ONYIUKE

Gabriel v. R. (1970) HCD 299

Crim. App. 329-M-70; 29/7/70; Onyiuke, J.

The appellant was convicted for stealing Shs. 500/- c/s 265 of the Penal Code and sentenced to 8 months imprisonment. At his appeal it was submitted that at the trial after two prosecution witnesses had given evidence the prosecution was allowed to withdraw a charge by substituting a fresh charge. Instead of the case being started de novo, a third witness was called and prosecution case was close therefore, the only admissible evidence against the appellant was that of the third witness and as this was insufficient to sustain the conviction, the appellant was entitled to be acquitted.

            Held: 

(1) “The submission sounds plausible but the flaw in it was that it did not distinguish between withdrawing from the prosecution of an accused under s. 86 and withdrawing a charge by substituting a fresh charge under 209 of the Criminal Procedure Code. Under s. 86 the prosecution can apply to withdraw from the prosecution of an accused. If the application is granted then the proceedings come to an end and the accused is either discharged or acquitted. What the prosecution did in the present case was not to withdraw from the prosecution but to withdraw the charge by substituting a fresh charge in a prosecution from which they had not withdrawn. This application could validly be made under s. 209(1) of the Criminal Procedure Code. The proceedings in this case, in which first two witnesses gave evidence, were the same proceedings in which third witness gave evidence on 2/12/69. I therefore reject (this) contention.’ 

(2) There were no merits in the appeal and sentence was not excessive. Appeal dismissed.