The accused was convicted of stealing by servant. The prosecution presented evidence that he had failed to remit funds which he had collected on behalf of his employer, a sewing machine company. There was some evidence for the defence that the accused had given the money to one Saidi Salum for safekeeping. At the close of the defence case the court noted. “In the circumstances I deem it proper for the court to summon Saidi Salum …….” He was then called as a witness and testified that the money had been left with him for safekeeping. However, in the judgment, the court stated that it did not believe his testimony and the accused were convicted.
Held: (1) The court has the power under s. 280(2), Criminal Procedure Code, to summon a witness for the defence if it is satisfied that his evidence is in any way material to the case However, Saidi Salum was not called as a defence witness and it seems that the court acted under s. 151, Criminal Procedure Code, which empowers the court to summon any material witness.
S. 151 has two parts, the first of which confers discretion on the court to call or not to call a witness and the second of which imposes a mandatory duty to call a witness if it appears to the court that the evidence is essential to the just decision of the case. The latter duty remains even if the evidence to be called supports the case for the prosecution. [Citing: Kulukana Otim v. R., (1963) E.A. 253]. In the present case the magistrate was in doubt as to the result and apparently acted under the second part.
If the magistrate was in doubt before Saidi Salum’s testimony and if he rejected that testimony, the doubt must have remained and the evidence is insufficient to support the conviction. Conviction quashed.
