Linna Roman Muro vs Republic (Criminal Appeal No. 550 of 2021) [2022] TZCA 842 (11 October 2022)

IN THE COURT OF APPEAL OF TANZANIA AT PAR ES SALAAM ( CORAM: MKUYE. J.A., KENTE, 3.A. And KIHWELO, 3.A/1 CRIMINAL APPEAL NO. 550 OF 2021 LINNA ROMAN MURO ......................... ............ ................ APPELLANT VERSUS THE REPUBLIC ......................................................... .....RESPONDENT (Appeal from the decision of the High Court of Tanzania at Dar es Salaam) (Mbaqwa, 3.1 dated the 21s t day of August, 2021 in Criminal Appeal No. 38 of 2021 JUDGMENT OF THE COURT 20th September & 11th October, 2022 KIHWELO, J.A.: What triggered this appeal is the judgment of the High Court of Tanzania at Dar es Salaam (Mbagwa, J.) in Criminal Appeal No. 38 of 2021 affirming the decision of the Resident Magistrates Court of Dar es Salaam at Kisutu in Criminal Case No. 295 of 2018 convicting Linna Roman Muro, the appellant, of trafficking in narcotic drugs and sentencing her to thirty years imprisonment. The offence was laid under section 15A and (2) (a) of the Drugs Control and Enforcement Act, No. 5 of 2015 as amended by the Drugs

Control and Enforcement (Amendment) Act, No. 15 of 2017, We shall henceforth refer to it as "the Act". The particulars of the offence were that, the appellant on 26th day of January, 2018 at Tabata Bima- NSSF House within Ilala District in Dar es Salaam Region, the appellant trafficked in narcotic drugs namely, Heroin weighing 43.95 grams. To prove its case, the prosecution produced eight witnesses whose evidence was supported by a host of seven pieces of documentary and physical exhibits. The prosecution case, as told by the prosecution's witnesses presented the following narrative: On 24th January, 2018 officers from the Drugs Control Enforcement Authority (DCEA) led by Inspector Kanyumbu (PW3) received a tip from an informer that there was a woman at Tabata Bima NSSF Estate who was dealing with trafficking in narcotic drugs. The following day, on 25th January, 2018 around midnight, PW3 in a company of other officers from DCEA namely ASP Msangi (PW8), H. 3437 DC. Lazaro (PW6), WP. 7631 DC. Zuena (PW4), DC. Octatus, DC. Innocent and DC. Seleman arranged a raid at the appellant's house at Tabata Bima NSSF Estate. On arrival at Tabata Bima NSSF Estate, PW3 and other DCEA officers met a watchman by the name of Riziki Mwaisile who upon request directed them to the area representative one Walter Kagisa Rafael who accompanied 2

them to House No. 8, Block "H" where they knocked the door of the house and the appellant let them in, and thereafter, the officers introduced themselves and the reason for the uninvited visit. Subsequently, a search was conducted in the appellant's house the result of which a number of items were found and seized as indicated in the seizure certificate (exhibit P3) including what was believed to be narcotic drugs which was later received and admitted in court as exhibit P2. PW3 on the same day went back to the DCEA offices and handed over the alleged narcotic drugs along with all other seized items to SSP Neema (PW 7), the investigator and exhibit keeper, who entered in the exhibit register (exhibit P6) and kept them under safe custody. Later, on 29th January, 2018, PW6 witnessed the packing and sealing of the alleged narcotic drugs which was done by PW7 in the presence of other witnesses and thereafter, handed over to PW6 who sent them to the Chief Government Chemist for analysis. As it were, after the analysis it was revealed that one of the packets which was marked "A" weighing 43.95 grammes contained narcotic drugs called Heroine Hydrochloride. It was thus, the testimony of PW6 that he took back exhibit P2 to PW7 along with the report from the Chief Government Chemist which was later received and admitted in court as exhibit PI. PW4 witnessed the search and was the one under whom the appellant was under custody throughout, while WP. 10974 3

