Mrisho Salum vs Republic [1991] TZHC 25 (21 October 1991)


Sekule, J.: The appellant Mrisho Salum together with one Marseli Haruna were jointly charged in the District Court of Tabora with the offences of house breaking, stealing and unlawful possession of noxious plant commonly known as bhang. The offences appeared as 1st, 2nd and 3rd counts respectively on the charge sheet. The appellant F was the 1st accused at the trial.
It would appear before the trial started, the appellant's co-accused and who was the 2nd accused absconded. And when efforts to arrest him failed, the charge against him was withdrawn. The case thus proceeded against the appellant alone. G
After the testimony of one witness, the appellant also disappeared. The trial Court then proceeded to make the following ruling:
Since the accused person namely Mrisho Salum escaped from lawful custody within the court premises after hearing the H evidence of the first prosecution witness, I think, it is not unreasonable to draw an adverse influence against him (accused person) against whom a prima facie has been established at least it exists and the said accused having escaped from lawful custody. I

A Accordingly I convict him as charged, that is burglary c/s 294 (1) of the Penal Code, stealing contrary to Section 265 of the Penal Code and the unlawful possession of noxious plants c/s 2(b) of the Cultivation of Noxious plants (Prohibition) Ordinance Cap.134.
The appellant was then sentenced to 3 years imprisonment on the 1st Court, i.e. burglary, one year imprisonment in B respect of the 3rd count, possession of bhang.
The appellant is now appealing against conviction and sentence. And he was present at the hearing of the appeal. C Mr. Oswald, learned State Attorney appeared for the Republic and declined to support conviction.
The background of the case can be gathered from the testimony of Detective Cpl. Patrick Benedict the sole witness who testified, is that on the material day, he and other two CID officers were conducting some investigations in the D Ng'ambo area in the Tabora municipality. They were then tipped that in one house in that area there were robbers. And they accordingly went to that house. And as they were in the process of surrounding the house, the appellant rushed out of that house and ran away. He was pursued and arrested. The house was then searched and a three band radio cassette was recovered from therein and this radio was later identified to be the stolen property of one E Masali Fundikira of Ng'ambo Sikonge Street in the Municipality.
In the house, they found another person under the bed. I suppose this was the appellant's co-accused.
F The appellant then led the police to his parent's home where they met his mother. Thereafter he and his co-accused were taken to the Police Station and charged.
And this was the essence of the prosecution case at the time before the appellant escaped. In his petition of appeal, G the appellant has contended that there was no prima facie case established. And he stated in his oral submission at the hearing of the appeal that the person who escaped and avoided trial was the owner of the house.
I have considered the evidence and I agree with the appellant, that the evidence of PW.1, Detective Cpl. Patrick H Benedict did not establish a prima facie case against the appellant. All it established is that the appellant ran away from that house in which a stolen radio was found upon a search. But in any view the appellant's act of running away could not on its own establish that he was a party to the commission of the offences contracted with that radio. He I was not a resident of that house. He lived with his parents in another

house. And he led the Police to his parent's home and it would appear nothing incriminating was found there. A
It is the owner of the house who appears to be the person who avoided trial who should have been principally the person to explain how the radio in question came to be in his house.
As to the issue of unlawful possession of bhang, there was no mention of bhang at all in the testimony of PW.1. I B do not therefore understand why the trial Court was of the view that a prima facie case had been established in respect of this particular count.
Further, it would appear, after the disappearance of the appellant after the testimony of PW.1, in taking the course it C took, the trial court was probably and purportedly acting under the provisions of section 227 of the Criminal Procedure Act, 1985. Should that be the case, the trial court, was with respect in error. The provisions of section 227 of the Criminal Procedure Act, do in my view apply to situations whereby an accused fails to appear on a date fixed for continuation of the hearing after the close of the prosecution or on the date fixed for the passing of sentence D (underlining supplied). In this case, the prosecution had not closed their case when the appellant went missing. The proper provisions which should have been invoked were in my view the provisions of section 226 of the Criminal Procedure Act. And the Court should have proceeded to hear the prosecution case to the end and if the evidence E adduced warranted a conviction, then it could have proceeded to convict him in absentia. The provision of section 226 (2) (3) and (4) should however always be closely borne in mind in this kind of situation.
The procedure adopted was therefore in my view and with respect, not proper. F
For the foregoing reasons, this appeal succeeds and it is hereby allowed. The conviction is quashed and the sentence is set aside. The appellant is to be released forthwith unless otherwise lawfully held. G
Appeal allowed.


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