Rex v Awadh (Criminal Appeal No. 239 of 1946) [1946] EACA 52 (1 January 1946)

COURT OF APPEAL FOR EASTERN AFRICA

Before SIR JOSEPH SHERIDAN, C. J. (Kenya), SIR JOHN GRAY, C. J. (Zanzibar) and SINCLAIR, J. (Tanganyika)

REX, Respondent (Original Respondent)

$\boldsymbol{\nu}$ AWADH s/o SAID, Appellant (Original Appellant)

Criminal Appeal No. 239 of 1946

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

Criminal Law—Official corruption—S. 91 (2) P. C. Tanganyika Territory—Sentence—Second appeal against severity of sentence.

Two members of the Arab Association had quarrelled and fought in the street and one of them was being charged with assault. The Association wished to avoid a prosecution and the appellant in an endeavour to get the charge withdrawn approached a police officer and gave him an envelope containing Sh. 100 saying "This is for your help".

The appellant was charged and convicted of bribing a police officer contrary to S. 91 (2) P. C.

He appealed to the High Court which rejected his appeal summarily.

He appealed further to the Court of Appeal. At the hearing of the appeal the question of the severity of sentence was raised.

*Held* $(18-11-46)$ .—(1) That no appeal lies to the Court of Appeal in a second appeal in a matter of severity of sentence.

(2) That on the facts proved the appellant was rightly convicted. Appeal dismissed.

Khambalia for the appellant.

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

JUDGMENT (delivered by Sir JOSEPH SHERIDAN, C. J.).—Taking the question of the severity of sentence raised by counsel for the accused, first it is enough to say that however severe the sentence may be, provided it is a competent sentence, no appeal lies to this Court sitting in second appeal in a matter of sentence.

The principal ground of appeal is that assuming the facts to have been correctly found, as we must do when there is evidence to support the finding, no offence under section 91 (2) has been proved, the argument being that Superintendent Duffil was not the authority who could decide whether a prosecution should or should not proceed.

The way we view the matter is as follows: $-$

It was found that the accused during the course of the morning at the police station had been endeavouring without success to have a case of criminal assault withdrawn and that later he handed an envelope containing Sh. 100 to Assistant Superintendent Duffil with an expression "This is for your help". Our view is that whether or not the eventual decision to proceed or not with the prosecution rested with another officer the case comes within the provisions of section 91 (2). On the finding of fact it must be inferred that Assistant Superintendent Duffil was being asked by implication either to withdraw the prosecution or in some way influence someone else to do so. A police officer is charged with so many duties that we consider that any step by way of a bribe to influence a police officer in connexion with a pending prosecution comes within the section. The appeal is dismissed.