MRISHO SALUM v REPUBLIC 1991 TLR 158 (HC)

 

MRISHO SALUM v REPUBLIC 1991 TLR 158 (HC)

Court High Court of Tanzania - Tabora

Judge Sekule J

21 October, 1991

Flynote

D Criminal Practice and Procedure - Conviction - Procedure for convicting an

accused in absentia.

Criminal Practice and Procedure - Accused escapes - Whether adverse inference can

be drawn against the accused.

-Headnote

E At one time the police were conducting some investigations in Ng'ambo area in

the Tabora Municipality. In the course of the exercise they were tipped that in one

house near the area there were robbers. They went to the house and tried to surround

it. The appellant ran out of the house but was pursued and arrested. The house was

searched F and a three band radio cassette, which was later identified as belonging to

one, Masali Fundikira was recovered. Inside the house another person, presumably

the appellants co-accused, was found under the bed. He was arrested. It appears that

this person was the owner of the house in question. There was also some evidence

that the appellant G lived with his parents in another house. The appellant and this

other person were charged with the offence of house breaking, stealing and unlawful

possession of bhang. It would appear before the trial started, the appellant's coaccused

and who was the 2nd accused absconded. The charge against him was

withdrawn. After the testimony H of one witness the appellant also absconded.

The trial court ruled that since the appellant absconded from lawful custody after

hearing the first prosecution witness I it was reasonable to draw an adverse

inference against him and that a prima facie case was established against him. The

court went on to convict him in absentia as charged and sentenced him to 13 years

1991 TLR p159

SEKULE J

imprisonment for house breaking and stealing and one year A

imprisonment for unlawful possession of bhang. He appealed to the High Court of

Tanzania.

Held: (i) The appellant's action of running away was not sufficient, in itself, to show

that he was a party to the B commission of the offences of housebreaking and

stealing;

(ii) as the first prosecution witness did not mention anything on bhang the

court was not justified in holding that a prima facie case had been established in

respect of it;

(iii) the provisions of section 227 of the Criminal Procedure Act are applicable

where the accused fails to C appear on a date fixed for continuation of hearing after

the close of the prosecution case or on the date fixed for passing the sentence;

(iv) on the basis of section 226 of the Criminal Procedure Act the trial court

had a duty to hear the D prosecution case to the end and if it is was satisfied that the

evidence adduced warranted a conviction it could have proceeded to convict the

appellant in absentia.

Case Information

Appeal allowed. E

[zJDz]Judgment

Sekule, J.: The appellant Mrisho Salum together with one Marseli Haruna were

jointly charged in the District Court of Tabora with the offences of house breaking,

stealing and unlawful possession of noxious plant commonly known as bhang. The

offences appeared as 1st, 2nd and 3rd counts respectively on the charge sheet. The

appellant F was the 1st accused at the trial.

It would appear before the trial started, the appellant's co-accused and who was the

2nd accused absconded. And when efforts to arrest him failed, the charge against him

was withdrawn. The case thus proceeded against the appellant alone. G

After the testimony of one witness, the appellant also disappeared. The trial Court

then proceeded to make the following ruling:

Since the accused person namely Mrisho Salum escaped from lawful custody

within the court premises after hearing the H evidence of the first prosecution

witness, I think, it is not unreasonable to draw an adverse influence against him

(accused person) against whom a prima facie has been established at least it exists and

the said accused having escaped from lawful custody. I

1991 TLR p160

SEKULE J

A Accordingly I convict him as charged, that is burglary c/s 294 (1) of the Penal

Code, stealing contrary to Section 265 of the Penal Code and the unlawful possession

of noxious plants c/s 2(b) of the Cultivation of Noxious plants (Prohibition) Ordinance

Cap.134.

The appellant was then sentenced to 3 years imprisonment on the 1st Court, i.e.

burglary, one year imprisonment in B respect of the 3rd count, possession of bhang.

The appellant is now appealing against conviction and sentence. And he was present

at the hearing of the appeal. C Mr. Oswald, learned State Attorney appeared for the

Republic and declined to support conviction.

The background of the case can be gathered from the testimony of Detective Cpl.

Patrick Benedict the sole witness who testified, is that on the material day, he and

other two CID officers were conducting some investigations in the D Ng'ambo area

in the Tabora municipality. They were then tipped that in one house in that area

there were robbers. And they accordingly went to that house. And as they were in

the process of surrounding the house, the appellant rushed out of that house and ran

away. He was pursued and arrested. The house was then searched and a three band

radio cassette was recovered from therein and this radio was later identified to be the

stolen property of one E Masali Fundikira of Ng'ambo Sikonge Street in the

Municipality.

In the house, they found another person under the bed. I suppose this was the

appellant's co-accused.

F The appellant then led the police to his parent's home where they met his mother.

Thereafter he and his co-accused were taken to the Police Station and charged.

And this was the essence of the prosecution case at the time before the appellant

escaped. In his petition of appeal, G the appellant has contended that there was no

prima facie case established. And he stated in his oral submission at the hearing of the

appeal that the person who escaped and avoided trial was the owner of the house.

I have considered the evidence and I agree with the appellant, that the evidence of

PW.1, Detective Cpl. Patrick H Benedict did not establish a prima facie case against

the appellant. All it established is that the appellant ran away from that house in

which a stolen radio was found upon a search. But in any view the appellant's act of

running away could not on its own establish that he was a party to the commission of

the offences contracted with that radio. He I was not a resident of that house. He

lived with his parents in another

1991 TLR p161

SEKULE J

house. And he led the Police to his parent's home and it would appear nothing

incriminating was found there. A

It is the owner of the house who appears to be the person who avoided trial who

should have been principally the person to explain how the radio in question came to

be in his house.

As to the issue of unlawful possession of bhang, there was no mention of bhang at all

in the testimony of PW.1. I B do not therefore understand why the trial Court was

of the view that a prima facie case had been established in respect of this particular

count.

Further, it would appear, after the disappearance of the appellant after the testimony

of PW.1, in taking the course it C took, the trial court was probably and purportedly

acting under the provisions of section 227 of the Criminal Procedure Act, 1985.

Should that be the case, the trial court, was with respect in error. The provisions of

section 227 of the Criminal Procedure Act, do in my view apply to situations whereby

an accused fails to appear on a date fixed for continuation of the hearing after the

close of the prosecution or on the date fixed for the passing of sentence D

(underlining supplied). In this case, the prosecution had not closed their case when

the appellant went missing. The proper provisions which should have been invoked

were in my view the provisions of section 226 of the Criminal Procedure Act. And

the Court should have proceeded to hear the prosecution case to the end and if the

evidence E adduced warranted a conviction, then it could have proceeded to convict

him in absentia. The provision of section 226 (2) (3) and (4) should however always

be closely borne in mind in this kind of situation.

The procedure adopted was therefore in my view and with respect, not proper. F

For the foregoing reasons, this appeal succeeds and it is hereby allowed. The

conviction is quashed and the sentence is set aside. The appellant is to be released

forthwith unless otherwise lawfully held. G

Appeal allowed.

1991 TLR p162

A