Hamis Abdallah and Another vs Republic (Criminal Appeal No. 95 of 1997) [2000] TZHC 212 (19 April 2000)

KAJI 2 J., IN 'I'HE HIGH coum.1 OF 'l'f.,HZANL".. AT MT\·JARA (MTWARA REGISTRY) APPELLATE JURISDICTION CRIMINAL APPEAL NO. 95 OF 1997 (CONS •. CRIHINAL APPEAL NO. 96 OF 1997) ORIGINAL CRIMIN.AL CASE NO. 150 OF 1997 OF 'l'HE DIS'I'RICT COURT OF MTWARA AT N'l 1 W.ARA BEFOP-E: p oMo MABULA,. ESQ.' DISI·RICT MAGISTRATE Hfu"IISI ABDALLAH AND ANOTHER •. o o •• APPELLANT versus: THE REPUBLIC o ••• o • o •••.••••••••• RESPONDENT JUDGMENT This judgment covers two appeals which were consolida.ted and heard together •. They are Criminal Appeal No. 95 of 1997 and Criminal Appeal No. 96 of 1997. referred The appellant in Criminal Appeal No. 95 of 1997 who is to be . !_ _ to as the 1st appellant is HAMLSI ADf..LL[t.. The 2nd appeliant is SELEM.AIU SI'I.LIMU :. _ . .._ ......... --.- .. @ NINJ.A.i He is the appellant in Criminal Appeal l'To& 96 of 1997 .. acquitted These appellants together with 3 others who were ,·; .. ..::.:::::·.:. !. were jointly charged with two counts of robbery with violence c/s 285 and 286 of the Penal Code Cap 16. All 5 denied both countso However at the end of the trial all 5 were n,t found guilty on the 1st cunt. But on the 2nd count the appellants were found guilty as chargedo They were convicted accordingly. They were each sentenced to '15 years imprisonment under the Minimum Sentences Act, 1972. The other 3 were not found guilty. They were, aquitted. At the trial the prosecution adduced evidence to the effect that in 1997 there were two watchmen guarding the premises of PW2 LTVEAI who, it would appear was residing with LIU DAIJIU. The house in which they were dwelling was either close to VNrA at Shangani or within VUI:A compound. One of the two watchmen was P1:J3 MASOUD BA.KARI, by then aged 55. The other one was SALUHU CHIL:Errno. On 16th April 1997, at about 9 pm, while PW3 Hasoud was guarding near that house, while Salumu Chilemoo was patrolling somewhere else, a man dressed in clothes resembling Police uniforms carne. He was accompanied with a..'1.other person dressed in female attire (i.e khanga). That man dressed in clothes resembling Police uniform called him to approach ,-,here he wa.s so that he could ••• /2 ....

.... 2 check whether he knew the person dressed in female attire. PW3 was anxious to . .._. know as to which lady she was. He went the1;e., Suddenly the man in Police uniform jumped on him and pressed him down ·: · .. with a warning not to make· ,,. . ,; any noiSei At the same time P-12 who had just finished taking a both and was still in his room, heard the noise. All of a sudden a group of about six to seven persons burst into his rqorn and. ordered 11.im to kn.eel down •. , ·The man in Po],ice uniform who had a stick stood near him and. was the one who ordered him t6 ·.- kneel down .. Then all lights were switched off and the house was ransacked• His bag with its contents were o:q.g the properties fished out by the invaders 0 They disappeared in the dark night. The Police were informed who 111ent to the scne almost immediately~ But they found noth1ng. The robbers had disappared with their loot. C.1 the following day, that is, on 17 l i+. 97 the 1st appellant Hamisi was arrested at Mdenga as a suspect. It was alleged he was fouhd wearing a shirt a."11.d a vest which later PW2 identified to.be among his properties which were stolen during the robbery He was also found with a small knife used in sharpning or rather ,ikuchongea'' pencils which PW2 Liveai later :j.detified to be among his properties which had been stolen during the robbery. The 1st appellant was charged with robbery with violence. At the sametime it davmed on the police tliat on the night of the incident, at about 8.30 pm, the 2nd appellant's concubine; a small girl of 15 years of age, had gone to his home for sexual affairso She found him missing. She had a key. She opened the room and slept waiting for her paramour. At about 2 Am, the awaited l9ver arrived. He knocked at the door. That little girl PW5 ASHA d/-1 ISS~ opened the door. Her lover (i,.e 2nd appellant) entered carrJing a brief case~ Later a group of people arrived armed with talked . knives and sticks and ·· _ with the 2nd appellant. It would appear the little girl got worriedo She asked him as to what it ,-1as all about to what he was alleged to have replied that he had failed to settle a debt, and the creditor had sent him bandits. PW5 also asked him about the brief case to what he was alleged to have replied that he had been given by his friend called Nii.SSC!~. On the following morning the ?..nd appellant wrapped the said brief case in a mattress and took it to Htwara harbour. Later both of them boarded a motor vehicle for Mahurunga. But on the way of 2nd appellant is alleged to have changed his mind and headed for Msimbati. He was arrested two months later at Kinondoni in D' Salaam. Both appellants denied the allegatio1;1s against them. The 1st appellant denied even to have been found in possession of the shirt; vest and sharpener which were tendered in Court as exhibits& The 2nd appellant denied even to have been the boy friend of P'15 Asha, although he knew her. He said he le.ft •••• /3 •••

