Mohamed Idd vs Republic (Criminal Appeal No. 204 of 2023) [2026] TZCA 152 (27 February 2026)

IN THE COURT OF APPEAL OF TANZANIA ........ AT ARUSHA ( CORAM: KOROSSO. J.A.. MASHAKA, 3.A. And NGWEMBE. J.A.:1 CRIMINAL APPEAL NO. 204 OF 2023 MOHAMED ID D ................................................ .............. APPELLANT VERSUS THE REPUBLIC ..................................... ................ ............RESPONDENT (Appeal from the decision of the High Court of Tanzania at Arusha) (Bade, J.^ dated 15th December, 2022 in Criminal Appeal No. 49 of 2022 JUDGMENT OF THE COURT 18th & . 27th February, 2026 NGWEMBE. J.A.: In Criminal Case No. 46 of 2019 before the District Court of Babati, the appellant was charged with trafficking in narcotic drugs, contrary to section 15A (1) of the Drugs Control and Enforcement Act No. 5 of 2015 as amended by section 9 of the Drugs Control and Enforcement (Amendment) Act No. 15 of 2017. The offence was alleged to have been committed by the appellant on 18th September, 2018 at Babati District in Manyara Region by trafficking narcotic drugs known as Heroine weighing 24 grams. When he was arraigned in court and the charge was read and explained to him, he unequivocally denied. l

The prosecution marshalled its evidence through the testimonies of - ten (10) witnesses and eleven (11) exhibits. The defence was given in the nature of general denial saying that the case was fabricated against the appellant. At the end of a full trial, the trial court was satisfied that the offence was established and proved to the hilt, hence he was convicted and sentenced to serve twenty (20) years imprisonment. In a nutshell, the prosecution case, as obtained from the record of appeal, can be briefly stated as follows: On 16th September, 2018, at around 9:00 hours, F. 1258 Sgt Marijani (PW1) received information from anonymous informer on the appellant's trafficking narcotic drugs from Singida and Arusha. Working on the information, he communicated with the Regional Crimes Officer (RCO) of Manyara. With the assistance of Manyara police, they managed to arrest the appellant at NBC area within Babati township together with a motorist one Nurdin Mohamed. Upon a search, the appellant was found with two envelopes inside the pocket of his jeans trousers. Having opened those envelopes, a total of 741 dices of what was suspected to be heroin was found tied in soft plastic packets. The items were duly seized and a seizure certificate was prepared and tendered in court as exhibit PEI. The motorist who brought the 2

appellant at the crime scene, witnessed the search along with F. 4285 D/CPL Noa (PW3) and all signed the seizure certificate. The appellant was arrested right there and taken to Babati Police Station. Upon interrogation, he confessed to have been found in possession of 741 dices of heroin. His cautioned statement was admitted at trial as exhibit PE3. H 5969 D/C Isaya (PW4) took the appellant to Singida Urban Primary Court before the Justice of Peace, Hon. Deodatus Ndangu (PW8) where he recorded his extrajudicial statement which was admitted in evidence as exhibit PE7. When the alleged drugs were examined by the Chief Government Chemist, it was proved to be heroin weighing 20 grams. The examination report was admitted as exhibit PE5 and the drugs were also admitted as exhibit PE2. On chain of custody of those drugs, exhibit PE8 was admitted. Also, a register book was admitted as exhibit PE9 and sample receipt notification was admitted as exhibit PE10. On the part of the defence, the appellant defended that the case against him was framed. He denied to have been searched and found in possession of any drugs. Moreover, he denied to have recorded any statement including the extrajudicial statement before the justice of peace. 3

As we alluded to above, upon full trial, the trial court found that the offence against the appellant was proved beyond reasonable doubt, he was convicted and sentenced accordingly. The appellant was not amused with the decision of the trial court, he unsuccessfully, appealed to the High Court raising nine (9) grounds of appeal challenging the propriety of his arrest; failure to call material witnesses like the RCO of Manyara, H. 8682 D/C Fahari and D/SGT Ramadhan; Nurdin Mohamed the independent witness at the seizure; contravention of section 50 (l)(a) of the CPA when recording his cautioned statement; contradictions on the weight of the drugs; and that the case was fabricated against him. The appellant's appeal before the High Court hit a snag, as the court dismissed the appeal and upheld the trial court's conviction and sentence. Undaunted, the appellant has preferred the instant appeal predicated on thirteen (13) grounds in the original memorandum of appeal lodged on 16th May, 2023 and five (5) additional grounds in the supplementary memorandum of appeal lodged on 9th February, 2026, making a total of eighteen (18) grounds. For the reasons to be known soon, we do not intend to reproduce them. 4

