Sadick Said vs Republic (Criminal Appeal No. 793 of 2024; Criminal Session Case No. 150 of 2022) [2026] TZCA 483 (5 May 2026)

IN THE COURT OF APPEAL OF TANZANIA AT PAR ES SALAAM ( CORAM: MWARIJA, J.A., KENTE. J.A. And MURUKE, J J U CRIMINAL APPEAL NO. 793 OF 2024 SADICK SAID .... . ............ . ............ . ................ . ..... . ..... . ......... APPELLANT VERSUS THE REPUBLIC..................................................................... RESPONDENT (Appeal from the decision of the High Court of Tanzania at Dodoma) (Longopa, J.) dated the 23r d day of October, 2024 in Criminal Session Case No. 150 of 2022 JUDGMENT OF THE COURT 16th February & 5th May, 2026 MURUKE. 3.A.: In the criminal session case no 150 of 2022, the appellant, Sadick Said, was arraigned before the High Court of Tanzania, sitting at Dodoma, (the trial court) to answer a charge of murder, contrary to sections 196 and 197 of the Penal Code. It was alleged that on 6th September, 2021 at Ugumo Hamlet, Masweya Village, Mtunduru Ward, Sepuke Division within Ikungi District, Singida Region, the appellant murdered Mushema S/O Masunga. The appellant pleaded not guilty to the charge. To prove its case, the prosecution called a total of seven witnesses and tendered three documentary evidence, namely, a Postmortem examination i

report exhibit PI, a register Identification parade exhibit P2, and a Cautioned statement of the appellant, exhibit P3. What really happened, is in the account of PW l's evidence, Beritha Rukwaja. The same goes like this: on 6th September 2021 at evening hours, the appellant while accompanied by two other persons, visited the deceased's house intending to buy maize and local tracker to transport the purported maize. They had earlier on approached the deceased in the afternoon, while at his farm together with his wife who directed them to return later in the evening. At the deceased's home that evening, they found the deceased with his wife and their children outside the house. After a brief discussion about leasing the tracker, the deceased's wife (PW1) went inside house intending to start preparing supper. Shortly there after, her children came crying that the deceased was being attacked. PW1 ran to the scene and found the persons hitting and strangling the deceased. She tried to help her husband by fighting one of the persons unsuccessfully. They kept warning her that they only wanted to kill her husband but if she kept on resisting then, they would kill both of them. When she was about to lose it to the scuffle she escaped the scene while making alarming sounds calling for help. 2

PW1 further told trial court that, she saw the appellant strangling the deceased, whereas one of the assailant pulled a shovel and hit the deceased on the head. Unfortunately, when people arrived, the deceased had already died and the assailants had left. The incident was reported to the police station during that night. The following day the police officers visited the scene together with the medical doctor (PW2) who examined the body and concluded that the cause of death was haemorrhage shock due to severe bleeding caused by a sharp object. The Village Executive officer (PW5) testified that, he arrived at the scene of the crime the morning after the incident at around 07:30 hrs. He interviewed the deceased's wife and requested assistance from villagers to give any information relating to whom they suspect to be the assailants. He was later informed that there were three strangers to the village staying at a house of Mr. Hamis Weje. PW5 made follow up of that information, which led him to Mtavila village, where they were shown the three persons who started running upon seeing them. Unlucky to the appellant, he was apprehended, beaten up vigorously by the villagers and brought to Masweya village at around 13:45 hrs. The police officers took the accused person together with Mr. Hamis Weje and his son called Doyi. The other two were released later in the course of the investigation. At the police station, they arrived at 19:00

hrs and PW7 interrogated the appellant and recorded his cautioned statement (Exhibit P3) at around 19:30hrs to 20:10 hrs. On 16th September 2021, the deceased's wife PW1, was called to the police station to attend an identification parade which was supervised by PW4. In that parade, PW4 lined up nine persons, who were both short and black, wearing black sweaters and black jeans trousers, without shoes. PW1 was able to identify the appellant from the parade. Based on the substance of the evidence received, the trial court, found that PW1, PW4, PW5 were credible witnesses, corroborated by evidence of PW2, a medical doctor who tendered (exhibit PI), hence forth convicted and sentenced the appellant to suffer death by hanging. Unhappy with the decision of the trial Court, the appellant has now appealed to this Court, advancing 8 grounds, which boils down in to four issues namely: one, whether the appellant was properly identified by PW1, for the court to rely on the evidence of visual identification to ground conviction; two, whether the principle of Identification parade was followed; three, whether the cautioned statement exhibit P3 was properly received and relied on; four, whether the offence was proved beyond reasonable doubt. It is worth noting that, to establish a charge of murder, the prosecution must establish the following four essential elements; one, that a person has

