Mohamed Zuberi Abdala @ Pengo & Others vs Republic (Criminal Appeal No. 1223 of 2022) [2026] TZCA 426 (17 April 2026)

IN THE COURT OF APPEAL OF TANZANIA AT TANGA fCORAM: LILA. J.A.. KENTE. J.A, And MGEYEKWA, 3. A .) CRIMINAL APPEAL NO. 1223 OF 2022 MOHAMED ZUBERI ABDALA @ PENGO ............. ABDALA JUMANNE ATHUMAN @ DALLAS KUTU ATHUMAN 3UMA ABDALA @ PEPEA .................. SAMWEL JULIUS @ BONGE .............................. ,1 st APPELLANT 2 nd APPELLANT 3 rd APPELLANT .4™ APPELLANT VERSUS THE REPUBLIC RESPONDENT (Appeal from the decision of the Resident Magistrate's Court of Tanga) 14th May, 2025 & 17th April, 2026 KENTE, J.A.: This is a second appeal, it arises from the decision of the Resident Magistrate's Court of Tanga (Massati - SRM, with extended Jurisdiction) which confirmed the conviction and sentence of the appellants by the District Court of Tanga for armed robbery. Initially, the appellants appeared before the District Court of Tanga (the trial court) where they were charged with the offence of armed robbery contrary to section 287 A of the Penal Code, Chapter 16 of The Revised fMassati, RM-Ext.Jur.1 ) dated 17th day of August, 2024 In Criminal Appeal No. 10 of 2021 JUDGMENT OF THE COURT

Laws. The particulars offence alleged that, during the night of 12th May, 2019, at Raskazone area within the City and Region of Tanga, the appellants broke into the residence of one Saifiddin Taybal and his wife one Tasnim Saifiddin and stole their properties namely, a mobile phone Tecno Camon CX make with IMEI No. 357201087158001/357 22018758013 valued at TZS 550.000.00, a Samsung make Ipad with IMEI No. 3568807813882/01 values at TZS 970,0000.00, one gold necklace valued at TZS 270,000.00, eight gold bracelets valued at TZS 5,000,000.00, one pair of gold (sic) valued TZS 170.000.00, one digital camera Samsung Galaxy make with serial No. CEO 168 valued at TZS 450,000.00 and TZS 7,760,000.00 in cash. It was further alleged that, immediately before the time of stealing the above mentioned items, the appellants threatened the couple with a bush-knife in order to obtain the stolen properties. In the alternative count, the first appellant was charged with possession of goods suspected of having been stolen or unlawfully acquired contrary to section 312 (1) (b) of the Penal Code. The particulars of the offence in respect of this count alleged that, on 24th May, 2024 at Sahare Kivuiini area within the City and Region of Tanga, the first appellant was found in possession of one mobile phone with digit code (IMEI) No. 3568807813882/01 and one Samsung Ipad with IMEI No. 2

35680807813882/01 all priced atTZS 970,000.00 the properties of Saifiddin Tayabal Tasnin Saifiddin. The said mobile phone and Ipad were said to have been stolen or otherwise unlawfully acquired. Much like in the alleged case of the first appellant, the second appellant was charged in another alternative count, with being in possession of goods suspected of having been stolen or unlawfully obtained contrary to section 312 (1) (b) of the Penal Code. In this count, it was particularised that, the second appellant was found by the Police Officers at Kwanjeka Geza area in the City of Tanga while in possession of one Digital Camera make Samsung Galaxy with serial No. 168 worth TZS. 450,000.00 the property of Saifiddin Tayabal. Likewise, the said digital camera was alleged to have been stolen or otherwise unlawfully obtained by the second appellant. The appellant denied the charges levelled against them whereupon the matter proceeded to trial. At the end of the trial, they were all found, guilty of armed robbery and accordingly convicted. Having so found, the learned trial magistrate took the view that, it was rather otiose for her to deal with the charges in the alternative courts. The prosecution led evidence from six witnesses, the sum of which was that, during the night of 12th May, 2019, Saifiddin Tayabal who testified 3

