Luziro s/o Sichone and Another vs Republic (CRIMINAL APPEAL NO. 129 OF 1997) [1998] TZHC 2265 (19 June 1998)

.... MOSHI 1 J. ~ I:, IN THE HIGH C:)URT OF TANZANIA AT MBEYA. · CRIMINAL APPE!-1.L NOo 129 OF 197 tFrom the decision of the istric Court ef Mboz:t,· 9.t Vwa.wa •in· ':!-ri:::bal .case N.5 ,r 1996 Before: J .--L ... ,·Lu-p3nza - s~mbr D/Nagistrate) LUZI2C S/0 SICH'.ONE · )

• APPELLANTS KENsTH 5HU:?I OI' SOLDER s;::ur.:-;GWS~ I Ver,3us THE ·REPJ3:.Ic ••• ~ ••••• .,. • ••• ! .... o RESPONDENT ,) .. JUDGMENT . ·,,., .... The first an·d second• appellt, Luzit'o Siehone and Keneth .Shupi alias , Soldier Silungwe, who were th~- first ~ second aeeused :gers_one ref!peitiv:ely, .... ' . and five others, Denham Mbongwe { thW accused), Wilbert Konzo "Chaganya 11 . (. , . (fourth accused), Erasto Pilla (fifth -acU:sed) •· liud Petric.- (six'th acused), ' and John Sal:Mamarnba (seventh accused), were jointly indicteo· · l?f{ore, tne di13trict . • . . I . ··-tf. . court of Mbozi for Armed Robbery, contrary to secti,ns·285 and 286 of tke Psna.l Code, as amended by Act No. 10 of 1989. They all plead~ 1Y>t e;ailty t~ __ th1,1, Before th9 hearing cammeneed. t.e _eharge againet the fourtt, :ifth, sixth. anc. seventh accuseds was y,ithdrawn undr section 86(a) ,,-r ti ... e Criminal PJ'.'ocedure . , Act 1985,. arid th·ey wer_e discrgedo The third accused died after giving his .. e,, defence·, ·but he· was nevertheless cpnvicted.:ef the offen;e ef Being b posset?s;i.on ,.. . . . . . . . . . . of property suspe•ted- .of havi.11g· being stolen or 18.wf'.Ully a.cque, __ contrary to .. · . . section 312 of the Penai Code, ad no sentence.was passed. The fi:::'st and second appellants were convicted as charged and each sentnced to the statuti·•ry minimum . !:;"'.)risoent term of thirty years_. They were aggrie,.,-e,- by the conviction and ,;':_,ntence, hence this appeal which wa-s preferred and argued before me by their learned advocate·, Mr. Mwakolc, of M/S Mwakilasa'. anti Ci,mpany Advocates, who h'.:1.d ,'I.J.sc.:·reprsented. them at the trial.:_ The appeal wa ree_i~ted by the learned state . ··.:.,rney for the Republic 1 Mr. 1'1uloki,zi 11 ~e ~ectO!"· e.f Public Presecutions •••• 0 0 0 0 0 0 0 ./ 2

• 2 - J ,·· ?refe~ a Cri,ss-Appaal 1 the> details of whicJ1 shall come out in the course of this judgment. The i!:.cident happeri~d tlU:ting the night of 14.1, 97 at 3.00 Am in Tunduma . • . i· . . . ... • . . toim at one of the shops at tne market area which belonged to Norcat Msigwa : ;. : .,. . ... : \ ' . . ~ ' '. . . . : . ; PW10o :The market ar;;a wa$ bfightly lit ·by electric semirity lights 0 Five night watc~..,n were on du':y in· that area. They were Ageit Mwaipopo PW1, Gaspar Lukangani PW3, !