R. v. Abdallah and Hassani Crim. Rev. 11-M-71; 16/7/71; Kisanga Ag. J.

 R. v. Abdallah and Hassani Crim. Rev. 11-M-71; 16/7/71; Kisanga Ag. J.

The accused were convicted of conveying property suspected to be stolen c/s 312 of the Penal Code and sentenced to 10 strokes of corporal punishment each and ordered to be under police supervision for a period of 12 months.

Held: (1) “The particulars of the new charges read as follows:- “The persons charged on the 5.5.70 at about 0300 hours at Lumumba Street, within Bukoba township did jointly and together convey property viz., 4 beds (BANCO) valued at Shs. 240/- in such manner as would be reasonably suspected of having been stolen or unlawfully obtained.” It is quite clear that the above particulars did not disclose an offence under section 312 of the Penal Code. There a person is charged under this section, the particulars must make a reference to section, and the particulars must make a reference to section 24 of the Criminal Procedure Code. in the case of Kiondo Hamisi vs. R., 1963, E. A., page 209, the Court observed that a change under section 312 should allege “that the accused was detained as the result of the exercise of he powers conferred by section 24 of the Criminal Procedure Code and that at the time when he was detained he was conveying or was in possession of (as the case may be) a specified thing which might reasonably be suspected of having been stolen or unlawfully obtained.” Thus, to the extent that the

Particulars made no reference to section 24 of the Criminal Procedure Code as indicated above, the charge was defective.’ (2) “Even assuming that the charge was properly framed, the facts of the case do not seem to establish all the ingredients of the offence alleged. In the case of Ally Ramadhani vs. R., 1968, H. C. d. No. 430, t was held that one of the pre-requisites for a conviction under section 312 of the Penal Code is that the accused was detained in exercise of the powers under section 24 of the Criminal Procedure Code. In the instant case, P. W. 3, a special constable, merely said that he saw the accused persons carrying beds and that when he approached hem one of them drew a knife and that on seeing this he blew a whistle where upon the accused persons ran away leaving the beds on the spot.” It must be shown that the police officer stopped, searched and detained the accused which was not established in this case. (3) “As mentioned earlier, the accused persons, after conviction were each sentenced to 10 strokes or corporal punishment and each ordered to be under police supervision for a period of 12 months. The order for police supervision was clearly not proper. Under section 308 (b) the instant convictions is punishable with imprisonment for a term of three years or upwards, and (c) following the instant conviction, a sentence of imprisonment was passed on the accused. Both accused were shown to be first offenders. An offence under section 312 of the Penal Code is a misdemeanour and hence punishable with a maximum only of two years imprisonment and following the instant conviction, no prison term was imposed on the accused persons. None of the conditions set out above was therefore satisfied and consequently the police supervision order could not properly have been imposed. (4) Convictions quashed and sentences set aside.