as PW1, was sleep in the bedroom together with his ailing wife. That, he then heard some sounds which were nocturnally unusual. Further that, suspecting a potential undetected break in, he turned on the security lights and went back to bed but he could not sleep as, quite unexpectedly, the lights in his house, went off all at once. In an effort to find out what was wrong, PW1 told the trial court that, he peeped through the curtained window and noted that even his neighbours' houses were in darkness. PW1 recounted that, he then returned to bed without agitation believing that the darkness at his home and in the neighbourhood had been occasioned by a normal power outage. Moments later, PW1 heard sounds of people who were seemingly trying to gain entry into the couples' master bedroom. He further recounted that, at first, he thought they were his children who were sleeping in another room so he called them out but they gave no response. PW1 further narrated that, as he got worried and tried to reach out to his brother who was living in their neighbourhood hoping that he could quickly come to their aid, four men wearing face masks and armed with machetes stormed the room. Having forced open and gained entry into the couple's bedroom, the robbers went on threatening PW1 and his wife demanding money and any other valuable items. Because of the unbearable threats to which the couple

was subjected, having no time to think and, realising that they were risking life or limb to resist or otherwise dilly dally over the robbers' demand, PW1 had to make a hasty decision and surrender to them an amount of money which could not be ascertained at the time but was later on estimated to be TZS 7,760,000.00. The robbers also stole the items listed in the charge sheet which they chose but not at random, before they fled the scene. The incident was not immediately reported to the police as, according to PW1, he had to rush his wife to hospital in Dar es Salaam after her condition worsened apparently because of going through the ordeal of the traumatic robbery incident. It is pertinent to also point out at the inception that, after the incident was finally reported to the police on 23r d May, 2019 the victims never identified any of the appellants as one of the robbers. On the same day of reporting, Police Officers at Tanga Central Police Station received a tip from their secret informer who had seen the first appellant having a mobile phone allegedly stolen during the subject robbery incident. In a search that ensued, the said mobile phone and one Ipad were retrieved from the first appellant. Immediately thereafter, a search at the second appellant's residence yielded a ditigal camera that was said to have been identified as having been stolen from PWl's residence during the robbery. 5

With regard to the third and fourth appellants, nothing incriminating was found in their possession. The crucial evidence against them were the cautioned statements (Exhibits PE 11 and PEI3) which their co-accused had made to the police allegedly admitting to have been in cahoots with the first and second appellants who also admitted to have been their complicits. In a nutshell, it is upon the above evidence in the instant case that the appellants were charged and subsequently convicted of having had a hand in the disputed robbery incident. Having been found with a case to answer and put on their defence, the appellants did not tell the trial court in very certain terms, the places where they were at the time which is material to the occurrence of the charged offence. Essentially, all their defences were bare denials. Whereas the first and second appellants disputed recovery of the stolen items from their residences, the third and fourth appellants are on record as having told the trial court that they were not found with any of the recently stolen items as to allow for the inference that, in the absence of a reasonable explanation of possession of the items, they were the very robbers or guilty receivers of those items. The trial court convicted the first and second appellants mainly on the evidence of possession of the allegedly recently stolen properties and their 6

confessions to the Police. As to the third and fourth appellants, the trial court convicted them exclusively on the evidence contained in their respective confessional statements in which they are said to have implicated themselves and each other. As stated earlier, the appellants' appeal to the High Court which was subsequently transferred to the Resident Magistrate's Court of Tanga to be heard by a Senior Resident Magistrate with Extended Jurisdiction, could not yield any fruitful results, hence the present appeal. The appellants have advanced seven grounds of appeal which in their totality, and in so far as this appeal is concerned, they raise the following substantive issues: the first issue relates to the appellants' cautioned statement particularly if they met the specific requirements of the law so as to be admissible in evidence. The second issue is whether, given the facts and circumstances of this case, the doctrine of recent possession was properly applied against the first and second appellants. In a broad spectrum, the main issue in view of the particular facts and circumstances of this case, is whether the circumstantial evidence on which the prosecution's case was anchored, was sufficient enough as to be properly used by the lower courts to form the basis for convicting the appellants. Before we deal with the above identified issues, it is appropriate that we first make a very pertinent observation that, going by the evidence on 7

record, we are satisfied, and, it basically appears not to be in dispute that, PW1 and his family members were on 12th May 2019 attacked by a group of robbers who stole from them a substantial amount of money and the items outlined in the charge. It is as well common ground that, soon after the robbery incident, no report of its occurrence was made to the Police or the Local Leadership and, as a result of the delay to report, the appellants were not apprehended in the immediate aftermath of the incident but until after a couple of days. To be precise, whereas the first second and third appellants were arrested on 24th May 2019, the fourth appellant was not arrested until 14th June 2019. As stated earlier, on their side, the third and fourth appellants were not found with any incriminating item and the only evidence upon which they were convicted by the trial court and their conviction and sentence subsequently upheld on first appeal, were their statements in which they are said to have associated themselves with the commission of the charged offence along with the first and second appellants. During the hearing of the appeal, whereas the appellants appeared in person fending for themselves, Ms. Petrida Mutta, learned Senior State Attorney, appeared to represent the respondent the Republic. It is worthwhile to note that, the appellants had earlier on, in terms of Rule 74 8