DC. Witness (PW5) recorded the cautioned statement of the appellant (exhibit P4) and PW8 produced the statement of the independent witness Walter Kagisa (exhibit P7). On the other hand, Elizabeth Kisamba who testified as PW2, a court clerk at Ilala District Court, in her scanty testimony, gave an account of what transpired on 26thJune, 2018 when she was in court attending to Economic Case No. 73 of 2018 before Hon. Sachore, Resident Magistrate in which exhibits were about to be tendered but following the defence objection to their admissibility, the prosecution entered a nolle prosequi and the exhibits remained in the custody of the Republic. The totality of the prosecution witnesses was that the appellant was guilty of trafficking in narcotic drugs. The appellant refuted the accusation whereupon, in her spirited defence she denied categorically to have committed the alleged offence. She denied to have participated in the said search exercise as alleged by the prosecution witnesses and furthermore, she claimed that she was tortured by the DCEA officers in order to admit to the offence she did not commit. Similarly, she testified further that, earlier on she was apprehended before the District Court of Ilalla at Samora in Economic Case No. 73 of 2018 in relation to similar allegations. However, the hearing of this case did not 4

proceed following the nolle prosequi which was entered by the prosecution during the trial. At the conclusion of the trial, the trial court was impressed by the prosecution case, and in the end, it was satisfied that the appellant committed the offence and found her guilty as charged. In consequence, the court convicted and sentenced her as hinted earlier. The appellant's attempt to appeal to the High Court hit a dead end, as the High Court dismissed the appeal for being devoid of merit. Still believing that justice was not served by the two courts below, the appellant has come to this Court on a second appeal. The appellant's dissatisfaction with the decision of the first appellate court is expressed in a Memorandum of Appeal comprising of five grounds which can be paraphrased as follows:-

1. That the first appellate court erred in law and fact by dismissing the appeal while the charge was incurably defective.

2. That the first appellate court erred in law and fact by dismissing the appeal without considering the fact that the prosecution did not prove the case beyond reasonable doubt

3. That the first appellate court erred in law and fact by dismissing the appeal without considering the fact that the chain o f custody o f exhibit P2 was broken. 5

4. That the first appellate court erred in law and fact by dismissing the appeal while the alleged narcotic drugs were found at a place accessible to more than one person and without knowledge o f the appellant.

5. That the first appellate court erred in law and fact by dismissing the appeal while the respondent conceded to the irregular admission o f exhibit PI which was not read out in court after admission. When, eventually, the matter was placed before us for hearing on 20th September, 2022, the appellant was represented by Mr. Richard Rweyongeza who teamed up together with Mr. Nehemia Nkoko, all learned counsel. On the adversary side, the respondent was represented by a consortium of public attorneys, namely, Ms. Faraja George and Ms. Sabrina Joshi, learned Senior State Attorneys and Ms. Diana Lukondo and Mr. Benson Mwaitenda learned State Attorneys who gallantly resisted the appeal. Mr. Rweyongeza who took the floor first to argue the appeal, proposed to start with the second and fourth grounds of appeal that were ultimately argued conjointly in which the thrust of the appellant's claim is that the prosecution did not prove the case to the required standard and that exhibit P2 was found at a place accessible to everyone else other than the appellant. He began by contending that, failure by the first appellate court to analyze and evaluate evidence was a serious omission which led the court to arriving 6

at the wrong conclusion, He referred us to page 301 of the record of appeal where the first appellate court expressly stated that, it will not be detained much by that ground, and that reading the evidence of PW3 it was clear that from the information that the DCEA officers had, the evidence irresistibly links the appellant with exhibit P2. The counsel argued further that, even the defence case was not considered at all. In his considered opinion, the duty of the prosecution is to prove the case beyond reasonable doubts and in this case the prosecution did not, he argued. Arguing further these grounds Mr. Rweyongeza, contended that, according to the evidence of PW3 the information regarding the appellant's trafficking in narcotic drugs was relayed to them by an informer on 24th January, 2018 but surprisingly the DCEA officers went to search and arrest the appellant on 26th January, 2018 at midnight and in contravention of the law and even worse the search was conducted without a search warrant. To bolster his position, reference was made to the case of Remina Omary Abdul v. Republic, Criminal Appeal No. 189 of 2020 (unreported) and argued that, the infraction pointed above should make the Court hold that the search conducted was illegal. Mr. Rweyongeza went on to submit that, it was not very clear as to who else was present in the house during the search exercise and the appellate 7

court did not resolve this. He then, referred to what PW3 stated at page 38 of the record of appeal and exhibit P7 at page 219 of the record of appeal as well as DWl's testimony at page 174 of the record of appeal in relation to the presence of one SSP Salmin and the denial by PW4 that Salmin or Salum was not present during the search and the fact that the said Salmin did not participate at the committal stage or during trial. Similarly, Mr. Rweyongeza argued that, the fact that there was more than one adult person who were found in the house besides the appellant, it created some doubts and more in particular bearing in mind that none of the adult persons who were found in the house along with the appellant were charged as co-accused. He cited the case of Yanga Omari Yanga v. Republic, Criminal Appeal No. 132 of 2021(unreported) in which all those who were found in the appellant's house were charged along with the appellant but later the case against them was dropped unlike in the instant case. Another complaint that Mr. Rweyongeza raised was in relation to how the search exercise was conducted. He submitted that PW4 at page 61 of the record testified that they conducted the search without specifically indicating which specific officer conducted the search exercise while others were witnessing as required by the law in order to eliminate any possibility of a search object being planted. Reliance was placed on the case of Remina 8

