19860128 TZHC Mtwara

j IN THE lJ-.-,-. : .. •.·. COURT OF '"ANZAN!A 1\ 'I' 'I RA ,r,i'. , ~ ---"-~~ APPELL/\'TE ,JT.JfCSDICTION HIGH COURT CRI~HNAL /',FPEAL NO. 5 l 'OF 1985 C/F CRIMINAL APPEAL N0~52/84 ORIGiNA~ CRI~INAL CJ\~E N0.129 OF 1984. 0 ~OF THE DISTRICT COURT OF MASJ\SI DIS'.".'PICT- .AT ~1ASA:SI Before K.A. Kulolela, Esq,_District M~gistrate 1st Aced. SABIHI HASSANI••••o••••o••APPELLAN'IS 2nd Aced. ADA~U SHARIF (Original Accused) "1WAISAKA verstis THE REFUBLIC ... o.eo••·····"·••o••····RE:.':PONDENT (Original Prcsecutor) JUDGMENT The District court of ~asasi cqhvicted the appellants of r . . , two counts of Obtaining goods by False pretences contrary to s~ction 302 of the Penal Code. They were serttercef to three 1 ye'ars imprisonment on each count. And quite pro;erly • the learned trial district m·agistrate. ordered these sentences to run concurrently. Both appellnnts are challeging· these convi'ctions and sentences and their appeals have beim consoli<iated. Briefly, the story which culminated to these proceedings is as foll:)ws. Th,?. two appellants wen:: employed as co-operative officers and at the material time they were stationed at Masasi. Their office came to an agreement with ··1kunguni u.w.T. shop whereby the later was to s,,11 to the former nll its share of khanga and vi te:nge which is received from M·twara Regional !'rading Company at the material time. ThesP. clothe were later fold to the employees c.f th(: co-op-c,rati ve Office Masasi, includiF : the appell~nts. The co~opcrative,office Masasi duty paid Mkunguni U.W.T. shop for the said clothes. on these facts, the prosecution i• eontending that app~llants fraudulently obtaine6 the said . khanga and vitenge from Mtwara R.T.c. by falsely pretend2.ng that ' ·• • •• 0 ., • / 2 .· ..---;---. '\ / 0 2 the said cloths were being taken to Mkunguni U.W.T. shop. with respect, the learned State Attorney who appeared in this appeal on hehalf of the Republic quite rightly declined to support the conviction. The evid~nc0 adduced by the p.?'osecuti'-ln is toe sketchy to support any criminal offence_, let alone the offence with which appellants were convicted. Of necessity, the prosecution witnesses ought to have included the R.T.c. employee who issued out the alleged knanga and vitenge to the appellants. rt is from the testimony of this ,nan that the prosecution would have beeri able to prove the alleged false pretences. As it is now, there is.no direct evidence fro~ the R.T.C. e11ployee to whom the alleged false p.l'etence was made. This elleqation i.s hut purely hearsay_. For this reason, I allow the appe~l. Convictions are qu~shed and Sentences set aside. I 1 riake n·o order for thP. release of the appellants since hoth of the11 are on bail pending this appeal. H. A. ''1sumi Judge 28.1.1986 I certify that this is the true copy of the original. ,,...\·. . ;' . -~-. v· DI;STRI<'.:'~ REGlSTRAR M T WA R A