19870713 TZHC Dar es Salaam

Il'-1 THE HIGH COURT OF T Al''z,,,1\1lj-, . AT DAR:ES SALAAM APPELLATE JUR.i.SD.i.CTlO~ ~. H.i.GH Cf:~RT CRJ.l"JJ.1'1AL AF:?EAL 1''0o59 OF 1987 ORlGll"AL CRJ.M.LJl'AL CAS;:: !'1 0. 658 OF 1083 OF THE 0 . DJ.STR.i.CT COURT OF MOROGORO DJ.STR.i.CT AT MOROGORO Before A ■ Marerto se;ldr Resjdert Magistrat<:_ THC-lh.S HUS.SED' 0 0 C O O C (I c, O Cl C C .:; C O O ~· 0 0 0 0 0 0 versus THE Ul'HTED REFUBLlC •••••••• RESFONDE~T This ~ipeal ~s by THOMAS HUSSEI~ who, t)gether with seven other pe0ple, was corvicted of steali-g goods i.r trarsit CG•trary to sectiors 269(d) ard 265 ~f the Pe-al Code by the Mor~g~r0 District coui:;t(Marerto, SRM) ■ The a;-,;:-,ellc'"t was the 6th accused ;,.., the lower_ / · r 1 c,urt and h2 was s@-te-ced t, five years ·impr;s~-me-t fJllowing his c ,nvictior,. Briefly, the st ry ;s that o- the _;ght (ab•ut 1.00 a.m.) of 10th oecem 1Jer; 1'.~L3, at K;dugcl"' Railway stati ·.r, Morog'."lro District, wagon No .CLE 54 785 ·,f a trai,,., Jy,u,..d f,•,r K'lr:_Jwa Raj lway Stat i.or, from Dar es sal.::cam was ;)r - J<:e·· .; -t, 2-d re-,i:·le W'.~re r -,t ·; ced :-,ff-loading crates of :x-;;er fromcit a·d l~ad;rg th 2m ,-,-to a Mi:CCO L-,rry. 1 After. the loadinSi, the l,rry l-2ft headirg fnr, Fgerer-gere •. vJhe"' the loading ,f the ~rotes cf ~eer ,-t, the lnrry was taki,-.g place a- anonymous ca_ller alerted pw4 by /teleph~re at r,rgerergere Army Camp. pw 4 was a

s;ldier ard whe" he received the first call he referred the caller t~ the police. After the l~rry left, the caller telepho-e~ again a"'d this time rw.4 {.tf,,rmed hi.s superinrs. They arrarged t0 way-laythe· lorry. Shortly later(the lnrry)arr;ved at sa-ga Sa-ga a,..d pw.4 and 'C'• '.)ther soldiers stopped i.t. Qr, checki.,~g they friuro,j that there were '\.,; si.x_ passen9ers er- i.t a-d a driver. ·It was als,-, carryi~g beer. one )f_ the passer-<_;ers was the c1ppellc.,..t, Th:,mas Husseir,. The driver ard the passengers were the- arrested. The l0wrry, w~th the beer, was also taker. The ,...ext Jay they were all harded ,wer to the Police a~ Ngerergere. The appella-t and nthei~ were ther charged with the ,£fence of stealirg g·0ds ir tra~sit. ·rt may be releva-t to merti,n here als~ that the beer cor,cerned 0 ~ 0 0 ." 0 .; . 0 0 I') , 0 /2 ·: rn'h:i.s,dei.:.,;;.c•i! '- the'J::ourt below, the appellart gave sworn: ~ ,. . , ;· ... ' ·~ ": .- ... evidunce. ~s that evide-ce is brief, I wlll set it --ut here in · :· - . extel"'s~ He stated:- ' . ~~ .. ~.. . ·_.~ .. 11,· ·"'·"I live at Ruvu Daraja-i, I am a peasa-t. 8/12/1983 I we:rt ·to MWaba area, bey "~d. l''gererg~re t--, see my relativ_t en 9/12/1983 -~ went back. At Fgere·-gere there was no .bus1., The L-cal pe •i· 1 A t ,ld me that I w 'l~ld get 1,-:-rr.Les .. ' ·a:.,out 4 p.m. I g0t a lnrry_ --,f MECC0 t.-1 Chali-ze.

Its Criver agiced. We pr,ceeded tn Chal'-ze. 0"' the way to Chalj,..ze, at S,,·-gu Sa-ga, JvJ, we were by passed by a JW M/Vehicle, it stopped 'our m...,t,)r vehicleo we were all'._ , ordered t, get 0ut 0f the m/v~h'cle. The dr'ver, 3rd ·t:. :"~~ we wer~ assaulted. t·J.:: were 1 ,eked in t;] 'I office 1" their camp. ~t the camp we were 1 ,eked in the office. 01"' the f-11 ,wi•g m~r~'-g, we were take" to µ0ere-gere P lice where we were put ~rto lock-up. On •~i the f0ll,wi-g day, therecame p ,1-ice ,ff'cers wha took us {t( to vcrogoro Police. we ~fwere charged with th;s offence. I was surprised. I de·y the charge. There was a t~me we visited a certAi- h1use with the Magistrate where we were sh W" beers. the hc~se. Ther t..., a wager where we were sh~w" s0me beers. The• we repl~ed that w~ did· -t k-~w about the !J2ers .:.,-d they .,_,ere orcL:;red t--, pr,ce'::!d w; th thei.r sn.fa.ri, xxd by Pros:- I ~0,.., 1 t hove ary bus-ress. We were arrested at ,--,ighto I c1:t.d r ·t have a \vatch. 11 In convicti-g the a?pella-t, the learred Reside~t Maglstrate referr~d to the time of the arrest of accused a~d stated: nAll accused pers v's said th:1t the 21rr"'st ---.f the motor· vehicle was aft~r 8.30 p.n. Th~s accused person(6th ~• accused) said that ,twas at r;r alJ-,ut 4 p.m. What Then he stated i r, the C'.)rclud: rg part r f his judgmel'"lt in resp_ect of the appellart:- ''The 6th

