Mustafa s/o Saidi v. R. Crim. App. 173-A-68, 23/12/68, Platt J.

Mustafa s/o Saidi v. R. Crim. App. 173-A-68, 23/12/68, Platt J.

The appellants Ramadhani Ally and Mustafa Saidi were charged jointly with the theft of 47 goats. The appellant Ramadhani was convicted of the charge framed but the appellant Mustafa was convicted of stealing on goat by a finding.

Held: (1) “The appeals of Mustafa were allowed on a technical ground. It was held that on or about the 29th January 1967, 47 goats out of a herd of 60 goats had been ‘lost’ by the appellant Ramadhani while he was in charge of the herd. From the surrounding circumstances it was inferred that this appellant had stolen them. Sometime in February 1967, the appellant Mustafa was seen by his neighbours to have one goat which two weeks later was identified as one of the missing goats. From the circumstances, it was held that Mustafe was guilty of theft by finding ….. There was evidence supporting that finding. But if that were so, the appellant Mustafa was then found guilty of an entirely different theft to that with which he was charged ……. The principle is, that except where statutory provision has made it possible to convict on an alternative charge, if the Prosecution fails to prove the charge preferred, the accused is entitled to be acquitted. That seems to me to be only fair; for the Prosecution has enough powers with which to frame the charge properly. So for instance, in R. v. Scaramanga (1963) 2 Q. B. 807, it was held that “except where provided by statute, when two persons are jointly charged with one offence, judgment cannot stand against both of them on a finding that an offence has been committed by each independently”. That was the position in the instant case. Mustafa had stolen a goat in quite different circumstances from the theft held to have been committed by Ramadhani. Therefore the joint charge could not stand. The Republic conceded as much, but prayed in aid section 346 of the Criminal Procedure Code. in Scaramanga, the Crown attempted to persuade the court of Criminal Appeal to apply the relevant curing section. It was held that that could not be done because it would amount to substituting a conviction for that charged under the curing provisions when the legislation did not permit it otherwise. That reasoning would apply equally to the instant case and the legislation upon which it depends. I am satisfied that it would be wrong in principle to apply section 346 of the Code; especially when the Prosecution had ample powers to frame the charge properly. Accordingly the appellant Mustafa’s conviction and sentence were set aside and he was ordered to be set at liberty unless held or any other lawful cause.”

            (2) Appeals of Ramadhani dismissed.