton Authorit rho officially arrived at Shinyanga on 3/10/73. 1-Ic lodged at 51 't1LiTD GI TOtFSE.ROOMNO.3. nteceddiit t€i'hisarrival this same r'oon had' boon in the ojyiicn and occupatioli of the

2i.d accused ABDU ISSA and wha apparet'1y was rousted by the management to give iay. This ABDU ISS. is also an employee of. he Cotton 'Authcrity as • driver stationod a Shinyanga. The apc.1lan± wasialso an employee of Tanzania Co ton Authority M\anza whore ho was also a Chaiman of bhTókOrs' Conitto'ë. He had accopanicd P,7.8 teothor with others, fro the irport and it as the appellant rho - 2 - tcok P.7.8's unlockalilo cuit casc'oaad brief caso, into room No. 3 on arrival at - S iinaland Guest. House, 'while. processed the roe tion roquirolTionts. . It would appear that from this .jimcturo the appellant is not hoard 'of, except when P.'7.8 handed him his papers with instructions to, deposit tho:' in P07.8 1 s rOcn, only to have then fron the room of one Mohi. on 4/10/73. 1-lowovor as per ,ovd.onco. oiC P .VJ.19 IHJRD'•NGLSL the apell .'and 2ndcuscci roquosted him to open for then Room 1 71o.3, 2nd acusod saying he had forgotten his belongings therein. It is not ouggostod that tho appellant did make any advances to P.19 but what. 2.nl:a cus o d' did could be understood in the circumstances, that ho had' previously heen'in occupation. But whatovcr transpired between P. 17.19 and 24d accused, the two fourid'their way intothc roorL flyway, and wor'o Eoän sitting horein, and in fact when P.W.8 catie back he found the door unlocked and having found everything in. thc room in ordor ho

had no cause for suspicion. Ifho chocked and. found overy. thins in order and assuming soie hing had alroc"dy boon plantod then, this was the opporti..uaity for the Jiscovory of dianons, Hoiovor I shl1:c oia1 0 &o 'that siibsoqjuontly. To be pointed out and found, is that not only did the appellant and 2nd accused ei.tor this room, but also one IMMA P.7.5 with his g1cstthd:thc sane. I on not sure whothor'if P7.19 refused the 2nd abüsCd and appollant entry .nto room No. 3 he did the sane to•P.W.5. But what&vor a' caço foü±. . 310 did ontor that room. a .5/10/73 P. 1,7,8 p'oparod for his dopartire, an& ..after bidding fOrowollto the R.C..P,W.8 wesconfrontd.•byPolice Officers P.W.16 B.1063 Wa' Lowis, and P.17.17 Z.19 D/Sgt. Vincent who searched him for diamonds reported tobo in his possession but none was roc-overod. It would appear that P.17.13 'Lspctor Lucas go-b :thi 'infomatizbn from ii Halfani P.17.14 on 5/10/73. ::P.W.14 toC.tifiedthát he gave in'onnation he'had got from the appellantwho wonted thQ sad man P.w.8 arrested. Thu whoroas .thQ. police did. dutifully oa rh the person said his belongings and although nothing was rcovorod it cannot be doniocJ. that this search must have been iniiatoId by some in1oration received. This inuiaba,n wes voluntoorod by somebody and actually P.7.14 is the one P.17.13 Thsjector Lucas pin-pointcd. P.17.14 told the Court

apparontlr.unflinching1y thç.t i1 was the appollan -b : we'll haown to him who told' him that one' oron,sn 'occupant of Rooi No'. 3 9 and who was about to loavo was. in possossionof diamondo and that he wan.tod him arrostod. The trial Court believed the ovidrnco by P.17.14. The advocate contended that this nitness should not ha boon boliovod. If I were to agree and conccdo with this suthission, I should certainly show why he should not be believed. The' trial Cour- which saw the witness in the actual 'procos.s believed the evidence. It was in bettor position to judge the credibility of the 'itnoss and there: ' nothing to show that in so doing the C:out was not jutified. There isnothing to show that his crq:dit was in any way eroded. So that tho, trial CQ1rt 'S finding that indeed it was the appellant 'who - passed', or caused P.17.14 to passtho 'same to Police, was inevitable. The position therefore appears to be: that P.W.13 Inspoctor Lucas was given infornation by the appellant through P.W.14 . that P.1708 had diamonds • The sbarch was conducted and no diamonds were found. Since no diamonds were found and yet the appellant had reported their presence, ho must have laiown that the inomation ho was giving was false' and must have caused the policoprocoss that 'took place. I therefore' hold that the appellant was rit1y convicted on count. No • 2. 110w Count No. 1 - conspiracy to