-i.l:i:hc:::...:;a :•Iakon.goro PW4, B\sile Mwankuga PW6 and Malema Mwa.katoge PW?. Tl12n seven a:-:1ed b3.ndit.s· invaded the market area. They fired several shots in the air. The second appellant, who was kn,wn to 'PW3; PW4 and PW6, was seen and -ecsgnized by. the three witnesses to be runong the b3.ndits who held a gun. rnder i the threat of the gun, the second appellant took them .ne after the ot:1.:;r to an electrict light post hear the ghop ff PW10, tied the:u-· hands togethc, and then tied them t the post; PW7 w._e tied to a separate Jst. While ".:ha s'3cond appc:!..lant kept guaiid ver them by the gun, the othel" bandits- br0:-rn ':;,e rear door of flW1•s- shop; erttered the shop, and started to ernove an &ssortment of ;\ items from it. A reprt was sent t Tunduma police station and in no time PC Yasin Pd11 • ameng other policemen• M-rived at the scene anned. They fired in the air,'-ari.d the .oo.ndits ·including the second appellant abandoned the items piled outside the shop and fled. The police untied the watchmen and upon entering the shop they· found. the first a}'pellant · i.'n.si'de. , Th-~ first appellant was dressed in new clothes from the s1'op while, hi~ oid~ -clothes· wei-e .on -the : floor• PW 1'l sent ~~U3 to mmunon Pv.110 who a:rrived thr. .. in no time. · PW10 scamed around th a.hop and diseoved the follbwing artielesfni.seing- three So~ Radio cassettes, four ) . ~ . .,, :parasonic radio cassettes•, ':t'ifty jeans trousers, and shs;·15, 700, 001_/,,. ?W11 ·claimed that PW10 told him at the scene that shs.,30 9 000,000/= was st,_1en but later changed the figure to :hs.15,700,000/= at the ·police stationo They took the first appe .. lant 3.rtd. ifue" items piled f,Utside th& shop to the police station.- The i tetns included two parascnic radio cassettes·, ('ine Sonny television set, one \ ·::ia.rasonic video de-ck, one phillips video deck, two Lasonic radio cassettes, jean .. :::,?users of different ·types, one jacket, one trouser and two bedsheets. These items ·were returned to P\v1'0 ~ii- -2·1. 7 6 97 by 1ri1 '~rder of the trial court. The first •o•o••oooe/ 3 "

. ,.;· .... ,,,.'. ·-- / .. t 0 l -- 3 ;··~ ..... accus-Gd· mentioned th~· ~~coo . . persons we:1t t- the ·hous~/ I He was :iot·'a.t home· and his wife, Kis:;.1. · d/o Mwalyom/ '·, ) saf.:.ri i."1 1-1siha villageo m; ., , 1 . / ... lle !O.1. OWJ.nf L/. ___ .,.,er, D/C Gibson Pw°5, visited the I broken s1o_po PW' ~ was among the/ ¼C'/ ./ //-6hief that PW10 told him shs.25,000,000/= _ ,tress-examination PW5 ,changed and said that . i, '~ . PW10 had menti-... . 9'1 1/= and th2,t it was this amount that he reflected in the charge sheet.,. 1,(). A he had not hanked the money as l'ie was planning to travel to Dar.-es-Salaam. · . ,1 29.1.97 PW5 arrested tha seeond appellant at Chacha.cha .. :guEit }:louse at Nakonde ~ -~~o_ia•. _ He was found 11.\l.th two ,;.ea.. tl"OUSero 4 o.,e ~ .. .,.t~ouser, one jeans jaeket and one shirt, whieh PW10 idel~ified as pa.rt af his stolen . .,. .property on 3001.97. ,,- r;t'hese items-were claimed by the second appellai,.t to. belong ,·

