KAUTO ALLY v REPUBLIC 1985 TLR 183 (HC)

KAUTO ALLY v REPUBLIC 1985 TLR 183 (HC)

Court High Court of Tanzania - Tanga

Judge Sisya J

April 14, 1982

CRIMINAL APPEAL 78 OF 1980

Flynote

Criminal Practice and Procedure - Charges - Duplicity - Three separate and distinct

D offences charged in the same count - Charge bad for duplicity.

Criminal Practice and Procedure - Trial - Naming the accused persons - Serial order

of identifying jointly accused persons - Serial order in the judgment inconsistent with

serial E order in the charge sheet - Effect of the inconsistency.

-Headnote

The appellant, along with another person, was convicted "as charged" in a trial in

which two other co-accused persons were acquitted. The facts were that on the

material day F the complainant, a Police Officer, waved at a bus to stop because he

had grounds to believe that it was unlawfully overloaded. The bus stopped and the

complainant got in for the purpose of counting the number of passengers. As he was

about to start counting, the bus conductor ordered the driver to drive on and the

latter readily G complied. Then another person pushed the complainant out and he

fell off the bus while it was still in motion and he was seriously injured.

Subsequently, four persons were jointly charged with the offence of obstructing a

Police Officer in the execution of his duty. But the framing of both the charge and

the particulars of the offence was such that a number of separate and distinct offences

were lumped together in the same single H count. The trial court convicted the first

and the second accused, the latter being now the appellant, "as charged", and

acquitted the third and the fourth accused. But the charge sheet referred to the

appellant as the third accused, and the trial court record also showed similar

confusion about the labelling of the other accused persons in the course I of the trial.

1985 TLR p184

SISYA J

Held: (i) The lumping together of separate and distinct offences in a single count as

was A done in this case may render a charge bad for duplicity and it enhances the

possibility of criminals getting away, inadequately punished or unpunished at all,

purely on technical grounds;

(ii) the changing of the labels attached to the different co-accused persons at

different stages in the course of the trial causes confusion and brings about doubts as

to B whether the person convicted is indeed the one found guilty;

Case Information

Appeal allowed.

No cases referred to. C

Judgment

Sisya, J.: This case was a bungle right from the beginning. The charge as laid reads:

D

Obstructing a Police Officer due to his execution of duty c/s 243 (b) and (e) of

the Penal Code.

There are two obvious errors here. The first is the wording of the offence itself. This

is so glaring to the extent that it makes one wonder how it escaped notice of the

learned E trial Magistrate, at least at the time he read it over to the accused; that is to

say, if at all he properly arraigned him. Or, if the learned trial Magistrate noticed it,

why he did not correct the error accordingly. The second error is in the law cited.

Each of the paragraphs of section 243 of the Penal Code - paras. (b) and (c) included -

create a F separate and distinct offence. At most offences under these paragraphs

may be charged in the alternative but not in the same and single count as was done in

this case. Perhaps it may be argued that these errors did not embarass the accused or

occasion any miscarriage of justice. That, however, is not the end of the story. G

The particulars of offence read as follows and I quote from the relevant charge sheet:

The persons jointly and together charged on the 7th day of February, 1980, at

about 7.30 hrs, at Ikulu (Ndogo), Lushoto District and Tanga Region, did wilfully

resist the lawful arrest of one H C. 7745 P.C. Florian a Police Officer employed in

the government service, as a result they assaulted the said Police Officer on his right

leg and all the arms by pushing him from the bus Reg. no. TZ 4993 Usambara Bus

Service and caused him to suffer grievous harm due to his I execution of duty.

1985 TLR p185

SISYA J

These particulars are, so to speak, pregnant with errors - grammatical as well as A

substantive. To quote but a few, it was actually the arrest by and not the arrest of

P.C. Florian that the accused are said to have resisted. Secondly, there are three overt

acts lumped together in the charge, namely wilful resistance to arrest, assault and

doing grievous harm. Each one of these is a separate and distinct offence under the

Penal B Code; the last one being chargeable under section 225. The importance of a

charge as the central point in every criminal proceeding is well known and, therefore,

it hardly needs a restatement. The responsibility for the correctness of the charge,

undoubtedly lies on the prosecutor. This Court, however, wishes to draw the

attention of all C Magistrates to the desirability of their going through the charge

before admitting the same. This is not only prudent but it is also one of the ways of

lessening the possibility of criminals subsequently getting away either without being

punished adequately or even without being punished at all, purely on technical

grounds. In the instant matter it could D very well be argued that the charge is bad

for duplicity. I will, however, leave this point at that.

