Rahim Baksh Marabzay vs Republic (Criminal Appeal No. 823 of 2023) [2025] TZCA 1316 (29 December 2025)

IN THE COURT OF APPEAL OF TANZANIA AT PAR ES SALAAM fCORAM: WAMBALI. J.A.. KAIRO, J.A. And NANGELA, J.A.) CRIMINAL APPEAL NO. 823 OF 2023 RAHIM BAKSH MARABZAY.................................... ..........................APPELLANT VERSUS THE REPUBLIC..............................................................................RESPONDENT (Appeal from the decision of the High Court of Tanzania at Dar es Salaam) (Ismail, 3.) Dated the 9th day of November, 2022 in Criminal Sessions Case No. 160 of 2016 JUDGMENT OF THE COURT 1st October & 29h December, 2025 WAMBALI. J.A.: The appellant, Rahim Baksh Marabzay together with Mansoor Rais, • jt Rasul Baksh (now deceased), Gulam Rezar, Nawab Bari, Said Muhamad, Nazil Pack, Mohamed Rafiq, Salim Kosal, Yari Muhamad, Allan Nuru Jawi, Razar Rais and Kheri Mohamed were initially arraigned before the High T ' H Court of Tanzania at Dar es Salaam on 10th May, 2017. The arraignment followed their committal for trial by the Court of Resident Magistrate of Dar es Salaam at Kisutu (the Committal Court) on 10th January, 2017. The record of appeal reveals that the High Court neither recorded the appellant's and others' pleas nor conducted preliminary hearing. On the contrary, it was ordered that a fresh committal proceeding be held because i the previous one was marred with irregularities. We will revert to this matter later in the judgement. The allegation which confronted the appellant and eleven other accused persons mentioned above was to the effect that; on 30th October, 2014 within Tanzania territorial waters Dar es Salaam Region, they trafficked in 41,713.57 grams of Narcotic Drugs namely Heroin Hydrochloride or Diacetyl morphine Hydrochloride valued TZS 2,085,678,500.00. The appellant and others pleaded not guilty to the information. . ■ i i After the appellant and eleven others were committed again for trial to the High Court on 12th June, 2019 and pieas were taken and preliminary hearing was conducted, the trial was adjourned several times until 9th November, 2022. On that particular date, the record of appeal indicates that the appellant pleaded guilty to the information laid at his door, while the remaining eleven accused pleaded not guilty. Therefore, the appellant was found guilty and convicted for contravening the provisions of section 16 (1) (b) of the Drugs Act, Cap 95. Subsequently, he was sentenced to life imprisonment. It is noteworthy that on the same date, that is, 9th November, 2022 the other eleven accused were discharged after the Director of Public Prosecutions notified the trial court that he had no further intention to prosecute them on the same charge under which the appellant was convicted and sentenced. Considering that the appellant was found guilty and convicted on his own plea of guilty, it is pertinent to reveal the facts which were recorded by the trial court upon which the appellant is alleged to have admitted as correct and true. The appellant was the captain of a Dhow named MV AL-Amiel which was sailing within the territorial waters of Tanzania in Dar es Salaam Region. That, in the respective dhow, he was together with other twelve (12) colleagues stated above. Moreover, on 30th October, 2014, acting on a tip from an informer, police officers stopped the said dhow. However, the appellant disobeyed the order by the police to stop. Police officers decided to chase the vessel. During the police chase, the appellant threw into water a parcel which was believed to contain narcotic drugs. The parcel was recovered by the police. On 31s t October, 2014, a search was conducted in the dhow and 41 kg parcel was recovered. Police also recovered USD 6,900.00, a mobile phone and some parcel which had no substance and were written Ally and Baba. A certificate of seizure was prepared and was signed by the appellant and an independent witness and police officers. Upon examination of the parcel, the Chief Government Chemist confirmed that the substance found in the parcel was Heroin Hydrochloride weighing 41.713 kg. The Commissioner for National Coordination of Drugs certified that the seized narcotic drugs had the value of TZS 2,085,678,500.00. The trial court thus admitted the following exhibits; report of the Government Chemists, certificate of value of the drugs, search warrant and certificate of seizure, inspection report of the dhow, pictures taken from the scene of the crime, map of the territorial water, USD 6,900.00, dhow MV EL-Amiel and 41 packets of narcotic drugs. They were marked as exhibits P1-P9, respectively. Ultimately, having been satisfied that the appellant admitted to the narrated facts and exhibits tendered, the trial court convicted the appellant on his own plea of guilty and sentenced him to life imprisonment as intimated above. The appellant was dissatisfied with the finding of the trial court that his plea is unequivocal, hence this appeal. The