Mohamedi Alliy v. R. Crim. App. 521-D-68, 6/12/68, Georges

Mohamedi Alliy v. R. Crim. App. 521-D-68, 6/12/68, Georges

The appellant was convicted of unlawful wounding c/s 228(1), Penal Code, and sentenced to 9 months imprisonment. It was ordered that the shotgun with which the wounds had been inflicted should be confiscated. The appellant lived in a minor settlement at Kilwa. He had a coconut shamba and for some time had been troubled by thieves. On the day in question he decided to mount guard in his shamba with the shotgun. While there he heard sounds, fired his gun and wounded the complainant Saidi Ali Katombosi. It is admitted that Saidi and two other men had gone to the shamba to steal coconuts.

Held: (1) “Section 18 of the Penal Code states:_ “Subject to any express provisions in this Code or any other law in operation in the territory, criminal responsibility for the use of force in the defence of person or property shall be determined according to the principles of English law”. My attention has not been drawn to any specific local law dealing with the use of force in defence of property, nor am I myself aware of any. It would appear therefore that English law applies”.

            (2) “Basically the common law does not favour the use of firearms in the defence of property unless the life of the defender himself is threatened …. (Citing: R. v. Scully (1824) CARU p. 319, and R. v. Dadson (1850) 2 Den p. 35). In Tanzania stealing is a felony and quite apart from that the appellant would have been entitled under provisions of section 32 (2) of the Criminal Procedure Code to arrest any one found committing any offence involving injury to his property. Under the provisions of sec. 19(2) he would be entitled, if such person attempted to avoid arrest, to use all means necessary to effect the arrest. This could presumably involve the use of a firearm. I do not think, in this case however, that the use of firearm could be said to be justified. The appellant could not have been positive that the persons in his estate were in fact thieves. At best he would merely have seen people running away and they could well have been only trespassing. It is clear that he did not attempt to shout a warning to stop on the threat of being fired at. It is clear also that he did not aim his rifle up in the air to frighten them in order to induce them to stop without actual injury. I think all these are steps which should be taken before one aims deliberately at the offender with the intention of bringing him down. For these reasons therefore, I think that the conviction is justified and should be supported”.

            (3) “The sentence is, however, in my opinion manifestly too severe. The appellant is a first offender. The injuries inflicted on the complainant were minor. The complainant is an admitted thief. The operation was clearly an organized one involving three people and cannot be said to be merely the sad case of a poor person yielding to sudden temptation and stealing a coconut for his own use …. One has an uncomfortable feeling that the district Magistrate permitted consideration of race to effect his judgment when he says: - “This Court feels compelled to set an example to impose a sentence which will act as guide to those in the same position as that of the accused in this ancient occupied Arab minor settlement. It is now a free minor settlement”.

Further, the District Magistrate referred to the attitude of the appellant as that of being dog-in-the-manger because he owned a shop in the village from which he gained his livelihood at the same time insisted on guarding his coconut shamba in the evening. I fail entirely to understand the logic of this statement … the accused ……. Has already spent three and a half month in prison. This is quite enough. Indeed under the circumstances of his case a fine would have needed appropriate punishment but since this cannot be imposed I shall vary the sentence to such a term of imprisonment as will result in the immediate release of the appellant”.

            (4) “State Attorney concedes that there is no provision justifying the confiscation of the firearm. Even if there were in the circumstances of this case I see no reason why this should be done. Accordingly the order for the confiscation of the firearm is revoked and it is to be retuned to the appellant”.