Omary Hamis @ Mponela & Another vs Republic (Criminal Appeal 414 of 2019) [2022] TZCA 451 (20 July 2022)

IN THE COURT OF APPEAL OF TANZANIA AT PAR ES SALAAM (CORAM: WAMBALI. J. A.. MWANDAMBO. J.A. And MASHAKA, J.A.^ CRIMINAL APPEAL NO. 414 OF 2019 OMARY HAMIS @MPONELA ................................................... 1 st APPELLANT RASHID HUSSEIN@CHIDEWA ............................................. 2 nd APPELLANT VERSUS THE REPUBLIC...........................................................................RESPONDENT (Appeal from the decision of the Resident Magistrate's Court of Dar es Salaam with Extended Jurisdiction at Kisutu) (Maqesa, SRM-Ext. Jurist dated the 26th day of September, 2019 in Extended Criminal Appeal No. 39 of 2019 JUDGMENT OF THE COURT 9th July 2021 & 20th July, 2022 MWANDAMBO, J.A.: It was 4/10/2015 at about 04.26 a.m. when Rashid Mohamed, a resident of Kigogo, Ilala District, Dar es salaam region was returning home after spending a good part of the night in a club. On his way back home, he hired Hussein Bakari, a driver of a motorcycle popularly known as Boda-boda to drive him to his home which he did and had with him Shaban Abdallah in the same motorcycle. On their way to the destination, a group of about eight people emerged from an alley armed with l

machetes and attacked the driver and his two passengers resulting into Rashid Mohamed falling down in the hands of the mob. The driver and the other passenger managed to escape and drove nearby, about 35 metres. Rashid Hussein was subjected to severe beating using several weapons including machetes and screw drivers which left his intestines out and eyes pierced into before they left him with his mobile phone, in an unconscious state. A little later, the victim was taken to a hospital with the assistance of Hussein Bakari and other people after obtaining a PF 3 from Magomeni police station. Three people, Omary Hamis @Mponela, Rashid Hussein@Chidewa and Omary Hamis @Mandei @Utawala were arrested at different times and subsequently charged before the District Court of Kinondoni with the offence of armed robbery. The charge sheet alleged that, on 4/10/2015, the appellants and Omary Hamis (third accused) not a party to this appeal at a place called Kigogo Mwisho did steal from Rashid Mohamed one Motorolla mobile phone worth TZS 250,000.00 and immediately before and after such theft, they (the appellants) threatened Hussein Bakari and Shabani Abdallah with machetes, knives and screw drivers and stabbed PW1 with knives in different parts of his body in order to obtain and retain the stolen property. 2

The trial court found the case against the accused sufficiently proved and convicted them as charged. A sentence of 30 years imprisonment was meted out to the appellants in this appeal whilst Omary Hamis who was a minor, was sentenced to serve three years on community service. On appeal, the first appellate court at the Resident Magistrate's Court of Dar es Salaam at Kisutu presided over a Senior Resident Magistrate with extended jurisdiction dismissed the appellants' appeal but acquitted Omary Hamis for lack of sufficient evidence linking him with the charged offence. The appellants' conviction by the trial court sustained by the first appellate court was based purely on the evidence of visual identification through Rashid Mohamed, the victim (PW1) and Hussein Bakari (PW2). Although the trial court had relied on confessional statements extracted from the appellants, the first appellate court expunged them from the record by reason of their being irregularly admitted in evidence. All the same, the first appellate court concurred with the trial court that the evidence of the two identifying witnesses was watertight having passed all the tests to sustain conviction, the more so because the appellants were known to the said witnesses. Undaunted, the appellants have now 3

come before the Court on a second appeal faulting the concurrent findings of facts of the two courts below. As this is a second appeal, the Court's preoccupation is, as a general rule, centered on determination of issues of law it being trite that second appellate courts are reluctant to interfere with concurrent findings of facts unless it is obvious that such findings were a result of misapprehension of the evidence on record, misdirection and/or non-direction occasioning miscarriage of justice. The appellants' appeal is predicated on eight grounds of appeal but essentially, they boil down to four arears of complaint. The first relates to the insufficiency of evidence of visual identification, secondly, failure by the trial court to comply with sections 210 and 312(1) of the Criminal Procedure Act (the CPA), thirdly, failure to consider defence evidence and fourthly, that the case against the appellants was not proved on the standard required in criminal cases; proof beyond reasonable doubt. At the hearing of the appeal, the appellants appeared in person. Earlier on, they had lodged their joint written statement of arguments in support of their appeal in terms of rule 74 (1) of the Tanzania Court of Appeal Rules, 2009 (the Rules) which they urged the Court to consider and allow the appeal. The respondent Republic was represented by Ms. 4

