Ramadhani Mohamed and Others vs Republic (High Court Criminal App. No. 142 of 1990) [1991] TZHC 2434 (18 September 1991)

'· IN ;r.IB HIGH COU-RT OF TANZ .:JUA AT ARU,3.ffA. ·APFCLLATE .JURISDICTION HIGH cou::LT CRIMINAL APP AL No.142/90 . C/F 143,144,246,247 OF 1990 .;., ' OHIG:CNAL CRAL CASE N. 165 OF 1988 OF 'I1fIB Dn.:lTRICT COURT OF HAN.ANG .:)LJTRICT AT • BABATI. DISTRICT •. B;ORE P. iE .P. MLAY :!!3•. 4IAGISTRATE BAMADR~ MORA.Mi.CT> & 4 OTHERS ................ , .., .. APPELLAETS VERSUS rnT.T_ 0 ,'• RPUBLIC · R7PONDr,,,.nn .1.1.l.., , •.It• !I • • • • • a a • • •-.• • • 6 e • • • • e ♦ • a • t •. t t.a • • "''--' J.:;.LH, E.N • MUNUo.,· JUDGE. Crj.minal Appeal~ Nil42,143,144s 246 and 247 of 1990 a.re against the conviction and·entence in-Il:anang< District Court Criminal C~~ rto.165 _of 1988· at :Babati. In the original case fourte_en accused persons including the···present five appellants namelyg- ~ Mo'hamed (original Accused no.1) ' . Maulicli .nm (Original accused no.7) · ·Elia I1ussa:'Yoriginal accu.sed no 6) . .,. ·. ,, '. . ' . ' . . Senge Ngida (original accused no. 13) .Sha bani Hamisi ( original accused no, 14} were jointly charged with nine others for cattle theft. c/s 268 and ·2·65 of the penal code in that on the 8/8/1986 at about 15.30: hoUrs a:_t "Gitawansi Vill 8 ge within Hana.ng. Distriet: in Arusha Region 9 the accused stole·· :290 head of cattle valued at shs. 2,912,00/= .. and•six donkeys'valued at shs •. 3600/= total va.lued·a.t shs. 2_,915,600/= the property of one Oinana 1angwe. The trial court acquitted accused no.2 Ngaida Senge; ccused no.3 Seleman Sichi; accused no.4 Msafiri Ha.lili accused no.11 Saidi Mkumbi and acused no.12 Jeremia Msaghaa 1:lpon finding that they had not participated in t·he alleged thef_t. ';I'he learned trial magistrate convicted a.ocused no. i .Ramadhani Mohamed accused no. 5 J eremia Mada.ho, aocuse<i; .. no. 6 Elia Mussa, accused no.7 Maulid Munna, ·accused no.a Ramadha.ni.Himba, accused ne.9 Abraham I'1angala, accused no.IO Mohamed Saidi, accused no.13 Senge . . Ngida, and accused no.14 Shabani Ha.miai. , ..

\ • I l 2 - Accused no.l Ra.ma.dhani Mohamecl is appealing in Criminal ·Appeal no. 142/90; Accused no.7 Maulid Munna is appealing in c;liti.inal Appeal no.143/90; . , ·,1 : Accused ·noo6 Elia Mussa is app.ea.lin~ in C;rim.irial Appeal no. 144/901 Accused nonl3 Senge Ngida is appealing in Criminal Appeal n~.246/90; while accused no·. 14 Shaba.ni si is appealing in Criminal Appeal noo 247/90a :i?.,W.l Jongi Ginana,,the son of P.w.4 Gina.pa Langwe, the complainant deposed tha.t on the material afternoon he,_ ya.s sitting under a tree grazing his fa;t.h,e.;r.'a- 'S'trcing herd of. 290 head of .'cattle and six donkeyso Suddenly a group of ai:io~ 20 cattle W::tlers -~~d with .. ·bow13 and arrows. and also a gun co;1:Fl • -a: ·ttte .iJ:ziRg -ground and rounded up the complainant I s hrd .. of cattl_e .. hthreby- stealing and driving t_hem away. Of the gang of cattle ', . rustlers P. W. I said that hei .. Pou,ld: onlY: ide11tiiu~~-gu 5

1. rio. 7 Maulid Munna who was armed with bows and ·arrows c:mdL 14 Shabani Hamisi who was armed with a. gun. Po 1/I raise:l.an alarm. whereby P .W .,2 Subaida Munyoda, P., W.,3 Gi tau Ambadu and other villagers came 'tu ·his-: assis_ance • : They trked the . " cattle s the cattle rustl&s drove them away but upo entering Sga Village 8: group .9_f about 3o :villa:gers intercepted P. W .I and m·s ~oup whereupom ~cced no.6 Elia Mussa the Singa village Chairman wh• was.not armed ordered ' the trekking party to go back. Fearing the armed Tilln:3crswho were with .. a§cused would harm them, PW.I's jcrekking team had no altern.:ttive but ·to L so ' go back. By doing the 6th a9csed gave the thieves a free- h:::nd in driving ·.: .the stolencattle and donkey away ,:rithout i-nteference·. P.W.I reported the matter to his fa.ther,P.W.4 and to the police •. Subsequently the suspects were :tr a a.eel , ar:cested · and charged with tlle pres en~ off cmce ~ In his sworn defence accuse_d no.l Ramadhani Mohamed denied the charge • .. • He sta.ted tha.t he was arre·sted at his home ori the 10/9/1986, set free aft.Jr . . ' sometime but again re-iμ-rested whereaft-3r he ':ras chargd with the present offehce:abot i'lhi.ch.he knew. nothing. , ' Accused no.6, the 3rd ~ppellent, g1:i.ve a sworn defence cn.tegorically denying the offence saying that tho case ·was concocted against h'.im · ·because of trib3.l hatred be-tween his tribe the Nyiramba and that of the compie.in::-:nt, t· ,the Barbaig. •.