Omary Abdul (supra) at page 38 in which we reaffirmed that the way certificates of seizure are crafted suggests that search is conducted by one person and others present will simply witness it. The above submission, Mr. Rweyongeza, argued, demonstrates that there was no sufficient evidence to convict the appellant. Mr. Nkoko, argued the remaining grounds of appeal starting with ground one. He contended that, section 15A of the Act upon which the appellant stood charged neither creates an offence nor does it prescribe the penalty and therefore the appellant was prejudiced. He faulted both the trial as well as the first appellate courts while referring to pages 246 and 291 of the record of appeal in finding that the appellant was not prejudiced. Mr. Nkoko, did not end there, he faulted the first appellate court which entered into the shoes of the prosecution and corrected the defect instead of the prosecution praying to amend the charge during trial and argued that the first appellate court ought to have nullified the proceedings and set aside the judgment and sentence meted upon the appellant. Next Mr. Nkoko, argued ground three of the appeal in which he faulted the first appellate court for its failure to find that the chain of custody of exhibit P2 was broken from the moment the nolle prosequi was entered in the economic case at Ilala District Court, He contended that PW7 at page 141 9

of the record of appeal admitted that exhibit P2 was taken on 7thJune, 2018 by one Innocent Masangila and since then it was not returned and PW1 at page 34 of the record indicated that the exhibit was not admitted in evidence at Ilala District Court and it remained in the custody of the Republic without specifically mentioning who and Mr. Masangila did not come before the court to give oral account of what befell exhibit P2. Mr. Nkoko, thus, argued that, the chain of custody was broken and as such, the learned first appellate court ought to have acquitted the appellant He referred us to page 25 of our earlier decision in the case of Zainab Nassoro @ Zena v. Republic, Criminal Appeal No. 348 of 2015 (unreported) to bolster his argument. Finally, Mr. Nkoko argued the fifth ground of appeal in which he challenged the first appellate court for dismissing the appeal while exhibit PI was irregularly admitted in evidence and that this was admitted by the respondent. In his opinion Mr. Nkoko argued that, it was incorrect to say as the first appellate court found out that, failure to read exhibit PI was inconsequential and cited section 48A (2) of the Act which makes the certificate from the Chief Government Chemist mandatory and conclusive evidence. Reliance was placed in the case of Aldo Kilasi v. Republic, Criminal Appeal No. 466 of 2019 at page 8 and Tizo Makazi v. Republic, Criminal Appeal No. 532 of 2017 at pages 10 and 11 (both unreported). He 10

finally, submitted that, exhibit PI was not inconsequential and therefore prayed that the appeal be allowed. Responding specifically on the contention by Mr. Rweyongeza that the two courts below did not analyze the evidence on record, Ms. Joshi, was fairly brief. She argued that both two courts below adequately analyzed the evidence on record and came to the conclusions that, the prosecution proved its case to the hilt and regarding the complaint on the irregularity during the search and seizure process, Ms. Joshi, contended that there was no possibility of a search object being planted because the narcotic drugs were discovered at the seating room and referred us to the testimony of PW3 at page 38 of the record of appeal. The learned Senior State Attorney submitted that this ground of appeal has no merit. In response to the fourth ground of appeal which relates to the complaint that the appellant had no knowledge of the existence of the narcotic drugs, Ms. Joshi, argued that, according to PW3 at page 38 of the record of appeal, the narcotic drugs were found at the seating room of the appellant's house and citing the case of Yanga Omari Yanga (supra) she argued that the appellant cannot exonerate herself from liability because she was in charge and control of the house. She argued further that, the alleged contradictions relating to the presence or otherwise of SSP Salmin during the 11

