Amri v. R., Crim. App. 359-M-70; 19/2/71; Kisanga Ag. J.

 

Amri v. R., Crim. App. 359-M-70; 19/2/71; Kisanga Ag. J.

The appellant was charged with two counts of burglary contrary to Section 294(1) and stealing contrary to Section 265 of the Penal Code. The was convicted of receiving property which was stolen in the course of housebreaking and was sentenced under the Minimum Sentences Act to the statutory minimum of 2 years imprisonment with 24 strokes of corporal punishment. An order of forfeiture was made in respect of an axe and a knife which were found in his possession at the time of his arrest. The evidence accepted by the magistrate was that the appellant was observed walking along a road at night flashing a lamp on and off. Two police officers approached him and questioned him and the accused ran away, was chased and was caught and arrested. He was asked to explain his possession of the lamp and he refused to reply. The lamp was proved to have been stolen from the complainant’s house

            Held: (1) “[the appellant’s conduct] would tend to suggest that the appellant knew or reasonably believed that the property he was found with had been stolen or unlawfully obtained, but it would not be sufficient from which to infer that he knew or reasonably believed that the property was taken in the commission of a schedule offence.”  (2) “Following the decision in Shah Ali v. R., 1968 H. C. D. 474 I would agree with the learned state Attorney that there was a special circumstance in favour of the appellant in this case the appellant was a first offender. The value of the lamp was not given and was not assessed, and therefore it is to be assumed in the appellant’s favour that its value did not exceed Shs. 100/-.” (3) “Regarding the order of forfeiture, it is not apparent under which provision of the law the learned magistrate made it. There was nothing to suggest that either the axe or the knife or both of these instruments were connected with the offence of which the appellant was convicted or with any offence.” (4) Appeal against conviction dismissed. Sentence reduced to such term of imprisonment as would result in the immediate discharge of the appellant. Order of forfeiture set aside and axe and knife ordered to be returned to the appellant under the provisions of section 179(a) of the Criminal Procedure Code.