Salum Omary & Another vs Republic (Criminal Appeal No. 538 of 2023) [2026] TZCA 234 (4 March 2026)

IN THE COURT OF APPEAL OF TANZANIA AT SHINYANGA (£QRAM: LILA, J.A., MAIGE, 3.A. And MANSOOR. 3.A.1 CRIMINAL APPEAL NO. 538 OF 2023 SALUM OMARY.. ..... ............ ........ .......... ............ jst APPELLANT SAID ABIRI @ SHIJA ........................................................... 2 nd APPELLANT VERSUS THE REPUBLIC...................................................................... RESPONDENT (Appeal from the decision of the High Court of Tanzania at Shinyanga) (Npngwa, J.) dated the 7th day of October, 2022 in Criminal Appeal No. 61 of 2021 JUDGMENT OF THE COURT 23rd February & 4th March, 2026 LILA. J.A.: This is the second appeal by Salum Omary and Said Abiri @ Shija (henceforth the 1s t and 2n d appellant, respectively). Before the trial court they were the 1s t and 3r d accused persons. They are appealing against the decision of the High Court sitting at Shinyanga which upheld the conviction and sentence of thirty (30) years imprisonment imposed to each by the District Court of Shinyanga upon a conviction of the offence i of Armed Robbery contrary to section 287A of the Penal Code [Cap 16 R.E 2019]. Their first appeal to the High Court failed. Before the District Court, the appellants together with three others namely Amos Joseph, Jumanne Hussein and Deus Martine (then 2n d , 3r d and 4th accused, respectively) were indicted to answer a charge which comprised of four counts. In the first count, the appellants faced a charge of Armed Robbery contrary to section 287A of the Penal Code [Cap 16 R.E 2019]. The particulars thereof alleged that they, on 6/3/2020 at Bakurutu Area within Shinyanga Municipality in Shinyanga Region, stole laptop make HP-CORE 15 valued at TZS 700,000.00, cash money TZS 30,000.00 and a bag make Ponasoo valued at TZS 30,000.00 from one Gerald Michael and immediately at or before such stealing, they assaulted the said Gerald Michael using an iron bar so as to obtain the said properties. The 1s t appellant alone, in the second count, stood charged with the offence of possession of goods suspected to be stolen or unlawfully acquired contrary to section 312(b) of the Penal Code. The allegation was that he was found in possession of a bag make Panasoo valued at TZS 30,000.00. Similarly, Deus Martine alone, in the third count, stood charged with the offence of unlawful possession of a laptop HP-CORE 15 the property of Gerald Michael valued at TZS 700,000.00 being suspected to have been stolen or unlawfully acquired. In the fourth and last count, again, Deus Martine alone, faced a charge of receiving stolen property. The allegation here being that, on 21/3/2020, at Nyihogo area within Kahama District in Shinyanga Region received a laptop make HP-CORE 15 valued at TZS 700,000.00 knowingly or having reason to believe the same to have been stolen, extorted, wrongfully or unlawfully taken or obtained. All of them denied the respective charges and trial ensued culminating in the appellants' convictions as were charged and sentenced as above shown. The prosecution fielded six (6) witnesses in their verge to prove the charges while the appellants were the sole defence witnesses. At the trial court's conclusion, then 2n d accused was acquitted for want of evidence while the then 4th and 5th accused were convicted of their respective offence and each sentenced to three years' conditional discharge. From the six witnesses, the prosecution sought to establish that the 1s t and 2n d appellants used an iron bar to hit Gerald Michael (PW1) 3 when he was passing along NBC-old Shinyanga road while going to his home at "Majengo ya Zamani" Area. PW1 had just arrived at Shinyanga at between 04:00 and 05:00 hrs from Dar es Salaam aboard Najimunisa Bus. He was carrying with him a bag make Panasoo in which he had kept a laptop make HP-CORE 15 and cash TZS 30,000.00. That group of thugs, it was alleged, ambushed him and robbed him of such properties. He reported the matter to the police station after which an investigation started, leading to the arrest of those four persons named above from whom they recovered all the properties except money. PW1 was called at the police station on 23/3/2020 to identify the properties recovered, a bag (Exhibit PI), laptop (Exhibit P2) and laptop charger (Exhibit P3) which he duly did. Another evidence came from P. 6576 DC Mussa (PW2) who told the trial court that he interrogated the 1s t appellant who then took the police to Kahama to one Jumanne Hussein (then 4th accused) whom the laptop was sold to and the later took them to Deus (5th accused) where the laptop was kept. The laptop was recovered and a seizure certificate filled and signed (exhibit P7). That, on 14/3/2020, PW2 recorded the 2n d appellant's cautioned statement (exhibit P4) and G 1062 DC Eric (PW3), on 21/3/2020, recorded the 1s t appellant's cautioned statement. PW4 recorded the 2n d accused cautioned statement (exhibit P9) whereas H. 8896 DC Stanslaus recorded the 5th accused cautioned statement (exhibit P10). Habiba Jumanne Ramadhani (PW6) witnessed the search which was conducted in the 1s t accused room and she signed the seizure certificate (exhibit P7) wherein a black bag was found. The 1s t appellant (DW1) denied being found with anything when search was conducted in his room after he was already arrested. The 2n d appellant (DW2) admitted being arrested on 14/2/2020 while in his errands on accusation of committing cybercrimes and was forced to sign some papers by police whereas then 3r d accused, said he was arrested following being found with a certain girl whose father called the police and arrested him. He wondered how could he be linked with the commission of