to him and.pJ10dueed reipts (Ext DA). . .,;r~ .# •• On 2.,.~ Aasistant In15peetos- Ephraim P1r19 prepared an -Jentifi•atic,ri parade f·:,r purposes of identifying the second appellant. It comprise• ·•f ten persons including a: mechani. M:i,eha.el Ndunguru PVSB;' 'The seo1;td appellant ."8.S at e ninth ~ •• •• ,: ,-J' j:iosition., PW')' deeerieeo ·jn detail ho"' ·be. ar,a.. and c.o..ti..t,._. the- i,a,r-ade,. The ' ,, ·- .. · i:lentifying wit'deses wef'e P1rt3, l?v>4, PW6 an• PW?. A_s. a praU<tion again..t any . . G interference, each w1tneo,e. waa placeo -unt'Jex- t~ •hare bf a -po.Leman in a rrom at 'l\mduma police 9 tat;ion where .th~ ·Jl8:.r~iJ.e: was taged.. Nene .-f the witnessef b . - ··, saw, or was sht'1!) -to, the .9- _appellant l:lefore .the pP,radee Such an ·allegation was not raised. PW3, .P.W an• PW ,pic:ked out tlta c.e,cd llaais .-om ·t de : ' . . . ., ,.,- , . . . " , .· . . . i . 'l "' .}::i3 'placing their hand• n hw shouldel'i PW? did. the same thing, He eaid he placed.his.hand-'n the pers at the ninth posHi:M• Th.e. t.ifti pa.l'Qde ' • . ••• ,. , f I t ..,.. register PF -~~~'_.wh• -'"-~ p. syioence, .j.ndited that PW? picketi out ·. the. se.con,{ a'ppe;l.;lallt, fr.om th~~oo.'l! • ..i: PW? e . 8:~~emil. at. sh?-1'g that it •.· ' \ . '-:as O:ot th~ second ap!)ellant~ t t<l the extent that it ·was undisputed that the ., second appellant was placed at te ninth p~~itin, th person on whose shoulder ~- .. PW7 agree.d to have 1)18.l!ed his hand., that pe:r-son must indeed have been the second. . . ·... !t .: • 0 0 • ~--· 0 •• / 4 \ \ ' '

,.,... • .. ... 11 · .• . . . . 4. memory had tricked hfo Ltkewise, PW8 could not remmber 'the '.wftriai.:.sees pj..cking . , . . .. .. . . out any person from the parade. This ·could,_ in the circumstae9, have been on account of short or fa_ul ty memory. Both appellants denied comp:_icity in the crime in their .:-worrt defence at the trial. The first appellant claimed he was at the materi·· l 1e of the crime walking back home from N~rarnwanga pombe shopo He met what he -::·. · ·1: it to be sungu- sungu who beat hi.-n and took him to the police station 0 He :1.n:.: to have gone to any 8 hop ~r house that night • . . ' ' •.

• '•. -• •-• T'ne second appellant; however, raised the defence of ali~-• - He claimed to ,, . I • have been in Lusaka Zambia. He claimed he was a busines~ dealing in buying ~ selling agricu.l ttlrai crp • ·on 5. 1 o 97 ho 1 eft''• f ,r :Lusaka Zambia' for money in . respect of ric8 h~ had sold thereo He travelled by Nl-ATICO BUS SERVICE bus and produced the ticket. His wife DW4 said the same thing. H~ rturnd on 13.1.970 On '14. 1:97 he left Ifakonde Zambia fol' Dar. os Salaam and prop.ucd tickets issued - . ' .. . . ~ by th8 same bus service. His.wife DW4 was not awi;lra <,f both his return and this trip t• Dar.es-sa\aam. F'-1-iende <>f -the second appelia.w.t n<>tified her. On 1801.97 \ l"'J -~ . • - • • • he/eturned fi-om Dar:,;.es-SaTa.-ain.;and..,n 9.1.98 he W9-S•_ar:1J~~te-.at Nakottde ~~ D4 denied that:the hous~ •ft~~ econd_appellan wa~ visited by the pMice i:lnd . . Ji ·.. ' . other persons' d:in·g• the night . .,f .. 1.4. 1 .• 97. - , • .. , ·· · * ['h.~ v,ial court convicted· th.a {irst c;'ppellant. o~ ac.un"'" 0£ that he was ., .... .,........ . . . .. ~ ... found. and arrested at the ~~ng o'r. -crime ·11,earing 5ome ·"r th.;, . ··•- n new clthes. . . ;i· . #• • ,. - • :• • •• • ' ,, .. '),s for:,.:t.q,e second;appellant: he was convicted,on the grounds ·· . ·, he was properly • .. • -~ 4 •••• :. • • ! • . . . : • identif.ied at. the scene of. crime and that he was picked' out o:·· a prope-rlY l'.'g&d .. . •·" .