search exercise is owing to the fact that witnesses cannot recall each and everything and went further to submit that, even if there were contradictions which is disputed, the same did not go to the root of the matter. Responding to ground one of the appeal Ms. Joshi, was fairy brief and contended that the effect of not citing sub-section (1) of section 5A in the charge is not fatal since it is curable under section 388 (1) of the Criminal Procedure Act, Cap 20 R.E. 2022 (the CPA). To facilitate an appreciation to her proposition she referred us to pages 14 and 15 of our earlier decision in Festo Domician v. Republic, Criminal Appeal No. 447 of 2016 (unreported) in which we decidedly reaffirmed that where the particulars of the offence are clear and enabled the appellant to fully understand the nature and seriousness of the offence for which he is being tried, any irregularities on the citation of the section of the law is curable under section 388(1) of the CPA. She also cited the case of Anna Jamaniste Mboya v. Republic, Criminal Appeal No. 295 of 2018 (unreported) and argued that non-citation in this case did not prejudice the appellant. In that regard, the learned Senior State Attorney, urged us to dismiss this ground of appeal for want of merit. The learned Senior State Attorney in response to the submission by Mr. Nkoko, in support of ground three of the appeal, in which the appellant complained that the chain of custody of exhibit P2 was broken, argued that, 12

this ground has no merit. Illustrating, she contended that the evidence of PW3 clearly reveals how exhibit P2 was seized, handed over to PW7, the exhibit keeper who at page 138 of the record of appeal explained how she received and handled exhibit P2. Ms. Joshi, went on to submit that all witnesses testified and identified exhibit P2 including the Government Chemist (PW1) who confirmed that exhibit P2 was narcotic drugs, namely, Heroine Hydrochloride. Ms. Joshi, however, admitted that it is true that the chain of custody was broken from the time exhibit P2 was not admitted at Ilala District Court but in her considered opinion, the crucial part from seizure to the time exhibit P2 was taken to the Chief Government Chemist for analysis, the chain of custody was not broken. Reliance was placed in the case of Chukwudi Denis Okechukwu and Others v. Republic, Criminal Appeal No. 507 of 2015 at pages 25 and 26 (unreported). The learned Senior State Attorney, urged us to dismiss this ground of appeal too. Last to be addressed by Ms. Joshi is ground five on the allegations that the first appellate court ignored the irregular admission of exhibit PI which was admitted by the respondent. She contended that, admittedly there is no record that exhibit PI was read over in court after admission, however, she was quick to argue that, at page 30 of the record of appeal PW1 explained exhibit PI. She further went on to submit that even if exhibit PI is taken not 13

to have been read over after admission, the oral account of PW1 suffices to explain the contents of exhibit PI. To facilitate an appreciation to her proposition she referred us to the case of Ernest Jackson @Mwandikaupesi and Another v. Republic, Criminal Appeal No. 408 of 2019 (unreported). Ms. Joshi argued that this ground has no merit as such she prayed that it has to be dismissed. In rejoinder Mr. Rweyongeza and Mr. Nkoko took turns and very briefly reiterated their respective earlier submissions and urged further that, the appeal be allowed. We have anxiously weighed the learned rival submissions by the parties and to start with, we would wish to deliberate on the first ground of appeal that raises a point of law on the defect of the charge against the appellant Clearly, the charge cited section 5A and (2) (a) of the Act omitting sub-section (1) of section 5A. It is conspicuously clear that sub-section (1) of section 5A of the Act was not cited. However, we ask ourselves two questions; One, whether that prejudiced the appellant, in the sense that, such omission prevented her from comprehending the nature and gravity of the offence of trafficking in narcotic drugs she was facing and therefore disabled her from preparing her defence; and two, whether that omission is curable under section 388 (1) of the CPA. Considering the submissions on this aspect of 14

the alleged infraction, we find considerable merit in the submissions of the learned Senior State Attorney that, the said defect is not prejudicial as it did not prevent the appellant from comprehension of the nature and gravity of the offence of trafficking in narcotic drugs which she faced and therefore, prevented her from presenting a proper defence and thus occasioned injustice. Ordinarily, a defective charge renders the proceedings and the resultant decision nullity. There is, in this regard, a long and unbroken chain of decisions of the Court which underscore this position. See, for example, Maneno Hamza v. Republic, Criminal Appeal No. 338 of 2014; Mussa Nuru @ Saguta v. Republic, Criminal Appeal No. 66 of 2017; and Hamis Maliki Ngoda v. Republic, Criminal Appeal No. 7 of 2017 (all unreported). But, we are mindful of the position of this Court in which it has taken different stance on defective charges. In the celebrated case of Jamali Ally @ Salum v. Republic, Criminal Appeal No. 52 of 2017 (unreported), the Court found among other things that non-citation or wrong citation of the provision in the statement of the offence is curable under section 388 (1) of the CPA. In the instant appeal, the appellant was availed with all the necessary information to enable her comprehend the nature and seriousness of the offence. The particulars clearly show the date it was alleged the offence was 15

