Rashid v. R. Crim. App. 83-M-70; July, 1970; Onyiuke, J.

Rashid v. R. Crim. App. 83-M-70; July, 1970; Onyiuke, J.

The appellant was convicted on two counts. The first count charged him with resisting lawful arrest and the particulars of offence were that the appellant “on the 22^nd day of November, 1969 at Popatia Bus-stand, Kigoma, did unlawfully obstruct Police Constable Paulo in due execution of his duty by assaulting him on his chest with fist while he was arresting him with offence of being a rogue and vagabond”, contrary to section 243(a) and (b) of the Penal Code. The second count charged him with being a rogue and vagabond contrary to section 177, subsections (3) and (4) of the Penal Code. The prosecution story was that a complaint of stealing was lodged with the police by one school boy, whereupon the police began the investigation. The accused gave some contradictory excused for his being there and then started to run away. When cought he assaulted on constable but was immediately overpowered by another policeman. The appellant in his defence stated: “He told me to stand up and we should go to police station. I asked why. He just insisted. I stood up and refused to go to police station until he told me why …. “On appeal to the High Court.

            Held: (1) “I deal with count (2) first. This count as the statement of offence shows combined subsections (3) and (4) in one count and the particulars incorporated some ingredients of subsection (3) and some ingredients of subsection (4). I do not think it is open for the prosecution to create such a hybrid offence. It only leads to vagueness and uncertainty as to the offence charge …. Subsection (3) provides that “every suspected person or reputed thief who has no visible means of subsistence and who cannot give a good account of himself shall be deemed to be a rogue and vagabond and shall be guilty of a misdemeanor.” It is not enough that a person cannot give a good account of himself or has no visible means of subsistence to be guilty of an offence under this subsection. The prosecution must, in addition, prove he is a suspected person. It cannot prove that a person is a suspected person. It cannot prove that a person is a suspected person within the meaning of the subsection by merely showing that he cannot give a good account of himself. The subsection does not say that every person who has no visible means o subsistence or who cannot give a good account of himself shall be deemed to be a rogue and vagabond. A person who cannot give a good account of himself or who has no visible means of subsistence must be somebody who has become suspect by some antecedent conduct. The suspicion which makes a person a suspected person must be suspicion arising from acts antecedent to the act occasioning the arrest. In R. v. MOHAMEDI s/o MZEE [1968] H.C.D. 148 it was held that in a charge under subsection (4) of section 177 of the Panel Code the prosecution must give particulars as would lead to the conclusion that the accused was there for an illegal or disorderly purpose. It was held that particulars of offence which merely stated that the accused were “found wandering upon the highway at such time and under such circumstances as to lead to the conclusion such persons were there for an illegal or disorderly purpose” are not sufficient

particulars under that subsection. This decision has not been heeded in the present case and the same vague and imprecise particulars were stated in the particulars of offence. It is hoped that those responsible for drafting charges would bear the above decision in mind while drafting particulars of offence under section 177(4) of the Penal Code. There is, besides, not sufficient material on record to sustain the conviction under section 177(4) of the Penal Code ….” (2) “It is clear the appellant was never told why he was being arrested”. A person who is arrested without warrant is entitled to be told why he was being arrested. A person is entitled to know on what charge or suspicion of what crime he is arrested. This is the general rule. The rule does not however apply where the circumstances are such that he person arrested knows or must know the general nature of the alleged offence for which he is arrested or detained; nor does it apply where the person arrested himself creates a situation which makes it practically impossible to inform him e.g. by immediate counter-attack or by running away. (See Biron J. in MZIGE JUMA. V. REPUBLIC [1964] E.A. Law reports p. 107) in the present case, the point was not considered by the learned magistrate. I have then to review the evidence on this point to determine the issue. It appears from the record especially the particulars of offence that the appellant was arrested not for stealing or for being suspected of stealing (the) suit case …… but for being a rogue and vagabond. It seems to me that (police constable) at the time of arrest did not quite make up his mind why he was arresting the appellant and therefore could not tell him the reason for the arrest …. A person is entitled to be told the reason for his arrest unless the rule is excluded from applying in a particular case by circumstances which I outlined above and which they do not exist in this case. The appellant was therefore, in the circumstances, in the absence of a reason being given him for his arrest, entitled to defend himself”. (3) Appeal allowed.