19720514 TZCA Dar es Salaam

P IN THE HIGH COURT OF TANZANIA AT DAR ES SALAA High Court Criminal Appeal No. 35 of 1971 Original Criminal Case No, 239 of 1970 of the District Court of Morog.oro District at Morogoro before P. K. 0. Shayo, Esquire, Resdent• Magistrate RASHIDIs/oMZASHI.,.....,......,.,.,.,,.,..,APPELLANT (Original Accused) versus THE REPUBL]D . . . . . . . • • • S • • • • $ S S • • • • • • • • . RESPONDENT (Original Prosecutor) 77f/C1) 2/y Charge: Stealing by a person emploéd in the public service contrary to sections 270 and 265 of the Penal Code, Caps 16 of the Revised Laws. JUDGMENT BIRON J. - The appellant was convicted of stealing as a public servant Slis. 181/15, and he was sentenced to imprisonment for two years and awarded the statutory twenty four strokes corporal punishment. He is now appealing. The undisputed facts of the case can be summarised as follows. The appellant was at the material time a detective corporal stationed at Mahenge, the officer in charge of the district at the time being Senior Inspector Katembo. On the 12th of September 1969 the Uma Bar, which apparently belongs to and is run by the Ulanga D1strjt Council, was broken into and there was stolen therefrom SIs. 247/95 In cash. The appellant was detailed to investigate the breaking-in and stealing, and there was at the time under suspicion one Hababl Alit5 The appellant went to the house of the suspect, which he searched. He also searched Hababl Alli, on whom he found Shs. 126/25 9 which be seized. Present at the time was a sister of the suspect., one Rehema Seleman, and her \ lover. The appellant searched them both. From the \, former he took S. 35/- and from the latter S, 20/-, aking in all a total of s. 181/25 seized by him. Hababi Alit was duly charged in court and after some adjournients the case against him was withdrawn by the police for lack of evidence, and he was discharged under section 86 of the criminal Procedure Code. He duly asked for the return of the money that had been seized, and that set in train the course of events which ended in the prosecution and conviction of the appellant. As the case against Hababi Alli did not proceed to a hearing, the money seized was never exhIbited in court, but disappeared whilst in police custody. EvIdence was given by police officials at the station to the effect that when property is seized by a police officer it is first of all entered in what is Imown as a Court Exhibits Register, and if the property seized is money or valuable itis further entered in another register inscribed as " afe Reg * Exhibit Register" and the money or other valuable property is handed over to the officer in command of the police station, who naturally signs for its receipt. The Shs. 181/25 seized by the appellant was never entered in either of these two registers kept at the police station, and the police officer in charge of the district and the police station, Senior Inspector Katenibo, denied ever having received or even seen this money. The appellant's defence was to the effect that he seized this money on the 13th September 1969, which was a Saturday, and took it with him to the police station after arresting the suspect. As there was only a special constable on duty at the time he did not hand over the money he had seized to him, but put it in a drawer in his desk. That same day, or rather evening, he met the commanding officer, Senior Inspector Katembo, and informed him that he had arrested a suspect and had seized Ste. 181/25 from him and his relatives, which money he had kept in his office because there was only a special constable on duty at the thr. The officer comnianding the station instructed him to be at his office on the following morning and hand over the money tb him before 10 a.m., as he was going on safari. He accordingly turned up on the following morning, the 14th of September, which was a Sunday, and handed over the money he had seized to the officer in charge of the §tation1 He stated that as this officer was in a hurry e simply contented himself with reading the case file and without bothering to see the suspect he gave instructions that the suspect should be sent to court and the investigation of the case should continue. As noted, the officer in command of the station denied ever having received this money from the appellant, and, as the learned magistrate directed himself in his judgment, the factual issue narrowed down to which of these two police officers, the appellant or the officer in charge of the station, was to be believed; to quote him verbatim, he stated:- I ) / 'I "This is a battle between two poiioe officers, one trying to fix the blame on the other." To deal with the appellant's case first, that he handed over this money he had seized to the coiandiiig officer, intrinsically his defence displays a flouting of police regulations, with which he must have been well acquainted as he had been in the police force for ten years at the time, and at least two errors made by him in entries in the police file on the bar-breaking and theft. As noted, there was no entry in