19721222 TZHC Mwanza

IN THE HIGH COTRT OP TANZANIA AT 1,17ANZ A APPELLATE JliRISDICTIT -- HIGH OCURT CRThIB.AL APPEA1 No. 316 OF 1 972 Original Criminal Case No. 914 of 1971 of tho_Distrct Court of Mwanza District at Mwanza Before H.A. IVti Esq., R. M. WAZIRI HUSSHEN JEMEDAR . ............... (Original Accuse ci) / versus .......................,,..1ISPONDET \7 (original Pioocutor) CHARGE: 10 Counts $ Forgery c/s of the Penal Code 10 ! Stealing by Servant c/s 271 & 265 of the Penal Code 10 u Uttering false dooiiaerrt c/s 342 of, the Penal Code. JIJDGEPENT E1.-KINDT, WAZIRI HIJSSIN JEMEDAR was charged with id ocuvicted of ten counts of fQrgexyp ten counts of uttering fe1sedoctóc-xt, and ten counts of stealing by iervcuit contrary to sectio.s 337, 342, 271 and 265 of the Penal Coda Cap. 16, For each count of fbrgory cnd uttering falso document, li wao sentenced to impriëiment for one year, and for eaohount of stealing by soro- ant, be was sentenced to imprisonment for three yees The •terms of imprisOfl - meirt were arcl.ered to run concurrently; thus giving the appellant a substantive tern of imprisonment of -three years. He was ordered toa3ay Slis. 1 1 90q/= to the East Afrioan Posts and Te1ecniiunioation Corporatio. He appealed against c onvtetionz, sent ac as ad der The appllt was presant at the heeri.ng of this appeal. He was leard arguing his case, in addition to what he raised in his petition of api 5eal. The respondent Republic was re'esented by the learned State Attorney Mr. A.A.F.Massawe. The app&-lit was employed by the East African Posts and Telecouniô.r;l- is Corporation (hereinofter referred to as the Cop&ation') as a clerk. He was vtbtioned -at the Post Offige of Nansio in Uka:revia Island during the years 1967 and 1968. The evidence is unclear as to then he became stationed at Nensjo ei wheniie left there â1thouh in argument it Was stated that lie oad been tlerefrai 1965 to September 9 19684 According othe Head Post Master, Mwanza, Mi Kazige (P.W5), it Was the duty of the aFpellant to deal with mey order, Savings Bank, receiving of restered 10- ters and te1eg'anw, selling postage stnps, and receiving parcels. Cpion' Joseph (P.W.7) held o. Sayings Bek acôuiFwith Post Of.ce Savings Bank at Nansio as per pass book N anslo 1044 (Exh ,i) Acà ord.ing to the records, he oi ene d this ac c aunt - on the 7th day of February, 1966 9 with the initial deposit of Shs. 3 1 00(=4 He signed, a deJ,ration forii (ExhP2) when he' opened whiz account • It bears hi ne-ma y addres the first amount posited - Shs 3,00Q1c, the account nunliar and the "Ua1 siiate' 1 of the account holder He issued with a pass bock, naber Nanaio 1044, and the anoint of Shs. 3,,000/= was shown therein ao the iirs &tomit deposited. The sam, book showed that on' the 8th dy of Pehrarr, 3.966 the holder deposited another sun of'.Ehe. l,00Q"=. There are, some other entries on the deposit arI the withdraia1 ides, I shall refer to these later on in the course of this ji.dgenient. Zia holder (P.W.7) kept the pass book with him, and the dec,aration forn (Ebh 22) was kept with the headquarters or the savings bank of the corporationinDar cc Salaan. So t:oat in effect, the employees of the corporation, atNansio j did not have the specimen signature of the pass holder with them. It appears that such emp1000s would be required to rely on the hold erts signature c it appeared in the pcaia book whenever the holder wanted to vvithdaw some money fron the Corporationt.iJ Saving 1 a Bank in his aecount • The procedure of withdrawing money, generally, was explained to the trial court It appears that the holder of the pass book would be required to hand over his pacs book to the cliork working in the savingt a bank seäticm. He would then be issued with withdrawal forms, to, i1a this ease 9 as forms SB 21. If the holder was npeble of filling the forn, he would do it himself or herself and si in the space provided; -2- if the holder was incapable, the clerk per:ittod to fill the £n for hin or her, and then the holder would be required to sign in the space prdvi Upon filling the said form, it was given to the clerk who then handed over the required anount to the ho]er after stisfying hinself that the simture on the signed withdraw& forra Is reasonably similar to the siature appóoiing in the pass book and that there was sufficient fuio li-i the pass book. After paying the amount required to the holder, thi clo±'k would enter the amount withdrawn in the pass book stp the entry before the pass book was handed over to the holder to tak it away with him. In this case s the recbri showed that Cypi Joseph (P.w 9 7) withdrew Shs. 200/ ch on the 23rd day of Sept ember, 1967 and on the 15th day of Dec eoiber 1 1967. These entries appear in the pass book (Exh. P1), and in the two withdra\/ei. f'ns (di.Pi) . L. 1 and P4 (b)) There was'no'doubt that the signatures an Dxli. P4 (a) and P4 . (t, were those of osdph (P.w7) . It was also admitted thai the handwriting oi ExJi. P4 (a), P4 (b) andIl was that the appellant as he bad, at that io assisted the holder (P.w.7) to fill the forms as he a?poared either incax.h.o of doing so iainseJI or he requested the appellant to help him do so and, as stated, the a: pellaxrb could help. Ton w±thdrawal fdas dated the 16th day of A'il* 1968 (Exh. P3E), 20th day of 'kpl, 1968 (,Er), 25th day si April l968(ch. P3D), lOthday-of May 1968 1 (Exh. P30), 18th day of' May, 1968 (h:te. T'3B), 2 9th dayfMcy, 1968 (Eth. P314th day of Junc 1968 (Thth. p), 1th day of Jie, 1968 (Eth. P31), 24th day of June1968 (Exh,P3H), and 7th day of Augiist'1968 (Exh. I3G), were foind, and these i11eged that a total sum Of 3h. 1 1 90Q" had been withdrawn by Joseph (P.