Criminal Appeal No

IN THE COURT OF APPEAL OF TANZANIA AT t>AR ES SALAAM CCr a M j MUSTAFA, J.A.; KISANGA, J.A. And OMAR, J.A. CRIMINAL APPEAL NO. 62 OF 1984 Between THE DIRECTOR OF PUBLIC PROSECUTIONS. . APPELLANT And JOHN MANNING. . . . . . . . o . . . . . RESPONDENT (Appeal from the conviction of the High Court of Tanzania at Dar es Salaam) (Hon. Mapigano, J,) dated the 22nd day of October, 1984 in Criminal Appeal No. 78 of 1982 JUDGMENT OF THE COURT MUSTAFA, J.A.: The respondent, with gdght others, was charged in the istrict Court with cattle theft. He was acquitted, and the Director of Public Prosecutions appealed to the High Court against such acquittal. Oji th§ application of the Director of Public Prosecutions the High Court* cyr^ered additional evidence to be taken under thfj provisions of section 151 and section 322(1) of the Criminal Procedure Code. Accordingly one Simon Mangazein testified. The High Court (Mapigano, J.) heard the appeal and dismissed it. Both the courts below were satisfied that on the crucial issue of identification the prosecution had failed to satisfy the courts that the animals, some found slaughtered and 10 found alive, wejtre the property of the complainant P.W.2 Rashidi. The Republic is now appealing to this couirt from the acquittal, on the main ground that the High Coutf't had erred in its evaluation of the additional evidence addt iced. We have carefully gone through £he additional evidence, and Wkile we do not agree with the fijrst appellate jud\$e that such ............../ 2 . additional evidence ''tends to exacerbate the doubt for it tends to confirm the contention of the first respondent (i.e. the appellant herein) that he had lawfully purchased the ten live -> * '‘ *v ' c o w f i n d the additional evidence vague and inconclusive and d<5£s not add anything to the prosecution case in any way. There was evidence on which the courts below could find that the prosecution had failed to establish its case against the appellant, and the appeal agaihst bdfiviction fails. However there are two points which call for cotisideratioh. Meat from some slaughtered cattie was recovered by the police and sold on order of the court. A sum of shs. 15,140/*- was realised from such sale. The District Court ordered this suiti to be returned to the appellant, and such oirder - was confirmed by the High Couft. It wpe in evidence that the appellarit had stated that the meat i^d not belong to him, but possibly to some other person or persons who had used his abattoir for slaughter facilities. The complainant was unable to identify the meat, and nobody had QOme forward to claim such meat. In the circumstances ^t waft.wrong to have this sum paid to the appellant. We set aside the order to pay the sum of shs. 1 5 ,140/» to the appellant, ah<4 Order that the said sum, if paid to the appellant, be returned by the appellant to the court, and that the sum be forfeited to the Government. Similarly the District Courii ordered the ten live cattle claimed by the complainant be retijr'ned to the appellant. This was confirmed by the High Cour^* ‘Oft the evidence adduced, although the prosecution had failed to establish that the complainant was the rightful owner p :f IQ head of cattle owing to ti^e^inadequancy of identific^latfl^n, it is equally clea that the appellant had failed to estalbfish tyiat the 10 head c cattle were his property. In the circtutistances it was unwir to make any order of restitution. We pgt as^.de the order 1 the 10 head of cattle to the appellant,. The parties coul-r' Civilly for the cattle when the qUestic'n of ownership co determined. - 3 - In the result, apart from interfering with the order of payment of shs. 1 5 ,140 /- to the appellant and the order of restitution of the 10 head of cattle to the appellant, the appeal is dismissed. DATED at DAR ES SALAAM this 16th day of August, 1985. A. MUSTAFA JUSTICE OF APPEAL B, H. KISANGA JUSTICE OF APPEAL a . m. omar 'JUSTICE Off APPEAL •A SENIOR DEPUTY REGISTRAR.