committed, the place/venue, the type of narcotic drugs she trafficked as well as the weight of those narcotic drugs. This together with the evidence presented by the eight prosecution's witnesses who gave details of how the appellant committed the offence, cannot in any way lead to any logical conclusion that the appellant was not made aware of the offence she was charged. We think, with respect, that, the learned Senior State Attorney was undeniably right that, the appellant was made aware of the nature and gravity of the offence to enable her enter defence and therefore, we are of the considered opinion that the non-citation of sub-section (1) of section 5A in the statement of the offence is curable under section 388 (1) of the CPA. This ground of complaint therefore has no merit. We will next consider ground two of the appeal on whether or not the prosecution proved its case beyond reasonable doubt. In an attempt to answer this question, we will address the complaint by Mr. Rweyongeza that, the search exercise was illegal because it was conducted without a search warrant. We have examined critically the evidence on record and painstakingly considered the rival submissions of the parties. It is conspicuously clear that, the search and seizure exercise was done without search warrant as required by section 38 (1) of the CPA and without any

plausible explanation, For the better understanding of the procedural requirements in relation to search, it is desirable to reproduce section 38 (1) of the CPA. It reads: "38.-(l) Where a police officer in charge o f a police station is satisfied that there is reasonable ground for suspecting that there is in any building, vessel, carriage, box receptacle or place. a) anything with respect to which an offence has been committed; b) anything in respect o f which there are reasonable grounds to believe that it will afford evidence as the commission o f an offence; c) anything in respect o f which there are reasonable grounds to believe that it is intended to be used for the purpose o f committing an offence, and the officer is satisfied that any delay would result in the removal or destruction o f that thing or would endanger life or property, he may search or issue a written authority to any police officer under him to search the building, vessel, carriage, box, receptacle or place as the case may be." Clearly, the excerpt above is very categorical in that, no search of a premise shall be effectual without a search warrant. The exception is for search conducted under emergence situation in terms of section 42 (1) of the 17

CPA. It is instructive to note that in Maluqus Chiboni @ Silvester Chiboni and John Simon v. Republic, Criminal Appeal No, 8 of 2011 (unreported) we emphasized that search warrant must be issued to a police officer or other person so authorized, before such officer or person executes the search except for search conducted under exceptional circumstances listed under section 41 and 42 of the CPA. We are cognizant that the way section 48 of the Act is drafted does not impose as a requirement that an officer of the DCEA conducting search should have a search warrant. However, the Court has exhaustively pronounced itself on this matter in the case of Shabani Said Kindamba v. Republic, Criminal Appeal No. 390 of 2019 (unreported) in which we categorically stated that the provisions of the Act relating to search and seizure were not intended to replace the CPA but rather subject them to the CPA. It is instructive to state that, the above position we took, is expressly stated under section 32 (4) and (5) of the Act which requires that arrests and seizure be conducted in accordance with the law in force, specifically, the CPA. There is, in this regard, considerable body of case law for now on this aspect, see for instance, Shabani Said Kindamba (supra), Remina Omary Abdul (supra), Director of Public Prosecutions v. Doreen John Mlemba, Criminal Appeal No. 359 of 2019 and Ayubu Mfaume Kiboko 18

and Another v. Republic, Criminal Appeal No. 694 of 2020 (both unreported). To demonstrate what transpired in the instant case, we wish to let PW3's testimony appearing at page 37 of the record of appeal paint a picture. He is recorded as saying: "....On 24hJanuary 20181 was in my office whereby I was informed by the Police spy that at Tabata Bima NSSF House there was one woman who deais with narcotic drugs business . On 25thJanuary 2018 we arranged a team . While I was with Assistant Inspector Msangi, DC Lazaro, DC Zuena, DC Octatus, DC Innocent and DC Seleman we organized ourselves and went up to the suspected area." From the above excerpt it is evidently clear that search in the circumstances of the case before us did not fall under emergence situation because PW3 the prosecution's star witness and other officers from the DCEA had ample time to prepare starting from 24th January 2018 when they received the information from the informer, 25th January 2018 when they arranged the team to 26thJanuary 2018 when the raid was done. Even more- worse the raid was done at midnight without leave of the court in violation of the express provisions of section 40 of the CPA requiring a search to be 19