memorandum of appeal which demonstrates his dissatisfaction, contains five grounds of appeal. However, upon careful scrutiny, the grounds boil down into two. One, that the trial judge wrongly found that the appellant's plea was unequivocal. Two, that the appellant was improperly convicted on a defective information. During the hearing of the appeal, the appellant appeared in person. Moreover, Ms. Flora Washokera appeared as an interpreter from Swahili language to Persian language and vice versa. Basically, in his brief submission, the appellant urged us to consider his grounds of appeal in determining the appeal as he did not lodge written submissions. He finally implored us to allow the appeal and set him free because he did not plead guilty freely. On the adversary side, Ms. Elizabeth Mkunde and Ms. Faraja George, learned Principal State Attorney and Senior State Attorney, respectively, appeared for the respondent Republic. In reply, Ms. Mkunde contested the appellant's appeal. She submitted that the record of appeal clearly indicates that the appellant pleaded guilty after the information was read over and explained to him. She contended that the appellant also freely admitted to the facts which were read out and the exhibits which were tendered by the prosecution. The learned Principal State Attorney explained that the facts and exhibits reflected what transpired before and during his arrest in connection to the offence 5- i1 : i . charged. In her firm submission, she maintained that as the appellant did not raise any objection to the facts and exhibits, the trial judge properly found that his plea was unequivocal to warrant the conviction. She emphasized that the procedure stipulated by law on conducting proceedings after an accused pleads guilty was strictly followed by the trial judge. Regarding the complaint in the second ground on whether the information was defective, Ms. Mkunde disagreed with the assertion of the appellant. She argued that the information indicates that the statement of the offence and the particulars of the allegation against the appellant were clearly stated by the prosecution. She maintained that according to the proceedings of the trial court in the record of appeal, the appellant understood the charge which confronted him during the trial as required by the law and as a result, he voluntarily pleaded guilty. To support her position, she made reference to the decision in Remina Omary Abdul v. The Republic (Criminal Appeal No. 189 of 2020) [2022] TZCA 118 (15 - q March 2022, TANZLII). On the other hand, when the learned Principal State Attorney was prompted on whether the information >dated 9th November, 2022 was properly placed before the trial court and whether there was no order to that effect, she persistently stated that it was proper. Despite acknowledging that there is no order of the trial court in respect of the so called amended or substituted information, she spiritedly emphasized that the information was properly substituted to remove the name of Rasul Baksh who was the second accused as he had passed on. Moreover, the learned Principal State Attorney stated that though the particulars of the information still included the name of the deceased, the anomaly is curable under the law as it did not go to the root of the case in respect of the appellant's unequivocal plea of guilty. ion, 1 In the end, Ms. Mkunde pressed us to dismiss the appellant's appeal for lacking merit. :ifc We propose to commence our deliberation by revisiting different stages of the proceedings in respect of the appellant's case from committal to the trial in the determination of the appellant's grounds of appeal. The record of appeal reveals that on 10th May, 2017, the first day of arraignment of the appellant and others for plea and preliminary hearing, the High Court adjourned the hearing to a date to be fixed by the Registrar of the High Court because the accused jand the trial court required an interpreter. The Appellant and eleven others appeared again before Mutungi J, (as she then was) on 11th October, 2018 whereby two interpreters who were fluent in Swahili, Persian and Kurdish languages attended. The High Court then recorded the pleas of twelve accused persons. However, preliminary hearing could not proceed because Ms. Neema Mwanda, learned Principal State Attorney for the Republic informed the presiding Judge that the committal proceedings were irregular. She stated that the irregularity was caused by the fact that during committal proceedings, only one interpreter who interpreted Swahili language to Persian language and vice versa attended, while there was no attendance of a Kurdish language i/eiv interpreter for some accused persons. The High Court agreed with the submission of the learned Principal State Attorney and consequently, it ■ V remitted the file to the committal court for fresh committal proceedings. Admittedly, on both occasions, the High Court was aware and indeed, it recorded