REPUBLIC v MUSTAPHA SANDIRI 1990 TLR 120 (HC)

 REPUBLIC v MUSTAPHA SANDIRI 1990 TLR 120 (HC)

Court High Court of Tanzania - Mtwara

Judge Maina J

20 October, 1990

Flynote

B Criminal Practice and Procedure - Revision - Accused committed to High Court

for sentencing - Conviction is bad - High Court may exercise revisional jurisdiction.

Criminal Law - Threats to commit an offence - Whether sufficient to constitute

commission of the offence.

-Headnote

C The accused, Mustapha Sandiri was prosecuted for commission of an offence of

arson c/s 319(a) of the Penal Code, Cap 16. The basis of his prosecution were threats

which he uttered the day before the complainant's house was set on fire.

D The trial Magistrate found Sandiri guilty of the offence charged and committed

him to the High Court for sentencing. Counsel for the Republic declined to support

the conviction for lack of sufficient evidence and further urged the Court to exercise

its revisional powers to quash the conviction.

E Held: (i) When an accused person is committed to the High Court for sentencing,

under section 171 of the Criminal Procedure Act 1985, and it appears that the

conviction is for any reason bad, the High Court may, instead F of sentencing the

accused, proceed to revise the proceedings;

(ii) threats alone cannot be conclusive evidence that the person who uttered

the threats has committed the offence. There must be something tangible other than

the occurrence of the threatened act to indicate that the accused did carry out his

threat.

Case Information

G Accused acquitted.

Boaz, for the Republic.

[zJDz]Judgment

H Maina, J.: The accused was convicted by the District Court at Masasi of arson

contrary to section 319 (a) of the Penal Code. The learned district magistrate

committed the accused to this court for sentencing under section 171 of the Criminal

Procedure Act, 1985.

When the matter came up before me for sentencing, Mr. Boaz, the learned State

Attorney submitted that the I evidence on record was insufficient to convict and

urged the court to exercise its revisional power

1990 TLR p121

MAINA J

and quash the conviction. The learned State Attorney cited section 171 (b) of the

Criminal Procedure Act 1985 A which states of follows:

the provisions of this section shall be so construed as to enable the High Court in its

consideration of any case thereunder to exercise its power of revision under section

373 of this Act in the same manner as if the record of the B proceedings had under

that section been reported to the High Court for Orders.

In my opinion, when an accused person is committed to the High Court for

sentencing, under section 171 of the Criminal Procedure Act, and it appears that the

conviction is for any reason bad, the High Court may, instead of C sentencing the

accused, proceed to revise the proceedings. That would appear to be the meaning of

section 171(6) of the Act. The question now is whether the evidence was sufficient to

base a conviction. The only evidence against the accused is of threats which he

uttered the day before the complainant's house was set on fire. It was alleged by D

the persecution witnesses that the complainant, PW1 Joseph Peter and accused had

quarrelled on 25 June 1990. The complainant allegedly assaulted the accused who

threatened that he would do something serious to the complainant. On the following

night the complaint's house was set on fire as he and his family slept in the house. No

E one saw the accused setting fire to the house, but the accused was later arrested on

suspicion because of the earlier threats. The learned district magistrate held that the

evidence of the threats which the accused had uttered was sufficient to prove that the

accused had burnt the complainant's house. As already stated, the threats were F

uttered by the accused during the day on 25 June 1990, and the complainant's house

was set on fire during the following night. Can the evidence of threats constitute

sufficient evidence to establish beyond reasonable doubt that the accused is the

person who set fire to the complaint's house? Mr. Boaz, the learned State Attorney,

submitted G that the evidence did not prove the accused's guilt beyond reasonable

doubt.

The evidence against the accused, is clearly circumstantial. In the case of Simon

Musoko v R. [1958] EA 715 it was held that: H

In case depending exclusively on circumstantial evidence, the court must find before

deciding upon conviction, that the inculpatory facts are incompatible with the

innocence of the accused and incapable of explanation upon any other hypothesis

than that of guilt. I

1990 TLR p122

A The decision in the Musoko case has been followed by this court in several cases,

one of which is Carnal Samson v R. [1972] HCD No. 184. In that case the only

evidence against the accused was that he had threatened to kill the complainant or

burn her house. Later that same night, the complainant's house was set on fire. The B

appellant's conviction was quashed by this court which held that the evidence of

threats was inconclusive to base a conviction for arson. As the court stated in the

Carnal Samson case, where must be something tangible other than the occurrence of

the threatened act to indicate that the appellant did carry out his threat. The fire

could have been C caused by numerous other causes besides the appellant, i.e a

flying spark, a malicious fellow who had heard the appellant utter the threats, etc."

The fact in the present case are almost identical with the Carnal Samson case.

Threats alone cannot be conclusive evidence that the person who uttered the threats

has committed the offence, for D as Mfalila Ag. HJ. (as he then was) said in the

Samson case "a threat is of the highest value when it corroborates some other

evidence in order to link the accused with the offence charged. It is weakest when on

its own, for it is E then reduced to mere circumstantial evidence in the form of a

disconnected chain."

The evidence in the present case did not prove the accused's guilt, for the reasons

given. The conviction which is not supported by the Republic, is quashed and the

sentence is set aside. The accused must be released from F custody forthwith unless

he is lawfully held on other matters.

Appeal allowed.

1990 TLR p121

G