either of the exhibit registers kept at the police station as there should have been, but this the appellant explained by saying or inferring that he banded over the money to the officer in command of the station on the Sunday morning and the officer was in a hurry to leave, therefore the routine procedure was not foilowe& The police case file, which was produced at the hearing, reads at lowest somewhat oddly in so far as the entries made by the appellant are concerned. There are the usual minutes and statements recorded. What is extraordinary is that there is an entry nnnthered 11 3" in a circle, which reads 1114/9/69 exhibit cash Ss. 176/25 handed over to 0/C for safe custody" and there follows the appellant's signature. This entry, incidentally, is at the bottom of a page, and on the following page there is another entry, also numbered 11 311 , dated 25/10/69 9 setting out the progress of the investigation, also signed by the appellant. This in turn is followed by a remark by the officer commanding the station, dated the i/Xl/69,to the effect that the appellant should see him, and then subsequently, as noted, the case was withdrawn. two The first of the/errors in the.police case file referred to is that the appellant recorded that he had seized Sts. 176/25, whereas in fact he had seized is.181/25. This, he said, was a mistake. The second error was that he numbered two consecutive entries with the sane number, 11 3" which again he said was a mistake. This second 'mistake , incidentally, could well give rise to a suspicion that the entry numbered 3 at the bottom of the page dated 14/9/69, to the effect that the appellant had seized Ss. 176/26, was an interpolation, as the officer in command of the station, Senior Inspector Katembo, categorically stated that when he read the file there was no sucA entry in it. However, these irregularities, as the learned magistrate very properly directed himself h his judgment, are not necessarily fatal to the appellant's defence. In fact the learned nagistrate went out of his way and stated - and again I quote - "However, in ni considered opinion I have not been influenced so much by the fact that accused did. not comply with the procedure" etc. F Vflhat is, however, most 'damning against theppel1ant i the direct evidence of the several witnesses, with which I now propose 'to deaL First of all, as noted, there is the evidence of the officer commanding the station, Senior Inspector Katembo, who categorically denied having received any money from the appellant. In fact he stated that he did not even go to the police station on the day in question, the 14th of September, wh ch was a Sunday, but went on safari to Morogoro. Then we have the evidence of two independent witnesses. After the charge against the suspect Hababi Alli had been withdrawn and he asked for return of the money which had been seized from him and his relatives, the magistrate, Mr. Mutaki, inquired from the prosecutor, Inspector Mapunda, who in turn started making ingi iries at the police station, and according to him in his evidence the appellant gave him conflicting accounts as to what had happened to the money, but he had not - and this cannot be over-stressed - at that early stage, mentioned that he had handed it to the officer in command, Senior Inspector Katembo. It would also appear, though this is not altogether clear, that Inspector Mapunda was under the impression that the appellant was accusing him of'haviag taken the money. Be that as it may, he hauled the appellant before the magistrate Mr. Mutaki, who inquired from the appellant where the money was, and according to both these witnesses, the magistrate and Inspector .Mapunda, the appellant categorically s tated that he had the money, that is, he was still in possession of it, that he reftsed to hand it over, and that although the officer commanding the station had ordered the withdrawal of the charge against the suspect for lack of evidence he insisted that he intended to proceed with the case and would contact the Regional Criminal Investigation Officer in order to pursue the investigation. Acording to the witnesses the appellant then changed his story and said that the money might be at the police station, and then he came out with the story which was his defence in court, to the effect that he had handed over the money seized by him to the officer in charge of the police station, Senior Inspector Katembo. On my view of the evidence, the factual, finding by the magistrate that the appellant himself stole the money is fully supported and justified by the evidence.. In fact, on the evidence before him, I fail to see bow the learned magistrate could have come to any other conclusion. ' The case does not, however, end there. In his petition of appeal the appellant raises the rather interesting point that the offence in this cas6 was not theft by public servant, in that the property had never become that of the Government, nor had it 6ome7Iftto his possession by virtue of his employment, tôu,é the wording of the section, 270. The question is by no/means I; p academic, as, if it is not a case of stealing by a public servant, the offence is not a scheduled one under the Minimum Sentences Act, 1963, as it was in fact treated by the convicting court, and the appellant was sentenced accordingly. The appellant's submission, to use his own words, is set out in paragraph 2 of his petition of appeal, which reads:.