Masudi v. R. Crim. App. 456-D-70; 5/9/70; Biron J.

 Masudi v. R. Crim. App. 456-D-70; 5/9/70; Biron J.

Appellant was convicted of stealing by servant c/s 270 and 265 of the Penal Code. it was established in evidence that three aeroplane stand tyres were stolen from the store of the East African Airways at Dar es Salaam air port. These tyres were fitted on the motor scooter belonging to one Juma who stated that he had bough them for Shs. 90/- from the appellant, a mechanic with the East African Airways. A witness, who was also a mechanic with the East African Airways, stated that he saw the appellant with the tyres and asked him where he had obtained them to which appellant replied that he had obtained them from one Kassam, employed by East African Airways as Store-keeper in charge of the very store where the tyres were kept and subsequently discovered missing therefrom. Kassam denied having given the tyres to the appellant and he could not account for the disappearance of the tyres from the store, of which he was in charge. In his judgment, the learned magistrate stated that the appellant could not escape criminal liability because he was only an accessory after the fact or an aider and abettor. On appeal the learned state Attorney submitted that the court should substitute a conviction for receiving the tyres knowing them to have been stolen. The appellant however contended that he did not know that the tyres were stolen but thought that they came from Kassam’s car. There was no evidence adduced as to the value of the tyres in the lower court.

Held: (1) “The learned magistrate appears to be confusing an accessory after fact, which is a separate and distinct offence as provided for in section 387 of the Penal Code, with an aider and abettor in the commission of an offence, who is a principal in the commission of such offence, as provided for in section 22 of the Penal Code.” There is no evidence to support a finding that appellant aided and abetted the theft of the tyres. (2) The appellant “had been working at the airport as a mechanic or apprentice mechanic, since 1964, it is inconceivable that he did know that the tyres were the property of the East African Airways, and that Kassam could not have come by them honestly ……. I therefore agree with the submission of learned State Attorney that the appellant could have been, and should have been convicted of receiving the tyres, knowing them to have been stolen from the East African Airways Corporation.” (3) A person employed in the public service includes “Any person employed by or in the service of the Community, any Corporation within the Community or any Institution of the Community: “and “the theft of the tyres was therefore a scheduled offence under the Minimum Sentences Act 1963. Likewise, receiving such tyres, knowing them to have been stolen, is also a scheduled offence, being item of Part 1 of the Schedule to

the Act.” The appellant appeared in Court as a first offender, Apart from the evidence that the three tyres were sold by him for Shs. 90/- there is not the slightest indication from the evidence as to the value of the tyres. Therefore, there is no evidence that the value of the tyres exceeded such price, let alone the prescribed figure of Shs. 100/-, so as to oust the discretion of the Court, vested in it by section 5(2) of the Minimum Sentences act, that in the case of a first offender, where the value of the property involved does not exceed Shs. 100/-, and there are special circumstances, a Court can impose a sentence of either ten strokes corporal punishment, or to quote the section :………. ”such term of imprisonment as may appear to the court to meet the requirement of the case.” (4) Conviction for theft quashed and substituted therefore a conviction for receiving stolen property. Sentenced to nine months imprisonment.