an offence which was committed on 5/3/2020 while he was arrested on 14/2/202. Jumanne Hussein (DW4) equally denied involvement in committing the offence but said, the 3r d accused then faced him looking for a buyer of a laptop and he bought it at TZS 50,000.00 which he later on used it as a bond to Deus so as to get money (TZS 45,000.00). That, on 21/3/2020, he was arrested by police 5 in connection with the laptop. Such assertions were supported by Deus Martine (DW5) in his defence. Save for the appellants who were convicted and sentenced as explained above, the 2n d accused person was acquitted whereas the 4th and 5th accused persons were convicted and ordered to serve three years' conditional discharge each. Only the appellants appealed to the High Court but the same was unsuccessful. It is against this backdrop that the appellants have brought this second appeal on the following paraphrased grounds: 1. That, the courts below wrongly relied on cautioned statements the recording of which, violated section 57 of the Criminal Procedure Act, Cap 20, R.E 2019. 2. That, the courts grounded conviction not on the strength of the prosecution case but the weakness of the defence case. 3. That, the lowers courts relied on cautioned statements before the police the recording of which, violated section 27 (1) of Evidence Act, Cap 06 R.E. 2019. 4. That, the trial was tainted with material procedural irregularities making it a nullity. 5. That, the case was not proved beyond reasonable doubt. Not convinced that his grounds of appeal in the substantive memorandum of appeal were enough, the 1s t appellant advanced another four (4) additional grounds at the hearing of the appeal. The need to recite them disappeared on account of Ms. Immaculata Mapunda, learned Senior State Attorney, indicating that the respondent supports the appeal and that the same would turn on the fifth ground of appeal. Mr. Jukael Jairo, learned senior state Attorney, assisted Ms. Immaculata Mapunda, at the hearing of the appeal before the Court representing the respondent Republic. The appellant, who was unrepresented, fended for himself. There was no elaboration of the grounds of appeal by the appellants. Both opted to adopt their respective complaints as reflected in the memoranda of appeal leaving the respondent to argue them first reserving their right to rejoin later. Ms. Mapunda prefaced her submission by expressing the position that the respondent supports the appeal. She basically conceded to the complaint in ground five (5) of appeal which substantially challenged both courts below for holding that the prosecution proved the charge. She contended that that ground has merit. Putting her position clear, she contended that there was no other person who witnessed the robbery incident and neither were the appellants arrested at the crime scene. She argued that, the appellants' conviction was grounded on two pieces of evidence, their confessional statements and oral visual identification evidence, the key witness on identification being PW1. She was quick to argue that the identification evidence was doubtful. She reasoned that, from the evidence on record, it appears PW1 was not certain whether he knew the appellants before the incident or not. She said PW1 first said he identified the boys who invaded him and described their attire and complexion but later said three of them wore caps. If they wore caps, Ms. Mapunda wondered, how could he be believed to have had identified them at night when he was invaded. The identification made by PW1, in court, she argued, was dock identification which is legally valueless if not preceded by the evidence that he identified them at the crime scene. Further elaborating, she argued that, the evidence on record does not show what led to the appellant's arrest and how they were linked with the commission of the offence. That, the prosecution relied much on circumstantial evidence which is not water tight. The chain, she insisted, has some gaps and does not point at the appellants as the responsible persons. In the circumstances, she concluded, the prosecution evidence was weak and could not prove the charge as the doctrine of recent possession could not apply to convict the appellants. She implored the Court to allow the appeal. The position taken by the learned Senior State Attorney being in their favour, both appellants seized the opportunity to just insist that their respective grounds are meritorious and urged the Court to allow their appeal and ultimately set them at liberty. We have examined the evidence on record, dispassionately considered the appellants' complaints in this appeal and Ms. Mapunda's arguments before us. As was rightly argued by the learned Senior State Attorney, it is not clear from the record what led to the appellant's arrest. Neither was it stated by the witnesses from the police station that the appellants' arrest was a result of the descriptions explained by PW1. PW1 did not provide the police who effected the appellant's arrest with the descriptions of the persons who invaded him, either. What are on record are the manner the appellants were arrested and how their cautioned statements were recorded. In situations where the evidence relied on is visual identification from a single witness, trite law is that, such evidence is treated as being weak and, to ground a conviction, it must be subjected to scrutiny to ensure that the circumstances favoured a correct identification. We find such guidance in Phillipo Rukandiza @ Kichwechembogo vs Republic, Criminal Appeal No. 215 of 1994 (unreported) where the Court stated that: "The evidence in every case where visual identification is what is relied on must be subjected to scrutiny, due regard being paid