R. v. Ahmedi Panju and another, Misc. Crim. Cause 5-M-72, 8/4/72, El-Kindy, J.

 R. v. Ahmedi Panju and another, Misc. Crim. Cause 5-M-72, 8/4/72, El-Kindy, J.

This is an application for bail pending trial. The applicant, Ahmed s/o Panju, was charged together with another (herein after referred to as “co-accused”) with the offence of removing property under lawful seizure c/s 118, Penal Code. The charge alleged that they had jointly remove 400 tins of cooking oil and 1,400 hides from Tarime Police Station, and that these goods had been lawfully seized. Both accuseds denied the charge. The applicant’s co-accused was charged alone for such an offence on 19 February 1972 when he was remanded in custody, but on 26 February 1972, with the positive effort of the prosecution, he was released on bail upon signing a bond of Shs. 1,000/= with two sureties each for a similar amount. On 2 March 1972, the Magistrate dealt with the applicant’s bail. The applicant was then unrepresented. He held that the appellant could not be granted bail because “Accused No. 2 has no surety”. The applicant was accordingly remanded in custody to 17 March 1972. On 11 March 1972, Mr. Tukunjoba appeared for the applicant as well and he was brief in his bail application having regard to what the trial Court had already said on the 2^nd of March 1972. The prosecution raised objection to bail because (a) the State Attorney from Mwanza said objection should be raised, (b) that the case was serious as it involved property worth Shs. 60,000/=, (c) the “Accuseds” were influencing witnesses to move away and therefore it was a problem to get the witnesses together. The trial court held that the reasons given wee sufficient to deny bail, and it was accordingly withheld. A third attempt was made on 17 March 1972, When Mr. Sandhu, advocate, appeared for the applicant. The objection was based as follows. That the applicant “will” be charged with another offence. “Others” too will be joined. The applicant will interfere “with other suspects who have not been arrested hither to”. It was no longer alleged that the applicant will interfere with witnesses. In support of the application, it was argued that the applicant was a permanent resident of Utegi village that it was unlikely that he would abscond. It was submitted that the fact that the applicant “will” be charged with “others” is another speculation  

It was argued that the allegation of “interference” was not substantiated as it should and could have been done if it had any substance. It was said that the applicant was an old man. His age, in the charge sheet, is given as 51 years. That keeping him in remand does not prevent him meeting people. In other words, the applicant could meet people if he wanted to irrespective of where he was. It was also alleged that the applicant was sickly although it was not substantiated. It was further argued that if bail could be granted to co-accused, there was no reason for the applicant to be denied, and that it was “unfair” that one person should be granted bail while the other is denied it. The prosecution in reply alleged that as the applicant was near the border he could escape to Kenya. The Magistrate gave a short written ruling in which he refused to grant bail because the applicant was likely to escape.

            Held: “It is well established that the test to be applied is whether the person to be granted bail would appear to take his trial if he granted bail ….. Having regard to the test to be applied in such cases, I take into account that the offence for which the applicant is charged is a felony and carries with it a maximum term of imprisonment for 3 years. The learned Magistrate did not think that it was a serious offence as it can be gathered from the bail terms made in favour of the co-accused. I cannot see myself justifying holding a different view. These goods, so I was told from the bar, were taken from the Police Station at Tarime. Having regard to the very nature of the alleged goods – 400 tins of cooking oil and 1,400 hides – it is really suspicious as to how such goods could be taken out of Police Station without their immediate knowledge. This takes me to the very nature of investigations involved. If the particulars are what they are, then the investigation of the case should be completed easily as the majority of witnesses would be Police Officers. Such being the case, the investigation of this case should not have taken such along time. It is also a factor to be taken into account that the co-accused is on bail and as I have already stated no reason was given for such a discriminatory distinction. Both accuseds have equal reasons or temptations to escape …. It is also a factor to be taken into account that so far the value of the alleged removed property is unknown. As for the allegation of interference with witnesses, I would say that is not substantiated. It should not have been difficult to do this if such an allegation has any base. The investigator could have sworn an affidavit explaining what he has done and who he had contacted and what had been the results so far. Before any one can say there would be interference with vital witnesses, at least some facts should be led to the court otherwise it is asking the Courts of Law to speculate. (Citing: Bhagwanzi Kakubhai v. R., 1 T.L.R. 143]…. The applicant is alleged to be 51 years and he has been in custody since the 2^nd of March, 1972. He is living at Utega village in Tarime area. I agree that the most important factor to be taken into account is the fact that his residential area is near the borer with the Republic of Kenya but his by itself is not a sufficient ground for denying bail. Having regard to all these matters, I exercise my discretion and grant bail to the applicant on following terms: (1) That the applicant should deposit cash in the sum of Shs. 2,000/= with this Court,

(2) That 2 sureties should sign a bond of Shs. 2,000/= each; (3) That the applicant should report at the Police Station, Tarime every day at 8.30 a.m. and 6 p.m. Upon complying with these terms the applicant should be released from remand custody.”