Birdad Msaki vs Republic (High Court Criminal Appeal No. 87 of 1990) [1990] TZHC 352 (31 December 1990)

IN THE HIGH COT CF TANZftNIA AT .ARUSHA. APPELLATE JURISDICTION. . / HIGH COURT C1IMIN.4L. 1PPEAL NO. 87 OF 1990 ORIGINJ;L C11IMINJ\L CASE NO. 313 OF 1989. OF THE DISTnICT CCU:1T OF roOSHI DISTSICT AT MOSHI. BEFORE: JiJGW.AWASYA, Esq, DISTRICT MAGISTR.ATE •. BIRDAD MSAKI ••.•••••••••.•• · .APPELLANT Versus THE REPUBLIC .... .- . . . . .. . ... . . .. - RESPONDENT JUDGMENT MUNUO, J. This is an appeal from Moshi"District -Oourt Criminal Case No • .. 313 of 1989 whE'·rein Six accused persons name-ly ;- . ,4ccused No. l Bird a di Msaki .tioouijed No. 2 Mohamed Juma Ac,cused No. 3 Seleman Shemdolwa . Accused No. 4 Ayub Mwenzingo 1\consE>d No. 5 Patrick Kisima .Accused No. ·-6 Ombeni Onaufoo 1st Count: for l\ccust;;"d N-0. 1, 2, 3, 4, and 5 only:· •Stealing by ser;nt c/s 270 and 265 of the penal code in that . . on the 20/7/1989 at about 01.00 hours along Gala Street within the Municipality and District of Mos hi in Kilimanjaro f{egi_bn; .. being persons employed by the ·Tanzania Bag Corporation, the said five ac6:used persons jointly ·and togdhf'.r stole 196_0 bags valued at shs. 426',JOO/:a the property of their employer by _vj.rtue of their employment at the' said Tanzania Bag Corporation. Count 2: for AccusE:>d Ne. 6 only: Stealing c/ 26.5 of the penal code in that on the 20/7/l989 at the Tanzania Bag Corporation at Moshi Municipality the 6th accused stole 1960 bags valued at shs 426,300/~ from the Tanzania Bag·Corporation. The trial court convicted Accused No. l to 5 and acquitted a6ousd No. 5 on the respective counts. Accused No. l was sentenced to five years impisonment, ~caused No. 2 to 12 months imprisonment; Accused No. 3 to 5 were each sentenced to a fin@ of shs .. 3,000/c: or 6 months .............. .-12 . . '• . ~ ..... •

• jail. .Accused No. 3,. 4 'and 5 were ccnvicted under secti0n 383 of the penal code f0r jailing/neglecting to prevent'ci felony. ·only accused No. 1 Birdad msaki is appealing aainst the conviction and sentence. At about oi.oo houri pat midnight on the nighi of the 20/21st July 1989 Pw{'. g·· Ally and 1 PW4 PC Linus .were driving to Pasua in the course of their duties when they sow a bedford Lorry MS 7338 . . ,.: . . driving towards Majengo fr·orri ·fhe· g·od·oim a·rea at Gala St·r.:•et in the Moshi Municipality. The_ lorry was carrying bales of sacks so the t,;o policemen pu.rsuen h:··and signalled to the lorry driver, aocused No. 6 to stop in vain. A traffic police which QOrnered the lorry i.Q qustion nl?,d forced it .to plunge into te- bnk of the ond tJiereby being forceri to stop. .ccused No. 1 who harl. ~~l along been secited . . next· to the driver of the lorry then opened the ioor of the seid lorry and attempted to escape but was captured by he p6lice.' Both the . driver of the lorry, Accuse1 No. 6 and his only passnger, A.caused No. 1 were arrested and tRken to the pclice st.,tion · wherea+'ter they WPre charged with the respective counts. The 1960 bags in the lorry were impounded find tenderer'! as Exhibit PA; the lorry l'lS Exhibit B. Steck t.-iking at the anzania Bag factcry t Mcshi ccni,:,me1 that 2,000 bags which were produced on the. material .isy where missing, Accused No. 2, the assistant to Accused No., ani the watchmen on .· .. : du.ty ~~ the material.night, accused No. 3, 4 .. I ;.: I.. I • • jointl chaged with their shift supervisor, ~ . . ' ....... , .. and 5 where then Accused 'No. l. In his memorandum of appal the ap ellant refterated his ~~tence . . tha~ he was nt 'a party t·o the theft· of the :bags i·n dispute. He : \ . stated ·in parag;arh 5 of the me·morandwn cf appeal that the trial f •· l I • court erred in convictine- him on _the t1ncorroborated accomplice evidence of his co-accused, Accused No. 6. Heals~ ciiticized the learned trial magistrate for entering con,victions. of lesser offence,s aa!.1st his'c~•accused No. 2, 3, 4, and 5· who were en duty when the theft occurred and ought therefore tc- have been held iiable fer the theft of the bags. Mr. Lundu, learned State 4ttorney rtirt not support the conviction on t,:he ground. 'that thP ... traffic pelic_e officr;:•r who arrested the appe- llant 1id not testifyt the trial so tis.not certain who actully ; . . arrested. ccuQed No. I which implies that his defence tht he was . ·• arrested on his way home from boozing ccul be rrDbable • • • • . - ..••.••..•• 03 ••••