-- 3 Mtwara on 15.4.97 for Msimbati from where he boarded a Land Rover to D' Salaam via Ntwara. He ha.d been dismissed from the Police Force on 24.1.97 and was on his wa:y back to his place of domicile at Ifakara Morogoro. He denied to have told PW6 1i_o.e, §.. 1027 !?._0] about the robbery in this case or any robbery at all. He suspected the. case against him to have been cooked up by his former boss SP hSHASHU,the then Mtwara OC-CID who was not in good ter~ with him. He __ , said he had no faith with PW6 No. E 1037 PC Donald because they managed to clc:.sh oer a lady in 1996. ~ The learned trial District Magistrate 1:1as satisfied with the prosecution evidence in respect of the 2nd count against the appellantlita He "1nvicted , them and sentenced them to 15 years imprisonment each. He acquitted them on the 1st count. The other 3 who were jointly charged with them were not found guilty on both counts. They were acquitt0d accordingly. The appellants were aggrieved. Hence thse appeals, Before this Court they repatcd moreorless what tpey had stated at the trial, except that the 1st appellant Hamisi added one thing 0 Ifo said, even if the alleged shirt, vest and sharpner would have been found·with him, yet this alone would not have been sufficient to hammer him down, beause PW2 did nt give any special mark for identification. The 2nd appellant Selemani clarifie4 as to how he knew PW5 Asha and as to why he thought his'boss SP. Ms@ahu wctis against him. He said, PW5 Asha had an elder sister who was the girl friend of SP Mushashu. Mushashu used to give him some things for delivery to her •.. He used to do so. It was through his delivery of his boss' cargo there tha he came to know PW5. He went on elaborating that one day SP. Mushashu gave him some meat intended to be delivered to the said girl frienda Unfortunately he did not digest properly the message. He took that meat to his wife, that is Hushashu 1 s wifeo Hushashu ,-,as so much enraged that he locked him up. Since then Hushashu hated him so much that he finally caused his dismissel from service. The learned State Attorney Mr. Nasaju who represented the Republic at the hearing of these appeals did not support the convictions ;;;.nd 9 ente:nces on the fo:Llowing grounds:- Firstly, that none identified the app8llants ol'_any of ~nem. Those at the scene said thay did not identify any due to darkness and thtil short time that the event took. Secondly, that al though the 1st appellant ,-w.s alleged to have boen found in possession of some of the robbed properties, yet the O'mer PW2 did not mention any mark for identification. He simply said he identified them by their colour, This is common with many Chinese articles and PW2 ,-,as not the only one· to own themo They are common materials under the common market '·policy o Thirdly, that PW5 Asha was unreliable. How cou),.d she kno,-: the 2nd appellant and others came there r::nd shared the loot while she was in another

4 room·; She said she only heard them talking and she never saw the loot. She said the 2nd appellant remained with the foreign money. But when the 2nd appellant was arrested he had no foreign money. The learned State Attorney went on stating that at the scene of robbery there was also a woman. That woman could probably have been PW5 Asha.o And if that wrus the case then she was an accomplice •. She never reported anywhere and her statement was recorded many days after the event. Fourthly, that even PW6 P.c. Donald was not a reliable \•1itness. The learned State Attorney went on stating that although evaluation of evidence is the duty of the trial Court, yet this Court can also make its o.-m assessment e.s per the case of KAKE @ KALE: & Ol'HERS Vs R. ( 1992) TLR 302e -----------------..----- .. -- . -- Fifthly, that there was no evidence that the 1st appellant could not own the alleged shirt, vest and sharpener. Sixthly, that since the appellants were not identified, and since the exhibits were not properly identified, there was no basis upon which to convict the appellants. Seventhly, that even if the evidence would have been strong enough to secure a conviction, yet the sentence of 15 years imprisonment would not stand. Since the alleged robbers had weapons, the proper sentence should have been 30 years imprisonment. I have carefully considered the appellants I grounds of appe_al, their oral _submissions, the learned State Attorney's oral reply, the evidence on record, tog(:;ther with the overall circumstances surrounding these appe?.J.s. There is no dispute that none of the witnesses claimed to have identified any of the appellants at the scene., Therefore the only evidence available is circumstantial evidenceo In the ca.se of ~ LUGALO &_QQ§_f;;S ( 1.2.VlJICD No. 443, it was held that for an accused to be found guilty on purely circumstantial evidence, the inculpatory facts must be such as to be incompatible with the innocence of the accused, and incapable of any other reasonable explanation than that of his guilt. Also in the case of ALLY BAKARI & PILI BJRI Vs R ( 1992) TLtJQ the Court of Appeal hGld that \·!here the evidence against the accused is wholly circumstantial the facts from which an inference adverse to the accused is sought to be drawn must be pro·.red beyond rensona.ble doubt, and n;ust be clearly connected with the facts from which the inference is to be inferred., In the present ca.se the crucial issue is whether the circumstantiai evidence available was strong enough to secure a conviction on the appellants. Starting with the 1st appellant Hamisi, the circumstantial evidence against him is that of being found in possession of properties alleged to have been stolen during the robbery. But was this evidence strong enough? This evidence· v,as given by only one witness, that is, ~NSPECT_9B_l).!..1,H_g..