Accused no., 7 P the second. appelicint gave a sworn de!cmee f o alibi alleying th:::t he was admitted at·Melia Dispensary after attending his mother•s burial nnd that he remained at the despensary fJ:om the. 6/8/198~ to the 9/8/1986 for fever tre3tment so he was not a party to the cattle , r , rustling in question. was Accused no.13, the 4th appellant4rrest·ea·at hi's home on the 12/12/88 . . at, about 5.3.0 p .• m. He denied knowing anything about the cat·he theft. Aocuaed no.14,. the 5th appellant stated on oath that he was arrested a.t his home at Ntiko Village in Sngida. He said th2,t he was harvesting maize at his Siga f2,rm 2.t! the tiril-J the-cattle were stolen so he was ~~t . ' involved in the matter~ - ; ... :- · In their respective memor:mda of appeal the aecus0d denied the offence ehn.rged n.nd claimed tha~ their guilt was not proved at the ·trial so the lower court wrongly con,dcted them. , Mrs Mcory Lyimo le:rned State Attorney did not support the conviction on frightened . the ground th,.it P. U .I was '• - by the armed cattl0 .rustlers so it is doubtful whether he properly indentifid-them. She sulmdtted that the evid.ence on record is too weak ··!ind scanty to support tha conviction so· the appcHlants should tttwe been acquitted by the triar court. The aY14ence against accused no.land 13 is too scanty to sustain a eonviction because although ·the four recovered 1 cattle Exhibt E(ere traced to the said accu,:.1oa., _ the wi tnes::c:0s who helped trace the on.ttle were not called as wi tn0s:ies to dep0se · on the Iielationship between tha recovered cattle and said accusod so the evidence against acctised no.land 13 remnins suspicious. Since a·person c2nnot be convicted on susicion, the appoals againat the conviction of accused no. i ~nd 13 must secceed. The coriYictions against accused no.6, 7 nnd 14 ar0 well founded. P.W.I Jongi Ginn.na identified accused no.7 Maulidi Munna who wa.s n.rmed with a bow nnd arrows, accused no.14 Shabani Hrunisi who was armud with a gun and accused no.6 Elia Mussa the.vill::ige chairman who intercepted them ~nd with-th0 help of some thirty bow-ar-.owcd people forced tho complain.mt 2.lld his party to retreat thereby -'.:.'n'.2.bling the cattle rustlers who were then within their view 2.t Singa hill to freely drive away the stolen cattle. ·Toe conduct of 2.ccused no.6 intercepting ,md ordering the complainant's party back was not consistent with innoconee. If Elia Mussa, accused no.6, was not a party to the eattle . he rustlirigl ,would _lrve mobolized his armed villegers to join the complaint's 1ng . . p:1rty in yrrrauL tnc odtlv which wore then beingdri ven :.:t (3ingc:. hill right • tl-,9 ir:

·- 4 D.W.2's evidonce tho.t accused no.6 was attending a w.nJc. m0eting a.t Ilunda: on the iiin.terio.1 &y is sheor fabric:::.tion bee.::i.use even the 6th accused ·di_d not o;y so. Of course accused no6 has no duty to prove his· ·. ...... '·\ , .. innocence but i•f it were -ti:rr.ntho.t · accused no. 6 Elia. Mussa ha.a. becm n:ttending . . . , .. - n. meeting at J;lunda he would have .so.id so. ; . ' . , ,, . : : . . . . . In view·of the identification of o;ceused no.6, 7 and 14, by P.W.I, . P.W.2 o.nd P,W,3 in bro..d do.ylightduring the·cattle .rustling, _the lenrn3d ' •:r trial magistrate .properly convicted accused no.6, 7. o.ndll4 of the off.ence·. . t ! Under the'circumsta.nes Criminhi Appeal no.142 of 1990 fuunadhani :,, . Mohamed versus Republic c.nd c±imin.11 Appeal no.246 of .1990 Sengc Ngido. . . . .:. versus Republic are hereby aflo}!C'd• , Acco:clin5 ly tho convictions .mid sentences against n.cc:used rio.l .R ma.dhC!n.1 6hed n.nd ccu@d no.:14 Senge Ngida;, the 1st '. .n., . . ' '. ' ·. ····•. . and 4th ppcllnnts ro qu....shcd nnd .aet a.side, Tht shoul: be set free forttnith unless otherwise held.fox other l::!.wfuJ:· cause, Crimina.l Appeals pos. 143/9Cf;l44/90; 247 of· 1990 a.re dismis .ed. Th,e convictions, sentence_s .:i.nd orde0·s: in respect of· th~ 2n~. n.ppe::-llant;.uUd ·Munnn., the 3rd appellant Ji!lin lfu.ssii. and tho 5th. appellnpt Shnbn.ni Hamisi . ' ::ire upheld. · It is So Ordered. At Arusha this 18/9/1991 . . . Appellant:- bsent. .8.N. MUNUO JE ... 18/9/:1.991 Respondent:- Mrs. Mary Lyimo, Sta.te Atrney. . . G---¼--- :'\ I r-,.) . E.N. MUNUO ; . · .JUDGE '18/9/1991. ·:·• ENM 1 'RLICJ • I . '