Shaibu Abbas vs Republic (High Court Criminal Appeal No. 42 of 1998) [1999] TZHC 55 (28 June 1999)

t IN THE HICH COU1T 0]F, TANZANIA 2 AT, 11 1]3EYA HIGH COUP. T CPIMINAL APPEAL NO 4 2 OF 1 998 (Original Criinal Case No. 712 of 1997 of the District Court of Mbeya Disti'ict at M'eya Before: PA.Lyimo Reident Magistrate) 8HAIBU ABBAS APPELLANT Versus THE REPUBLiC RESPONDENT JUDGIENT The appallant Shaibu s/c Abbas was convicted with the theft ^f a radio of h16 ount one Aisha d/o Mussa and shop breaking c/se 266(1) and 265 of ; the P C. He was sentenced to 5 years imprisonment and to pay restitution of shs.38,000/= the value of the radio eassette stolen. On apeal to this court he was granted ball by this court pending hearing of. the appeal. The appeal was heard and the appellant was represented by the learhedNr. Mwang.le (Advocate) and whereas the Pepublic was represented by the learned Mr. Boniface (State Attbrney). Both learned counsels for both.adverary sides could not support the conviction and sentence and prayed for the acquital of the appellant and for his release., from the jail. The basis of.the conviction of the aupeiant as held by the trial Magiotrate the learned Mr. Lyimo (PM) was that the appellant confessed 'to PW1 Aisha d/c Musa to refund sto] en the radio orally and in writing as per exhibit P1. There was a clear misconstruction of what the accused is alleged to have confession. In exhibit P1 and in the testimony of PW1 what the appellant admitted was in these words, to cfuite from hiC written admission:- "HATI YA KUKIJBAEI. Leo 11.7.97 mimi Abass Nimekubari kulipa Radio na kama si radio nitalipa fsctha sIis,38,000/ taxe.he LitCrally interpreted the swahili quoted words mean in Erglish says that:- .0000*00 0000,000

Document of Admission ..• Today the 11,7.97 I Abass admit to refund the radio failure of which I will pay cash s1hs.38,000/= on 27.797.' These words were certainly not a confession to the thft and burglary at all but merely an undertaking to refund the radio in kind or to cash The background, of the burglary and theft justified the appellant to bare this cross of refunding the radio0 The theft was an inside job done by Abne or all the suspects including the appellant were employees of the appellant0 When the business closed at 10.00 pm on the day in question the keys to premises where there was also the shop of the =-,-iplainant were kept by the of a the appellant s employees. When the door of the complainant was found broken next day and her radio cassette stolen the appé1ant to appease the comrlainant so that they remained good business neighbours agreed to settle their differences by him refunding the radio or its value. But, burglary and theft can not be founded on an afterward admission to mitigate the complainant 2 s loss by refunding him the radio or its. value. The convicti•n lacted any other concrete evidence and after all the key holders to the prenissed leaving to the broken shop of the complalnant was not the accused at all but his employee. It is the employees who kept the key or the night who would presumally be the likely suspect for these offences. The conviction was wrongly entered. I quash it. The sentence Of .5 years imprisonment and order of compesation of sh.s.38,000/= are all set aside. The Accused : shall be released from imprisonment and his bail sureties are hereby dimcharged from the bond0 (Sgth) E.L.K. MWIPOPO JUDGE. LL9 Coranu Hon. i1wipopo, Judge Appellant: Mr. Mwangole - Absent: Mr. Mkumbe Advocate present - Holding the brief for Mr. Nwangole. Appellant: iosent in person0 00000000000 /

-3- C/C Nwakalongea Judgement delivered in the absence of the appellant but in the presence of his Advocate and the State kttorney.

• (gd )E.L.K.W'JlPOPO 1 rUDGt p THAT THIS I A TPIJE COPY OF THE OPIGINAL DISTRICT PGISTRAR