· . "- . . , .. · ,; . and con(lucted identification parad~~• The trial court, hjweve'.il, fmd that no •· 't · ...... ,, · .. --. •• -.I, i· , money wa,s .left by PW10 in the shc:llf· which could. lffl.'19, beert stcrleno 'I\ro reasons . '! - ... . • •. were given:: ~ tiz, ;ha evid ':-s.- t~ tl."te mount. stoi._ea "- contradictory 'in that ,PW10 told PW'\1 dring the· night t>f th .crime' -that it wa6 sh1.030,000,000/=, ., -· then he mentioned ahs.25000.000/= .. ··to PW5 the following day, and then shs. ,I .' • . ... . 15,700,000/= in court/ And the (¥large sheet, acc8rding to the trial court, . • I •• .' ;Q--. . reatl shs. :5,000•000/=•. Seconc.il• ,tMt th firat appellanit was not fcond with ~ a.J\Y' money at the scene of crime, s~··n~ lll$riey had been le:f't at the shop. 000000/ 5

• ·J - Mr. Mwakolo subrriitted that the evidence on record a.id not support, tha't findi.Q,g. &>th learned CounseJ e~;,cede .. tha~ aom~ :nor.iey must haye been ·left .a:t the shop. • • • < • • : j° '• • '. • • ' •.) • I ♦.. '" • • I ,It,. •, . ' ' But according to Mr. Mwakolo~· w~.a.t l'a.e -:.::,t. ·95· ...... lislled was the a.D'bual amoont of 0 I • . -.. • •, ••. • ) ... .., ,iClo 'I!'•• o ~ :• f:.(': ,': : • ' • • •'O c .. • 0 ~ • money pi:J10 had left in the s:Oop. Hr •. '.'.-..,:::>:-:)zi' , ..;0;.1t'.)nti::,n, ~ ... ,rey-er• <Wa.S· that money stolen was as in--:ica t :d in th0 c:are :.1•:!· ·: c.. •• J. o:-der its r0turn to PW10. , Four rounds ,otappeal w~~~ prefe:;:-r::i., 3.r,,... +i,_, b::· and larga, --een.tred on the identification of the second appeJ.lant at the scene of crime.- and on the ,.,.·. .. . ,t identification parade, I would, firstly. dis?OSP of tne appeal t:J? ta--~ appellant. I would,. ih respec.t, agree wit:t :,Yo (,01 ~ ed COvru;el ~~t ithe f.irst appellt was praperl:,r C9!1Vete .. and .setenc.ed. l'Tfl_1e fate. ~ ;vide agpiJ!st him were rock-soliti. He waa f oon~ and al:'E>::-:t.!3-i, indid . t. lli!'oka&,.shopo He had .• . .. t· ; ~ . lo, • • • • • i .. • . • . :;. . .. .- . ' • ,.. i- •• discarded his old elothes and dressed himself ::.U-ne,w,.,.:mes.t.,j.en.-fram t shp • • - ! : .. ,4,' • ·; • .. • • , • •• • "' . • ., • ~ • • •• ' .. • . • • -- His defenee was tota+l <?O".inci.T;lg d ·a? ou·fif/::t:·.lie,., . .--- d,efence WflS rightly rejeeted by the trial cou;-t •. Th. sen.ten_ce 1anded down ws .t~ .y_ery •' •.• • , . l• ~ ,. ,'9 • minimum preserib_e5i b:y law. His appeal must, therefore, be d!smissed in its entirety. I pass on to consider the. seCQq.Q. ppellant o The evidencQ agajnoi! him was . . ., . entirely of identification, and such evidence must, i law, be absolutely .... • • • • 'I' ' ., • _watel'tight to jutify a "'{_iyt.io .S'.li1F. ];!)-Wend;o lYl£ ~ns,.t}1er v_,R. :1-..:'9- ............ -, ..... -- ,_ . .... ' . . ( 1953) 20 E 1 A.,C.,A. 166_; -R•"-' ._,SeC> (".J:90) :oAo. "174; an Wa,.ziri :Ai .. v.R,. ..... ~ .. ;. ,..: J..,,J,., •• • • ,. .• ... . .... . • . ,4>1 .. .. ' Ii· • • . .. . . • f . . . ( 1980) TLR 50o The rational_e fol'.' t.hia.., •. aa. ,}J0:.-~~ 0 d O';lt by t:J}o-_':;.