Ali Mohamed Hizam v. R. Crim App. 42-D-70; 18/5/70; Makame Ag. J.

Ali Mohamed Hizam v. R. Crim App. 42-D-70; 18/5/70; Makame Ag. J.

The appellant was charged with another person with having or conveying property suspected of having been stolen contrary to section 312 of the Penal Code. He was found guilty and sentenced o a term of imprisonment for nine months. The evidence was that on the 17^th of October 1969, Detective-Sergeant Ramadhani Mohamed went to the house of the appellant’s co-accused, where he found the latter about to get into a waiting taxi. On being asked, the co-accused furnished the sergeant-major with the information that the parcel he was carrying contained 8 pairs of trousers, and when the prosecution witness examined the parcel he discovered that it had indeed 8 pairs of trousers, all of hem Tetron. The co-accused led the Detective-Serveant to the Victoria Hotel, where the appellant was, and the appellant denied all knowledge of the clothes. They went to the appellant’s house, where the witness found nothing suspicious. But when he went to the house of one Abadi, the prosecution witness found three bags containing 196 pairs of Tetron trousers which were similar to the ones the witness found in the possession of Salum ally, the appellant’s co-accused. Dudu Abdallah, told the court that he was the person who had the taxi which Salum Ally had hired when the Detective-Sergeant stopped them. Not more than five days before the material day he had been hired y the appellant form the Dodoma Township Bus Stand to a house in an area of the town curiously referred to as the Oyster Bay. The appellant had three bags full of certain things, but Abdallah allegedly did not know what the things were. However he was sure that the bags.

Exhibited in court were the same as he had carried for the appellant.

            Held: (1) “It is not disputed that the appellant was detained in connection with the alleged offence and the fact, which I find established, that the 196 pairs of trousers were found at the back of the house would make one reasonably suspicious that they were stolen or unlawfully obtained. The appellant had temporary control of the house, and his on is the one who gave the police the key to it. He was thus in temporary possession of the house, and it is evidently a reasonable construction of the evidence as a whole to conclude that the clothes found there were taken there by the appellant and his on. The son was in immediate control and the father in constructive control and legal joint possession of the things.” (2) “I am clear in my mind that it is in conveying that an accused person must be in the course of a journey. A section 312 offence can be committed either by having or by conveying the things in the requisite circumstance. It would be awkward and in my view a wrong interpretation to hold that even in having in his possession he accused must be in the course of a journey. In any case, even in conveying an accused person is in the course of a journey even if his arrest takes place at the terminus of the journey. See the judgment of Mosdell J. in Bakari Bakari v. The Republic (Dar es Salaam Criminal Appeal No. 195 of 1962)” (3) “The appeal against conviction is devoid of merit and a sentence of nine months cannot be sad to be excessive in the circumstances. The order for forfeiture is however improper, because three may be a legal owner of the clothes. The more appropriate order would be to treat the clothes as found property, so that the court or the police can advertise for claimants to them. I accordingly order that the trousers be treated as found property.”

            Editors’ note: This important case apparently relieves s. 312, Penal Code, of some of the highly technical restrictions which have made its application difficult, and which were laid down in their final form in R. v. Msengi s/o Abdullah, 1 T. L. R. 107. See the comments in Charles s/o Mumba v. R., (1967) H.C.D. n. 221.