Yasin Shabani Ntolwa vs Republic (High Court Criminal Appeal No. 107 of 1997) [1999] TZHC 414 (3 September 1999)

IN 'rHE HIGH COUP.T OF TANZiANIJ.i. AT iV1BI!.iYA i!IGH . COURT CRIMHiAL AFPE1J.. 1;0. 107 OF 1997 (From the decision of the District Court of Mpanda in Criminal Case Noo 197 of 1995 ·Before; T. A..R. Nassary - Resident lfagistrate) YASIN SH;.BAi~I l,TOLWA APPELLANT Versus TIDJ t<EPUBLIC 00 0000 00 ,O ~ C., 00 OQ00,01111 0 RGSPONDBNT JUIX3MENT ·p--- The appellant, Yasin Shabani Ntolwa, and.Robert .Sylivester Saasita, who is yet to appeal, were jointly, arraigned before the district court of Jl.ipanda as ' the !3#9.2!!. and f..i.fst accuseds respectively, on an indictm·ent which contained three counts: · First cou_,~t: Conspiracy to ·commit an offence," cohtrary to section 384 of the Penal Code •. E,e.E_ond C?~~~ 1..rmed Robbery, contrary to sections 85 and.?86 of the Penal Code. '.J-1..h?:!d .9_0~~.r:,!: Unlawful possesion of breaking instruments, contrary to section 298 (a) of the fenal Code. They were both acquitted of the third count but convicted of the first count as charged and each sentenced to six years imprisonment. On the second count they 1ere' convicted of Robbery with violence and each sentnced to fifteen years ir.1prisonmerit. · 'l'he sentence was ordered to run concurrentlys 'l'he convictions and sentence aggrieved the appellant, hence this appeel w!1ich was resisted by the I<epublic in the absence· of the appellant who had opted not tq enter an appearance o .Dakari Kaombwe (PW2), and his wife, Veronica d/o Gasper (PW1) 1 and his . son-in-law, Juma Athumani (f\13), were asleep in the house of P-"J2 during the night, of 14.12095• At.abou.t midnight unknown persons invaded the compound, fired in the air, and brok,:• irito the house and tied up p:;/1, P,i2 anc;l P'J3 with ropes (.Ext ,p,4). 111he thieves made away with one radio make national 1 one bicycle make Phonex 1 one torch, and cash shs.25,000/=•fromthe trouser pocket of E13a 'rhe thieves were not identified-at the scene of crime. /2

• 2 - Four days later, on 17012.95, PC i:amadhani (P'rJ4) of Mbeya folice C.LD. searched the house of the firstaccused wherein he found the bicycle, the radio an<i the torch. 'l'ney were duly identified by PW2 as his stolen property who ' tendered in evidence their purchase receipts as &ts P1, P2 and 13 respectivelyo An iron bar (Ext~l?) was also found in the house. On being interrogated by PC Ernest (PW5) the firstaecused allegedly verbally admitted involvement iri' the crime and said he was with the appellant. This was denied by the first accused at the trialo In his defence the appellant denied any complicity in the crime. He said he was at Mwanza at the material time of the crime where he had stayed for five years. 1.i.is mother, Ha.dij a fvJwarnsawa (rn;2), supported 11is claim. With respect to the learned state attorney, Mro Mulokozi, it does occur to me that the complicity of the appellant in the crimes convicted of was :iot demons- trated · to the required extent. 'l'he only evidence against the appellant was the confession of the first accused which allegedly implicated him. Dnder section 33· ;_ (1) of the Evidence A.ct 1967, that confession, if proved, could be taken into consideration against the appellant.. But as a matter of law a· conviction should not be based solely on the confession of -a co-accused S:E:t: section 33 (2) of the Acto The words :,take into consideration•· in section 33( 1) must ·be t-aken to mean that such evidence is of the weakest kind and can only be used as lending assurance to other ev:i.dence against a co-accused, which was lacking in•this co.Se. The convi- ctions of the appellant were thus against the weight of·the evidence on record and must no·t be· allowed to· stand.. · I accordingly allow the appeal,· quash the appellant 7 s convictions, t;;et aside his sentence,: and hereby. 01 der the immediate :release of the appellant, Yasin Sha.ban Ntolwa, from prison unless otl1erwise lawfully heldo B.P. r,~oolU AT t-;BI:;YA. JUDGE • . ---:,---- --·- 3 September, 1Q9..9• ~ . .'" ·. 1 . . Por Appellant: i1.bsent. For Hepublic: Lr. Boniface, B • .A • . I CBHTIF'Y ·'tE,W THHf '.l;,:, A 'l'IliE COPY OF '.i'HE OlUGII-JAI;. DISTRICT ILlBISTR.AR. __ ...., ___ . .-• .......... ,,,. ....... ..