. r:::: 3 The State Attorney submitted further that the trial maistr·te erred in convicting the 1st accused en the accrmrylice evidence of acoused No. 6 · wh<: was driving the lorry tha,.t was carrying the stolen bags. The issue is whether the evide•nce. a:ld uced at the trial establishes the guilt of accused No. 1, the present appellant, beyond all reasonable doubt. The incriminating defence of accused: }fo. 6 that accused No. l had hired the lcrry MS 7338 to transpt>l'.'t 'the bas is fully cc-rroborated by the PVidence of PW land PW 4, .. the twpolicemen fio pursued the lorry from Gala Stret until th traffic vehicle forced it t~ plunge into a ditch. 11 Along PW land PW 4 sw only one passangeri acbused No, 1 seated in the cabin next to the driver accused,N.o. 6. Both PW 1 and PW 4 obsE'rved th(;:!t the digits 33. on the nur.iber plate of the lorry were plastered with pager to hide identity, a factor showing the criminal minds of the lorry driver, accused N0. 6 and his passenger, accused No. 1. An inn6ent driver hired to haul gods in a clean transaction·ould n6t plaster the numbers of his lory to hide the identificaiion of the regietation numbers of the lorry tt.lil.hch was what r.·rompted .PWl and PW 4 t suspect and r,UT.'SUP the 1orry and the two suspects therein, accused o 9 1 and 6. Sine Accused No. 1 and 6 were in effect caught red handed with stolen bags on the matPrial night;. it is rtiff.icult for accused Ho. 1 to exculpate himselfl As the shift supervisor he had direct acess to the bags in dispute. That is to say even without the implicting cautioned statement of accused No. 6 or his incriminating defenc,e at the trial, the st-ong evidPnce of PWl and P\T 4 justifies +-he conviction against accused No. l beOnUSf' if he 'fJere not a Mrty ·to the theft of the bags at the TanzaniA Bag +'actf'ry en the m:.)tP-ri=>'.l night, he would not be travelline with cic·cuserl Ne. 6 crnveyinn: tihe plunder of the stolen bags in the lrry MS 733B. There is no merit in the appeal. Accordingly the a:)peal is dismissed. It is so Crdered. .. •.. , •.••• -• .•••• I 4 ' . . . ~ . . I

4 E·. N. MUNU0 1 J. U D G E. 31/12/1990. ·At Ardsha th{s 31/12/1990 . 1p~•llant: Absnt Republic: Mr: Kimomogorc, State Attorny •. 'ENM}vm μ~- / E. N. MUNDO, JUDGE • . Ji/12/1990. ....... I , c,a