Rex v Jamal (Criminal Appeal No. 161 of 1948) [1948] EACA 39 (1 January 1948)

## COURT OF APPEAL FOR EASTERN AFRICA

## Before SIR BARCLAY NIHILL, C. J. (Kenya), EDWARDS, C. J. (Uganda), and MARK WILSON, AG. C. J. (Tanganyika)

REX, Respondent (Original Prosecutor) $\mathbf{v}$

## MOHAMEDALI JAMAL, Appellant (Original Accused) Criminal Appeal No. 161 of 1948

(Appeal from decision of H. M. High Court of Tanganyika)

Criminal Law—Fabricating evidence—Giving false information to person employed in Public Service-Tanganyika Penal Code, sections 106 and 122-Pleas of guilty—Appeal against sentence.

The appellant was trader at Utegi, Tanganyika, and during 1947 his shop was twice searched for controlled produce and piece-goods. Suspecting another trader, Ramtuli Puniab, of responsibility for this, he set about a scheme to revenge himself.

He placed a diamond and a piece of raw gold in an unsealed tin of ghee, which he marked with an O, and had it sold to Ramtuli by a native.

Some days later, the appellant travelled on a lorry with Ramtuli who was transporting 64 tins of ghee to Musoma for sale. The appellant reported to the police that Ramtuli had gold and a diamond in one of the tins and pointed out the tin marked O to a sub-inspector of police. He had already made a similar report in writing to the District Commissioner. On the discovery of the diamond and the gold, Ramtuli was arrested, charged with unlawful possession of them, and placed in custody. He was eventually released when the truth of the matter was revealed through the appellant's boasting openly of what he had done. The appellant was charged (1) with fabricating evidence, and (2) with giving false information to the District Commissioner, a person employed in the Public Service.

He pleaded guilty and was sentenced on the first count to four years' H. L. and on the second count to pay a fine of Sh. 500 or four months' H. L. in default. He appealed against the sentence.

**Held** (12-10-48).—That in all the circumstances the sentence was not excessive. Appeal dismissed.

Vellani for the Appellant.

Bennett, Crown Counsel (Tanganyika), for the Crown.

JUDGMENT (delivered by SIR BARCLAY NIHILL, C. J.).-We allowed Mr. Vellani leave to appeal against sentence in this case because it was an unusual one and the sentence imposed was undoubtedly heavy. Having heard him however we are left in no doubt at all that this is a case in which this Court could not possibly intervene. It is well established that an Appellate Court should not interfere with the discretion exercised by a trial Judge or Magistrate except in such cases where it appears that in assessing sentence the Judge has acted upon some wrong principle or has imposed a sentence which is either patently inadequate or manifestly excessive. In the appeal before us none of these factors are present. The appellant by his wicked act exposed an innocent man to extreme jeopardy and in addition he put the police and the country to considerable trouble and expenses.

Mr. Vellani has said all that can be said for the appellant but in fact it amounts to very little. He took great care to see that his plot against a trade competitor should succeed and after that trader's arrest he allowed him to remain under the shadow of a grave charge for several weeks. During this time he took no action, other than of boasting to his friends, to repair the wrong he had committed. It must be common knowledge to all that the unlawful possession of diamonds and gold carries with it the most stringent penalties on conviction and that once a person is found in possession it is no easy matter to prove that the possession was innocent. Under all the circumstances therefore we are quite unable to say that the sentence imposed in this case was an unduly excessive one.

The appeal is dismissed.