19911007 TZHC Dar es Salaam

Distr:i_ct SHOM ..~HI K1\.TEl',,B/J. Ml,S;1NJil. ...................!-.•.AP.7ELL/J.NT -VtRSUS REPUBLIC, •••••.•.••. , •·•·• •·•·• •.••.••.• ! •·• '·"RES?JNDENT .. ',- :·.,./,. JUDGi;...BNT MIOIAW.A, J' The appellant~ SHOM/~RI KATEMB1~ 1L:1Sl,NJA, is ap:,:iealling against both convi~tion and sentence imposed on him by the District court of Kilosa It is oommon g:..•ound that the appellant was convicted by the trial oour\:· on two counts i~volving unlawful possession of arms and ammunitions oontrary to section- 13( 1) of the •• rms and i".mmuni tion Ordinance cap.:~23 as read togehtor with paragra:,:ih 21 of the first schedule and section 59 of the Econo~ic and Organized crime control ~ct No. 13/04~ It is furt~~r eomuon ground that the appellant was sentenced by the trial c-ourt to a concurrent sentence· of fifteen (~5) years imrpisonem&nt, . The appellant in his petition of appeal has ~aised six grounds of J appeal which can . conviniently . be summcrised as follows:-. 1~ There vas no concilu~ive evidence to show that the fire arm and rounds of ammunition unearthed from his paddy field were this and not of any other person. 2·. The conviction was based on u·ncorroborat3d evidence hehce illegal.- The appellant who appeared in this court in person maintained that when .)lis,- house was searched on June 28,1988 nothing incr~winating was found· in his possession. He therefore urged this court. to ao_uit him of both counts as , the said arms and awmuni tion were not conclusiv·1ly proved to be his property. In rebuttal Miss Kiwan~a, the learned State ~ttorney, contended that it w1s the a:;_pellant himself who in themahriel date led the prosecution witrfesses PV~I Corporal EL.Ill. and PW.2 Corporal I3LCK, to his paddy field to unearth the buried rifles, 28 rounds of ammunition, one round of Semi automatic rifle, one roun-d of G-3 ammunition and 12 balls, This being the state of affairs, he ~an not now the· heard to deny the owner of the said iteams which are the subject matter of the case against him, The The learned State Attorney further contended ;that the trial court found PWI and PW2 as credible witnesses. ii.s they were colllJ_Jlete strangers to the appellant and had nothing against:!1ira there is nothing to dol.l.bi; the vera6ity ~f their testimoniesn i \ 2 ' Having f~gard to the foregoing t~eie appears to be only two ., points for consideration·and decision. The fi~st point is whether in-_:·the cir~_umstances it can be sai,.:;, that the ap,2el_lant was in law :tou.nd iJ posse'~sio'n 0~ ;'the ~1:iicl · fire arm and rounds of Bllili!Ulli tion so clS 'to hold him liable under the relevant provisions of the law preferred agains~·him. The other-point is whether the evidence of PWI and PW2 is credible and sufficient to be a basis to ground con'viction against the appellant. ... It is oommon g~ound that PWI and PW2 .were members of .the Defence foroes (J.f.D.,.) who at the relevant period were involved in ''Operation Uhai", That being the state of affairs and in the absence of any evidence to show why they should testify against him I have no material to doubt thei~ version dnd hence their vercity. The only q 11estion' now left :£or consideration and.· decision is whether the available evidence establishes unlawful possession within the meaning of section 1301 of the Ordinance (Cap.223). It has nbt been contrav~rted by the appellart in this court and in the lower court that the paddy field where the .. said i teams were buried belongs to the app~llant and that the discovery ~f tr.e buried teams now in question was by the appellant himself. The appellant further failed to prove ~r to raise a reasonable douht , that he was not the owner or did not know of the 1 resenc: of much iteams being buried ir. his paddy field. This beinr the state of affairs the trial m2.gist·rate 9annot be faulted f-0r arriving at the decision which he did. In the final analysis I uphold both oon~iction and sentence of the trial court~ I ~hus disuiss the appeal, in its entirety o It is so orde·red. JUDGE Coram - Mkwawa,J The appellant i~ Dh~gnt - Mr MwengGlla State AttornBY, for the Re2pondent. - cc. Jane J. J. HiK.WldiA JUDGE 7/19"91 0