Ismail Hassani vs Republic (Criminal Appeal No. 35 of 1999) [2000] TZHC 215 (22 May 2000)

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• .... IN T'rirr: HIGH COURT'; 6F' Tltl'ZAI{IA AT .. MT-lARA APPELLATE JURISDIC.TION •cRrM±NALAPPEl\L No~ 35 ·6r- 1999 ~ :,. ,. .. ,.·"t - ,; ORIGINAL CRIMINAL CASE NO. 86 OF 1999 OF THE :DISTI<ICT COURT OF MTWARA AT NTllillA BEFORE: s.i-I. KINEMELA, ESQ, RESIDZNT NAGISTRATE ISt-'iAIL HA.sSANI •••••• -.APPELLANT ver_sus: THE REPUBLICoeeeeeo.'.RESPONDBNT i , . JUDGMENT KAJI,_· J •. ...; • ' • ~ • .,J. • ... • <;. • - • The apP<!Jliruit rst,Jnt !{i.SSAN was charged wit~ ro\:>bcry ·_c/s 285 and 6 or° the Peil.al Coda -Co.p 16, He denied the ·charge. However at the end of the tria:l he was found guilty as charged and was coiivit:ted accordingiy. -He'.was sentenced to 15 years imprisonment. _ .:,: .. · • At the. triai the prosecution adduced evidence to the effect that ozf 162.99 at' a.bout 5 pm PW1 No. 7}69_YA,.1W ~ left Chumvini Prison' cainp .. for Htawanya village to drink some liquor. He was together with Cpl Michael and one Juma. He drank some pombe and later decided to go back home. He left for home at around·• 10 pm. This time he was alone-. When h arrived at Kwamasimba. ville he.was confronted by three thugs who ordered him to stop. He stopped. 'rhey ordered him t_o give the'm ,ev_erythirig he had. They robbed him of his wrist wa~ch ved at .'000/-, .his shirt and co.sh shs. 5000/-. They left him. He ran away home while ;:screaming.a He said, out of the 3 he identified. only the appellant vrl:io managed to be a remand prisoner at one time. On the following day there -las llpombe;; at 2 MOHIHJll-aSI I s neighbour where PW2 saw the app0llant seated with another person called Q;'?Aqg!:,IDA. They were drinking pombe purchased by the said Chagonda. The · said Chagonda was heard boasting that he was drinking pombe because he had robbed a person the previous night. PW1 went there too where some people told him they had heard the appellant boasting that he had robbed a prison officer.·- PW1 reported the matter to relevant authorities who came to arrest the appellant. The said Chagonda ran away nnd disappeared into the unknown In his defence the appellnnt denied to have robbed PW1·• He also denied to have been a remand prisoner at any time. He denied to have known Chagonda or to have boasted that he had robbed a prison officer. eee/2•o••

The learned trial Resident Magistrate was satisfia -iith the· pro'ifocution vidhce. He convicted the appellant· and sentenced him t'o· 15 ,years imprisonment .. . ,. The appellant was aggrieved. Hence this·· appeal. ~ • ·Before this Court he repeated moreorless what he had stated at ihe . · . . •,, i ~ trial. \ . The leared 'state Attorney Mro Mas.ju who represented the Republic:at the hea±'ing -f this appeal did not uppcrt the bonvfotioh·on .the r<;>und-hat there :,as o e.Jidence as to how PW1 identified the appeli'an_t·.-. Th(i-·i.ena. Stae Attorny stet0d ~ . . . . . . ... ' : . that the offence is allged to ha.-ve'j:iee~ oomriiittecl. 'at ' . hight~ PW1 was drunk and could possibly-fail to ·make a proper judgment. . . The learhed·state .Attorney went on stating that it was not ·stated·anywhere . . . a.s to whether there was moonlight or 'any source of light. ~llich enabl(;)d"'PW1 . · · known to identify the appellant. It 1.s also not . as to how long the .event iasted. The learned Stn.ted Attorney also doubted whether the appe:).1ant had ';-, ' ' really been a rmand prisoner prior to that and how P\t-/1 was close to him in his supervision. Emphasizing on the question of identificatio the·learned State Attrney cited the case of lL,AZDp: Vs- R ( 1.980) TLR 2.:?.b• The learned State Attorney went on stating that it was Chagonda who was boasting at the pombeshop that he hatl. attacked a man the previous night, and that he did not say he was together with the appellP.nt, or that the person he had attacked was PW1, lt is upon those reasons that ti.1e Republic did not support the conviction. stated As properly by the learned State Attorney, the crucial issue in this case was that of identification. PW1 did not tell the Court as to what source of light enabled him to identify the appellant at that old hour of the night. He had drunk some pombe and was probably drunk so as not to be able to make a proper judgment. There was no evidence that prior to that the appellant had been a remand . prisoner and was close to his supervision so as to be able to identify him even where there is no source of light. There is no evidence that the appellant was heard boasting that he had attacked-a prison officer. Instead there is evidence by P'12 Mohamed that it was Chagonda who was boasting to have attacked a man the previous night. But, as properly stated by the learned State Attorney, the said Chagonda did not say he \·1as together with the app3:-1ant, when he attacked the said prison officer, and thct the said prison officer wa.s PW1. The question of identification was very crucial .. Had the learned trial Magistrate given it the weight it deserved he wouldn't have found guilty the appellant as charged. The e.:ttention of the learned trial Magistrate is drawn to the holding

< . . 3 tl.h the case of AMANI WAZIIU Vs R (1~..Q2._TLR 250 where the Court of Appeal . :\ ( ' ; "· held as follows::.. (i) 11 Evidence of visual identification is of the weakest kind and most unreliable. (ii) Ne Court should act on evidence of visual identification unless all possibilities of mistaken identinty are eliminated and the Court is fully satisfied that the evidence before it is absolutely water tie;ht. 11 The trial Magistrate's attention is also drawn to the Court's stand on identification by a single witness. In the ce.se of ATffmvifi.NI SII£i..:B.AN Vs R(1976) LRT No. 15 this Court held as follows:- il1:Jhere the prosecution relies· on the identification of the accused by a single witness, the Court should consider not only the credibilitj of the identifying witness, but also the possibility of the witness having made a mistake~ 11 The ev{dence of PW1 on the identification of the appellant did not meet the standard ~equired; In view of this I quash the conviction and set D-Bide the sentence of 15 years imposed thereat. The appellant is to be released forthwith unless lawfully held inconnection with another cru;e or cases. Appeal allowed. /\ I • / : ,-,,, .. /. So N. KAJI JW.JGE 22.5.2000 Q.92!!: Judgment has been delivered in the presence of the appellant in person and Mr. Masaju learned State Attorney for the Republic this 22nd day of May 1 2000. B/C : Mr• Ladda - R/ A .. /• , . I 1 ; ' So iN. Ki-1.JI JUDGE 22 .. 5.2000.