Court name
High Court of Tanzania

Kauto Ally vs Republic () [1982] TZHC 4 (14 April 1982);

Law report citations
1985 TLR 183 (TZHC)
Media neutral citation
[1982] TZHC 4

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.

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

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

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.

C