that Rasul Baksh who was thefsecond accused had passed on. Nonetheless, no prayer for amendment or substitution of the information was made by the prosecution or caused to be amended by the High Court as required by section 276 (2) (currently section 294) of the Criminal Procedure Act, Cap 20 (the CPA). Moreover, there is no order showing that the case against the deceased abated as required under section 284A (currently section 304) of the CPA. 8 Moreover, on 12th June, 2019, another magistrate conducted committal proceedings afresh and committed the appellant and other accused, including the deceased for trial to the High Court. On 11th December, 2020, the case was placed at the High Court before Rwizile, J. who recorded the accused's plea and conducted preliminary hearing. He later adjourned the hearing pending the trial of the accused persons on a date to be fixed by the Registrar of the High Court. Remarkably, the proceedings on that date indicate that the name of the deceased, Rasul Baksh was still shown to be part of the information which was read over and explained to the twelve accused who pleaded not guilty. The only exception is that the deceased did not plead to the information as he did not enter appearance. The record of appeal shows that the information was not amended or substituted as claimed by Ms. Mkunde. Basically, the problem with regard to the defects in the information did not end during the preliminary hearing because when the case was later placed before the trial judge on 9th September, 2022, the position had not changed. { Apparently, following the order of the High Court during plea taking and preliminary hearing, the record of appeal contain a letter Kumb. Na. 102/DAR/3/X/17 dated 28th April, 2017 from the Prison Officer In charge of Keko Remand Prison informing the Deputy Registrar of the High Court Dar es Salaam sub registry that Rasul Baksh who was the second accused had passed away since 3th March, 2017 at Muhimbili National Hospital where he was admitted for treatment. Notably, the death certificate was attached and the respective letter was copied to the State Attorney In charge, Dar es Salaam Zone and the Anti-drug Unit (ADU). We further note that on 11th December, 2020, during preliminary hearing, the record of appeal reveals the following in respect of the status of Rasul Baksh, the deceased second accused: : "PP. The secondaccusedperson is alleged to be deadand so he is not present in court. We pray to proceed with the present accused persons, while we are making a follow up on getting death certificate. We will file upon getting it. We Pray for abatement o fthe trial in that respect. : S Court: Prayer granted. Prison officers are directed to provide information in respect o f his death and the same be filed in court before the next hearing date. Sgd; A.K Rwizile Judge 1 1 / 1 2 / 2020 ". 10 Regrettably, despite that information, the presiding judge continued to conduct preliminary hearing and adjourned the hearing to a later date and also issued the order shown above. Despite that disclosure, a copy of information which was filed in the Registry of the High Court on 9th November, 2022 and read over to the appellant and eleven other accused persons on the same day did not comply with the requirement of the law because there is no formal order of the trial court that it was an amended or a substituted information in terms of section 276(2) and (3) of the CPA. For clarity, the respective provision provides: "276 (2) Where before a trialxupon information or at any stage o f the trial it appears to the court that the information is defective, the court shall make an order for the amendment o f the information as it thinks necessary to meet the circumstances o f the case un/ess, having regard to the merits o fthe case, the required amendment cannot be made without injustice; and all such amendment shall be made upon such terms as to the court shall seemjust (3) Where an information is amended, a note of the order for amendment shall be endorsed in the information and the information shall be treated for ii a this purpose of all proceedings in connection therewith as having been filed in the amended form" In Bahati Bukombe and Two Others v. The Republic (Criminal Appeal No. 568 of 2017) [2018] (5 September 2018, TANZLII), the Court considered the context of section 276(2) and (3) of the CPA and stated thus: "According to the above provisions o f the law (that is section 276(2) and (3) of the CPA), the Court can order for an amendment o f the information if necessary, on the terms which deems just I f the Court make such an order, it is required under subsection (3) to endorse the information to enable information to be treated for purpose o f all proceedings in connection therewith as having been filed in the amended form" Admittedly, there is nothing on the proceedings of that date to show that the trial judge made any order for amendment or substitution of the information which was