\7.7) on his pass book P1). These fns were filled by the appellthit but one of the main issue was whether the signatures appearing on then tiero or were not of Joseph, and whether Joseph had in fact withdrawn the amounts specified in each one ci' these ti fois. It was the prosecutio&s case that these withdrawal fono$ were forgerids made by the appe1lant The amounts withdrawn on these forms: were proper4 entered in the daily account Of ithdroels p'epared by the appellant for the relevaut dates as per Exh. P5 (a) (i) ir1usive. It appears that according to corpo'atio&s savings bank procedure, these daily accounts shotd be made daily and they reflect vth.,± bad been withdrawn by the various savings banks account holderC on each dayt. However, the a11eedioi-ts on the ten withdrawal forms, did not appear in the pass book (iith. P1). It appears that the omission to make such entries is not necesm -.a a serious omission as the headquarters of the SainsBonk in Dar es Salaar. can check the pass books, the withdrawal farms, aaint the declaration form the error could then be corrected by making the entries in the pass book, bwt in this ease the omission appeared to be too many d therefare called for investigations. When investigations began by the Oorphratith Inspector (?.:4; V it was on the question why they had not been entereclin Dxli. P1, and not whether the signature on then and the actual withdrawal forms were not genuin - Portuxaatus William Gayas (P.W. 3), who was responsible fol' reconciling the accoits for each pass book holder, was satisfied thatThhe signatures on the ten withdrawal forms were reasonably the same as the one he saw with declarat- ion mm (Dxhp P2). Bit Police investigation raised the issue Of thegenuiieoao of the ten forms when they were banded over for &rtho±' investigation. They were then referred to the document examiner A.S.P. Kii.za '(P.Vi.2). The speci- men siiatures of the appellant id those of Joseph (P407.7) were sent for the purposes of' comparison and study As a result of his study, ASP Kiiza said that he could nofconrct the signature of the complaimant, appearing in Eda P1, P2, P4 (a), P4 (b) and P6, with the sigiiatures aptOaring on the alleged ten forged withdrawal forms. Similarly he failed to Ooii±iect the signature of the appellant, as supplied in Dxli. 116, with those eoaring on the alleged ten farns 1eOrtheless, he said that he was posivo that the conplaina.it did not sigd any of the alleged farms. He gave his reasons for saying so. As a result, the appellant was arrested and charged as I have indicated above. In his defence evidence, the appellant said that he should be acquitted as there was no connection between hi.ft and the alleged documents as the prosecution evidence itself disclosed, He submitted thst P.W.7 Joseph told lies in this osse, and that to his Imowledge, Joseph•reived the amounts specified in the ten forms and that he was now turnjñJ tail because he wanted to tdke advantage of his innocent omissions to make the entries in the pas book; The trial court, vhile havingregard to the dee±sion of this court in the case of SAIDI 13DAILAH v. R. (1970) H.C.D. 62, held that the omission to make the entries was signifieent. The appellant could not have erred imna ten times, and that it was a deliberate ouission dann with intent to cosrht I I —4- withdrawing nancy., as explained above, s lax, and cnplrees working at the Corporatio&.s savings accounts banks could not be cape etod to Imow each and every savings bank account holder. As reasonable ol; they can only reasonably tde it that the person vt1idraeing the money, in the absence of any weta susici, is the pass book holder.. They ±e also not experts to be able to notic the fine differences in the siguabuoa which A.S.P. Kiiza saw. Therefore, vrith d.e resct to the lean'ied State Attoy and he tria nastrate, I an unable, for these TeC5OflS to upho,d the conviction of the appellant, as the charges were not iroved beyond reasonable doubt. Having ±egard to what I have held in respect bf the convicttons, it is not flecesstry, any more to consider whether the sentence and order iYaposed were legal.. - CEDER: Convictions are quashed. Sentences and order set aside. Appellant should be ielehsec1 fort1vith uiilesa he is held on some other lawful purpose. Delivered in Court at Mwanza an the 22nd day of December, 1972. 1 - Z.IT. El—Ki.ndy 22nd December, 1972 JUDGE Appellant p±esent. Mr. Mbilinyi - State kttney for Republic.