Salum s/o Sefu v. R. Crim. App. 748-D-68, 24/1/69, Duff J.

Salum s/o Sefu v. R. Crim. App. 748-D-68, 24/1/69, Duff J.

The four accused were jointly convicted on two counts of assaulting a police officer in the due execution of his duty c/s 243 (b), Penal Code, on one count of malicious damage to property c/s 326, Penal Code, and on one count of creating a disturbance c/s 89(1) (b), Penal Code each accused was fined a total of Shs. 550/- or 9 months’ imprisonment in default of payment. It appears that the four accused together with four other persons were charged in other cases and were remanded in custody by an order of the District

Court at Utete. After being remanded, the prisoners while on their way to the remand prison, raised objections to the order of the learned magistrate, in consequence of which they were taken to the police station. At the police station it was alleged that they assaulted two constables, damaged the clothing of none of the constables and created a disturbance within the precincts of the police station.

            Held: “When admitting this case to appeal, it occurred to me that a charge involving disorderly conduct in a police station, which is an offence contrary to section 101(1) of the Police Force Ordinance, Cap. 322 could possibly have been more suitably preferred against the accused, rather than an offence contrary to section 89(1) (b) of the Penal Code. The crucial element in the offence mentioned in section 89 (1) (b) is the threat to the peace, and this offence is essentially one of provocation. The persons present who could have been provoked were the police, and it could not be suggested that they would act with anything but due professional restraint. A few years ago it was held that experienced police officers are clad in a “spiritual asbestos” when it comes to the likelihood of corruption by absence literature, and it could be equally argued that they are, by virtue of their occupation, less likely to be provoked by brawls or disturbances. It has also been stated that police officers must expect abuse and disorderly conduct and are not expected to be provoked into taking any retaliatory action. A police officer is a peace officer, and it follows that in all the circumstances of this case it was most unlikely that there was a threat to the peace. In these circumstances it appears that the charge in the fourth count was totally misconceived and should not have been preferred.” Appeals allowed in part.