19730615 TZHC Mwanza

IN TIlE GIl COURT OF TALZAJfIA T IF VAIIZA. APR lATE JURISDICTION 1RG-H COURT CRfl1IN.A1 APIRI NO. 132 OP 1972 0RIGINAI CRIMINAL CASE NO. 653 OP 1971 OP THE DISTRICT COURT OP IFJSOIIA DISTRICT AT iJJSOMA - BEFORE C .J. MkRUlT. ESQ RESIDENT MAISTBJLTE. S.A.IDI EAI.SI • • • ......... 0 •••••• • • S S S 0 • • S ........ 5 4 4 • • • • • APPELLANT V ersus: THE REPUBLIC . ...... ..............•..,..,, .. ••. ...•....... . RESPOIIDEIIT CHARQ-E: 1st Ct: Being in unlanful possession of explosive c/s 24 (1) (a) of the prohibition of explosive Act No: 56 of 196. 2nd Ct: Attempted sü.icide c/s 217 of the Penal Code, Cap. 16 of the laws, JflDGMEJTT. JONATEAN, J. The appellant was conviOted on one count of being in unlawful possession of exploves c/s.25 (i) of the &plosives Act s 1963 and another count of attempted suicide /s 217 of the Penal Code. He was sentenced to concurrent terms of imprisonment of 9 months and 6 months, respectively. ws It was the case for the prosecution thct, after the appellant arrested for theft constable Shabani (2.1.2) searched him and found two packets of what appeared to him as explosives. Fe locked him up. Later an inmate of the appellant in that cell raised an alarm and P.h .2 responded only to find the appellant with a piece of blanket round his neck and tied to the window s That vrs at Buncis Police Station. The witness then forwarded the packets to liusoma

Police Station and there, it appears, constable ltaianabo (P,U .1) subsequently dispatched by post some object or objects which he suspected to be expolives to en expert at Dodorna. A report was later received from Docioma signed by an inspector of expolives in the office of the Cormiissionar for ilineral ' Resources, Dodoma. The report shows tIie inspector as having received from i;iusoma Police two pieces which he had subsec'uently inspected and found to be expolisives. The appellant in his sworn evidence would appeal to have said that person he had been arrested with dropped a wallet which he then picked and handed to 2.11.2 at the p olice station, and that the alleged pLivee were found in there, lie also denied the charge of attempted suicide. The learned resident magistrate in his judgment seriously misdirected himself when he noted that the packets were found on the appellant after he had been put in the cell. It is however clear from the evidence of P..2 that he found and seized the packets before putting the appellant in the cell. I cannot say if the mastrate, had he properly directed himself on the evidence, would still have rejected the defende. There is then one or two flaws in the prosecution case. Firstly, it was not shown with any certainty that the pieces examined by the inspector of explosives are the very packets found on and seized from the

appellant. Secondly, neither Mr. I'uena whom the report shows as having been present during the inspection, nor the inspector himself testified before the court. as it competent then for the court to receive the report in evidence and to rely on it. If my scrutiny of the Explosives Act has been accurate, there are no provisions in the Act, similar to those in sections. 154 sad 155 of the Criminal Procedure Code, under which a report by an inspector of explosives is receivable in evidence without having the inspector to testify in that regard. In icy view, therefore, no reliance should hive been placed on the report. lor the reasons given - above the oppeal on The first dôunt to o1lo':e6, the conviction being quashed and the sentence et aside. It seems dear from' the evidecc that tileop 1lantn:s found in a POStUTO from \0.lich one could-not but conclude he attempting to conmut suicide.. Pccordingly, L e -pea1 ro -th convictio -i for ate'or uicid .:ils a ever 9 of c.o ref 1r23- a ta court, it is inappropriate to pa saentenöa ol Thpriso:caient ::or this offence. J ou1d her hl-ve sub.aitu ad a ccndo'-ia1 ciecn - r a oa ±or the £ct appellant appeai to IIVC erva. tha aenaenc of imprisonment • But nic it may be in the interest of the .oplln± that the racord should not shew tlin sentenc a of 6 m.ontbs' impris orent there ia substituted absolute di.s.charge ..................................... ( JO'fTiJj) JTJDGE. 15/6/73 ±+++++++++++++++++++++±+