- '2. That the charge of stealing by a person in the public service was not proved beyond any reasonable doubt inasmuch as two elements of the offence were not fully established - i.e. whether the property stolen was that of my employer - TANZANIA POLICE - or that of flababi Alli; and whether the same came into my possession by virtue of my employment • It Although the appellant does not set out the grounds of his submission, it is by no means without substance, the main ground being that the money was obtained as a result of an illegal search. There was produced at the trial a search warrant authorising the search of the suspect's premises. incidentally, the officer in charge of the station, Senior inspector ICatembo, stated that whenever the case file on the bar-breaking and theft came int.b his hands 4e saw no signs of this search warrant. Be that as it may, the search was illegal in that, even assuming that the appellant had armed himself with the search warrant before he went to search the suspect' s premises, the warrant is not signed by an officer above the rank of sub-inspector or by a magistrate, as it should be In fact it bears no signature at all. The question which therefore poses itself is whether the money seized by the appellant was the property of the Republic or came into his possession by virtue of his employment within the meaning of section 270 of the Penal Code, which reads:- "270. If the offender is a person employed In bhe public service and the thing stolen is the property of the Republic, or came into the possession of the offender by virtue of his employment, he is liable to imprisonment for seven years" I do not, however, consider it necessary to indulge in an academic exercise as to when and when not property which comes into possess ion of a public servant does so by virtue of his employment within the meaning of the section, as I dealt with this question at length in my judgment in Criminal Appeal No. 682 of 1969, Yesaya weseko v.the Republi, and Criminal Appeal No. 824 of 1969, The Republic v. Yesaya Gesi (appeal and cross- appeal by the Iepublic). There is an authority to the effect that. where a public servant obtains property as: a' result of' an act done, outside the scope of his authority the property cannot be said. to have come into his possession by virtue of his employment. This very narrow construction is founded on an English case. However, as stated by Bir. Charles Newbold, the then President of the - Court of Appeal for East Africa, in Rshid itgledina & Co. (Mombasa).. Ltd. arm viners v. n,oima uinners L1Q. L3t1) L,A, b4LOt with the abolition of appeals to the Privy Council, this Court is no longer bound by English decisions. Admittedly the line to be drawn between property which comes into possôssion of a public official by virtue of his employment or outside such employment can be very fine. In this case I consider that it cannot be disputed that the money seized by the appellant from the suspect Hababi Alli and his relations came into possession of the appellant by virtue of his employment. In this connection it is extremely pertinent to quote the appellant himself verbatim from his evidence:- 8 This is the search order Exh. PS. It is dated 13/9/69. I wrote it myself. I filled it on 13/9/69. 1 have searched several houses and several persons. I do not know section 34 of Police Force Ord, cap, 522. it is usually signed by an officer of above rank of Sub- Inspector. I searched house of Hababi Alli. It is not signed by a sub- inspector because my bosses were not there. In CTh cases .1 could not trace a magistrate to sign a search order because according to our investigation, work when one has received information which is suspicious and if one agrees that a delay would lead to the thing disappearing, a police officer can search. This is according to police regulations. It is not my practice to enter everybodys house. I have searched several houses without a search order. I have searched money, tusks etc. without a search order. A police officer cant go against law. Hababi Alli was mentioned as a suspect and that is why I went to search his house. I had done my work lawfully." Although I do not agree with the appellant that the search was lawful I agree with the purport of his evidence that the money which he obtained as a. result of the search caine into his possession by virtue of his employment as a police officer. \ The conviction is accordingly upheld as found. With regard to the sentence, it is the minimux prescribed by law for, as noted,the of fence is a scheduled-one under the Minimum Sentences Act, 1963. The appeal is accordingly dismissed. Delivered in Court at Dar es Salaam this 14th day of May, 1971. (Sgd.) PHILIP BIRON. JUDGE