5 PW1 said he was not alone when he arrested the 1st appellant and that it was at Mdenga where he found him drinking "pombe.; 1 The 1st appellant denied to have been found with those articles, and that he saw them for the first time in Court being brought by the police~ I have carefully considered this~ It was _the duty of the prosecution to prove beyond res.son.able doubt that the 1st appellant was really found in possession of those exhibits.I A mere assertion by a single witness when many witnesses should have been available is not enough especially so if the said ,·!itness is e. Policeman. Secondly, the identification of the said exhibits by PW2 Liveai was not strong enough. He said he identified the shirt by its colour and trade mark label of nooLDH P:?• 11 He i11detified the vest by its colour and trade mark label of n~. ri He said he identified the sharpener because it 'las his and that he was using it for sharpening pencils. I have carefully· considered this. Colour and trade mnrk are not sufficient facts for a proper identification. Thus th0re was nothing materially upon which the 1st e,ppellant was convicted. The conviction on the 1st appellant Harnisi Abdallah is hereby quas:ied and the sentence imposed thereat is set aside o He is to be released from prison forthwith unless lawfully held inconnection with another case or cases. His appeal has be:?n allowed. As far as the 2nd appellant Seleman is concerned 9 the circumstantial evidence e.gainst him is that of P\tJ5 Asha and PW6 P .co Donald. I have carefully read their evidence. I entirely agree with what the lec:..rned. State Attorney said on them. I would only add that it was very dangerous for the learned trial Magistrate to rely wholly on the evidence of a 11 changudoail on such a serious offence whose sentence is not below 15 years imprisonment. PW5 Asha was only 15 years old. But at that tender age she was already a pr-ostitute who could go reely from her home to spend n. night with a man., She. claimed to have been the 2nd appella..-it' s girl friend since which · January 1996,[meons at the age of only 14a That little girl was really tcrribleo P-16 P .c. Donald is another witness whose evidence is not free from doubta He never told the Court as to how the 2nd appellant came about talking about his participation in the alleged robbery. PW6 is recorded to have said on this as follows:- "He '( i.e 2nd appellal'lt) asked me about Mtwara. I told him that things are normal. He said they got something but a brief case which they took had no money. I told him that he must go out of DSM. I went to phone through a mobitel•••••••••': When asked a question by the Court he is recorded to have replied as follows:- "The accused told me that those robbers came to his home. 11

-He never elaborated. What he meant by that statement is a mystery. He knows it only by himself. May be he meant that the 2nd Gppellant told :rim that he did not participate in the robbery but the robbers simply came at his home for the purpose which he (ioe 2nd appellant) did not say,, At the trial, before PW6 gave his evidence, the 2nd appellant protested against this witness giving evidence against him in thc!.t in 1996 they quarrelled over a lady at White Cont Kiosk. His protest was overruled although the Court did not ask him (i.e PW6) about ito This allegation cannot be ignored in view of the fact th,at P'/6 was not asked to admit or deny ito It is upon the above reasons that I have been of the view that the circumstantial evidence against the 2nd appellant was not strong enough to SE:cure a conviction on him. In view of this the conviction against the 2nd appellant Selemani Salimu @ Ninja is hereby quashed and the sentence imposed thereat set esideo He is to be released from prison forthwith unless lawfully held in connection with another case or cases. His appeal is nllowed. Court: B/C: /] So £ ;~~I JUDGE Judgment has been delivered in the presence of both appellants in person and Mro Masaju learned State Attorney for tr..c Republic 20000 I\ I ··\ /_ .. -t .. -~ So N4 KAJI JUDGi 19 .. 4.2000