Rex v Shirazi ('Cr. App. 148/1932.) [1932] EACA 25 (1 January 1932)

## COURT OF APPEAL FOR EASTERN AFRICA.

Before SIR JACOB BARTH, C. J. (Kenya), LUCIE-SMITH, J. (Kenya), and GAMBLE, Acting J. (Kenya).

## REX

(Respondent) (Original Prosecutor)

## ABDULLA BIN RASHID SHIRAZI

(Appellant) (Original Accused).

## Cr. App. 148/1932.

- Zanzibar Criminal Procedure Decree, section 131-Power of Magistrate to record confessions not applicable where such Magistrate is by virtue of section 8 (3) of the Police Decree (Zanzibar) in entire control of police. - $Held$ (22-8-32): —That where a confession is made to a district officer<br>who is by virtue of section 8 (3) of the Police Decree (Zanzibar)<br>in entire control of police, evidence of such confession at a trial is inadmissible, notwithstanding the saving clause in the section referred to. - Branigan, Acting Crown Counsel, for Attorney General, Zanzibar.

Appellant absent, unrepresented.

Branigan.—Although appellant made a confession to a District Officer who was, by virtue of his office, at the time in entire control of the Police in Pemba, by virtue of Police Decree, section 8 (3) that officer was not in fact a police officer.

Rex v. Haribal (1876), 1 Cal. 139.

Regina v. Babu Lal, 6 All. 509 & 533.

Accused was in custody when he made his confession, but he did so voluntarily. The District Officer, who was also a Magistrate, was addressed as such and not as a police officer. The saving clause in section 8 (3) of the Police Decree appears to have been intended to cover a case such as this.

JUDGMENT.—The appellant is appealing from a conviction of murder by the High Court for Zanzibar. The facts are that the accused was seen to go away with his paramour and next day her dead body was found not a great distance from the neighbourhood where they were seen.

The appellant made a confession on the 21st April to Mr. Saunders Jones, who was the district officer at Chake Chake, and who was also the Deputy Governor of the prison at that place.

The appellant was seen by Mr. Saunders Jones on his inspection of the prison and wished to make a statement to him. He was stopped and told that if he wished to make a statement he would be taken to the office. This was done and Mr. Saunders Jones told the appellant that he was a Magistrate. We are convinced from the evidence that Mr. Saunders Jones took every precaution to ascertain if the appellant's statement were voluntary and warned him that it might be used in evidence against him.

There was an irregularity in the method of recording the confession and that is it was not signed by the Magistrate in accordance with section 131 (2) Criminal Procedure Decree, although the memorandum prescribed by section 131 (3) was so signed. But under section 417 of the Decree that error has been corrected by Mr. Saunders Jones giving evidence that the appellant made the statement recorded.

It was argued at the trial that Mr. Saunders Jones was a police officer and that therefore the confession is inadmissible. Mr. Saunders Jones, in his evidence said that he functions under section 8 $(3)$ of the Police Decree. This sub-section gives the district commissioner or other officer in charge of a district, township or place where there is no superior police officer or inspector in charge of the police station, power to exercise the entire control of the police force, and makes such officer subject to the orders of the commandant in respect of discipline and interior economy of the police.

We have been referred to the proviso to that sub-section to the effect that nothing in the Decree contained shall be deemed to render any district commissioner other officer a police officer.

In our judgment this proviso can have little weight in the construction of the Evidence Decree, section 25, if in fact the district commissioner is a police officer. The Evidence Decree, section 25 is a reproduction of the similar section in the Indian Evidence Act, and under that enactment it has been held that the term "police officer" should not be read in any strict technical sense (vide R. v. Hurubole Chunder, 1 Cal. 207). Although a district commissioner is not a police officer for the purposes of the Police Decree, under section 8, sub-section 3, of such Decree, that fact, in our judgment, will not affect the inadmissibility of his evidence under section 25 of the Evidence Decree relating to a confession made to him. "Police officer" in that section must mean an officer performing the functions of a police officer. The district commissioner had admittedly in this case the entire control of the police force. The same wide construction of the term " police officer " should, in our view, necessarily be applied in the case of section 131 of the Criminal Procedure Decree.

We therefore hold that the confession made to the District Commissioner is inadmissible.

It remains to be considered, if that evidence be rejected. whether or not there is sufficient evidence to support the conviction.

The accused and deceased were, it would appear, lovers and they were seen by Ameri bin Athman on a Tuesday night at about 7.15 going towards Ukutini from Ngwachani. The deceased's dead body was found on Wednesday morning about 300 yards from the main road. The kikoi (exhibit B), kanzu (exhibit G), stick (exhibit D), and tin (exhibit $H$ ), exhibited, have been identified as the accused's. The kikoi was found, according to Kimbo's evidence, near the dead body. The kanzu (exhibit $G$ ) was found under a bread fruit tree, also exhibits D and H. The tree was on the road between Ngwachani and Ukatini, but there is nothing to show where the tree was in relation to the position of the dead body.

In evidence it was stated that both the kikoi and kanzu There is no evidence to prove that the were blood-stained. stains were, in fact, human or other blood-stains.

The evidence, therefore, connecting the accused with the crime appears to have been the fact that he and the deceased. were together the night before the discovery of the deceased's body and that the accused's stained kikoi was near the body.

The learned trial Judge submitted the accused to a long examination which may be described as a cross-examination. In our opinion it goes beyond the powers prescribed by section 279, Criminal Procedure Decree.

In view for the facts referred to above we are of opinion that apart from the inadmissibility of the confession, there is insufficient evidence to support the conviction, which is accordingly quashed and a new trial ordered.

\* Note.-The equivalent section of the Kenya legislation is section 8 (3) of the Police Ordinance, Cap. 36, Revised Laws.