(1) of the Tanzania Court of Appeals Rule, lodged a joint written statement of arguments in support of their appeal. On being called upon to address the Court, they simply adopted their written arguments with very little to say in substantiation of their complaints against the lower court's concurrent decisions. We shall specifically address the appellants' grievances at a later state of this judgment. In the meantime, we wish to go into the position taken by Ms. Mutta in response to the appeal. At the outset, Ms. Mutta informed us that she did not seek to support the appellants' conviction and sentence and thus, she went on persuading us to allow the appeal and quash and set aside respectively the said conviction and sentence for the reason that, having regard to all the circumstances of this case, the charge against the appellants was not proven to the required standard. It is important for us to point out here that, we are but partly inclined to the same view for the reasons that will later on become apparent. Addressing herself on what she viewed as serious shortcomings in the prosecution case, the learned Senior State Attorney submitted in the first place that, the complainant had inordinately delayed reporting the occurrence of the robbery incident which, as already indicated had occurred a couple of days before. With regard to the complainant's explanation that 9

he had to take his wife to hospital in Dar es Salaam and report the robbery incidents occurrence after the came back. Ms. Mutta submitted that, this explanation left a great deal to be desired as it was not necessary for the complainant to report the incident on his own. In this connection, the learned Senior State Attorney had in mind the complainants brother to whom he had vainly tried to reach out during the commission of the offence. According to her, in the absence of the complainant, his brother could have promptly reported to the law enforcement organs to allow for quick investigation. It must be observed here and this is very elementary that, reporting quickiy would enable the Police to secure and analyse evidence and gather witness accounts while they were still fresh and reliable. As to the evidence regarding the complainant's identification of the stolen items, Ms. Mutta submitted that, it was not proven to the required standard that, the said items belonged to the complainant who was the claimed owner. Elaborating, the learned Senior State Attorney submitted that, whereas, the complainants identification was purportedly aided by some unique identification numbers which were however not disclosed to the Police during the first reporting of the incident, the evidence led in support of the prosecution's case showed that some of the stolen items 10

belonged to the complainant's wife and daughter who were the proper witnesses to testify on their unique marks if any, but the claimed owners were however not called as witness. With regard to the complainant's dock identification of his stolen properties, going by our holding in the case of Jackson John Manase @ Men and Another v. Republic, Criminal Appeal No. 152 of 2021 the learned Senior State Attorney underscored the settled position of the law that, a detailed description by giving special marks of the stolen items has to be made before such exhibits are tendered in court in order to avoid doubts on the correctness regarding the identity of the allegedly stolen items. It was thus the learned Senior State Attorney's position that, since the complaint did not provide a detailed description of the stolen properties at the time of the incident or immediately thereafter, his evidence of dock identification which was not preceded by a detailed description of the properties to the Police, was, for all purposes and intents, quite unreliable. As for the cautioned statements (Exhibit P10, 911 and P13), the learned Senior State Attorney had the following reservations to make: One, that, the said statement each of which extended for more than one page, were not signed by the respective maker on each page of the statement as required under section 58 (6) (a) of the Criminal Procedure Act, Cap 20 of 11

the Revised Laws (the CPA); Two, that the statement do not show the time when the maker of the statement was taken under restraint and three that, as a result of the immediately mentioned omission, it cannot be said with any degree of certainty that the statements were recorded within four hours of the makers' detention pursuant to section 50 (1) of the CPA. Upon the above shortcomings, the learned Senior State Attorney urged that, the evidence of the appellant's confessions should be disregarded on account of being in admissible and, once that evidence is discounted, there would be nothing to support the appellants' conviction. On their part, the appellants had nothing substantial to add by way of rejoinder, particularly after having heard Ms. Mutta who had decided to go along with them. Tliey simply continued to protest their innocence claiming they were erroneously convicted and sentenced. To begin with, and straight to the point, we wish to state from the outset that, the first and second appellants' grievances against the lower courts' invocation of the doctrine of recent possession which were supported by Ms. Mutta, are legally not tenable. In this regard, the issue we have to determine here is whether, in the situation of the case at hand, the doctrine of recent of possession could be properly invoked. In several cases, this Court has had an occasion to hold that, for a court to apply the doctrine of recent possession, several conditions must be 12