When the appeal was placed before us for hearing, the appellant who entered appearance in person prayed to adopt his grounds of appeal indicated in the two memoranda together with his written statement of arguments in support of the appeal lodged on 13th February, 2026. He thus implored the Court to consider them and allow the appeal and set him free. On the adversary side, the respondent Republic was represented by Ms. Saada Mohamed, learned Senior State Attorney. At the outset, Ms. Mohamed declared the respondent's stance of supporting the appeal and intimated to us that, after going through the record of appeal, she found that the offence against the appellant was not proved to the hilt. She pointed out variance between the charge and evidence adduced during trial; and failure to call material witness. Considering those shortfalls, the learned Senior State Attorney, implored the Court to allow the appeal and order release of the appellant from custody. We have paid a considerable weight on the oral argument's submission of the learned Senior State Attorney together with the appellant's grounds of appeal and his written statement. We find imperative to revisit the record of appeal in determination of this appeal. To begin with, it is an elementary knowledge of criminal law that, the

cornerstone of any criminal case is the charge. The charge is both a heart and the brain of criminal justice and fair trial, which plays a double role of informing the accused person on the nature of his case and allows him to prepare his defence. Second, the charge notifies the trial court on the subject matter with a view to determine its jurisdiction and prepare the procedure to be applied during trial. Therefore, the charge is the foundation in any criminal trials. See. Charles s/o Makapi v. Republic (Criminal Appeal No. 85 of 2012) [2014] TZCA 247 (19 June 2014) and Marekano Ramadhani v. Republic, Criminal Appeal No. 202 of 2013 (unreported). In the latter case, the Court held: 1 1 Framing o f charge should not be taken lightly, we think it is imperative for the prosecution to carefully frame up a charge in accordance with the law. It becomes even more vital to do so where an accused is faced with a grave offence attracting a long prison sentence." It is a settled practice that charges under section 15A of the Drugs Control and Enforcement Act (DCEA) that, weight and quantity of the substance said to be narcotic drugs like heroin in this appeal, is essential to establish and prove the offence charged with unshakable evidence. See, Omary Said @ Athumani v. Republic (Criminal Appeal No. 58 of 2022) [2022] TZCA 270 (13 May 2022).

In this appeal, the charge presented before the appellant disclosed that the drugs were heroin weighing 24 grams. However, the evidence of PW5, a Principal Chemist from the Government Chief Chemist Laboratory, Authority, as it appears at page 51 of the record of appeal testified as follows: "after having received such envelope, we did measure the contents which were inside, and we find it was 20 gram s." He proceeded to clarify that they received 741 dices and they used a special machine to open them and empty them, thus the contents of those drugs were 20 grams while those small containers had 4 grams. Such explanation was contradicted by himself in page 53 of the record of appeal when he testified that he received 741 and 441 samples. Equally important is the report which was admitted as exhibit PE5 which indicated that: "Uzito wa kieieiezo n i gramu 20," meaning the weight of the sample is 20 grams, thus raising doubts on the weight of the substance alleged to be heroin whether it be 20kg or 24kg. Perusing more inquisitively on the testimonies of other prosecution witnesses, it is evident in the testimony of PW1 that at the scene of crime he seized 741 sachets (dices), but at trial, there were 743 sachets. Such inconsistencies with the charge ought to have been corrected by the prosecution. 7

There is no doubt that there is material variance between the items alleged to have been found in the possession of the appellant as charged and the evidence adduced by the prosecution witnesses. Pursuant to section 234 (1) of the CPA, when such a situation occurs, the charge ought to be amended. The said section states as follows: "Where in any stage o f the trial it appears to the court that the charge sheet is defective, either in substance or in form, the court may make such order for alteration o f the charge either by way o f amendment o f the charge or by substitution or additional o f new charge as the court thinks necessary to meet the circumstances o f the case unless, having regard to the m erit o f the case, the required amendments cannot be made without injustice; and a ll amendments made under the provisions o f this sub section shall be made upon such terms as the court shall seem ju st." The above provision provides for the steps to be taken when there is variance between the charge and the evidence. It confers powers on the trial court to allow amendment of the charge to meet the pertaining circumstances. Therefore, in the case at hand, after the prosecution noted that the variance between the charge and evidence in respect of the alleged number of sachets and its weight, it was required to seek 8

