IN THE RESIDENT MAGISTRATE S COURT AT TANGA R.M CRIMINAL CASE NO 41 OF 2016 REPUBLIC VERSUS 1. ALLY JUMA MSHENGA 2. JOSEPH JOHN MWAKISALU JUDGEMENT
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1 IN THE RESIDENT MAGISTRATE S COURT AT TANGA R.M CRIMINAL CASE NO 41 OF 2016 REPUBLIC VERSUS 1. ALLY JUMA MSHENGA 2. JOSEPH JOHN MWAKISALU Date of Last Order: 06/06/2017 Date of Judgment: H. R. Lyatuu - RM JUDGEMENT ALLY JUMA MSHENGA and JOSEPH JOHN MWAKISALU call them the accused persons in this case, stood charged with one count for trafficking in person by intermediary C/S 7(2) (A) and (B) (iv) of the Ant- Trafficking in Person Act No 6 of 2008 The particular pertaining to the count were as follows that on 15 th day, April 2016 at Mombo area within korogwe District in Tanga region acted as an intermediary by knowingly participated in the act of transporting trafficked person to with 10 Ethiopian and entered into agreement for the purpose of trafficking in persons. The accused s denied the charge, then the prosecution called the following witnesses in course the duty to proving the case beyond reasonable doubts PW1 E S495 C/PL Isack, PW2 DS 431 Sargent Rashid and PW3 E 7017, Dtv/CPL Jerome. After the closure of the prosecution side the accused were engulfed in the case to answer she opted to put the defence on oath and called none to flank them 1
2 The brief story on what transpired on the prosecutor side as follows; E.S.495C\PL ISACK (PW1) Introduced himself as the police officer at Mombo Police station being an in charge of search warrant. On around evening while he was at police station together with his fellow police officer Major Rashid DC Daniel, Neema and PC Sebastian, together there were inspected all motor vehicle came from Moshi to Dar es Salaam. He said around 2.00AM Toyota Hice with registration number T 113 DCV was coming through their way and it stopped before reach at check point and ended parking palace and they created doubt over it. He observed it had both accused and 10 immigrants PW 1 interviewed the accused and 10 immigrants and they were from Arusha to Tunduma and transport the immigrants to their agent through mobile phone. In inspection PW1 observed that the two accused were not possessed valid document of Toyota Hiace and 10 immigrants had no valid documents to cross the border. On cross examination PW1 replied that the incident occurred at Msigani with motor vehicle for business purpose but not outside the boarder of each region without valid documents and all Ethiopians were inside the Toyota hiace The prosecutor called the DS 431 Sargent Rashid PW2 a police officer at Mombo police station as stuff Sargent his duty at to take charge over his fellow workers. On around hrs.he was with PW1 and other officer in patrol, on around 02:00AM at night he said they saw Toyota hice with the registration no T 113 DCV dark blue in color came from Arusha Moshi and when it reached close to Liverpoolcheckpoint minimize its speed and stopped while it s silent and they decided to follow. 2
3 PW2 argued that through inspection he found the both accused, and further he stated that when interviewed them discovered 10 passengers could not speak Swahili nor English and he noticed that there were immigrants and he observed that they were not having valid license document permit to travel but only for the business purpose and there were transporting immigrants. PW2 tendered the motor vehicle with the registration number T113 DCV dark blue in color as the exhibit PE1. Prosecution called another witness E 7017 DTV/CPL PW3 Jerome he worked at RCO Tanga zone CID he argued that on around 15.00hrs. PW2 and other police officer informed they detained a motor vehicle Toyota hice with the registration number 113 DCV dark blue in color he said he was ordered to detain the immigrants and the accused. PW 3 made a follow up at immigration office and he stated they were arrested at Misajini area Korogwe District, he interview the accused and observed the 10 immigrants had no legal document allowed them to inter Tanzania nor motor vehicle had valid license, he further argue the second accused admitted to picked the Ethiopians between Himo and Mwango on there to Dar es Salaam. On cross examination PW3 he replied that he was not at the scene but the accused s they were lodged at his office by PW2 and other officer at Misajini Korogwe for interrogation and they didn t interrogate the first accused. The prosecutor submitted that under section 34(B) 1 and 2 of the Evidence act Cap 6 R.E 2002 prayed the PW3 to tender the statement of Masfin Faisal an Ethiopian after failing to trace the witness and the court granted. PW3 said on around morning he was at immigration office at Tanga regionand he was handled over the 10 immigrants and the accused who were 3
4 arrested by PW2 and his team and Masfin Faisal among the immigrants was the only one understand and speak Kiswahili and he took the statement of Masfin Faisal at immigration officer contrary to section 34 (Supra). PW 3 tendered the statement of Masfin Faisal as exhibit PE2. I am now through with what transpired on the prosecution side. The defense side was decorated as follows; The first accused (DW1) that on 12/04/2016 he was at Dar-es-salaam (Temeke mwisho) area he was hired by people to transport them from Dar-es-salaam to Moshi and arrived Moshi safely. On 13/04/2016 accused when returned from Moshi to Dar-es-salaam and decided to pass by Moshi bus station to get passengers and he met with one who needed to traveled with his fellow to Chalinze, accused stated they were 10 but other are just by road waiting. Accused before reached to Chalinze he went to a short call near sisal plantation and the car got off. He stated one Samaritan with motor cycle drove him to police check point and two officers ordered to go where vehicle break down motor. Accused said police officer asked him about driving license, motor vehicle certificate and license for such trip and lighting over the torch to the passenger and asked what kind of passenger and where they are going, the accused stated he knows all are passenger and not Ethiopian. He went further and stated on 13/04/2016 he was arrested and on 15/04/2016 transported to Tanga immigration office for interrogation 4
