Rashidi Ramadhani vs Republic (HC Criminal Appeal No. 26 of 1990) [1990] TZHC 325 (24 November 1990)

IN THE HIGH COURT OF TANZANIA AT ARUSHA. APPELLATE JURISDICTION HIGH COURT CfUMINAL APPEAL NO.- 26 OF 1990 ORIGINAL CRIMINAL CASE N0 1 266 OF 1989 OF THE DISTRICT COURT Qf MOSHI DISTICT AT MOSHI BEFORE E.J. LUVANDA RESIDENT '·.MAGISTRATE RASHIDI R.'\ii/lADHlrnI • • •••.•••••••• •·" •. • • • APPELLANT · .·:; ... t,'. ·- ! · VERSUS THE R_EPUBLIC. •·• ••••.••• o ••••••••• • • ••• • .RESPONDT,· J U D GM EN T. ·;;-;: The appellant,, RASHID! R™,\DHANI wa.s az-.naigl:l.ad, j,n the , , District C.o\llrt of M-oshi f'o;r, the ffence of being j.n ~~hm of of.fensive · material 'without l.ifu1 b-o19!ty or .exe·t'fuse eontrary to section 8 (2) of the National Security At. (No.·, of_. 1970) •. The trial magistrate convicted,. the_ appellant of this o.f'fence and sentenced him to .a teI'ffi .o:f fij'GXl, Q.l:.'J; :i.a ment. Te appeli:an± ,ba,i..ng ri.ev,e.d rq- this deci·sion now a,ppeals to this•ourt. .. .. The ca,.. against :the appellant as found by the trial e,eur'b- an coniently be stated as fo.lLows. On June· 23, 1989 .r· . ,.-.:".:: .i: (' .. ,, .... :the hou.se of the'- ·appellant was searched by Detective Corporal .· j4:MES (P .\v. 1 ) , ' and De tee ti ve Corporal . PHILIP ( P. W .,2) in the p;·esence of thEf party village secretary. one HALIMA . HUSSDIN · (p. v 1 • 3) ~ These witnesses searched the :·appellant's house . - ~ cting on a tip off that the appellaft was involved -in,a robbery incident. In the course of this se::1.rch P. H .1 and P. 1;,\ 2 . . ··•·. ·,. . . dis·covered among· other. tl:J,ings twenty bullets hidden in the appe_llant• s ·mattr~~s. The appellant named on JOHN· -AYUB, who was the scond acc~sed in.the trial court as being the owner of the bullets in question. It was on this imformation that · JOHN AYUB was arrested and subsequently was jointly ~ presented with the appellant in the M◊shi District . ..,C.pur:t • . . .. ·. :_ ,· .. • • • . • • /2 .

3 The next import1nt point for consideration and decision in this 9ase is whether the search_ ·was illegal in that the sea- . . '- 1 requ1rement . - • . . · - ··rcr~:were oompli~.d with, and if tlle answer ·is in -th~ .. ;. affirmative.whethe~ that is fatl to th a~~- f the prosecution I imgne that, sped dispatch and ingenui·ty are necessE1.ry in the detection of, and prevention of crime. This being the ~tate of affairs ~.he criminal Pro½edure Act (Act No. -·9 of 1985 unlike.the previous legislation (The CrJminal Procedure Code cap. 20) provides for a-search without warrffi?-t. This is provided under section 42(1)(b)(ii) of the' afores2id aot. In the light of the foregoing_I_am satisfied that the search , conducted in the house of_the- appellant on the material date was not illegal. I now come to the third point for consideration• . which is whether there was ample , , eviqence to connect the appellant with .the bullets now in que$tion. The evidence against the acqused. is' that of ·P. W .1, P ,'l. 2 and P. W. 3. Their evidence was to tne effect that the .bullets ~ere .. discovered hidden in the o.~ttr1::ss inside .th.::: 8ppell:.:nt-·! s bedroom.

• .. -~ . ; . . . , The appellant .did not diown _the said- mc-ittress. The :.rial magistrate found these witnesses as credible witnesses. As this evidence is cogent evidence this court can not interfere with the finding of fact of the le.1rned trial magistrat. In the light of te aforegoing, I hereby dismiss this appeal in so far as the aspect of the conviction of the . . . appellant is concerne, There remains, however, now the ques,t_ion of sentenc_e •. It is quite .plain th.J.t the sentence imposed by the trial court was ul 1rav°ires and can not be left to stand. This point was not convassed by either the appellant or the learned Str1.te -.ttorney who appeared for the Republic .. . ' . ... . It is common ground th-.:t _as tle bullets in question ~ere not proved as "munitions of cool" the sentence of 15 years which . . is.the minimum sentence prescribed under the written laws (Miscellaneous Ammendments) per, 1989 (Act No. 10 o_f .. 1989) was illegal. The aforementioned Act provides for a minimum • • • • • • • /4 ..

4 I sentence of seven years for II weapons or._ materials which are civilion arms or ammunit~ (underscoring supplied). ' . In tne result I am constrained to set aside the sentence of f_ifteen years impris_onment imposed to j ~ the appellant and substitute therefore a sentence of seven ( 7) years imprisonment._ It is so ordered. pate, 24/11/1990 Coram: Mkwawa Ag .. J .. J.J. MKWAWA, JUDGE. 22/11/1990. Mr Lundu, State· Attorney, for the Republic. Court:- The judgment·is delivered in chambers this 24th · day. of November, 1990 in the preser~reof Mr. Lundu, the State Attorney, for the Republic. J.J. MKWAWA, JUDGE •. 24 / 11 / 1990 ~-. I hereby certify this to be a true copy of the original. (M.L.K. Kannonyele), DISTRICT REGISTR\R. _ 24 / 11 / -1990.: .-'•'. ........