Twalib Omar and Another vs SMZ (Criminal Appeal No. 7 of 1998) [1999] TZHC 514 (9 March 1999)

1 ANZAN1A LAW REPORTS (2000]T.L.R. S4 a TWALIB OMAR AND ALI HASSAN v. SMZ HIGH COURT OF ZANZIBAR ATVUGA PJ (Lawan Wada, J) CRIMIN AL APPEAL No. 7OF 1998 (From the judgment and original decree of Regional Magistrate Court in Criminal Case No. 255 of 1997) Criminal Practice and Procedure - Substituted charge - Charge read over the p accused then substituted and re-read - Whether conviction on substituted charge was proper. Criminal Law - Sentencing — Court imposed sentence - Sentence as provided by the Minimum Sentence Decree. Criminal Law ~ Minimum Sentence — First offender sentenced under Minimum Sentence Decree - Whether the sentence was severe. The appellants were charged and convicted for the offence of robbing contrary to section 258 and 258(2) of the Penal Code Decree Chapter 13 of the Laws of Zanzibar, r They were sentenced to four years and seven years imprisonment respectively. The record shows that on 11 October 1997 at about 1 :00pm the complainants were attacked by the appellants who were masked, at Jozani Forest, and were robbed off their property and money. The complainants reported the incident to the Shekha and later on to the police. The police and the villagers then surrounded the forest and the appellants were arrested, charged, tried and finally convicted and sentenced accordingly. Based on the conviction and sentence the accused appealed to this court on the ground that the trial Regional Magistrate erred in continuing with the proceeding H after substituting the charge and that the trial contrary to section 175(l)(c). The Regional Magistrate erred in law in convicting the appellant without any proof. Heid: (i) The issue that the second appellant pleaded on 23 October 1997 while the first appellant on 30 November 1997 that alone is not an irregularity that can render the proceeding of the trial court a nullity.

TWAI IB OMAR ANO A 1.1 HASSAN r. SMZ (ii) The punishment of the two appellants to four years and seven years A imprisonment respectively is too severe, considering the fact that they are all first offenders and young persons. Appeal against conviction dismissed but sentences reduced B Case referred to: (1) Thuway Akonaay v. Republic (1987) T.L.R 92 (2) Yassin Maulid Kipantu and Two others v. Republic [1987] T.L.R 183 C (3) Tabu Fikwa v. Republic [1988] T.L.R 48 Statutory provisions referred to: (i) Criminal Procedure Decree Chapter 14, section 175(1) D (ii) Penal Code Decree Chapter 13 of the Laws of Zanzibar, sections 258 and 258(2) JUDGMENT E (Dated 9 March 1999) LAWAN WADA, J: The appellants namely Talib Omari Hamid and Ali Hassan Mohammed were charged and convicted for the offence F of Robbery Contrary to section 258 and 258(2), of the Penal Code Decree Chapter 13 Laws of Zanzibar and they were sentenced to four years and seven years imprisonment respectively. The appellants were di ssatisfied with the j udgment and sentence of the 1 earned Regional G Magistrate and so they appeal to this court. From the record of the trial court the brief fact of the case was that on 11 October 1997 at about 1 :00pm complainants were attacked by some group of six people who were masked at Jazani Forest and H they robbed PW2 and PW.3 of their properties and money. Based on that PW5 ran and reported the incident to his superior i.e. PW4 and they reported to the police and PW7 who is the Sheha of the area who then immediately summoned his people for an immediate 1 search in the forest and during the search they saw six people hiding

86 TANZANIA LAW RU ’ ORTS [2000]T.L.R. A in the forest and when they saw the villagers they took to their heels but they were chased by the villagers. PW9 and PW 10 managed to apprehend the first appellant while PW6, PW9 and PW10 all identified the second appellant as among those that escaped. g In their defence the first appellant said he was in the forest because he had an appointment with his colleague a charcoal business man but when cross-examined he said he did not even know the name of his colleague. The second appellant defence was that he had c misunderstanding with the villagers that was why they all testified against him. Based on this facts that the trial court convicted the two appellants and they appeal to this court on four grounds of appeal. The first ground of appeal that the learned Regional Magistrate erred in continuing with the proceeding after substituting the charge. On this the appellant ’ s counsel argued that is contrary to the Provision of section 175(1) of Criminal Procedure Decree Chapter 14 Laws of Zanzibar and also cited the case of Thuway Akonaay v. Republic (1). E In her reply the learned state counsel referred us to pages 7 and 8 of the record of trial court where the plea of the two appellants were recorded so she submitted that section 175(1) Criminal Procedure Decree Chapter 14 was fully complied with. The appellants ’ counsel also argued that the charge was read to the second appellant on 23 October 1997 while on 30 November 1997 it was read to the first appellant and they submitted that a joint G charge must be read to the accused persons at the sametime and failure to do that can render the trial a nullity and cited the case of Thluway Akonnay v. Republic (1). Section 175(1): H The substance of the charge or complaint shall be stated to the accused person by the court and he shall be asked whether he admits or denies the truth of the charge. ( On this point I agree with the submission of the learned State Attorney that section 175(1) Civil Procedure Decree was fully complied with

