Azizi Kifyasi vs Republic (High Court Criminal Appeal No. 76 of 1988) [1988] TZHC 373 (29 July 1988)

flj T .HIrn{ COURT OF 'AiZ.4JIA I •• •. AT APPELLATE JURISDICTION Mbeya Registry) HIGH COtJR CRIMINAL APPEAL NO, 76 OF 1988 RIGINAL CRIMINAL CASE No.88 OF 1987 OF THE DITRIC COtJRT OF MtJFINDI DISTRICT AT MAFINGA Before: 5.3k Magashij Dia4pirt Magis.trate) AZIZIAO KIFYASI... ... ... ... ...APPELLANT ver.*us 0 THE REPUBLIC.,. ••• .•. ... ... .RESPONDENT QHARG eling C/4 265, of the anal Code Cap. 6 V01.1 Law?, J U D G M E N T The appellant was convicted by..thé District Court of Mufind for the theft of 123 pieces of timber value,d ashiulings 364 and wag srxtenced to twelve months imprisoment ; He has felt aggjepd by the óootion and sentence and, therefOe,appI1e to this ,Gu.r1. In Augut, 1987 one Rashid Mbena (wi), a timber dealer, complai4. to the police at Mafinga that his 123 pieOes of timber, together with other property all worth shillings 47,59QA had been stolen, apparently from'geleka Village or forest AeGrding to Rashid and his son Vitus lVThugi (pW3) the the.f * occurred in that month of Aust but on an tnspecified date. . .•4_ • t_

• 2 - On 7th October, 1987 the appe1Jm was found with 65 pieces Qf ti9iber 0 Rashid (PW1) claimed he 1ntif:..ed that timber to have beer, pabb of those stolen. HedLd not explain in his evidence in court ox to 7W2 Police Officer Emmanuel how he was able to identify the timber to be his property. Ba that as it niar, the police seizsd three of tho timber as a sampic and these were produced, in evidne as exhibit; he appellant on the other and.admitted bing found in psession of ihe 65 pieces of,timber but he c1aimec. and was suppo'td, by three witnesses all who were nembers of 'the 7ilage government, as. that .he imb'e were for use in the constructio,. ofurniture of the vUlage CI office. The appelltwaHhe Secrc"ary of ?i11age. There was evidence from a school boy Jecieck Halenga - PW6 that on 6/7/87 he and 64 other pupils coiJ 'bed timber, from W&ma village on the instructions O± their teacho'c to the home of the appellant 0 Indeed PW4 - Albert Chongo - a trbr cof rine.d thai at the request of the appellant he instructed hs pupils who were 65 in 21tber' to collect the timber in July; 1987 t o tho of the ( appellant.. The appellant's request letter was producd in idence at the trial as exhibit P1 The letter was da1c 1 . / 7/87nd'he school hea4teacher minuted a direction to carry out The"request' on the same date, that is 6/7/870 The question has been whether the 65 pieces of timber found in the possession of the a.ppellant belonged to the complainant Rashid (PWl)' The trial District Magistrte held in the affirmative. Was .. he entitled, on the evidence, to make such a finding? As already montioned-in the earlier part of this judnen, it is not 1ear from the evidence how the complainant Rashi4 was to identify the timber found with the appellant as his (comp 1aintsfl I

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• Propprty, . P172 said that the mber found with the appellant was "Mkuhdikwava". But there had been no claim by the complainant that his 1stolen timber was of that description. Even if there had eeia such a claim, there would have to be some other evidence to ShOW that with certainty thatztimber could not have been the property of any peon other than the complainant. Timber generally, or even I'Mkiandikwavau timber, which does not have personal iñ.enificatii mak is difficult to prove its ownership positively, There ia,. • there'dre, doubt whether in fact the complainant reliably identt4ed the tithber to be his. Tère was also a conflict in the evidence aluce1 by the proae{rbion. First, it was said by the complainint that his timber was wolen in Augu.st, 1987 and that he reported to :1e police i21 the same month, The evidence of F72 Eaanuol tends to. confirm that, However, acoordin to PW4 - Albert Chongo and P76 :enack Halenga the tim1erwhioh was found with the appöllant was trouht to him on.54/ before the complainant's tlr1ber was stolen, Beside timber found with the appellant was brought in frx: Vlima vi.1age not from Igoloko Village, whore complainant's tinbor was beforO it was . stolen, aocdrding to PW5 A2 7 oys 11,1wihava6 :. • - Aloye Moihava could not in any case be a inoas of truth. of his evidôncQ was in some rspo91s a cloa-Ock and bull story. •.'or example, he claimed that on the, day the appoan allegedly stole the timber, he (PW5 - Aloys) and a colleaguo lobk 123 piees of timbor prosuriably to the hOiiO of ti-c appellant. t iwt be impossible for two people to carry that quantity of imbor Ho 1somade the other incredibip .claim that the appollait dotaned him for three months.in his hOt.se1 • In convicting the ppoliant the trial District Iagistrae dwelt at length on the apparent woaIao sees in the defcq 1• 4 )

I He daid nother thc a 1 peU uss said who had 16n the 'mbc r which was fOL h ppr alant It 4s true that neit42r the appo11ait ir his withoses sad that bu* courts n(mb on.t cused pors s on the 1baiis.. owoairncsscs:in the de:enâb evi 1 once R6thoi i it is the 1w that accused' persona arc on +hc streng - h of the proscution case To conVct on thr aSi 4 f the ofence odonco is t shift ihc: uc ef rcof the - de±'enco', It is an elomentery principle of ouriLmiva1 urisprudenp that t10 burden of proof pcver shifts from the prOSOCU-Ofl in the guilt of an accixsod. pros The trial. couri 11.d 't el2o a1ude to thee±once of alibi which was given. by the appllt and support-PA by his winess RQiKaualc to the effect ain fact d.urin he month of August 1987 the jpinL VtL tending a moetn, inafga Of cource it via.s not clear L tic sppellant ws n Maf ga for the wholo of August 1987 hu equ-tljit was not ciQap when ectly in the month of August,t.1987 thc tIIJ f eonplainntt timber oceiirrcd 0 - The learned State A±trncy f' '1 ' : th1ic does riot

• tv support the. ronviction and I an not st'rrisc 'cc all/above reaso$j -this appea1:isa11owcd The conviei;ionis ashe md the sentoe of twelve months imprisonment set aside Thu ti1or which were produced in Qourt as exhibits plus the rraitn of the 65 pieces of timber found at tho hno of appellant -ould bc 'esiored to the Mapanda Village for use in the 0CM Office at J.iscosed in the evidenceG - - - The appellant hc'flJ, be - 'tA unless held for some other lawful cause Mx'oso At Mbeya JUDGE 29/7/88 Mr 0 Nd.unguru, State Attooy prent JAR/ATM - 1 i: 13