-11 r:J. ].!1)-ti • • .. • •• • •• :. • .. • • • ': •• ♦• :.'-"":-" --·---·• -# ... • .. • • • - 1 ef Tanzania" Waziri:s ?aae. t. u."h ~ 1 1:lrl-::N-" i._o'.t, ~~t to error .and has often led .to ~ misc_r:iag_e. of,, /usi~~--• 0 < ·•~ H "'- ,.,,......., 4' •· •• t ' 0 •' , . . ('.~~ On t1-,e o-r,.1,,il;,,n..i-e, and -in-the care_u,mstc:.:-:.--:e_5.·-· I .an s:J.tisfied as was the ... i•.. ..... ,. ti.al. court, tha-t; ·:&here -s we.tertigh evidence of. th.e .. seco•d appellant's id.entity 0 First, at the scene--ef erimeo Th9 !:estimony< of .PW3, PW4, PW6 and PW7 gives rise to no doubt.-about· the identit- :if "' second appellant. There .••••• 0 •••• • / t:> •·· • • t

. . . ... ' : . . -~ .. . ... ·, was-bright electric.· security. light throughout the: inciden~. The second appella.I?'t .,,,as neither m9.s.½ed no::."' ca.mouflagedo The witnesses, in particular PW3, .. . . . .. · .· . .-·. · w .... PW4 an.a P46; ,ware ltriown t:"6 the St:::<,and 'appellant. Th.ea- witnessea wei-e tied up to . -·- . . .. . ~ . . . ... ,.,_. ........ -· .. .. . . .. one ano_thr and then to •an electric light post which made that spot even. brightero . .. ·•· . .. . ... . . . . The second appellant:_was in· the~•lead or forefront with his gun in dealing directly . - .. with these w1tne.sses. -He .had. taken them to the: el.ectricity post under the thr.at of the gun. The t:ied;_up witnesses ·,vere kept ·KL.::1er his guard. So the witnesses ha.d a.11.rea.s&n to have focused t:.eir e•es n-.:. c;;. ttention t t:he secsnd,,allallt. I PW11 si:tid he found the. faces···of ·tb.e .tied-up witnesses ·c0111ered. But this waif i: . . t9rtainly a lie. None c,",-ea -ith emything. ' . . . . ·•tr.i of th witnesse said.·that thi; · face Wl'• at any stAge PW11 himself was nlt certain about what he said. First ,!. ~ - he.ea.id th~ faces 4r tw~ witnesse~ Thin $- c~~~ll. a·· se:id th faces ' I am satiefi,_ that this allegation by PW11 was rightly rejected by th9 trial court. I hav• with cae scanned around for any po3sibilit~-of errt'U' t,l!I mistaken identity, anti found nene, Secsnd, the witnesses pickeu out the second aWQllan• f~ an uientification parade ar:ra.ngeel by PW9. For an i2.::.1tifi.;::..Li,:-:'l parade to be of ·any value at all in identifying the perpetrator of a crime under investiga,tion,. it is necessa.ry that the evidence gives a detailed d9scription ·of the methe<l followed -in.~ tl:M> })9.rae.e. the pa!'ticipante, tpe ·nes r" t-fic.w/fic,Q .. aoadu~~~ paraoe, . • • , . , :l . . ~ and the nam06 et th& i:oantifying w,1.-trHu;;r.ee• The tions er he,ld.ing identi- .. . . . .. . . : ,... . . ' .· . f;i.eatien psracies werQ revisited by the Qourt- of .Appeal. for 'Ea.etel"l')._J\f.rica in .............. - . - . . . ..... . . •' ';... . . ' REX VS MWANGO s/o NANAA. ,1936) 3 EAo·c:A. ·29. I need not •reat them here. . - ~ Suffice it to MY _that the v>hole .object of ccmfo!'llliog iY -- J. on • • - • t. ident1fieatisn l'cU'ades is to eliminate an:, chance •f err-.:r-. I:t is, in short, a precaution against error. I have subject.ad the evidence of PW.9 to cl"l6e and ~reful scrutinyo I have perused the Identification Parade egister PF 186. That evidence cntains al: ' the eissential and the neces:sary details. Any attempt to fault that evidence was btund ts be rejected by the trial courto I am sisfied, as was too trial court, o ~ o • e • • ~ •·•/ 7 . \ ...._

