Alphonce Auzebi vs Republic (PC Criminal Appeal No. 11 of 2000) [2000] TZHC 369 (2 October 2000)

IN THE HIGH 00UR IT OF TANZAPTA ATHEYA (pa) LI1AL A2PiL N0.11 or 2000 (Ffl OM CHUNYJ ),I 3 J?rI CT COURT CRF a i'A L APPEAL NO.10. OF -1999 ORIGINAL MWAMBANI PRIMARY COURT CRIHIN.L CjSE NO' 57OF 1999) 1RSU . 4 THE REPUBLIC.,. ,. . . , ,• , RESPOT] L he appe ilant and his co—accused who did not appeal, were convicted of cattle theft c/s 68 and 265 of the Pe na1 OoJ.e. The fccts at not pose any conGroversy. Three head of cattle oelonging to Banati Silasi (?t1) were s s-to1en while children were Erazing them on 21st Pebrusrr, 1999. Efforts t.o trace themws na pered by dusk, So PV1 souht and obtainod. a permit to se rch for them. In the meantime Luchibila j1flZ1 (P12) and Mayunga aa (P3) testified that they scw one man driving three head of cattle under suspecious circustances. P512 and PW3 stopped and the suspect and required hItti to the village Office. As they were Coins there thépëct ôunningly duped PW2 and PW3 that he was goiri to attendal c1I of nature. Luchuithila Minzi (PW2) MuyungaShiaja ( PW3) never sw the !ma1.gain; he had succeeded to flee.. P42 and PW3 were emphatic however, that that... man was neither the appellant nor the other convict .ho has not so far appealed. On tthe 24th Februarr, 1999 a person who posed as the oaer of the cattle which were seized b PW2 and P\V3 :shvU up from Tthwa Village which is in ]Ibozi District s He was armed with a • 0 .

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permit to search for his cattier No doubt he was PW1. Shortly, the first accused who did not appeal, also arrived there; he was also carrying a search perm'Lfr hi s Naabtkwe Village Exe cutive Officer. Both permits were tendered. •i.n :d.ence as exhbits. It seems to as the case that the apella1t , s co—accused found himlf .10 in troubled waters because he failed tO n3csure up to the interrogti o. According to the defence the first eccs4 had accompanied one Jackson Mkesela, his néighbour, to look•'or; attle which had been stolen from hini. They wore two oxen and a cow. They. had.apermit. As they re viewing 'the' 'àtt1ë ivhich the said Jackson I&esela said were his, one other person appeared and idOlàim tothe same head of cattle. It would appoar that the 1st aceusedvs claim over cattle souided improbable. He was, as a r6sult, made a suspect. On his pert the appellant was arrested wi1e he\ was at the POIiCC Station he had gon5'to stand bail for his wife who was accused of having flsefied a permit which, it was alleged., was .1ater u.ed in a cattic theft. He fouia I\ayunga Shi ja (2\i3) there whereu1on F13 asked hin if he (the ae11ant) still ro icnoered PW3. It was then that PV3 claird that t.ie appeI1ant rsemb1ed the man who 1Id been caught with stolen catt1e The appllant s denial could not save his skin. • The foregoing was the e.vid.ence upon which the appellant and his co-accused.were cotivicted. His appeal to the District Court was dismissed. Mr. Mbago, learned Prircipa1 State Attorney, has declinod to support the convictions which by necessary' inferrence, are considered to be unsound, When rting this a1:ee1 Mr. Mbago, learned Principal 3tate Attorney, posed the pentinent issue to be rotating to who the stolen beasts belonged, lie submitted, quite correctly, that the:

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• 3 .. appellant was not found in ]possessionof the stolen cattle 0 In fact P1,72 and PW3 stated cateforically in their testimonies that the man ho fled was not tiie appellant. Indccd, it was the first accused who produced the sorch permit. Ie,therefore, joined issue with the opoeliant in the first ground of appeal thab the trial court should have acquitted the aijeliant if it had made .a correct analysis of the evidence.. He,- therefore, invites me to allow the appeal. I, fter considcrinr, the reons 'civ-'nced by learned Counsel and upon )crsal of the records of procoocL.i'x,s of the subordA.nto courts, arc tempted to accept the intimation, In his view Mr. Mlb ,ago opines that the conviction of the Inst accused is equally unsound. So he has i o.e the point that this Court do conaider invoking its revision'l 000rs under section 30 (l)of the ..his.t.ates Courts Act, 1984,: by ouashing the conviction and settiñ aside the sentence as relates to the first accused. I have given careful consideration to this plea and I think that indeed the evidence against the first accused is not more than suspecion. Since he had apermit and its sotirce was known, the prose cuton could only orove mens rea if it •ouldr have proved boyoild reasonb1e dottht that the permit was a forgery. This they could have easily done by calling the officer who, it is alleged, issued it. Pilure to do so has created a doubt the beflefit of which I must give to the first accüsedo In the result the appeal is allowed. Conviction in relati.on to the appellant is quashda and the sentence is setaside. and, in the exercise of my revisional powers in terms of section 30(1) of the Magistrates Courts Act, I quash the conviction in respect of the first accused and the sentence against him is set asife. Accordingly, each of the appellant and the first accused is discharged from prison unless they Ite irther held on account of . . 9 ./4.

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• 4 - sortie other Lwfu1 execuse. JucL1ent shail be delivered QD by th3 Disiict Registrar on 2nd October, 20009 J. . TiACIkT- 29.9.2000 2/10/2000 Coram: .T.(Karua, J. DR ... . Mr. Mulokozi, Senior State:AttbThey for hRepub1ic Appellant -rësent . ...... . ...... .. . ... .• ......... c/c Idwaka1onge (Mrs.) ............................................... Court Juc d ,eent delivere in Chambers 'h1S 2nd day of October, 2000 1 in the 9resene of the Senior State Attorney and. the apellant in dock. sd: S.G. ICarua, Ag. D,T. 2.i0.O0O .........:...,, . ' . . Certified trlA.e cop.y of the original jud'rent. TA S.A.N. V1ABURA ' tp ,. D IS TPICT ?LGISTRAR ii 1 .:. .. . . .