died; two, that the death was unnatural; three, that the accused person was responsible for the killing; and four, that the killing was carried out with malice aforethought. According to the evidence on record, it is undisputed that Mashema S/O Masunga died from unnatural act, on 6th September, 2021 following an attack. Accordingly, the first and the second elements were proved. Evidence on record establish that the assailant acted with malice aforethought as the deceased sustained multiple injuries, deliberately inflicted on vulnerable parts of the body. This was established by PW1, who testified that the deceased was cut several times on his head by a machete. The only contentious issue that remained was the identity of the deceased's assailant. That is, whether it was the appellant who assaulted the deceased on the night of 6th September, 2021, leading to his death immediately after the attack. At the hearing before us the appellant was represented by Mr. Nehemia Nkoko, learned counsel, whereas Ms. Elizabeth Barabara, learned Senior State Attorney assisted by Mr. Almachius Bagenda, learned State Attorneys, represented the respondent/Republic. Submitting in support of the first issue on the identification of the appellant by PW1, Mr. Nkoko said that; the incident took place in the night, in a difficult environment as there was no light to assist PW1 on her visual

identification. The appellant cannot be said to have been properly identified, citing to us the case of Waziri Amani v. Republic [1980] TLR 250, to support his arguments. It was submitted further that, PW1 said she identified the appellant because she saw appellant during daytime, when they came while they were with the deceased at their farm requesting to hire the tracker from the deceased. However, PW1 did not give description on how she identified the appellant in that night to be the same person she saw in the day time. For her part, Ms. Elizabeth Barabara for the respondent, submitted on this issue that the appellant was identified by PW1 by the use of moonlight that was available at the time, as the person she earlier saw with other two persons at their farm asking to hire the tracker from the deceased. To the respondent counsel the appellant was a person known by PW1, so it was easy for him to be identified. Thus, the evidence of PW1 on visual identification was strong, the appellant's complaint on identification is without, merit argued the respondent v s counsel. The law is settled, that evidence of visual identification must be examined with extreme caution, particularly where the identification occurred at night. In Waziri Amani case (supra), cited by the appellant's counsel, the Court underscored that the courts must scrutinize identification evidence

carefully to eliminate the possibility of mistaken identity. According to the record, evidence of visual identification of PW1 was one of the basis of the conviction. PW1 stated that there was "enough light" from the moonlights. However, the record does not disclose the intensity of the light from the moon light, or whether the lighting conditions from the moonlight were sufficient to permit accurate identification. We are aware of the requirement of the witness explaining the intensity of light in visual identification, especially when it is only one witness who alleges to have identified the assailant during the night. In our view, taking into account that PW1 did not make description of the intensity of the light from the moon light, although the appellant was not a stranger to PW1, yet it is not safe to base on the evidence of visual identification as conditions for identification were not favorable. Familiarity alone is not enough. The witness must give details as to how he identified the assailant at the scene of crime as the witness might be honest but mistaken. On her evidence, though she testified that, the scuffle took about several minutes, PW1 did not mention the visual identity of the appellant. Failure by PW1 to describe how she managed to identify the appellant, cast doubts on the evidence of identification of the appellant. More so, even the arrest of the appellant and two other persons was not based on the information given by PW1 to PW5 but rather, the information from other

villagers who had knowledge of the strangers/visitors to the village. In totality, the circumstances were not favorable for proper identification of the appellant by PW1. The second issue for consideration is the validity of identification parade. The appellant's counsel submitted that the identification parade was uncalled for because there was no prior description of the appellant by PW1 to any of prosecution witnesses. Mr. Nkoko wondered as to how PW4 managed to arrange for the same. To the appellant's counsel, the identification parade arranged by PW4 was his own creation as PW1 did not describe how the appellant looked like to be able to recognize once she sees him. In response, the learned Senior State Attorney submitted that, PW1 described the appellant leading to his arrest. So, identification parade was necessary in the circumstances of this case. Having heard both sides on the issue of identification parade, we find that it was highly flawed since there was no evidence given by PW4 of the description of the appellant given to him by PW1 or any other person which enabled him to single out the appellant for identification purpose. The purpose of an identification parade is to ascertain the identity of a suspect by a witness who previously saw him during commission of an offence, to ensure

