Issa Waziri Idd & Another vs Republic (DC Criminal Appeal 132 of 2016) [2016] TZHC 2113 (6 December 2016)

IN THE HIGH COURT OF TANZANIA AT DODOMA (APPELLATE JURISDICTION) (DC) CRIMINAL APPEAL NO. 132 OF 2016 (Original Criminal Case No. 178 of 2014 o f the District Court o f Kondoa District at Kondoa)

1. ISSA WAZIRIIDD .........
2. AMIRY JUMA SELEMANI, APPELLANTS VERSUS THE REPUBLIC....................................................... RESPONDENT JUDGMENT 30/11 & 06/12/2016 KWARIKO, J; The appellants herein and another one WAZIRI S/O IDD MSEGA then first accused person where arraigned before the District Court of Kondoa with one count of Unlawful possession of arms and ammunition without licence contrary to section 4 (1) and 24 of the Arms and Ammunition Act [CAP 223 R.E. 2002]. It was alleged by the prosecution that the accused jointly and together on the 17th day of October, 2014 at or about 10.00 hours at Kwadelo Village within Kondoa District in Dodoma Region were found by No. H 520 PC ALNOOR in unlawful possession of one unregistered local made firearm commonly known as ' Gobord and 78 rounds of locally made ammunition without licence. i

After the appellant and another denied the charge the prosecution brought one witness to prove the same. The evidence by the prosecution through No. H 520 PC ALNOOR, PW1 shows that on 16/10/2014 he received a call from undisclosed person from Kwadelo area about youths who threatened to kill one Mzee Abeid by firearm. That, on 17/10/2014 PW1 and No. G 9529 PC JOSEPH went to Kwadelo area and met with the infomers who sent them to a farm where the appellants were found uprooting stumps (visiki). Upon introduction the appellants showed them one locally made firearm ' Gobord, 78 ammunition and explosives (Exhibit PI). In their defence the appellants said the firearm belonged to their father, the first accused. Their witness IDDI MUNGU, DW4 supported this evidence. At the end of the trial while the first accused was acquitted the appellants herein were convicted and sentenced to three years imprisonment each. Having been aggrieved by the trial court's decision the appellants filed this appeal each raising six grounds of appeal which essentially complained that the prosecution case at the trial was not proved beyond reasonable doubt against them.

During hearing of the appeal both appellants preferred the Counsel for the respondent Republic to start responding to their grounds of appeal. Luckly, when Ms. Luwongo learned State Attorney rose she supported the appeal and her reasons for this stance will be referred in the course of this judgment. Now, the issue to be decided is whether this appeal has merit. As rightly submitted by both parties the prosecution ought to have brought the people whom PW1 said informed him of the presence of the alleged firearm in the village. These people would have corroborated the evidence of the prosecution's single witness. Also important was the evidence from the person who allegedly was threatened by the appellants. And further the people who took PW1 and colleague to the farm where the alleged firearm was found formed part of important witnesses in the prosecution case. The law says that where the prosecution fails to bring important witnesses without assigning any reasons adverse inference should be accorded to them (see AZIZABDALLAH VR [1991] T.L.R 71]. 3

Thus, adverse inference is hereby accorded to the prosecution for its failure to bring in court such important witnesses. Moreover, this court agrees with the learned State Attorney that there ought to be firearm expert witness who would have proved that the locally made gun, ammunition and explosives were really the ones referred in the cited law. Further, no any certificate of seizure was tendered in court to have been prepared after the alleged finding to prove that exhibit PI was really found in possession of the appellants. Had the certificate been prepared the same would have shown whether there were witnesses to the whole exercise to remove possibilities of frame up against the appellants. And those witnesses would have testified and proof presented to show that exhibit PI was really found in possession of the appellants. Failure to prepare and tender in court certificate of seizure was contrary to law (see section 38 (3) o f the Criminal Procedure Act [CAP 20 R.E 2002]. This court agrees with both parties that chain of custody was not proved in respect of exhibit PI hence creating doubt as to its authenticity. On the other hand this court is an all fours with the learned State Attorney that there were misjoinder of counts since the charge against the appellants contains two distinct offences combined in one count. While section 4 (1) o f the Arms and Ammunition Act (supra) relates to

prohibition on carrying or possessing of arms or ammunition without licence section 24 thereof relates to restriction on sale and transfer of arms and ammunition. Therefore, if at all the prosecution intended to charge the appellants as such they ought to prefer two distinct counts in order to sufficiently inform the appellants of the charge against them so that they can prepare their defence. Such omission occasioned failure of justice on the part of the appellants. I get support on this in the case of MATHAYO KINGU V R, Criminal Appeal No. 589 of 2015, Court of Appeal of Tanzania at Dodoma (unreported) and section 133 (3) of the Criminal Procedure Act (supra). Together with the foregoing there was no provision of law which related to punishment to the charged offence thus denying the appellant right to know what to expect in case of conviction. And lastly, this court have found as rightly submitted by Ms. Luwongo taught State Attorney that the trial court erred to deny the appellant and another opportunity to cross-examine each other during defence hearing. That opportunity was only given to the prosecutor. That, had that been complied with the appellants would have questioned the first accused about possession of the firearm since they said in defence that the same belonged to him. That was not fair trial. Agreeably, as intimated by the learned State Attorney this is one of the cases which was poorly investigated, charged, prosecuted and unjustly tried. 5

Consequently, this court is settled in mind as rightly fronted by both sides that the prosecution case was not proved beyond reasonable doubt against the appellants. The appeal is thus meritorious and is hereby allowed, conviction quashed and sentence is set aside. Finally, it is ordered that the appellants be immediately released from prison unless they are further held for some other lawful cause. Order accordingly. Judgment delivered in court today in the presence of the Appellants and Mr. Sarara Earned State Attorney for the Respondent Republic and Mr. M.A. KWARIKO JUDGE 06 / 12/2016 I.ATKWARIKO JUDGE 06 / 12/2016 6