/ .. , •- ? - . .· . t.o,,,..t: ....,..1de-1">oe rol:;iti~ to how t0 id,m-:ification pe.rade waa arrc._1gd and <:onducted by PW9 was satisfactoryo There _s the seco:1c·appellard;ts defenca of al.ibi. As a .-:ia".:,·;:r of law, an acused person ,_i::, noi. required ·t::i :r;rove his alibi. It is suf:.cient for him if the alibi riaises a reasonao::;__e doubt 9.S to .. hie compli9ity in tn.e crime- SEE .... _. . ,. ' . Ali Salehe Msutu VoR. (CAT) _ ( 1980) ToLoR. 1. There a.re, ho..vever• some matters obtaining in that deeca which renders it questionable. For one thing, if the ... ; i second appellant'I as he clai'Tied, returned from Zambia en 13.1.97, what woula • • • I "• ve been the point or necessity of his having had to go back to Zambia on "' .. . . . . ' ". 14.1.,7 for the rde of the NYATICO bus at Nakonde for Dar-es-SalaamJ For an,ther, if Jhe second appellant; again as he claimed, returned from Dare•-Sala.run o:q 28p97• hw come that he was arrested t:he follo14ing da;! (29.1.97) at Nakonde . - I . Zambia? Then there was the evidence £ his wife DW4o Despite her denial,_ it was established u.i, evidence that during the night of 14. 1. 97, which was the night of .- the i..,cident, 'PW11 and PW10, among other persons, went to their home in search • 1. . -; ... ·,.·· f :; \ I of the second appellant and she told them that the seeonc. appelle.nt had gone to . . ·. . - . ) . _. . .. . . . Msiha village. This was indicative of that the secend appellant was not in '•,j, Zambia a th material time of the crime as he claimed. In all the circumstances • • .. . of this case, I am satisfied that the defence of alibi was J;)I'<>perly rejted ey the trial curt. ,, r.• • - I shall, finally, consider the Cross-Appeale I would, with respect, agree ... ith both learned Counsel ttat the evidence on record cid not supoort the finaing 1 I I f •"". • • • I ' • - - • t_ha no money had .been lft in the broken shop by PW10o P1.v10 was ~ reputed 1 • J:,usinesman who dealt in expensive merchandise. The quality of the goeds sold ' ~ I , ...... OIi .. • • • • / • • • I • . I• at his shop spoke fo_r itselL He had gbJen - good and uJ1controverted reason for · • 4 , I , • • his r.etention of the :noney :-..t the 9 hopo The reasons givea by th- trial"'co.urt in . . . "" support of that finc1inz wer.} c:early insufficient and deplorably lacked in :· .substance and sense. It was obvioua that -the learned trial mag-istrate was not _properly seized o~-~he evidence before him. First, PW10 could not have mentioned shs.30.000..000/;;:: to PW-S1 and shs. ·- ,:"•' 15,700,000/= at the police stc.tion that saine night f the ineident It did not \ O<"C'OOCO•e/ 8 \·

