19790514 TZHC Tanga

" IN THE HIGH COURT OF TI'NZANIA AT T1NGA (Tanga Registry) .' .. :. APPELLATE JURISDICTION TDR CRIMINAL APPEAL NO0 35 OF 1978 (Origi'nal Ciminal Case N00 30 of 1976 of the District Court of Muheza District atMuheza)' BEFORE: . A.M. MBARUKU, Esq,, District MagI'trate WALES HASSANI APLELLANT Original Accused) versus THE REPUBLIC : : : : : : : : : : : : : : : : : : RESPONDENT . . (Origiai Prosecutor) CHARGES.: . :Burglary and stealing - cont±r.y to sections 294( 1) and 265 of the Penal Code, respectively0 S J U D G M E N T . JIYALALI, C.J. - . This criminal appeal case originates in the District Court of Tanga District, at Mtthçza, where the appellrt was charged. and ..convicd with the offence.or burglary - contrary to section 294(1) of the Pel Code and theft contrary to section 265 of th'e.aie Code, and was sentenced to three years' imprisonment on the first count under the Minimum Sentences Act, 1972, and, six months' imprisonment on the second count0. No order was rnade 4 r the sentences to run concurrently0 He was further ordered to pay ..ompensation to the complainant amounting to shs0:678./-. The appellant was .agrieved by the convicti.ohs 'nd the sentnces, and hence tl4s, appeal, to this Court.a ' In his memorandum of appeal he has el.ecte,.t to appear or be represented at the hearing of his appeal0 Th Republic was, hpweve, represented by . Mr0 Sekule, learned Principal State Attorne0 I have carefully examined the evidence adduced by both sides at the trial in the District Court, the judgment of the trial court, the memorandum of.ppea1, submitted by the appellant to this Court and the submissions made by learned Princip.al'State Attorney at the hearing of the appeal, and it seems there is no dispute between tlie parties that the dwelling house of P.W01 (Salima Mohamed) 2 4 —2— was broken into and various properties belonging to her were stolen I. during the night of the 13th May; 1975. Furthermore, there is no dispute that on the 27th January, 1976, that is about eight months later, the dwelling house of the appellant was searched by a group of soldiers including P.W. and 'a heap' of suspected clothes and two suspected radio sets wxe found with the appellant0 With regard to rnattets which ate in dispute in this case, it was 'the prosecution case at the trial that aPorig the clothes found with the appellant at his house was a piece of khanga which 'endered' 'kE the trial in the lower court as Exhibit A, and a lady*s frok/gown which was tendered at the trial in th9 District Court as Exhibit B. Furthermore, it is part of the prosecution case that Exhibit A and Exhibit B were among the properties which were stolen from PaW01's dwelling 'hOuse during the' niht of the 13th May, 1975. O -the'othek hn&, it wasthe defence cast o the p.pellant at his tfla'l that Exhibit A 'and Exhibit 8 *ee not amoh.' the articles th'at were found' with hin' äthishome when he was searched by the oldiers0 '' -' :'•' '. The first point for oisidèEation'nd decision In this case, is whether Exhibits'A' zindB were arnbn'the articles that 'were found by the'soldies when-they' seac1' the álI:ait1s'hQuse on the 27th January, 1976. 'The' 'only pers'oniwho was al'ied':by 'the prosecution 'to tstify: in court and who wasrOsent -'when'the ppellant"s house was searched is P0'W.2, that is-i tbrahirn Mnyuku This witness tes±ified 'tothè 'effect that the susectèd'rticies that;',wee found in the appellant's houe were laer' Idënt1fd by their owners and "wëré taken b the'p 'o1ice .sttio.:' Ur'ifo'±tunately, and this appears to be the result Of of the Public' ProsecU€or'' Exhibits A and'B were' nOtshown.tQ P0W.2 for him' to 'be' able to say whether or 'no€ 'th'''er.ëvathong 'the su'spected'"atticies found in the appé11art's h'buse.,f'Since the aooellat's defence conth1sted'bf a and B . ./3 -1 - 3- being found with him, it cannot be said that there is anything upon which one can come to the conclusion that Exhibits A and B were found with the appellant when he was searched on the 27th January, 1976. The next point for consideration and decision in this case, is whether the appellant was properly convicted. Since this case entirely depends on the appellant being found with Exhibits A and B, and since as I have already shown there was no evidence to show that they were found in his possession, it follows that the appellant was wrongly convicted. In the last analysis, therefore, the appeal Succeeds and both convictions are quashed and the sentences imposed thereon are set aside together with the order of compensation. It is, therefore, directedthat the appellant be released from jail forthwith unless.detalned therein for some other lawful cause., F. L. NYALALI ) CHIEF JUSTICE Delivered in Court at Tanga this 14th day of May, 1979, in the presence of Mr. Sekule, learned Principal State Attorney for the Republic, and in the absence of the appellant duly notified. ci ( F. L. NYALALI CHIEF JUSTICE