19970704 TZCA Zanzibar

[I IN TF COURT OF APPEAL OF rANANIA AT ZANZIBAE (CORMI: CRIMINAL APPEAL NO. 180 OF 1992 BETWEEN SALE1-I Ai'fiIR ?NDU APPCLLANT A]W S. N. Z0 • •. • . ESPODENP (ppea1 from the Jucigement of the High Court of Zanzibar at Zanzibar) (Dai ) dated the 17th day of July, 1992 in * 22 of 1992 JUDGEflflT OF THE COURT At the time the appellant SALEE AMEIR PAiDU was arrested he was a boat captain and an officer in iK1. He was charged with two other people and all of them were convicted and sentenced by the Ns Court f or Zanzibar at Vuga. One of them did not appeal to the High Court while the other person, MOHNED SALH MOHANID, was set free by Da.homa, 3. The High Court dismissed the present appellantts appeal. He has come to this Court on a second appeal and before us he is advocated for by Mr. Usi Khamisi Haji, 1ea'ned Counsel. The respondent SMZ is repreEented by Mr. tihuru Khalfani learned State Attorney. At their trial the allegations levelled against the arpeilant and his co-accused were that they were caught exoorting cloves 1 Contrary to Sections 3 and 9 (1) (a) and (b) of the Clove Act, 1985; and eorting coconuts, Contrary to Sect:icns 4 (i)and 15 (1) (a) of the Control of Smuggling of EaenLial Commodities and Pestricted Goods Act, 1986. • • /2 aqq 04 2UTpXOOO itioc @tT4 o OOUCpIAe ewo 2i aXGLIl q,9Tl0qj.re oW eeq. aseM sooq Jo xeqwnu r qpqq s4seOg ns eoueptAe ei tttI qp eS ol 4no oS op soq IvooT ewo auq To eztwun qou 'ex;uoj ioipe -cctiutt[nI JT' pL 01[ JC4M w9 G O wtq to.ouiz4 o oq e xOJ Nool ol eJeq SM Ot[ iJOS STH peJnd1e qpm eq uotqm trc seouuxne,rco aqq ju teti ui 'Slq4 petuep eq JT 4uajajjTp eWt4 tJew aq4 4p eUOS aqq SEM ei eqq 4Vq4 ATe.ptULLtt OOJdU oq Speeu eu peAoxd OJCM peJt1O SetA eq qo -rqm T.fl.IM GCOUOJJO Ct Ac1TeJ Ji OS o4 IR.,To4s Cl JO MeTA Ut eOUtAO a!R 4v NOOT 9 OO e oq pt oo[e am qnq txetunxe SflotA peqzooq oq e 1-66L- £tnr t191 uo aa---)m oeouej;o PaDOT -Ce eq, o661- rnuf lqq-2L wo.x; l.oeJJe qM s Poog Pa4OTa4saj 94nu0300 pecop t°'w' o66t- ;o 68 oN eoto rse' fl.tM on zinj oq. aTqv St'M eq pife LO eSeJ ewos op o. eiUt UItL{ CA Cf JCMSLre cpei P CAt{ ;ou pip IeJTeI4)j 0,4,1 spoo.2 pOtJ.GeJ JO .UZSSe JO s4nu0000 qou .10 .1Cifl1.[M o4 sie uotqsenb et[:t u ruoo smItadd Ctfl kq p.IeMJoJ qnd squaumSxe et O. pepUOCTOeJ UtTJ ptt eq4 peotse.x itrejisuj zj4 tj jo ouoT.oenb KTT -caj !.0U e.IeM eSJ 0 tjflOS tC} lOSfi J1,4 SpUno.[B JOT.O CLfl JO awo OJ lUeAGIOX aqq JCUfl SPOOS P° JO pue9oe e.r SrIUOOOO jeqj eouepe ou OSM ejei pepuqns osTe tCH tosç %mqTzueZ ;o qno ua3re4 eq oq guicsnvo Jo 2ut)fO S94outloo qotq '9861- jo c otI qoy 1 40 V .ueIo.x OL14 JO e uoreg Jo utWsew Gt{ UtqtM 1 pa4ocIxe 1 Owiaq C.1M iaq eoueptAe eq oq pq eJeU; SflUODOD eq utp OqtwJe pti E' 4=14Tm 'q Ue LzUrtOO eq JO JCt-jOUS WOIJ eT1 3 ! nSzIq 04 ueeq pq JOOJd OU SOM Ga9tll SeAO13 e1fl JO peAOJd qOU 4TTaA@ Are ut aJeM SOUe330 p9afl'S etfl. JO SUOpeJ.Ut SM waL[4 JO eoUeSSa eqj, tadcis Jo epunojS eu9u pefl.IepUe peti; cH 'COOfl .ZJJ - -. - - -11 testimony of PW,3 ABDRAHAMN DIUJDI who was the officer in charge of the patrol during the encounter, the appellant said, right there, that he was preparing to travel to Dar es Salaam. This assertion he also made in Court during his trial. We would not ordinarily go into all this but for the reason that, given the circumstances as disclosed by the evidence, it appears to be possible that there were or could have been other people at the scene connected with the cloves and the coconuts, and who could have staniperled when they heard the loud report of a gun, leaving the appellant at the scene. The appellant says people ran away while he decided to stay put for his own safety. We found it necessary to make the foregoing observation because the Prosecution based themselves chiefly on their contention that they found the appellant and a co-accused actually packing coconuts into a bag. Against that there is the testimony of PW.3 who says three times that it was quite dark that night. It was quite dark, we cannot know if they were many... There were people who ran away... I identified the accused persons after their arrest..,. It was quite dark.., the darkness was heavy". It is thus quetionable whether the appellant, who albeit conceded to being present at the scene, was really seen handling the coconuts and, by extension, the cloves. The learned appellate judge observed during the course of his judgemerit that the appellant himself agreed that he was found with the bags of cloves and with coconuts which they were packing into a bag. We have carefully searched the record but we failed to find such evidence. Hr. Khalfan conceded that it was a misdirection on the part of the learned judge. We think so too, and wish to add that the unhappy error must have influenced the judge in his critical appreciation of the evidence. .. . /Lf IV -4- not We are thus satisfied that it was/established that the appellant was seen and identified to be one of the people handling the cloves and coconuts and we are unable to discount the appcllants version of the incident. We are therefore wary to sustain the decision of the first appellate Court. Consequently we allow the appeal 1 quash the convictions and set aside the sentences. It is thus unnecessary for us to consider the various points learned Counsel spent argument on. We are informed that the appellant has already been released. He was of course perfectly entitled to pursue his appeal. There is one thing we wish to add: The proceedings in the Regional Magistrate's Court reveal that when the learned trial magistrate, Mr. Mrnila, ordered the release of the accused persons on bail the public prosecutor said: 57 1 request your honourable Court to order that they he remanded in custody because we have already lodged an appeal to the High Court in anticpatinofourfai1ure asit hasnspired. We verily ask you to allow this request'. That request was granted, quite surprisingly in our view. We are not familiar with this procedure and we find it very strange. We do not think it was proper and we hope it will not be repeated. .. . /5 -5- D!iTD at ZANZIBAR this kth day of July, 1997. S - 4 .. L. MACAME i\. J14ADHANI LCE OF APPEAL :: . LUBUVA /4flJSTICE OF APPEAL I certify that this is a true copy of the oriil. If ( ii S. SHNLI ) DEPUTY RGISTRAR