19710917 TZCA Dar es Salaam

AT IAR HS ALAAM , — CRIMINAL APPEAL NO, 335 OF 1971 Original Criminal Case NO. 53 O 1971 Of the District Court of Lthdi Dtstriot at Lindi Before 0, U. Mtenga, Esq., Resident Magitrate SALUM MI.AX • ., ................. . . . . . •. . . . . . • . . . APP&LLANT versus TIM REPUBLIC a. a • a a a , a a a a • e • . a a a a • • 4 • • , a a a * a a a RbPONDiiNP CHARGE: jet counti Stealing by Servant c/s 271 & 265 of the - Penal Code.. 2n& Qount: Aecaping from lawful custody c/s 116 of the Penal Code, unt Being in possessionof bhang c/s 2(b) of Cap. 134,

JUDGMENT AIDI, 0.3. It is clear from the evidence on the record that there is no merit in the appeal against the conviction on the 1st and 3rd cøunte of stealing by servant and being in poseesion'of bhng as the appellant was found in possession of the eo1en goods and the bhang. I see no merit in his defeiioe that he was given these shop goods valued at 19431/- by the oómP1ainn ) his employer, as security against his wages. By itself the att transaction is unuMual and was further- more denied by the complainant. It is also evidently clear that the appellant's complaint against the conviction on the 3rd count of being in possession of a quantity of bhang is unfounded. He claimed that he was using the bhang as medicine. This explanation cannot be accepted. Accordingly I dismiss the appeal against the conviction on these two counts. On 'the questioh of sentence I think it was unnecessary to impose a fine which could not be paid and result in the appellant staying in jail longer than necessary. A fine of 400/- for a house servant is too high as he cannot obviously pay it. A fine an we have repeatedly said in this Court must boe one that an accused person can, according to his financial standing, pay, otherwise he has to go to jail for default of payment. On count 3 I substitute a prison term of 4 months to be served concurrently with the sentence of 12 months passed on count I. I

now turn to count 2 which charged the appellant with escaping from lawful' custody. The substance of the charge was that the appellant ran away from his house when confronted by police officers who went to search his house. As the appellant had not yet been arrested then the offence of escaping from lawful custody was not committed, I quash the conviction on count 2 and set aside the sentence of 6 months 'imprisonient passed on it. Save as indicated the appellant's appeal stands dismied. Delivered in Court at Par es Salaam this 17th day of September, 1971. (Sgd..) (A SAIDI)

CHIEF JUSTICE