Soni s/o Amon vs Republic (HC Criminal App No 23 of 1999) [1999] TZHC 292 (1 December 1999)

Ii-if 'l1liill fil Gli OOU :RT OF TANZANIA .APFELLATE JURISDICTION (RC) CRIMINAL APP. NO 23 OF 1999 ORIGINAL ECON. CASE NO 7 OF 1996 OF DISTRICT COURT OF SHINY.ANGA DISTRICT AT SHINYANGA BE:FDRE I P IU'IU SI RESIDENT MAGISTRATE SO NI · S/ ~ .AMON ••• • •• .. . . • •• APPELLANT VE.i."'t&J S THE REPUBLIC ..... • •• • • • ••• RESl?ONDENT Jtl.DGNENT .,.__..............._ ___ _ . M.ASANC HE: J. Th~ appellant &ni Am Oh was charged with being in unlawful / ! I . possessiAn bl: Atttmuni tion c/s 13 ·.-(1) and 31 of Cap 223 of the Laws (Firearin nd .Ammunitions Ordinance) read togethe with s.59 para 21 of the 1st schedule td the :filqonomic and Organised Crime Control Ac_t No 13/84. He was convicted by Ki tusi RM, and sentenced to fifteen years imprisonment. He now appeals to tl:ii;,-~ Court against both conviction and sentence. Mr Mwampma, the learnd seni:.:,r state Attorney who reJ.)resented the Republic has advised me to dismisa the appeal in its entirety, for he says is hns· no merit. I have read the file, and I have read the memoranu.um of appeal. The facts of the case wer~ that on 21/11/96~ the police at Shinyanga received information that the appellant would be travelling to ICaha.ma the following mYrning (22/11/96) in a bus, from the bti.s stati,-n of Ibinza.mata with bullets. The police decided to arrest the appellant. Indeed, in.the morning of 22/11/96 (at 6:30 am) the appellant was seen climbing into a bus with what ap:pea.red to be a bag containing rice. n/Sgt Eliota Pli2 stopped this man, and inspected the bag. The bag contained an inner little sack which had 363 live ammunitions. The little bag was then stacked into the big sack that contained rice. Witnesses were ealle-d. t-, see the revelation~· They were ~~-gn Kabado Pltl2, a friend of the appellant: Manase J~ 1w3, a technician who was there. We are net told where this man vras going, but he was at the bus

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2 station and ,,i tnessed the search. The appellant could not exr,lain, it would appear, wby he was found in :possession of those bullets. Indeed, even when he was sent before a justice f peace Evelin Pollse PW5, he confessed that the bullets were found in his possession. The defence of the accused at the trial was that this was the job of his enemy, PW2 rtL Kab. He said Ma tin Kabado is indebted to him in the sum of Shs 50,000/= and that this was just an attempt to divert the attention of the debt. He said, truly, the sack of rice was his, but it was given t~ him by a friend as a gift. The appellant also suggested that it could be that this other person had planted the am.muni_tion i;nto the sack to :put him ( the appellant) into trouble. About the extra judicial statement Exh P3 which he recorded at the justice of :peace, he said he wrote it under threat. As I said earlier, the learned senior state attorney has submitted that the appeal is without merit and sheu.ld, therefore, be dismissed. I agree. In fact the case, I think, is so horeless on part of the apDellant, that, really, it ought to have been dismissed summarily: The appellant was caught, one would say, in £,Faga delicto with the am.munition. The number of bullets the appellant was found with is rather huge. They were 363 bullets of different firearms - Si':iG; SAR. llIG. ~lhat ex:planation could there have been of a civilian being found with such an assortment f bullets? The search, again, was done in broad day light, in presence of witnesses. .And, nind you this was at a bus station where one would expect travellers moving back ward.S and forwards, alighting and boarding buses. In :possession and receiving cases the prosecution c·.stablish their cases when facts :proved call for some explanation and if no rea.sonabl-e explanation becomes forthcoming 7 the case becomes proved (see the case of Omparash Gandhi VR i 196L} E.A. 643, especially at :page 64 7, observations of Sir R . o Ql rl s· 1 . ) Th . t· d n, . ... .1.nc .. air. • . e oonvio ion was soun •

L@) CR.APP.N0.23/99 3 What about the sentence? It was the minimum that oould be ~etted out. This appeal is dismissed in its entirety, At Tabora. 1st December, 1999 ~ppellant: Absent For Respondent: Mr Mwa.rnpoma_.S.,.,,S,4_.