TWA LIB OMAR AND AL I HASSAN v. SMZ and this can be seen at pages 7 and 8 of typed record of the trial A court. The case of Thuway Akonnay n Republic cited above must be distinguished from the case before us. In Thuway case the appellant was not called at all to plead to the new charge, but in this case the B first appellant was called to plea and plea to the new charge and this was done on 30 November 1997 as per page 8 of the typed record of the trial court. The issue that the second appellant pleaded on 23 October 1997 while the rirst appellant on 30 November 1 997 that c alone is not an irregularity that can render the proceeding of the trial court a nullity, because to my view it did not occasion any miscarriage of justice. The second, third and fourth grounds of this appeal can be treated D jointly, that the learned Regional Magistrate erred in law in convicting the appellant without any proof, on hearsay evidence that the judgement has no legal support. Going by the record of the trial court eleven witnesses testified for the prosecution and the defence also gave E their evidence. There was no doubt that an offence of Robbery was committed against PW2 and PW3 at Jozani Forest and they were robbed of their properties. It was a result of the immediate search ordered by PW7 to his people that some of the robbed properties F were recovered i.e. Exhibit Pl, Exhibit P2, Exhibit P3 and Exhibit P4 and they were recovered at the place where the six people were hiding in the forest. When they were chased by the villagers, the first appellant was apprehended by PW9 and PW10. Similarly PW6, g PW9 and PW10 all in their evidence at the trial court testified that the second appellant was among those chased and he escaped with other four suspect and they all knew him even before this incident as they all reside in Pete. They all testified that the second appellant H was holding a camera when he escaped. It was on their identification which the trial court believed to be true since it was not weakened by the defence evidence. All in all I find PW6, PW9 and PW 10 all in their evidence at the trial court testified that the second appellant ( was among those chased and he escaped with other four suspects

88 TANZANIA LAW REPORTS[2000JT.L.R. A and they all knew him even before this incident as they all reside in Pete. They all testified that the second appellant was holding a camera when he escaped. It was on their identification which the trial court believed to be true since it was not weekend by the defence evidence. b The only reason given by the second appellant was that he was disliked by his co-villagers that was why they gave evidence against him and this alone does not raise any doubt to the prosecution case. The learned RM said. “ I have observed the demeanour of the said witnesses c and found nothing to doubt their testimony ’ s credibility. After all the second accused did not raise the question of his misunderstanding with the villagers (PW6, PW9 and PW10) in his cross examination only to raise in his defence and when cross examined by the prosecution. D All in all I find PW.6, PW.9 and PW. 10 identification evidence absolutely watertight to the stand explained by Chipeta J. in Yassini Maulid Kipantu and Two others v. Republic (2) for me to find that the second accused Ali Hassan Muhammed committed the offence in question against the complaints PW2 and PW3 ” . E Therefore on this there was no dispute that the second appellant is well known to the three witnesses (PW6, PW9 and PW10) as they are all from the same village, and it is on record of the court F that this incident occurred around 1:30pm the issue of mistake in their identification is not there. I entirely agree with the learned RM that the evidence established by the prosecution witnesses left no doubt as to the correct identity of the second appellant. It is a trial practice in our legal system that any evidence which is not contracted under cross examination and also not rebutted in examination-in- chief remain unchallenged and so must be accepted by the trial court. On the sentence passed, I agree with the view of the learned R.M H that the offence committed by the appellant is a serious offence and punishment is required in order to serve as a deterrent to others but this should not be the sole or predominant factor in the assessment of sentence. In my view the punishment of the two appellants to 4 j years and 7 years respectively is too severe considering the fact that they are all first offenders and young persons of not up to the

TWALIB OMARANDALI HASSAN i: SMZ 89 age of 30 years. Regard must be given on reformative aspect of punishment as the deterrent effect of a sentence does not solely depend on the length of imprisonment. On this point I concur with the views expressed by Samatta J. in the case of Tabu Fikwa v. Republic (3) at page 52: In determining or assessing sentence the court is perfectly entitled to take into account the necessity of deterring other persons from perpetrating similar offence, but that factor is not the sole or predominant basis for assessment of sentence. Generally speaking imprisonment is only justified if it is necessary that the criminal be removed from society. Save where the nature of the offence and the circumstances of its commission call for a custodial sentence or where the court has no discretion in the matter because the offence attracts a mandatory sentence of imprisonment under the Minimum Sentence Act 1972 or under any other legislation, the court should seriously consider alternative punishment before sending the offender to prison, especially if he is a first offender. The deterrent effect of a sentence of imprisonment is not always proportionate to its length. [emphasis supplied] The prosecutors both at the trial court and here at appeal asked for maximum sentence against the appellant and I do not consider this to be a desirable course to take because issue of sentence should always be left to the discretion of the court, and in this case I hope the learned RM was not influenced by the demand of the prosecution in arriving at his decision to impose a term of four years for the first appellant and seven years for the second appellant. After carefully examining the record of the trial court I think that in the circumstances of the case the sentence of 7 years imposed on the second appellant shold not exceed that of the First appellant and therefore the sentence imposed on the appellant is to my view too excessive so it is hereby reduced. A sentence of two years each is to my opinion can meet the justice of the case and is hereby ordered accordingly.