met. One, that the stolen property must be found in the possession of the suspect; two, that the stolen property must be positively identified to be that of the complainant, three, that the property must be recently stolen and finally, that the property stolen must relate or constitute the subject of the charge. (See the case of Juma Bundala V. Republic, Criminal Appeal No. 15IB of 2011, and Jackson John Manase @ Men (Supra). We mention as we pass that, it is trite that the above conditions must be cumulatively fulfilled. With regard to the pertinent question as to when and where should the identification of the recently stolen property start, we want to draw the attention of the legal fraternity and emphasize that, it must start as soon as possible after a theft is discovered or committed, with the Police being the primary agency of the investigation process. In this context, victims of theft or robbery as it happened in the instant case, are expected to immediately report to the Police and provide detailed descriptions of their stolen items including serial numbers and unique identifiers, if any. As one would expect, the requirement to file a Police report immediately after occurrence of theft or soon after theft is discovered, is necessary in view of the fact time is very critical in recovering stolen properties. It must as well be very elementary to observe in the present circumstance that, a delay in reporting an incident of theft or robbery when coupled with the doctrine of recent possession as

in this case, can weaken the credibility of the victim's evidence and undermine the prosecution's case. Coming to the specifics of the instant case, as it can be gleaned from the record, during the trial, the prosecution presented circumstantial evidence comprised in two strands as stated earlier, relating respectively to the allegations that the first and second appellants were found in possession of the complainant's properties which had been recently stolen from PW1 and that, upon arrest, every one of them made a confessional statement to the Police admitting to committing the charged offence. Needless to say, both the trial and first appellate courts were impressed by the evidence led in support of the above position in the prosecution's case hence the impugned convictions and sentences. But then, in reaction to the above decision, the appellants have challenged the lower courts' acceptance and belief of the complainant's testimony who claimed to have identified the Samsung Galazy Camera (Exhibit P3), Tecno CX mobile phone (Exhibit P4) and Samsung Tablet (Exhibit P5) as being some of his stolen properties. The mainstay of the appellants' complaint on this aspect is that, the complainant's evidence lacked a prior distinctive description. To that end, the appellants contended, and that was gracefully conceded by Ms. Mutta in her reply submission that, the complainant's evidence of identification of the stolen properties was not 14

enough to form the basis upon which their conviction could have been safely anchored. Of course, as earlier indicated, and as we shall later on demonstrate, the appellant's complaints do not end there as this was not the sole evidence upon which they were convicted. On our part, we must state right from the outset that, we do not find merit in the first and second appellants' complaint on that aspect and, we set out hereunder the reasons for taking this position. To start with, we wish to observe that, the fact that the respondent Republic does not support a conviction in a criminal appeal, does not ipso facto relieve this Court the duty to carefully examine the evidence relied on by the lower courts and how they applied the law to the facts. Put in other words, this Court is still saddled with a duty, to consider whether the grievance raised by the appellants against the lower courts' concurrent decisions are genuine and thus contrary to the popular belief, the fact that the State does not support the conviction or sentence, does not automatically mean the appeal must succeed as a matter of course. To use the words deployed by the Supreme Court of Zambia from which we can take inspiration (in the case of Humprey Masauso Phiri & 4 Others v. the People: SCZ Appeal Nos 153 of 2015 (https://Zambialli.org.visited on 4/2/2026). "To us it matters not that the State does notsupport the decision of the lower court. We are obliged to 1 5

consider the propriety or otherwise of the decision or decisions aiieged to have been made in error in disregard of the law and make an assessment whether the criticism against the judge or trial magistrate was, in the circumstancesjustified." Having said that, we begin by noting that, in the present case the complaint who testified as PW1 is on record as having told the trial court that, he identified his stolen terms using their respective IMEI and serial numbers which he had copied into his notebook. While we are mindful that, neither PW1 himself nor any Police Officer who appeared as witness confirmed that (PW1) had provided the said numbers or any other distinguishing marks of his properties to the Police when a report regarding occurrence of the robbery incident was made, we take the view that, in the peculiar circumstances of the instant case where unique and traceable identifiers such as the International Mobile Equipment Identity (IMEI) for phones and serial numbers for cameras and Ipad were given by PW1, this in our respectful view provided irrefutable proof of ownership by PW1 on one hand and on another hand a strong factual link between the first and second appellants' possession of the stolen items and the robbery incident. We say this because there is no dispute that the stolen items which were eventually and respectively found in the possession of the 1s t and 2n d 16