Faraja George, learned Senior State Attorney assisted by Ms. Agatha Lumatho, learned State Attorney, supporting the appeal. We propose to begin our discussion with grounds based on procedural irregularities in the proceedings. The first relates to the alleged failure by the trial court to comply with the requirements under section 210 (3) of the CPA. That section requires a trial Magistrate to inform each witness of his entitlement to have his evidence to be read to him. The appellants did not address the Court on this ground. So did Ms. George. Be that as it may, we do not see any merit in this ground. The Court has held in various of its decisions that such an irregularity is not fatal to the trial of an accused person particularly in cases such as this one where there is no complaint from the appellants that their testimonies were not read to them; see for instance, Jumanne Shabani Mrondo v. R, Criminal Appeal No. 282 of 2010, R v. Hans Aingaya Macha, Criminal Appeal No. 449 of 2016 and Athuman Hassan v. R, Criminal Appeal No. 84 of 2013 (all unreported). At any rate, there is no complaint against the authenticity of the record of the trial court and so we dismiss this misconceived complaint, subject of grounds five and six in the appellants' memorandum of appeal. 5

There was also a complaint on the non-compliance with section 312(1) of the CPA. This was not taken as a ground of appeal but features in the appellant's statement of written arguments. However, upon examination, the complaint appears to be premised on ground three faulting the first appellate court for, allegedly, failure to evaluate the evidence properly by omitting to consider the defence evidence before concurring with the findings of the trial court on the guilt of the appellants. We shall revert to this complaint later. Next, we shall deal with the kernel of the appeal; insufficiency of evidence of visual identification to ground the appellants' conviction. It is the appellants' strong argument that the first appellate court erred in sustaining their conviction by the trial court on weak evidence of visual identification. Backed by formidable decisions of this Court on the danger of acting on evidence of visual identification represented by Waziri Amani v. R [1980] TLR 250, the appellants contend that had the first appellate court analysed the evidence properly, it should have made a finding that PW1 and PW2 did not lead satisfactory evidence linking the appellants anywhere near the scene of crime on the material date. They thus invited the Court to find merit in this ground and allow the appeal. 6

Apparently, Ms. George was in support of this complaint. The learned Senior State Attorney pointed out what she considered to be shortcomings denting the evidence of visual identification through PW1 and PW2 namely; failure to describe the distance between the place at which PW2 stood and the place where the offence was committed, failure to describe intensity of electricity illuminating the scene of crime, failure to name the culprits at the earliest opportunity to facilitate their pursuit and arrest. She also pointed out that the appellants were not arrested in connection with the charged offence. In particular, she urged that the second appellant was not arrested but found himself at Magomeni police station and netted for a different offence not connected with the armed robbery coupled with the fact that none of the civilians who sent the first appellant to the police station was called to testify before the trial court in connection with the charged offence. The learned Senior State Attorney cited to us our decision in Scapu John & Another v. R, Criminal Appeal No. 197 of 2007 (unreported) setting out criteria for watertight evidence of visual identification. She concluded that the evidence in this case was below the required standard to sustain conviction. As to the failure to consider defence evidence, Ms. George conceded as such arguing that the first appellate court did not perform its duty 7

