Mohamed Omary vs Republic (Criminal Appeal No. 32 of 1999) [2000] TZHC 453 (30 June 2000)

IN THE HIGH COUI·!T OF TANZANIA AT JlBEYA CRIMINAL A?PE.AL NOa 32 OF 1999 (From Criminal Case No. 47 of 1999 of' the District Court of -1panda District at r,:pa.i.7.da Before,. AoL '.tlegehi ,. District Yiagistrate) NOHAMED OM.iLi-ff .t-.Fl:'BLLANT Versus 'l'HE REPUBLIC RESPONDENT JUDGME'NT The appellant, Mohamed vm.:ry, and two others, .Paul Jacob and Mos hi .Ally, were jointly arraigned be.fore ti-1e district court of ;,1panda as the tj:1~:i;:d, I~r,,!?t and se?ond accused.s respectively, on an indictment which contained two count~~· House breaking (first count), contrary to section 294(1) of the Fenal Code, and Stealing (i:;econd count), contrary to section 265 of the i--'enal Code. They all pleaded not guilty to bot::.1 counts and a full trial ensued" The first &7.d second accuseds we: 1 0 acquitted. of both counts whereas the appellant was convicted of both counts · as charged and sentenced to terms of imprisonment of five and two years respectively 1 which were ordered to run concurrently. '.i:'he conviction, ·and sentence aggrieved the appellant, hence this appeal which,was_heard in the absence of the a_ppellant who had opted not to enter an appearance. No representative of the lepublic entered an appearan9e in court for the hearing of the appeal despite that a hearing notice was duly served on Attorney Gener_-al 1 s Chamber /Ibeya. ·-During the night of 9.2.99 Regina ·d/o John (H\11) was asleep in their house wi Ur her daughter, Ester d/o John (FW2) , aged 10 ·years, and two b-;-l>ies, Susana and Caroli:μe •. hJ-1 - slept .on one bed i~ the bedroom with Susana and Caroline, •) . -··. . . . while PW2 slv,t,at.th sitting room. 'l''.1e n:i.ght was dark. ·There ,was a burning lantern lamp in the bedrooi'n wose· faint light extei1cied to the sitting room .alsoo At 2.,00 .AN robbers .struck. .PWl said four W1q, :PJdZ,.-..said i::-m:·~.. They broke the /2

2 front door of the house and entered the sitting roomv P\V1 and PW2 were terror-striken" PW1 joined PW2 at the sittil1g room, According to PW1 she recognized the appellant 2u'11ong the thugsv P\i2 ,'as not c2rtain., 'I'he B.ppellant entered the bedroom, removed the two babies from the bed, and ca;._ried the sponge mattress from it. In court however FVJ1 1 Jointed at the second accused as the appellant. To him the appellant he was referring to was the second accused and not the third accusedo 'I'he thugs then left the place with the mattiesso P.s soon as the robbers left the place I P\11 raised an alarm, and their neighbour, Gasper Kanyika ( Fv!3) , arrived there promptly. i3hortly thereafter PW1 went to report the incident to thefr zonal chairman, Harnis Eapil}ga (DW4)" 8he tcld D'vJ4, on being asked, that she die'~ not recognize ai.'1y of the bandits and that she just suspected them. In c;ourt, . 4owever, PvJ.1 and PW2 claimed to have recognized the appellant.among the bandits., 'l'he appellant denied coniplicity in the crimes.. He r,:dsed · the defence of alibi. He was striken down with fever 2J1d spent the relevant day and night at home with his wife, Donatta Godfrey (D\JJ6)~ who supported his story .. The only one question on which this appeal must succeed or fail is whether· or not the appellant we.s properly and sufficiently 'identified at the scene of crime. i-'.fer a Voire Dire the t:r-ial court was satisfied. that PW2 was possessed'.··· of sufficient intelligence to· justify the reception of hf;r evidence, arid that she understood the duty of speaking the truth, but not the nature of an oath. So her evidence ·was not given o:n aoatho 'rhe evidence implicating the appellant with the charges preferred against him was entirely of visual identification, and it is a settled principle of law that such evidence nru.st be absolufel;f watertight to justify a conviction, Court of Appeal of Tanzania held in V-!a~=q:i ~an RJ?.llblJ-c (1980) TLR 250: · No 'Court should· act on ·evidence of visual identificatiun .. ,: ~n+gs.s all possibilities of mistaken. identity; e eliminated arid the court is fully satisfied that the evidence before j:t-- ~so1ut;1y watertigl1L .. 0 ,- •, . ,. The

It is also an established principle of law ttiat in caseE3 of identification there should be details or a description. of the person t.h,"-t is said to 1.1ave been identified. 1'his often enha:.1ces the weight of such evidence- SEE .1011_~~ Allui V.R. (1942) 9 i'.;.A.C.iL 72. In this case, the identification evidence of the ar:pellant was taken out by PW1 and PW2, but their evidence, as derncntrated, was rnost unsatisfactory. It was under a gleam of a lan.tern lanp. PW1 ar1d P•i2 viere seized of terror. They had just been awakened from sleep. It was dead in the night. It had been sudden and short lived. P'J1 mistook the second accused for the appellant. PW2 was uncertain. PVJ1 told the zonal chairman ( rn,J4) that they did nt identify the appellant and that they just ,suspected him. Neither P\J1 nor PWZ gave any details or description of the appellant which could have en.,_1.anced the weight of their otherwise bare assertion that they identifL:d him. 'rhe appellant, therefore, was not identified, let alone properly and sufficiently so. 'fhe appellant, I have said, raised the defence 0f alibL 'rhe trial court did n!t address itself to that defence at all 1 let alcne pronounce on ito The Court of Appeal of 'l'arizania held in Ali Balehe Msutu V" ReJ?11blic ( 1980) TLR 1: As a matter of law 1 an accused person is not required to prove his alibi. It is sufficient for him if the alibi raises a reasonable doubt. In this case, the appella...YJ.t did not only raise the defence of alibi, but brought evidence in its support. In my view, that d.efeDce, properly considered in the light of the unsatisfactory or absence of identification evidence, was quite plausible and capable of raising a reasonable doubt as to the complicity of the appellant in the crimeso I accordingly allow the appeal, quash the convictions, set aside the sentence, and hereby order the immediate release of the appellant, Mohamed Omary, from prison unless otherwise lawfully heldo AT MBEYA. 30 June 2000. For Lppellant : ;:-o:·.' >~,--:ublic, B. P. i'r:OSHI ,_. /