5 Accused on his defense said Pw1 and PW2 both on their evidence lied he was the one who went to police station. And stated the 3 rd accused is the one knows the immigrants and already convicted. On cross examination DW1stated he didn t ask the PW1and PW2 he was the one who went to the police check point and said 3 of them were Tanzania 3 rd and the 2 nd accused. DW2 said on 12/04/2016 met with DW1and told him was hired to transport passengers to Moshi attend wedding ceremony and around evening arrived Moshi safely. On 13/04/2016 together with DW1 when returned took one man and his fellow heading to Chalinze. He sated DW1went for short call and motor vehicle stopped and silence. He further stated the Samaritan and DW1 went to check point and returned with two police office and they didn t helped them, but question the accused validity of trip, driving license and DW1 surrender the license to police officer. Accused arrested to Mombo police. Dw2 testified that the 3 rd accused was the one who knows the 10 immigrants. In cross examination DW2 reply that he knows there is license for Sumatra allowed to travel for the route and he saw other passengers who got into the car. I am now through with all that transpired in court before me Having summarize the evidence of both sides now the question for consideration and decision is whether or not the accused trafficking in person 10 Ethiopian. The cardinal principle in criminal case, prosecution has a burden of proving its case including that of WOODMINGTON V DPP (1935) AC 462 where it was 5
6 expressly stated that it s a duty of the prosecution side to prove its case and the standard of proof is beyond all reasonable doubt. When I wastrotting on adduced evidence and facts, I met some of them that qualify as cut and dried, thus the motor vehicle registration No T. 113 DCV Toyota hiace was involve in incident when it was being driven by DW1 and DW2. I also found it relevant to say that the motor vehicle license was not genuine issue in the name of DW1 and DW2. As per record of the court accused s failed to prove if they had original valid license to show they were authorized to traveled within region, even to state it was for business purpose, they left a court in dilemma to know who s the really owner even the 4 th Accused (acquitted) failed to show the valid document of the Toyota hiace belong to the cops car limited. Starting with the prosecution evidence adduced by PW1 and PW2 it s clear that the accused s were arrested Misigani area Korogwe District and their evidence pointed out being transported 10 immigrants through a motor vehicle, on PW1 evidence its shows the accused agrees to transport the immigrants to the agent through a mobile phone and even admitted to transport them to Chalinze, but tries to rise a defence didn t know their Ethiopian which is not relevant to the court, there s no doubt they were transport the immigrants and it s a benefit of doubt to this court. Even passing through PW3 evidence the 2 nd Accused admitted to pick the immigrants between Himo and Mwango to Dar-es-salaam, through a motor vehicle. I invested my trust on Masfin Faisal statement tendered by PW3 its clear the accused agrees to transport the 10 immigrants which is not contrary to the law and 6
7 even Masfin Faisal statement its pointed out they were 2 driver of that motor vehicle he stated mwenyeji wetu Iddi Juma Imamu na dereva wawil wa gari hilo and the car which transport the 10 immigrants was driven by the accused s, and even tendered in this court this statement water tight the evidence adduced. All witnesses testified to the effect that on the arrest of accused s they found them with 10 immigrants transported through a motor vehicle at hearing was tendered, admitted and marked as exhibit PE1. In scrutinize the DW1 and DW2 evidence am aware that however much the defence evidence was contradicting itself, the court relaying on doubt arises when the 1 st Accused cross examined admitted they were 3 Tanzanian among 13 passenger it s a benefit of doubt they were carried 10 immigrant, however the accused s tried to shift liability to the accused who already plea guilty. The court passing through their evidence it s found weightless to be considered. The law is very clear under section 7(2) (A) and (B) (iv) of the Ant- Trafficking in Person(supra) that nobody is allowed to act as an intermediary for the purpose of trafficking in person by enter into agreement oral or written. The act of accused sagree to transport 10 immigrants (Ethiopian), and the evidence pointed on them being transported illegal its concrete evidence that it unlawfully. That being the case the 1 st Accusedand the 2 nd Accused are guilty on the charge laid down against them. In short prosecution prove the case beyond all reasonable doubt, therefore, this court relying on prove of the count do convict the accused s accordingly. It s so ordered. Sgd: H.R. Lyatuu - RM 7
8 PREVIOUS CONVICTION I have no any previous criminal records for the 1 st respectively and 2 nd Accused persons MITIGATION 1 st Accused: NIL 2 nd Accused I am first offender I pray for the lenience of the court sentence. I have a family which depends on me. Sgd: H. R Lyatuu - RM SENTENCE 1 st accused person and 2 nd accused person are hereby sentenced to pay five millions (5,000,000)/ Tsh each or to serve seven (7) years jail. 8
9 Court: Motor vehicle Reg. No T.113 DCV make Toyota Hiace be forfeited by the government since it was used in committing the offence foe the 1 st and 2 nd accused persons as charged. Sgd: H. R Lyatuu - RM Court: Judgment delivered today in the presence of 1 st accused person, 2 nd accused person, public prosecutor and court clerk Court: Right to appeal full explained. 9
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