the basis of the appellant and other accused entering pleas of guilty and not guilty, respectively. Therefore, the information which was filed in the High Court on 17th November, 2016, still 12 remained the basis of the appellants plea as it was also the source committal proceedings. On the other hand, we hasten to state that even if the information dated 9th November, 2022 would have been formally and legally introduced in the proceedings of the trial court, it equally remained defective. This is because though the name of the deceased, Rasul Baksh was removed in the list of accused outlined in the said information, the opening paragraph and the particulars of the offence still included his name as among the accused persons who allegedly committed the offence jointly with the appellant and others. Again, before the appellant allegedly pleaded guilty, no amendment was made in terms of section 276 (2) of the CPA. Moreover, according to the record of appeal, to date the case against Rasul Baksh has never been marked abated in terms of section 284A (currently section 304) of the CPA which requires that every trial before the High Court shall abate on the death of the accused person. This was irregular. For emphasis on the need to adhere to the requirement to mark the case against the deceased as abated, in a persuasive decision of the Supreme Court of India in Banoda Gajapathy Rao v. The State of Andhra Pradesh (1964) AIR 1645; (1964) SCR (7) 251, it was stated that the abatement of the case upon the confirmed death of an accused is 13 necessary because criminal prosecution is concerned primarily with the punishment of an offender and not with the trial of an abstract issue about the truth or falsity of the prosecution case. From the chronology of events we have demonstrated above, we hold that the information upon which the appellant and others were committed and later called upon to plea to during the preliminary hearing and the appellant's purported plea of guilty is fatally defective. Thus, the respective information could not lead to an unequivocal plea of guilty of the appellant as held by the trial judge. In Michael Adrian Chaki v. The Republic (Criminal Appeal 399 of 2019) [2021] TZCA 454 (9 September 2021, TANZLII), the Court stated, among others, that the accused must be arraigned before a court on a proper charge. In the case at hand, as we have shown above, the appellant was committed for trial, called upon to enter a plea and convicted on a defective information. During all those stages of the case, there was no leave of the court to introduce the so-called substituted information and that the case against the deceased has never been marked abated as intimated above. In Rajabu Salim @ Roja v. Republic (Criminal Appeal No. 311 of 2022) [2025] TZCA 373 (12 April 2025, TANZLII), the Court emphasized that a charge or information is a foundation of a trial and thus any criminal 14 trial has to be authenticated by a proper crafted charge or information to enable the accused understand the substance of the accusation preferred against himself or together with other and that without it, the proceedings are a nullity. It was also stated that such an irregularity on the propriety of the charge or information cannot be cured by section 388 (currently section 411) of the CPA. In the instant case, considering the defects in the information exposed above, we hold without hesitation that the proceedings before the committal court and those of the High.Court are a nullity. The appellant cannot therefore be taken to have unequivocally pleaded guilty to the defective information. Therefore, there is no doubt that the information upon which the appellant was called upon to plead was fatally defective not only for incorporating a deceased person whose case had not been marked abated but also for lack of the trial courts order authorising the so- called amended information as required by law. In the circumstances, we allow the first and second compressed grounds of appeal. Consequently, we nullify the committal court proceedings from the respective committal date and those of the High Court, quash the 15 conviction and set aside the sentence of life imprisonment imposed on the appellant. Finally having regard to the circumstances of the case in which the proceedings are tainted from the committal date, we remit the file to the committal court for continuation from where it ended before committal proceedings were held. We further order that the appellant, Rahim Baksh Marabzay, should remain in custody. i(i DATED at DODOMA this 22n d day of December, 2025. F. L. K. WAMBAU JUSTICE OF APPEAL L. G. KAIRO JUSTICE OF APPEAL D. J. NANGELA JUSTICE OF APPEAL Judgment delivered this 29th day of December, 2025 in the presence -1 i of the appellant in person/unpresented, Ms. Judith Kyamba, learned State Attorney for the respondent/Republic, via virtual Court and Ms. Jasmin Kazi, Court Clerk, is hereby certified as a true copy of the original.