leave of the court to amend the charge,..but that was not done. We therefore, agree with the learned Senior State Attorney that on this ground alone the charge was at variance with evidence, hence remained unproved. In regard to failure to call material witness, Ms. Mohamed argued strongly that according to the testimony of PW2 at the crime scene when the drugs were seized, showed there was an independent witness one Nurdin Mohamed who signed the seizure certificate. She argued that failure to call such an important witness at trial was fatal. We are alive that the prosecution cannot be forced to call witnesses, rather they know who is a material witness and who is not. However, those who witnessed an incident in all circumstances are material, and must be called to testify they saw and witnessed. Failure to call them without providing any plausible reason, the court is at liberty to draw adverse inference against the prosecution. See, Azizi Abdallah v. Republic [1991] T.L.R 91 and Mashimba Dotto @ Lukubanija v. Republic, Criminal Appeal No. 317 of 2013 (Unreported). The latter case, the Court held: "The general and well-known rule is that the prosecutor is under a prima facie duty to call those witnesses who, from their connection with 9

the transaction in question , are able to testify to m aterial facts. I f such witnesses are within reach but are not called without sufficient reason being shown, the court may draw inference adverse to the prosecution " The term 'material witness' is defined by The Black's Law Dictionary, Eight Edition, page 1634 to mean: "A witness who can testify about m atter having some logical connection with the consequential facts." We are also alive that there is no rule of thumb that enjoin all persons who happen to witness an incident in question to be called to testify. Since there no specific number of witnesses required to prove a fact, even one witness may suffice so long as the contents of such testimony proves the alleged offence. This is the spirit of section 143 of The Evidence Act Cap 6 R. E. 2019. In several decisions of the Court, including the case of Tafifu Hassan @ Gumbe v. Republic (Criminal Appeal No. 436 of 2017) [2021] TZCA 436 (27 August 2021), the Court held that, the prosecution enjoys the liberty to choose the witnesses that will establish their case. However, where they refrain from calling a witness who may advance justice an adverse inference may be drawn. 10

See: AZIZI_ ABDALAH V. REPUBLIC (1991) TLR 71 (CA), .the.'Court. held: "The general and well-known rule is that the prosecutor is under a prima facie duty to call those witnesses who, from their connection with the transaction in question, are able to testify m aterial lads. I f such witnesses are within reach but are not called without sufficient reason being shown the Court may draw an inference adverse against the prosecution . " In the circumstances of this case, we are restrained to find that Nurdin Mohamed was a material witness as he acted as an independent witness during the arrest, search of the appellant and seizure of exhibits. Therefore, failure to call him was fatal and we draw an adverse inference against the prosecution, that if the witness was called, he would have given evidence contrary to the prosecution's case. See also, Adam Mikael Matera v. Republic (Criminal Appeal No. 547 of 2022) 2025 TZCA 304 (27 March 2025). We have further noted in the record of appeal that PW4 at pages 37 to 39 testified in court without taking an oath since he was a Christian. The effect of such anomaly, in terms of section 198 (1) of CPA now section 212 (1) is to disregard the whole evidence. For clarity the section is reproduced that: ll

„ __ 212.-.(1) "A witness in a crim inafcause or m atter ........... - shall, subject to the provisions o f any other written law to the contrary, be examined upon oath or affirmation in accordance with the provisions o f the Oaths and Statutory Declarations Act". The proviso to section 4 of the Oaths and Statutory Declaration Act, Cap 34 R.E. 2023 provides a mandatory requirement to take oath or affirmation before testifying as a witness in court. The above provisions go hand in hand with rule 2 of the Oaths and Affirmation Rules, Government Notice 125 of 1967 which prescribes the oath and affirmation for all religious believers and non-believers. Given the fact that PW4 did not swear before he could testify in court, we accordingly expunge his evidence from the record of appeal. In the circumstances, we are satisfied that there is no evidence on record which could have been safely relied upon by the trial court and the first appellate court to convict the appellant. It is our further view that had the first appellate court considered the issues discussed above, it would have come to the inevitable finding that it was not safe to sustain the appellant's conviction. 12

In view of the aforesaid, we agree with the learned Senior State Attorney that we should depart from the decision of the lower courts that the offence of trafficking narcotic drugs was not proved against the appellant to the hilt. The appeal is allowed. We therefore, nullify the proceedings, quash the conviction and set aside the sentence of twenty years imprisonment. We further order the immediate release of the appellant from custody unless otherwise held for other lawful reasons. DATED at ARUSHA this 27th day of February, 2026. W. B. KOROSSO JUSTICE OF APPEAL L. L. MASHAKA JUSTICE OF APPEAL P. J. NGWEMBE JUSTICE OF APPEAL Judgment delivered this 27th day of February, 2026 vide video link in the presence of the Appellant in person, Ms. Neema Mbwana, learned Senior State Attorney for the Respondent/Republic and Ms. Stella Mlaponi, Court Clerk; is hereby certified as a true copy of the original.