Alphonce Auzebi vs Republic (PC Criminal Appeal No. 11 of 2000) [2000] TZHC 268 (2 October 2000)

b S4_7U ~ q CY-1 IN THE HIGH COURT: OF TANZPNL AT .MBEYA (PC) ORIPIINAL A1E11N0.11O1T 2000 (FRO CHUNYA )I3NICT COURT CRIii'TPL AP2EAL NO.10 :. 1999, ORIGINAL :MWAMBANI PRILIARY COURT CRIiII.t C'SE NO. 57 OF 1999) ALPriONCAUZEBI..... .. .., i1TEflSJJ THE 2JJGNT The.: ape11ant and his cô—acused who did not ápea1, vière con-ic Of cattle theft c/s 268 and 2 of th6.. Pña1 Code. The facts do not pose any concroversy. Three head of cattle beionging to Baaati Silasi ('1) were s stolen while children were irazing them on 21st February, 1999. f arts to t 2~ ad6 them was hampered by dusk. So .PWI songht and :obtainbd.a permit to searci for them Iii the meantime Luchi'oila Lanzi ;(W2)ñd Narüfig Shija (?W3)' testified that they sw one • mn c1riiiigthree head of cattle under susecious circumstances. PV72 and :PW3 stopped and the suspect and required him to the village f Officè As they were going there the suspect cunningly du1edPW2 and PW3 thathe was going to attend a call of nature. Luchumnbila ImLthzi .(PW2). Muyunga Shiaja (pW3)flevr atv the man again he had succeeded to flee. Pfl2 and P13 were emphatic, however, that that man waneither h appe1anin&r the othe coivict who has not so far appealed . . .. . dn tthe 24th Februarr, 1999 a person who posed as the owner of the cart tie whi. ch were se i ze d by PW2 and. PW3 showe d up from Tun ,g , aa. Village which is in 1Cbozi District. He was armed 'ath a i ,. . ....

2 - permit to search for his ctt1 ; 4.: No doubt he was PW1. Shortiy, the first accused;who:did not appeal, also arrived there; he Was also carr1rIng, a search permit from his NaLutwe Vi ilage Exe cutive Officer. Beth peruts were tendered in cv rience as exhibits. It seems to be the case that the appeliants co—accused found himself in troubled waters because he ailêd to thesi.e up to the interroation. According to the defence the first ecsd Imd accompanied one Jacksola fkesela, his neighbour ....to look for ,attie which had been stolen from him. They were two :.oxen and a cow. They had a permit. s they were viewing the cattle, which the said Jackson L'&e.sela L. were his, one other person appeared and 1cci claim to the sane head of cattle. It would appar that the 1st thcuseds. clirn,over the cattle souflded improbable. He was, as a resilt, made a suspect. On his poxt the appellant arrested while he was. at the Police Station wl. he had gone tO stand bail f or his wife who was accused of havin flsefied a perut vhich, it iaa eleged, was later usoJ. in a cattle theft. He fo..ind iiayunga Snije (2\3) there whereupon P3 asked him if he (the ael..ant) still raanoered PT3. It was then that PI3 claimed that the appellant reemb1ed the man who had been caught with stolen ôattle.. The appé.1Lnt s denial could not saw his skin, The foregoing was t he evidence upon which the appellant and his co—accused were convicted. His eRl to the District Court was disaissed. I'Tc. Troago, learned ?rncipal State Attorney, has declined to support the convicions . ..vhich, 1py necessary inferrence are considered to be Unsoulid.' .. When arguing this appeal Mr. I.'tbago learned Principal State Attorney, osed the pentinont issue tobe rotating to who the stolen beasts belonged. He submitted, quite correctly, that the

t

• 3 appellant was not found in pcsessiorof:.the stolen cattle. In fact PW2 and PW3 stated cateforically in their testimonies that the man who fled was:nOt the appellant. Indeed, it was 'the first accused who prod'iced the search permit. He therefore, joined issue with the appellant in the first ground of appeal that the trial cour should have acquitted the appellant if it had made a correct analysis of the evidence. He therefore,, invites me to allow the appeal. I, after considcrin the reasons zdvancedCT5y learned Counsel and upon perusal of the records of procooths of the subordin'te courts, arc tempted to accept the intimation. - In his view Mr. Tbao opines that the c¼mvlctlon of the firat accused is equally. unsound. So he has uae the point that this Court do consider invokina its revlsionRl ioiers inder section 30 (I) of th iIagistrates Courts At, 1984, ..y quashing the conviction and settin aside the sentence as relates to the first accused. I have giin careful consideration to this pka and I think that indeed the viderice, against the first accused is not more than suspecion. Since he had a permit and its source was known, the proscution could only prove mens rea if touid have proved ioond reasonbie'doubt that the permit was a forgery.. This they could have easily done by calling the officer who, it is alle,ged, issued it. Failure to do so has created a doubt the benefit of which I must give to the first accuse4. In the result the appeal is allowed. Conviction in relation to the appellant is quashed and the sentence is set aside. And, in the exercise of my revisional pors 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 1,6 further held on account of

4 - sorneoth.lwfulexecuse, .•: .. . •. . Jud±iat snail be ceIivered by th3 Dis i.jct Registrar or 2nd Octobor 2000, J. TLCTJ. JUDGE 29.9.2000 0q Corarn J 'T • (, Karua, Ag. DR. Mr . Mulokozi,Senior State Attorney for t1lae Republic. Appellant resent 41 c/c £wa:01onge (lrs.) Court Ju,eaent delivered n Chambers ii_S 2nd. day of October, 2000, in the ore sene of the Senior State Attorney and the apelan in dock, sd' S.V.G. Karua, Ag. D.. 210,2000 .. ••' H .......................................... Certifed true co;y of the original jident. •' •.,. S.A.N.\VAI•BA DISTRiCT RLGISRAR V k 4i YIA \i /1 . H