accuracy in visual identification evidence. Therefore, the identifying witness must have earlier given a detailed description of the suspect. The Court in Abduf Farijalah and Another v. Republic, Criminal Appeal No. 99 of 2008 (unreported) explained the purpose of an identification parade as follows: "....It is trite law that the test in an identification parade is to enable a witness to identify a person or persons whom she or he had not known or seen before the incident....An identification parade held soon after the incident in which a witness positively identifies an accused lends assurance to the court o f that witness's dock identification of that person." Similarly, in Adriano Ayondo v. Republic, Criminal Appeal No. 29 of 2009, it was stated that: "....it is settled law that for any identification parade to be o f any value, the identifying witness must have earlier given a detailed description o f the suspects." As said earlier, PW1, did not state the physical features of any of the three assailants let alone the appellant, though she mentioned the scuffle to have taken several minutes. Arguments by learned Senior State Attorney that PW1 described the appellant is not supported by the record. Mere statement that PW1 identified the appellant cannot be accepted without showing how 9

she identified the appellant. Thus, the identification parade exhibit P2 lacks evidential value. The third issue for consideration is the Cautioned Statement exhibit P3 that was also used by the trial judge to ground conviction. The appellant counsel's submission is that exhibit P3 was not listed and explained during committal proceedings. So it was received contrary to section 246 (2) of the Criminal Procedure Act, chapter 20 of the Revised Laws (the CPA). The issue was raised during hearing at the trial court, but same was overruled. It goes without saying that exhibit P3, should be expunged from the record. In totality, the prosecution did not prove the offence against the appellant, insisted the appellant counsel. In response the learned Senior State Attorney submitted that it is true that exhibit P3 was not listed and explained during committal proceedings, however, the appellant has not been prejudiced as he managed to mount his defence properly as seen from the record of the appeal. Therefore, it was rightly received and relied to ground conviction, insisted the respondent's counsel, while adding that the appellant's complaint on this issue is unmerited. Indeed, during committal proceedings, all the evidence and witnesses names and statement that will be used in the hearing of the case, ought to 10

be listed and explained to the accused person, to avoid taking him/ her by surprise during trial. This is the requirement under section 246 (2) which stipulates that: "upon appearance o f the accusedperson before it, the subordinate court shall read and explain or cause to be read to the accused person the information brought against him as well as the statement or document containing the substance o f the evidence o f witnesses whom the Director o f Public Prosecutions intends to call at the trial . " In essence therefore, the admissibility of each type of the evidence in cases covered by procedure of committing an accused person to the High Court by a subordinate court for trial, must be subject to the requirements stated under section 246 (2) of the CPA. Failure to do so is fatal to the proceedings on trial. In the case of Remina Omary Abdul v. Republic (Criminal Appeal No. 189 of 2020) [2024] TZCA 118, the substance in the form of flour (a physical exhibit), was neither brought to the knowledge of the accused person nor listed as one of the exhibits intended to be tendered at the trial. The Court had this to say on the prosecution's failure to meet the requirement: "courts not only read and list potential prosecution witnesses but also read/explain the contents o f documents and then list down documentary and ii

physical exhibits the prosecution would rely on during committal and we endorse the view by Mr, Nkonko that it is a mandatory requirement." A similar position was stated by the Court in the cases of Said Shabani Malikita v. Republic (Criminal Appeal No. 523 of 2020) [2023] TZCA 17302 and Michael Maige v. Republic (Criminal Appeal No. 222 of 2020 [2023] TZCA 54, just to mention a few. According to the record of appeal at page 21, it is without doubts that exhibit P3, the appellant's cautioned statement was neither explained to the appellant nor listed during the committal proceedings as an exhibit, which the prosecution intended to tender in court. The omission is fatal as the requirement to comply with section 246 (2) of the CPA is to enable the accused person know before hand the substance, kind and nature of the evidence the prosecution intends to lead against him at the trial. Thus, exhibit P3 is expunged from the record. As said earlier, the appellant's conviction was based upon visual identification of PW1, Identification parade report exhibit P2, and appellant's cautioned statement, exhibit P3. Having found that identification of the appellant at the scene of crime fell short of being watertight, and having expunged exhibits P2 and P3, there is no any other evidence to ground conviction. 12

From what we have discussed above, we are settled in our mind that the prosecution case was not proved beyond reasonable doubts against the appellant. We thus quash conviction, set aside the sentenced imposed on him and proceed to order his immediate release from custody unless otherwise lawfully held. DATED at DODOMA this 20th day of April, 2026. A. G. MWARIJA JUSTICE OF APPEAL P. M. KENTE JUSTICE OF APPEAL Z. G. MURUKE JUSTICE OF APPEAL The Judgment delivered virtually this 5th day of May, 2026 in the presence of appellant in person, Mr. Pascal Bitegela, learned State Attorney for the Respondent and Mr. Oscar Msaki, Court Clerk; is hereby certified as a 13