accuse falsely of a crno. From Shinysaiga p.'W.8 wont to Mwanza via Isanayu Jt Mwanza P.17,8 'was lodgci in NevrMwanZa Hotel Room No.., 314. Jtcr visiting the CotonAuthority offices P.17.8 together with others went uO the airporG only to be sorc1aod again, this.titicby P.17.3 D/Sgt. Major ,uida1lã. B.1169 D/Sgt. Lhnad ,Hassani P.17.20 and sir pieces of diacnd found on his box seized. P.U.8 was subsoquonLly arrcstod. Tho scqucniae..,ofr ovens at i' anzo appear to have boon that P.17.1 B.615 P.C. Siun was approached. by the apollant, . nd to]d ' somobo.y had disonds,. 'P .17.1 had to icfer the .. apjellant to .P.VT.2. B.4728 D/C 'John to whoi .tho appel- : t .disc1ö.d the nnof posscsor. ofdiahonds as Stalal ra that he had boon soon with dicnönds altar the nOoiing, Tho • a.LpoJJcnt wa s further roforroL to P.\13 L.5410 D/Sgt. Major Btnth11o, jib tho appo11ait bold tht tho dia"nds woro in suit caso, six IDJ.CO Cortainly asstn±ag ?. 17. had bought thori, he would not have siown bhen to tio':appo11ant or auyiody Lor that nattor. Farthomoro it does not a1poar that the apDO11aat had accos•3 to th suit. ase:of .P.vr.8 cx.copt ()fl two occaG1xis wnon ho took .,ho sin case into Roon No 3 and when he and 2iid accused were ia RoonNo. 3 in disoledionco to P.W..19's. r'isLanco to thoir en -bry In any caso tho socarch by Shinyana Pollc3 siow that P•.w.8 1ed no diEions at Shinyangá aiid shovi

that. the • appellant Jhad no planted cny. The trial court made no finding on this, but novortholess Irofuso to.accept :thc appe11antt.contdntion that he Te nt to Police Sicion at the insthnce of Pelico in Gho face of vicloncc cf P,\1.2, P.1703. For if this wcs the caco ho should have ono straight o relevant opartticnt and actually if hoy nad been ohrwiso t1jpcd that Salala had diaz'onds they wo4d nt have noodcd hLo scrices. It would have been a nator of o1ng whore ha was for the soarch. Jith bna above in :iind the in t riguin g apoct of the apollant s case is his rcpor-b of donond posoOsion by p. w.8 ot Shinyana. The 'p ,oli,qoi. adtion rovoalod no diauonds at all. During the soaroh at Jhinyanga the apjellant we s not there and his ovidcno e has it that he 1pvcr sa nor transported Salala nor drove hrn to Mwanza, nor airport rind yo -i he oos to P.'.l, P.V.3 and reports Salala had dia.'ionds. Bobh roports 1 oro na3o by him and 2nd tine indeed dianônco woro found as he had said said pieces in the nuribcr ho gave • He had no access but imow 'horc thby \voro. This means thoro must have been sonobvdy vho must have been feeding hn' on data of hat wa going on Aseuing he did this as a good citizen at Shinyanga certainly unlos there Vas a scheme behind it all, the frui bless search would have rondorod hiii silent but porsistoñt reporting.. no.w.at, MWanZa Police,, and curacy. as to the

lob'stion .e.. the scn,.pcmit...oii inference thab thero.i:aus: have 'boon a L roup intorostod and iiitont on the arrest of P.W.8. In the circunsiancos one has be concede that even ifl P. W .8 wanted dritv'nds the Of mbarrza. ssiiig search that ho underwent at Shinyange should hav ;±ihibItod his couago to acquiDo or carr tlie' sae. lfl'i the., very sare suit case and ac oxpcsed as that. It is my view that ho was a victi of circumstances ho was ignorant of. On chargo of conspiracy Mr. Tukunjoba loudly pointed out Lhat once the 2nd accused as scpitod than automatically the appellant sculd:hae boon abqutto.d' 'à in law a single hand cannot corait this offence. As a general p±ooitiáh of law I agroe with hia and Iwould have nothing useful to add 1 But thq. charge above is that the .ap.ellant, 2nd accused and others unlmo\ln did conspire. This to ny mind noons that convictiOn of eppallant for conspiracy with others uniniown is s ill tenable • The question now should tharof ore be whether there was evidence to provo thi' count. The evidence adduced and analysed above fit in with the observations and findings, of fact., '.ThC ap5oil-- eiit's rul.tivo position was such be did not have accos anc9 yet throarj some remote c oartrol machine rr ho 1rnc i what las happening. If the a)pcllant was a law abiding citizoi. a fact which ho ants u to believe and ho appoars ho imow the one who had