to all the prevailing circumstances to if, in all the circumstances, there was really sure opportunity and convincing ability to identify the person correctly and that every reasonable possibility o f error has been dispelled." We are alive that it is trite law that visual identification evidence, be it of a single or more than witness, such evidence must be watertight to ground a conviction. Similarly, we are aware that, that rule does not bar a conviction founded upon a single witness visual identification evidence if the court is satisfied that a single identifying witness is 10 actually telling the truth [See Hassan Juma Kenehyera vs Republic [1992] T.L.R. 100, Nhembo Ndalu vs Republic, Criminal Appeal No. 33 of 2005 and Mengi Paulo Samweli Luhanga and Another vs Republic, Criminal Appeal No. 222 of 2006(Both unreported)]. In the instant case, after consideration of the circumstances under which identification was made, we agree with the learned Senior State Attorney that the identification evidence by PW1 was unreliable. The caps worn by the suspects, definitely impeded his ability and opportunity to see the faces of the bandits who invaded him on the material night. That said, it is obvious that the description he attempted to give, in the circumstances, were doubtful. There was a possibility of a false or mistaken identification being made which the Court cautioned trial courts to treat them with care in the case of Nyakango Olala James vs Republic, Criminal Appeal No. 32 of 2010 (unreported) in these words: "this principle o f law is still valid today as it was when it was first propounded. Therefore. Eyewitness testimony... can be devastating when false witness identification is made due to honest confusion or outright lying ." We are guided by the authority in the case of Waziri Amani vs Republic (1980) TLR 250 where it was held that, no court should act on evidence of visual identification unless all possibilities of mistaken identity are eliminated and that the court should, to ground a conviction, be satisfied that the evidence before it is absolutely watertight. In view of our deliberation on the identification evidence by PW1, We hereby hold that the identification evidence of the appellants at the crime scene was wanting in truth hence unreliable. If PW1 was a truthful witness, he was expected to have explained to the police, the descriptions of the persons who invaded him following which the police would have mounted search for them and arrest them based on the descriptions. We are guided to hold so based on our decision in the case of Omari Iddi Mbezi & 2 Others v. The Republic, Criminal Appeal No. 227 of 2009 [2021] T7CA 474 (14 September, 2021; TANZLII), that: "The witness should describe the culprit or culprits in terms o f body build, complexion, size, attire, or any peculiar body features, to the next person that he comes across and should repeat those descriptions at his first report to the police on the crime, who would in turn testify to 12 that effect to lend credence to such witness's evidence.... ideally, upon receiving the description o f the suspect (s) the police should mount an identification parade to test the witness's memory, and then at the trial the witness should be led to identify him again. '(Emphasis added) Apparently, in the present case, PW1 did not do so. Settled law is that identification of accused persons by a witness in the dock for the first time, as PW1 did, cannot be given credence without corroborative evidence of identification parade as we stated in MusaElias and Two Others vs The Republic, Criminal Appeal No. 172 of 1993 (Unreported) that: "It is a well-established rule that dock identification o f an accused person by a witness who is a stranger to the accused has value only where there has been an identification parade at which the witness successfully identified the accused before the witness was called to give evidence at the trial." The above said, PWl's attempt to identify the appellants in the court's dock, without hesitation, amounted to a dock identification which 13 needed corroboration which, in the instant appeal, is missing rendering it valueless. Next, Ms. Mapunda rightly argued that there was no evidence on how and what led to the appellant's arrest making it difficult to link the evidence of the alleged identification by PW1 with the appellants' arrest. It is evident from the summarized testimonies of the prosecution witnesses that they only demonstrated how the appellants were arrested without an explanation as to what led to their arrest. As we have endeavoured to explain above, neither their names nor their descriptions were explained to the police to allow them mount the alleged search that led to their arrest. That was a serious flaw in procedure as we underscored in the case of Muhidini Mohamed Lila @ Emolo and Three Others vs Republic, Criminal Appeal No. 443 of 2015 (unreported). From the foregoing analysis, we are constrained to agree with the learned Senior State Attorney that, the charge against the appellants was not proved. 14 We accordingly, allow the appeal, quash the appellants' convictions and the sentence set aside and we, hereby order their release from prison forthwith unless held for another justifiable reason(s). DATED at SHINYANGA this 3r d day of March, 2026. S. A. LILA JUSTICE OF APPEAL I. J. MAIGE JUSTICE OF APPEAL L. A. MANSOOR JUSTICE OF APPEAL The Judgment delivered this 4th day of March, 2026 in the presence of Appellant appeared in person, and Ms. Mboneke Ndimubenya, learned Senior State Attorney for the respondent/Republic by virtual Court and Mr. Leopord Mabugo, Court Clerk; is hereby certified as a true copy of the original. D. R. LYIMO DEPUTY REGISTRAR COURT OF APPEAL