Now turning to the facts of the case, there can be no doubt that the star witness is the

complainant, i.e. Florian (PW1), himself. His story is a sad one. On the relevant day

E and at the material time he was on guard duty at the State Lodge, Lushoto, when

he saw a bus registration No. TZ 4993 approach, heading towards the direction of

Lushoto. There were at least three persons somewhat precariously perched on the

roof rack. It immediately dawned upon him that the said bus must have carried more

passengers than it was otherwise authorised to carry. He, therefore, waved at its

driver to stop; which he F did at such a distance from where he stood as to enable

those on the rack to get down and wade through into the crowded bus. When PW1

got to the bus he ordered its occupants to get down and be counted. Five persons got

down. At that stage he boarded the bus and stood at the stairs. In his right hand he

held a gun whereas he had G a note book and a pen in the other. At the same time

he heard and saw a person "order" the bus driver to drive on. The bus took off,

carrying PW1 away with it. He, i.e. PW1, managed to find himself some support

where he stood in the bus. After covering a short distance a man, however,

approached him and, without any exchange H of words, pushed him out. PW1 fell

off the bus while it was still in motion and sustained as a result thereof, among other

injuries, a fracture of the left fibula. The bus moved on as if nothing had happened.

However, by what must have been a quirk of fate, it did not go far. After covering a

bare 112 metres it careered off the road and subsequently it hit a wall on the road

side. I

1985 TLR p186

SISYA J

There were four accused persons who appeared in the Court below to answer to this

A same mangled charge. They all pleaded not guilty. At the trial that subsequently

followed PW.1 identified the first accused as being the conductor of the bus and the

person who "ordered" the bus driver to drive on before the count of the passengers

begun; the second accused as being the person who pushed him out of the moving

bus; B and the fourth accused as being the person who was driving the bus at the

material time. PW1 told the trial Court that after the accident the third accused

accompanied by the first accused returned to where he lay with his broken leg and

began or "order" him to go to the Police station and report the matter because,

according to them, he was the C one who cause the accident. All the accused raised

the general defence of mere denial.

In his judgment which, with respect, requires extra power of perception to

comprehend, the learned trial Magistrate acquitted the third and fourth accused. He,

however, convicted the first and second accused persons "as charged" and sentenced

then to nine D months and four years imprisonment, respectively. The latter, i.e.

the second accused who, incidentally, is the appellant in the instant appeal, was given

a stiffer sentence for pushing the Police Officer from the moving bus "to meet his

death".

Without going into the merits and demerits of this appeal I feel constrained to, first of

all, deal with one point which, to my mind, is very likely to be dispositive of this

appeal. In E short it is the identification of this appellant as being the very same

person who both PW1 and the trial Magistrate referred to as the second accused.

This state of affairs has been brought about by the fact that according to the relevant

charge sheet this appellant was the third accused. According to practice one would

expect that would also be the F way he appeared in the dock at the trial: That is to

say, sit after or next to the man who appeared as second accused, on the one hand,

and the man who appeared as fourth accused, on the other. However, in his

judgment, in both typed and manuscript forms, the learned trial Magistrate, for

reasons beyond my comprehension, labelled this G appellant, Kauto Ally, the second

accused. The third accused is shown to have been one Hamad Mngazija. To add to

this confusion the record of proceedings itself appears to show that the sitting

arrangement of the accused was not as listed in the charge. For example, Faraji

Omari, who is shown as fourth accused in the judgment and was H acquitted is

shown as second accused in the charge sheet which was read out in Court. It will be

recalled that PW1 identified the second accused - no names were mentioned - as

being the person who pushed him out.

All in all I entertain grave doubts as to whether or not this appellant was indeed the

same I person both PW1 and the trial Magistrate had in mind when they talked of

the second accused in the case. In the

1985 TLR p186

circumstances it will be dangerous to uphold this conviction which is hereby quashed

and A the sentence passed thereon set aside. It is further directed that unless the

appellant is being held on some other lawful charges he should be set at liberty

forthwith.

B Appeal allowed.

1985 TLR p187

C