properly in evaluating the evidence afresh before concurring with the trial court's finding on the sufficiency of the evidence of visual identification; the sole basis of the appellants' conviction. Nonetheless, unlike the appellants, the learned Senior State Attorney invited the Court to step into the shoes of the first appellate court with a view to evaluating the evidence afresh and arrive at its own findings. The learned Senior State Attorney was firm that once this is done, the Court will find it inevitable to interfere with the trial court's finding on the evidence of visual identification. The appellants had very little in rejoinder. They reiterated their written arguments and pointed out that despite PW l's evidence that the second appellant was familiar to him as a fellow driver, he did not give any particulars of the place where they parked their motorcycles. We have examined the appellants' written arguments and heard oral arguments from the learned Senior State Attorney in the light of the judgment of the first appellate court and the trial court along with the record of proceedings. We are in agreement with the appellants that the first appellate court abdicated its duty to evaluate the evidence on record with a view to satisfying itself that the trial court's findings of fact were correct based on an objective scrutiny of the entire evidence for both the 8

prosecution and defence. The authorities cited by the appellants are quite apt in that respect particularly, Shabani Amiri v. R, Criminal Appeal No. 18 of 2007 (unreported). However, as rightly submitted by Ms. George, the remedy in such cases is not to quash the offensive judgment but to step into the shoes of the first appellate court and do what it failed to do. There is no dearth of authorities in this regard represented by the Court's decisions in Joseph Leonard Manyota v. R, Criminal Appeal No. 485 of 2015, Karim Jaffary v. R, Criminal Appeal No. 412 of 2018 (both unreported) and Director of Public Prosecutions v. Jaffari Mfaume Kawawa [1981] TLR 149. We shall thus do just that in this appeal. The central issue in this appeal is whether the evidence of visual identification accepted by the trial court and sustained by the first appellate court was sufficient to ground the appellants' conviction. As seen above, the prosecution's case linking the accused persons with the scene of crime was built on two witnesses; the victim (PW1) and PW2. There was no dispute at the trial that the fateful event leading to the serious torture and injuries on the body of PW1 leaving him without eyes occurred at about 4:26 a.m. on 4/10/2015. It was equally not in dispute that PW1 and PW2 were familiar to each other both being boda- boda drivers parking at Kigogo Mwisho. There was concurrent evidence 9

from both PW1 and PW2 that on the material night, PW2 had been requested to ferry PW1 to his home in his motorcycle and that Shaaban Abdallah who did not testify accompanied them only to be confronted by a mob of about eight people armed with machetes emerging from an alley. In a bid to escape, PW1 fallen off the motorcycle but PW2 and Shaaban Abdallah managed to escape to a nearby place leaving PW1 in the hands of the mob. The evidence of PW1 which was to a large extent supported by PW2 was that the group of the armed people attacked him inflicting severe body injuries in his body which left him unconscious with his intestines sticking out and eyes pierced into causing permanent blindness. Dr. John Bosco (PW3) a medical doctor who attended PW1 at Muhimbili National Hospital confirmed the state of his injuries. A week later, PW1 recorded a statement to a police officer. In his testimony, PW1 told the trial court that he managed to identify his assailants because he knew them having grown together in the same street. Besides, PW1 stated that he had some face-to-face encounter with the assailants who claimed that he was a thief. He mentioned three out of the eight persons who happened to be the accused persons. In cross-examination by the second appellant, he told the trial court that he saw him at the scene of crime and mentioned him to the police though he did not describe his appearance because he was not asked to do so. He also stated that the 10

second appellant attacked him and heard discussing with his colleagues to injure him in order to destroy evidence. The substance of PW2's evidence was that as he was driving a motorcycle on the material date and time taking PW1 to his home, he met a crowd of people emerging from an alley armed with pangas but managed to escape leaving behind PW1 who had fallen off the motorcycle. However, he drove to a nearby place close enough to keep the assailants under observation attacking PW1 facilitated by electricity lights from shops and light from the motorcycle. In the process, PW2 told the trial court that he managed to identify the appellants and the third accused at the trial because they were fellow boda-boda drivers. In cross- examination, he insisted knowing the appellants and watched them and their fellow assailants attacking PW1. After they left, he rescued PW1 albeit in a very unconscious condition and took him to hospital for treatment. We are mindful of the danger in relying on the evidence of visual identification as the weakest kind of evidence unless all possibilities of mistaken identity are eliminated. The evidence in the instant appeal points to the identification by recognition which we have said in various decisions, amongst others; Issa Mgara @Shuka v. R, Criminal Appeal 11