• ~ I I ••• ,·. 8 -- .. ~ appeal to reason. · There could -riot hk·J:·been .any .conceivable eason, le.t alone a.' good· one; for 'him· o have--dorie so., . PW11: himself. ·said he was at a loss as to wfiY· PW10;-wou1d·.have dqne·:.-so. Even then, the trend would have been <downrds al'id not,. ; upwards whiqh wculd'ha·:e ruled out,any ulterior or improper metive on the part of PW10. So ·the der..ial by .P-/10-that ·he m,mti6n;)d shs.39,000,000/= to PW11 at the ·,. scene of crice ought. to have bee:1 accGpt<'d )Y the ·trial courtr In ·the circumstanCe6,, he ought to have.been-believed·when he told the trial court that·the report he.made to"the pttlice at·the sce:18.of,crima a,ci. at the police station U1e night ef he.; .. ,t> il'l.cident was that.his shs.,15,700;000/= hd ijeen tole , Second •. it wees qot ,t:r;ue; as•said by the trial court, that PW10 mentioned shs.25,000,obd/= t PW5 the follg day . .. In cross-examination PW5 said in no uncertain terms that PW10 did not mntion •' that sum ruid that it was shs.15,700;000/= that he mentioned. Third, it was again not true, ae said by the trial court, .. that the barge sheet ~~r,ied the, figure of shs.15,000,000/=, Quite obviou& to the eye; ·the ebarge sheet indits t Gi.ull .•. of shso15,?00,00CV=, It was.this amount of money whih W10.had throughout mentioned and maintaineo a- his stolen money .right .rom the night of the theft t.:, the trial of the case 0 And so, the evidence ef PW10 a.s to the amount of money stolen ws,. 13-s explained, throughout consis.tent, and n&t, as, said by the trial court; conti!'.'adictory. And-;fourth, it was certainly a _faulty and misguided 'l'O~-c.Oti.Y .. :· on the par.t f the trial court to have- said that n money had been left in the shop on account Cllf· that the first appella+i.'c· c,.,qs ?¥>t ro.und.•_\ofith any money whe foupd and arrested ,in the broken shop, There.were the othe~ culprit~ who had eseaped, They had all entered the shop and ransacked it. The inside of the sh~ rding_io PW5, was in complete disordero They must have made a'$.y with the money, In the circums·tartces .af,·tis case-, ·the faet tba·t the fir et appellant was not found with any mi,ney did not det:::-act from their. joi,rit criminal responsibility for the stplen money 1:rl ,term 9 of· section 23 of •the Penal -Coq.e 0 • They bad all set out with a common intentiori to prosecute a speciic unlaful purp03e qf stealing from the shop of PW10o With respect to 'Mr. 2'-iwakolo, T agree with Mr. M'-llokozi that the Cross-Appeal must, for reasons given, ~~cceed.,· The finding that. -no mon.ey had beeen left in L-:: o " o o o •• ~ o ./ S·

.9 ,, l~• .. i.c- ...._._o &h011p rnv.et °!::'c c.r-ta~~ri., .:-.Lid:). .:inc_ing t -C.'.3.Sh shs.;.15700,000/= was stoleri from i_lie shop· is to_ ,:,o · eutituted for it,. .. And ari <>l"<lGr for its com:pensation to P'.·110 :nust be made. In the final annlysi.s, thGrefore, the appeal by both appellants is d:ismL.~ in it.s entir-:ty. Thf: C.ro:::3-A:9pe::.l, howe-ii:el', ia allowed. The trial -eoui-t' a ffudin; th.it :1.~ ::-.o:ney a 13ft in the shc-p. is uash.ed, and a finding ,. that eash shs.1.5,700,00QI= was stolen :::rom the shop is m.de•· An order for the appellants to pa.r a compens::-.i:ion of shs.15, 700,00(¥c to PW-10 is hereby - made. AT MBE:YA 0 19 June 19980 For Appellants: Mr. Mwakolo, advoate. Fer Republi: Mrs. Makuru, SSAo Bo-Po MOSHI JUDGE.