accused wh·) is a reside,..t ,,f Ruvu Darajani had bee- ;,.., the lorry, the 3rd accused s;rce 4 p.m. till wher they were arrested after 1.20 a.m. H~ was ln the lorry at Kidugal, where the steal;-g t ·k place. He )crows what he did hut the pr,secut~ ~yideyce i.s that h~_ J was c1m -g the :~·0...,ple steal"· g fr-,m the wag r .• It is riot··:-_. ·1 . ~- l He1 t~0~ cc•v·cted the appellart as charged. !:_I,-~ -~"" :f" 3 Mr ■ Raithatha, lear·ed ~~vncate for the appellart, vigo~ously chhllenged the statme-ts, 0bs ,rvatio~s s-d ~orclusiors of the learned Senior Res 1 de"t Magistrate as they appear i" the passages I have r2··:-.::-::.:.'.;;;c-2d :Zr ,m_ )1 .... s ;udgeme"'t ab,"'veo As regards the time of • J. . .: ~;i arrest, ·i:r1e lear"ed Advncate complai.-ed that the Seri.or Resident Magistrate misdirected himself as the appellart cid r~t say they were arrested at 4.00 p.m., but he said, u-dcr cr0ss-exami~atlon, that they were arrested at r•ght. ca-cerrirg appellart•s participation in the alleged theft cf the beer, the lear-ed adv~cate submitted that the ResidePt Magistrate misdirected h'mself ir sayi-g that there was no dlspute thQt the appella-t was am~rg the pe~ple who broke the wagon ard stole from there. He said appell~rt•s deferce was, o"' the c~ntrary,to ~ispute the pr~~ecuti~r allegat•~,..,s that he t~~k part in the breaking ard stcalirg. As ,=v,:.,ryore ·.:· ·, h:1s eyes

t,, see Cc""' see, I th ... rk there is more than sufficient just1ficat~,,... f,... Mr ■ Raithathars c~mplai"ts/ submi~sions. The aprella-t did -~t say he a-d the .·thers were arrested at 4~0 □ p.m. He steted u-der cross-examiratl0n that they were arrc~sted at ,, -i ght. C''"'Cer.-; -g tak; ~g part "'n the breaking of. the wag or ar,d the ste.31 i-g, he categorically d2,..,i.ed th,:t. Of more import,.:rscol' c.:s l".:r. Ra·i. thatha also argued, there was r0 evidence establishing that the appellart was seen tak;_l"'g part i,.., the breaking a"'d offloadirg of the beer fr0m the wag-..-- ;;rd lca.dirg same onto the MECCO lo.!:"ry. There _; s simply "'.) such c:V' derce. The n-ly evidence which li~~ed the appell2rt t~ this cnse was his bei-g ~re of the passe~gers o~to the MECCO lorry whe" they were arrested. He explained how it cc:irne abcut that he was f._-,urd ·"'"'t<'."1 th2t i 11-fated 1.nrryo on a fair consideratl"'" nf th3t explarati~,.., 1 it car,...,t be ~aid that i. t was 2n unl:i_kely st·1ry. we .3ll k- ,w the pr:-,blems .-,f transport in the c~untry these days a-d h~w pe~ple b0ard'.ary k 4 rd ,f veh~cle they chance to come acr0ss. ~t ~s pcss\ble therefnre th2t the appellan~ was an inrocert passerger nyt0 the l0rry mertl:-rcd ir this case. For these reas~"'s, I h~ld that ther~ was Bo·sufficie,..,t evidence t0 establish that the appellant was ~ne of the persn"'S who

broken. the wagon and st0le beer from there Mr. Malaba lear-ed State Attorney, for the Republic i-f~rmed the c,urt that he did not support the c,-,...,v; cti r ei thero I do, theref-~re allrw the appeal of THOiiU,S m_;::sElJ\1 , quash hi.s c.--,-victi_r,n a""d set as; de the sentence rif imprisonment imp,sed 0,., him., I d..i.rect that he be released from prisor, forthwi.th, urless he is being helri there ·f-,r a,.. ,ther lawful causeo

JUDGE oocouooooooo/4 4 C0rarn: Lo_:,oJ·,o Ky3~do, Jo, F,,r the ,:,ppell,3 rt:- Absert. court:- Judgernert delivered t~day th~ 13th nf July, 1987. ,JUDGE DAR .ES S ,L .. i-,M 13TH JULY 9 1987