No. 37 of 2005 and James Kasabo@ Mirango v. R. Criminal Appeal No. 261 of 2006 (both unreported) cited to us by the appellants that it is no guarantee to unmistaken identity. Nevertheless, having examined the evidence on record, we do not share the same view with Ms. George in support of the appellants' arguments attacking the evidence of the identifying witnesses. To start with, given the fact that PW1, the victim was, if we may say so at zero distance from the assailants, the argument that PW2 was not too proximate to identify the assailants is, but specious. This is so because the identification evidence did not depend solely on PW2's account. Secondly, by PW2's evidence, he had seen the assailants in a group of about 6 or 8 people out of whom he identified the appellants before he fled to a nearby place where he watched them attacking PW1. Besides, both PW1 and PW2 gave concurrent evidence that they knew the appellants as fellow boda-boda drivers at Kigogo Mwisho. PW1 in particular was emphatic that they grew together with the appellants in the same street. Despite all this, neither of the appellants challenged PW1 in cross-examination on their familiarity or the place of residence where they grew together. That apart, they never challenged PW1 when he said that as they were attacking him, he heard them agreeing to destroy 12

evidence by piercing his eyes before they took to their heels leaving him in such a condition. PW1 is on record saying: "After a ll that I m et them face to face, and Rashid Dera said that they wanted me, I asked Om ari [M ponela] what was the problem, he did not reply to me instead he did beat me with matchete on m y head near fore head. I tried to rescue m yself but he did beat me with another matchete on my hand. A fter that they [ran] away and started to scream m w izi m wizi! They also beat me with knife in m y 'mbavu,' and also tally did beat me with a huge stone on my mouth led two teeth to drop. And they also did dip my stomach by using screw driver. And also, Rashid Dera did chop my stomach by knife and after that a ll action one o f them said that le t's chop his eyes to lose evidence... "[at page 34 of the record of appeal]. In Goodluck Kyando v. R [2006] T.L.R 363, we held that each witness is entitled to his own credence and his evidence has to be believed unless there are cogent reasons to the contrary. The above evidence pointing to the appellants' involvement in the fateful incident was not controverted neither in cross-examination nor in their defences. We are alive to the principle that the accused has no duty to prove his innocence 13

but it is equally trite that failure to cross-examine a witness on incriminating evidence is taken to be an admission - See: Nyerere Nyague v. R, Criminal Appeal No. 67 of 2010 and Bakari Abdalah Masudi v. R, Criminal Appeal No. 126 of 2017 cited in Karim Seif @ Islam v. R, Criminal Appeal No. 161 of 2017 (all unreported). Neither did the appellants offer any defence say, a//#/'distancing themselves from the scene of crime. Finally on the appellants' complaint regarding the trial court's failure to consider their defence and glossed over by the first appellate court. From our evaluation of the evidence when discussing the complaint on the insufficiency of the evidence of visual identification, we need belabour any more on this complaint. This is because, apart from the appellants' general denial, we are satisfied that upon our own evaluation of the entire evidence, the prosecution account placed them at the scene of the crime and hence the inevitable finding of guilt and conviction. Under the circumstances, much as we appreciate the arguments advanced by Ms. George, the factors she impressed upon us to take into account in discrediting the evidence of visual identification fall on the face of the uncontroverted evidence of the identifying witnesses particularly PW1. 14

For the foregoing reasons, having dismissed all grounds of appeal, it is inevitable to conclude that the appeal is devoid of merit. We accordingly dismiss it. DATED at DAR ES SALAAM this 15th day of July, 2022. F. L. K. WAMBALI JUSTICE OF APPEAL L. J. S. MWANDAMBO JUSTICE OF APPEAL L. L. MASHAKA JUSTICE OF APPEAL The Judgment delivered this 20thday of July, 2022 in the presence of the Appellants in person via video conference and Mr. Jaribu Sebastian Bahati, learned State Attorney for the Respondent/Republic, is hereby certified as a true copy of the original. •Z A \ R. W. CHAUNGU IE DEPUTY REGISTRAR & / COURT OF APPEAL 15