diamonds before they wore so planted, he should have tipocl the poliQo. to that effect. t not'ith- standing the fact that no dinonds were found in the bcsioii 'bf' P.W.8 at Shinyanga, the app011th -b kept quiet till Mwanza next day.whon they had already boon put in the suit case to tip the po:±co- ~' -- Thus boaring in mind tnat he himself had no access to P.W.8 and considering that the diamonds ijorc ultjn5tcly found at ais oin instance it follos the appellant iiust. have boCn"1rnovrlcgQablo as to when •'thb szie \iould h5L put in and he ust have boon aaro of the ins ri'ntalty 1' or the sane and a party to it end there nusi have been s no other human instruutnb in this.gano. '• . , . ,' Mr. Tukunjoba did of courso, dutiois to his .cl±ont 8ulmit'át length on this count of conspiracy ..snd flacldod I must point out that the law of conspiracy has boon and is b gardian iniob o rany jurists, particularly - 4 in itLb application an.d if I Jaad lain right Mr ukuaajoba'roa1 ccn -bost was tho 1ay i t \7S ap1icab10 . Howovor the chargo is conspiracy to accused porson f1se1y of crmc. L1 hi cao as CX'gUOd boirc and ri,ht1y in uy viwr the ppo11ant raust havo rood to an Im 'n whet va oin on. Ls it is trito law that a co..is jpiraoy consists not ro1y in ho intn uion 0! tWO or rioro , but Jia'. hc aroot'ont of two or :'or to do unlauful act or to d' a lawful -:- act- by ±i-avul Loans more

doign in intontion is not onough. But i,hcn thoy aroo to corry it into oiToct tho vcry plot is an act 111 itelf anc. tho ct oi aeon of the jartioo, 1Jrorusc against prornsc abus c' a- GUfl- capable of boing onforcod 1f lawfula .. pirnishablo if for a ciinal objeci. or 2cr ho usc of crinm3l nearis. -. I nutpin-'out - that as far as pr-;of goes inforonco from- the appellant or accused conuc done in pursuance of an aparont c-riinal: purpose- -in- ÔonLion -botwoOn thO prties. whobhor all Imown or some, is pomissiblo. In tio insbant case considering the appoflant conth.ct tolling -p.W.14 fat. Shináng that- -there-was .onobody in Room Nd 3 who had diahonds (did hot nontioh naid as though ho - did not - Irnow hiu) his insiatanco that he would like him a±Tested, whilã the police did their duty without recovering anything.. In Mwangatie appellant personally oing to P.i.,land subsequently to P.W.2 and P.1.3 alle ging that P.7.8 had six pieces of diononds and actually the same having bOon difrd in the hunbc-rs,'--when on the; record he has had no accossto the box thab contained in the s&io, n o r o P. T,L other than the irio he took box in Sukvnaland Gucs b Houso and when h entered With 2nd accused againet the' will of P.L.19, but all the sane thO dianOnd.s wore fbuad as the apellthit said, Ac ting as 1 do and - so did the tiisl -agistrate- that P.W.8 was unaware ti.ea the - same must

have been plaai±od. It is equally infOrable that ijhoovcr os lrnown to the appellant nd frora the appollantts conduct to P.W014 that ho wonted P.7.8 arrested and to P.TT.l, P.\I.2 and P.703 I fd -it incirituble to - conclude that the planter of diamonds .a3d the appellant rust have had oorien inion -bion for an agreed counon purp:so to have P.w.8 charged uith tmlaviful possession of diaonds. Cñng to the 3rd count - giving false infoation to a person onployod - in pttblic -oxico c/s 122 my view is - that the trial magistra- to having' hOld-:as ab vo asho was entitled - so to hold', a finding that -P.T.8 could not be said-to thavo been in conscious posseaibn of dianond then a conviction in respect of this -co1.tht: was a matter of urgency. - The whole ovidonOc inny view -is a bundle of concoctiOn ranufa-'ctur'bd-againsLP.W.8. It is my fur,thex view that this Was- - purposefully croo bad to bhc 1rcjudice of. P.W.8 and it is my inovtabl opinion tlia b the 4 ch count was properly proved. On the i'h'lo I an satisfied that the trial magistrate did not isdiroct himself on burdcn. of proof Ond tho prosecution did 0 6, tabll3h its case beyond roa03nablo daub -b and ho defence was rightly rejected The appeal against conviction fail toally therefore. Now I cone to sentence. Ho ns sentenced to 5 months' inprison- ndn:t -on counts 1,,P,3 and l2'rionths!- imprisonn-an-t-Ôh 4bb- -Obthat

- sontencos to run concurrently. I am by no moans saying the sentence wa-s excessive but I must point out -that the appbllat n dOngwLat - - - he did, he iust have Torkod as am instrument of some aspirants. I cannot countonafico hor the appellant, a driver by oocupation, stood to gain by involving himself to this extent. I think he tTas a v.ctim of forces whose nOchination he did not avc ho mind to understand. Llthouh I wi, in agreement v ith the StoCothisoi -bhat the sentence 10 not xcossive I an inclined t6 - - reduce it to 8 ronths bcoring in mind that ho has suffered cno.ah. The sentence on 4th count is theroi'ore reduced to 8 months imprison- ment. Th ampoal - -bhbrefbro succeeds to that extant but otherwise - - - dismissed. Delivered this 7th day o f Juno\l975. - 7th June, 1975. - f.JIJTDG-E