appellants had unique marks and details that allowed for PWl's positive identification which was beyond a mere mentioning of similarity or any other visual markings such as colour as it occasionally occurs in cases of identification of stolen properties. Although the evidence in this case shows that the complainant simply made a dock identification of his allegedly stolen properties, insofar as we are alive to the facts that there is no evidence showing that he had provided upfront the IMEI and serial numbers to the Police at the time of reporting, it occurs to us that in the absence of evidence showing that the identification process was not free from prompting or suggesting by Police and, as such, PW1 credibly and categorically described the distinctive features of his stolen properties, we hold the strong view that, he had positively identified them as to warrant the invocation of the doctrine of recent possession. We say this because in terms of contemporary technology, apart from the owner, it is only the mobile network operator and the law enforcement agencies (with proper legal authorization) who are the primary entities that can correctly know the IMEI number of a phone, and crucially link it to a specific user or location. In our view, the lower courts correctly arrived to the conclusion that the complainant had positively identified his stolen properties. That being 17

the case, the first and second appellants' complaints on that aspect are not merited for lack of evidential basis. We accordingly dismiss them. Coming to the cautioned statements, the question is whether they were recorded in accordance with the dictates of the law as to be admissible. A brief response by Ms. Mutta to some of the appellants' grievances is that, indeed, their confessional statements were inadmissible on account of having been recorded in blatant disregard for the law. In this regard, it was submitted that a number of things went wrong in the investigation of the subject offence. In the first place, the learned Senior State Attorney submitted that, the cautioned statements were not signed by the respective maker on each page and in the second place, there is no evidence on the record as to when each of the appellants was taken under restraint to enable us reckon the period each of the statement ought to have been recorded. With the foregoing observations, the learned Senior State Attorney submitted that the impugned statements were recorded in total violation of the law. She implored us to allow the appeal for lack of sufficient evidence to effectively support the appellants' conviction. On their part, and in a somewhat directly connected complement to what was submitted by Ms. Mutta, the appellants contended in their joint written arguments that the first and fourth appellants' statements were 18

received and admitted in evidence without conducting an inquiry despite being challenged on account of some irregularities in their recording. Similarly, upon the above-mentioned procedural infractions, we were urged to disregard the two statements for having been recorded in contravention of the applicable law. We have taken great pain to consider the appellants' cautioned statements together with the synonymous and complementary arguments put forward by the appellants and Ms. Mutta all of which were basically challenging the admissibility of the said statements. We must state from the outset that, in the main, we entirely agree with the appellants and the learned Senior State Attorney. We have in this regard taken note that, as correctly submitted by Ms. Mutta, each of the statements was not signed on each page by the respective maker. Moreover, it is not shown on each statement or anywhere else as at what time was each of the appellants taken under restraint, the time from which the period of for hours for interviewing him could be reckoned. Our binding guidance in the case of Shilanga Bunzari v. Republic, Criminal Appeal No. 600 of 2020 is that, where there is uncertainty in the prosecution's account as to when the appellant was arrested, this adversely impacts on the admissibility of their cautioned statements and the court will, more often than not, hold that this 19

statement was recorded beyond the prescribed four hours period. In view of the above position of the law, we hold that in the present case, the lower courts fell foul of our established jurisprudence on this subject and this being a shared characteristic of the appellants' statements to the Police, we agree with Ms. Mutta that indeed they were inadmissible in evidence for having been procured illegally. That said, we do not intend to delve into some other grounds advanced by Ms. Mutta and the appellants in assailing the lower courts' concurrent decision regarding the admissibility of the contested statements. For, in any case, determining those grounds would not change the conclusion we have reached that the statement were inadmissible. The net effect of our foregoing discussion is that, save for the first and second appellants who were found in possession of the stolen items for which they could not provide any reasonable explanation for possessing them, on the whole, there was no evidence proving to the required standard that the third and fourth appellants had taken part in robbing the complainant of his properties. In the event, the appeal by the first and second appellants against the concurrent decisions of the lower courts is dismissed in its entirety. Their conviction is sustained and the custodial sentences meted out on them are 20

hereby confirmed. The appeal by the third and fourth appellant is allowed. Consequently, we order for them to be immediately released from jail unless their continued detention is on account of some other lawful cause. DATED at DODOMA this 31s t day of March, 2026. S. A. LILA JUSTICE OF APPEAL P. M. KENTE JUSTICE OF APPEAL A. Z. MGEYEKWA JUSTICE OF APPEAL Judgment delivered virtually this 17thday of April, 2026 in the presence of the appellants in person - unrepresented, M r. Thomas Gahigi, learned State Attorney for the Respondent/Republic and Ms. Christina Mwandenje, Court Clerk is hereby certified as a true copy of the original. 21