conducted only between the hours of sunrise and sunset unless requisite leave of the court is obtained. In the case of Remina Omary Abdul (supra) we reaffirmed that: " Given the stance o f the law, possession o fsearch warrants where search is notan emergence one, observance o f time o f conducting search and need for permission from magistrate when search is conducted beyond the prescribed time as stipulated by the Act and the CPA as well as the Police General Orders (PGO) 226 are matters which cannot be dispensed with. These provisions are there for lending credence to not only the manner search and seizure is conducted but also to the property seized." The totality of the above makes the search which was conducted and that ultimately led to the seizure of exhibit P2 illegal, as such it was wrong to convict the appellant based upon an illegally procured exhibit P2. To hold otherwise, in our considered opinion, would be a sure road to a grave miscarriage of justice. We would be justified to allow the appeal in its entirety on the basis of this glaring flaw as indicated above. However, for the benefit of the prosecution, we feel compelled to go a step further and.deliberate on the complaint on ground three. More glaring weakness in the prosecution evidence is the fact that the chain of custody of exhibit P2 was broken from 20

the moment an attempt was made to tender it before the Ilala District Court in the economic case and the prosecution entered a nolle prosequi and that from that moment, exhibit P2 remained in the custody of the Republic, according to PW1, and did not return to PW7 the exhibit keeper. The one million dollars question to be answered and to which the two courts below did not address their minds, is under whose custody was exhibit P2 kept and who gave it to him or her? This crucial question could be answered if Mr. Innocent Masangila who was mentioned by PW7 could have testified to give oral account of what transpired. He did not testify, and so we have no answer to it. We think, the vital missing link in the handling of exhibit P2 has created a real doubt if the prosecution proved its case against the appellant to the required standard. In the case of Chacha Jeremia Murimi and 3 Others v. Republic, Criminal Appeal No. 551 of 2015 (unreported), the Court stressed that: " In order to have a solid chain o f custody it is important to follow carefully the handling o f what is seized from the suspect up to the time o f laboratory analysis, until finally the exhibit seized is received in court as evidence.... The movement o f the exhibit from one person to another should be handled with great care to eliminate any possibility that there may have been to tampering o f that exhibit" 21

In the case of Zainab Nassoro @ Zena (supra) in which the Court was faced with an analogous situation we had the following to say: "..the underlying rationale for ascertaining a chain o f custody, which is, to show to a reasonable possibility that the item is finally exhibited in a court as evidence; has not been tampered with along its way to the court." We think, in our re-evaluation of the evidence, the lack of plausible explanation as to who exactly was in custody of exhibit P2 from the moment the prosecution entered a nolle prosequi to the time the same found its way to the trial court at Kisutu leaves a lot of doubt as a number of dots cannot be joined. PW1 testified that exhibit P2 was left in the custody of the Republic but the question remains who did PW1 refer to when he said the Republic? The first appellate court fell hook line and sinker when at page 296 of the record of appeal it observed that, "PW7 said clearly at page 139 that on 7 th June, 2018 Innocent Masangila took and returned exhibit 2 ' which is largely in stark contrast to what PW7 testified at page 141 of the record that, "(9 /7 07/06/2018 Innocent Masangila took them and the same have not been returned to me to datd\ Unfortunately, with due respect, the learned first appellate judge did not exercise care and closely evaluate evidence on record otherwise he would have arrived to a different conclusion. Having dispassionately considered the discrepancies complained of, we find the third 22

ground to have merit and like the second ground sufficient to dispose of the appeal. It will be hypothetical and a mere academic exercise not worth, to try to deliberate on the rest of the grounds. In view of what we have endeavored to demonstrate, it is our conclusion that the conviction of the appellant rested on weak and unreliable evidence. Accordingly, we allow the appeal, quash the conviction and set aside the sentence. We order the appellant's immediate release from prison unless held for another lawful cause. DATED at DAR ES SALAAM this 7th day of October, 2022. R. K. MKUYE JUSTICE OF APPEAL P. M. KENTE JUSTICE OF APPEAL P. F. KIHWELO JUSTICE OF APPEAL The judgment delivered this 11th day of October, 2022 in the presence of the Appellant in person linked-via video from Segerea Prison who represented by Mr. Protace Kato zake and Ms. Nura Manja, learned State 23