D. P. P. vs Abeid Mhina (HC Criminal Appeal No 97 of 1988) [1991] TZHC 2098 (18 September 1991)

MSUMI Js lN TH£ HIGH COURT OF TJ,NZANili. HIG;:i COUil.T CRIIflNAL .iiPPE:'.i.L NO 97 /eD ORIGINAL 1RH,iINAL C,i.SE N~,109 OF s, OF T:n:; DIST:UCT COURT OF ILALA DISTRICT BEFORB: CHACHA,SQ. RtSIENT MAGISTiltTE D. P. P •••••••••••••• • ·• • .- .- ••••••• .b.f 1-=>ELLJ1.liT (ORIGINAL PROSECUTOR) t1msus JUDGivIENT '1;1he Republi is agg1·ie"te,d by ·:he judg,.1ent of the District Court acquitting the res}.:Or.lclent 011 the groun1 that no prL1a faaie eae has been Llade against hie. espondent was chargei wth Steali•g by Public Servant contrary to sections 270 anl 265 of the Penal fod;, As a cashier euployed by the National Bicyle CoLlany, resondet is allegea to have stolen cash shs. 20,618/75. nt the close of the prosecution case the folluwing facts were establishd •• ~ the waieial tirae the National Bicyle Gom;,auy _;,,ei T..:Uit:,SCO Shs. 220, 6·, 8/75 as electricity bill. It woul apear that the j)YGant of 3is bill was overdue hence TNESCO thraatene1 t disconnect electripity sUp?l to the coo,)any. In re Sj)onse to tilL; threa't, res1JOD'.ent tr1:.s given the billed amount of □ oney for settleDsti Hoievei, to the 0lpanys surf!rise power was disconnecta,l few lays later. When ques4:ioned,· respondent asserted that he pai'.i t :J bill a-s directed an( Jrodu('.ed a rec:JiiJt all ego-:: to havG bc,m io. ·.!.8 :' by '.rLLSSCO cortifying i he payraent • But on scrutinc, t 1 :2 "I'..:,r::.:s: C.hi.:.f a, c•.,-.nt.ir.t w.:10 testifie: :s proseit_ut*QI witness nubr fivo diaJ0~ t~c aJ s~~it _3 being fal1°. He pointed cut sowe technical irrogub.:ri ties on the receii-)t. : :1.0ugh he dishanoure-l it, th,3 witnc,ss ad;;1itte''. t!1at th.;; receipt t7mst l.g_ve be-• · issued by s:>m&:lne w1 thin. L:;:;sC·!: '.:;:n-::n-;l;:;:igable with the ace, l'lting codes aP}jlie-:l by the•fir;·;:.."."· 'i. 1 ::,8 witness even .: 1 .::1itted that ..:1 the TiiNESCO Office they ha'l a tJ;:ping nu1"ber 34 by •;:i.ich tha ·recG ipt is sh0w1 t-0 have baen written; So actinc on this evidence, partioula::· that of the T.ilNES(',O Chief account:rnt, t:J le arr:.::, .:'l trial Mc.::ci stra te ma,:'.e a .finding tha~ respon1ent hi r case to answur an~ acquitted him ■ •.. ,./2-

2 In suJport of this a;Jol t0 Jirectr of ?ulic Prosecutions etitionei that the learnea trial □ agistiete Qisdir0to1 hi □ self in iaw and in fact by holding that.tl10 ac6rise1 being an otsier could not have known the coding systoo ithl TNSCO end fi that fact ·the money was stolen by a person within TANBSCO. With respect I oannot see any justificatio.n for this ·):iuplc.int. The learned. trial raagistrate 1 s I observation is based on the evidence adduced by the rosecution itself. . I After establishing that the reaipt was nbt genurte, the most relevant question was who falsified itw For reasons which he gave to the oourt the witness asserted'tha~ the filsificution u1ust have 1::0en done by someone within TANESc··~ The learned trial magistrate had no basis, either legal or factual: on which he coull with this witness~ Once it is accepted that the receipt in question was issued, albeit fogedly, by someone within Tii.NESC(l, I cannot soe how the case against the ::.espondent · could be sustained, No reasonable magistrate presiding over a properly directed tribnal would con7ict the r00pondent with such evidenoe. Hence the finding that prosecution ban failet to estab:ish a pima facie case ag&inst tic res~ondent was iwLlinent. The appeal i; therefore uiswissed. 18/9/91. For the Republic - Chiza Respondent - Absent. \ H, . fl.. :,TSUid.I JU"JGE