Hassan Shaban and 3 Others vs Republic (Criminal Appeal No. 104 of 1997) [1998] TZHC 2292 (29 June 1998)

S - IN THE HI GEl COURT OF TLNZLHIA AT SBAWANGA •-: c ': - APPELLATE JURISDICTION (MHEYA REGISTRY) CRIMINAL APPEAL NO.104 OF 1997 & C/F Nov.' 105/1996 AND 106 OF 1996 (Original Criminal Case No.7 of 1995 of the District Court of Mpanda District at Mpand.a) HASSAN SHABAN.& OTIZ. .e.... •, .APPELLANTS RS THS REPTJBLIO...G.....6. O ...........HESPOI4DENT JUDG.ENT WIPqpj. The 3 appellants wore jointly convicted by the Sunibawanga District Court under a substituted charge dated 27/3/95 .contaã.ning 5. counts of conspiracy c/s 384 of the Penal Code', Burglary c/s 294 of. the Penal Code, Stealing c/s 265 of the Pna1 Code 1 These above three counts involved all the 3 appellants. The 4th.coiint and 5th count of unlawful possession of breaking-- instn)n1ents c/s 295 (c) of the Penal Code involved the 2nd accused. %appellant) in the 4th count and the 4th Accused (appellant) alone respectively. The one who was the 1st accused Mussa s/a Kingwa is now the let appellant. The 2nd. Accused Juma do Ernest Sanane is now the 2nd. appellant. The 4th Accused Hassan s/o Shabari.i is the 3rd Appellant. The 3rd áridused Revonatus s / Kasala was I

.' ,i 2 -, acquitted by the trial magi strate, On appeal here., the 3 appeUt1e did not want to be pze.ent' The learned Mr. Nangela (S.i) had n&thiag f.'- favour of the accused has (' and0osed this: appeal,. In thi 'rounds of appeal the appellants raised issues of their improper identity and the unsafe identity of the stolen poperties 'The learned Nangela (S.A.) supported the identity of the appellants and the properties as quite valid and safe to base a conviction on them e Two eye witnesses Raymond Katunka and Helei.a Katunka identified the lst,aoàused, by the red shirt/Tahirt and blue trouser I - he put on in the night of incident which were ultimately found worn by him at his rented room. Theysaw' his face through a hurricane lamp which he hit it himself in the bedroom of these children and ed 13 ye'ars 15 years respectively, after his ingress by burglary and threatening to kill them with a knife if they raised. aialax. Moreover, the stolen goods were found with him. whióh proptrties were properly identified by PW1 Andrea s/o Lufixilca as hi through cblour, Urine:: mark and familier with properties after long use of . them. Moreover., 'from the testimony of PW2 the let appellant coiffossed to hIm to havestoien the things and showed t1 their where about hImself. '.âlthough DW5 Angelina d/o. Mbenga testified to have kept the thixgs for the .1st apeliant from 1990 to 1994 when he retu - ' ft h&th to he"lst appellant t4s can't berue f or thelst appel1nt himself càxffessed to hays etoen thir, The 1t appellant's chae he tcry ..-' . 'iier confes.

• 3 was after thought after finding ti -ia -b the Police had not released him even after he had confessed to them. PW5 Joseph IVIwakale Asst. Inspector testified to have taken a voluntary confession- of the accused under caution implicating the 2nd appellant and 4th appellant. The 2nd appellant and 3rd appellant were conzcted to the offence s through the incriminating confe ssion of the 1st appellant. A confession vvhich is self incriminating and incriminating co-
• accused can be taken into account as evidence against the cocccusr This iswhat happened here the 1st appellant bonfessed to have bii1ed and stolen the things while he was with the 2nd appellant and 3rd appellant. He confessed that the breaking instrunenta were were with his co—accused and indeed the breaking instruments found with them. The breaking instruments offered strong collaborative evidence against the 2nd app ellant. and 3rd appellant as having 'participated fully in the burglary and stealing. The eye that witnesses to the burglary testified the 1st appellant had. been L with other burglars whom they did not identify but who must have been the 2nd appellant and 3rd appellant,inter alia. The trial magi:atrate the, learned iVIr, Rwegasira (DM) directed his mind to the relevant issues of the identity of the appellants and the propeties and caril& to: a cotrect decision that the appellants were guilty of the offences. There was an initial charge sheet filed on 16/1/95 containin, only' two counts 'of burglary and stealing c/se 294 (2) and 265 of the penal Code under which two EW's testified. After its 00 . . 14

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• LI another substi.tutionwith ilchare sheet with 5 counts the three counts being those by conspiracy and having breaking instruments the case bont.inue. being Meard. with P113 onwards until defence and conviction. The continuance Of the hearing under the new charge sheet did not occasion any injustice to the appellants becauseLmain gouute of burglary á±d stealin.g were :.cbvered in bOth charge sheets with the same or siiu-lar particulars of offences. The new counts of conspiracy ardbeing found with instruments of burglary were collateral to the main two offences and were covered by PW2 in hi. testimony. It should have been ideal to indIcate in the -. givena proceedings that the ajipellants had been chance to recall PW2 anL •had declined to recall him for cros examination. Nevertheless ; there are other police officer who testified after the substitution of the charge sheet who covered the evidnce of being found vri th the same burglary ins trwuents such as P73 SindanO Karando who testified that the 3rd appellaiit. showed the breaking instruments covered in the 5th count of the àiitstituted charge. There is no other" witness who testified after the substituted charge who.. covered the point of the 2nd àppellant being found.with. breaking J. instruments but PW2 was extensively cross examined by, the 2nd appellant about the breaking ilistruments being found with him. So, even if in the time of PW2's cross examination about the breaking instruments no charge on it had been filed as yet, still he was not prejud.iôed for any recall of PW2 on this point A' would not have biough1 up any new cross examinati.on different from

• 5 - the cross examination done to PW2 before the count of breaking instruments was incorporated into the cthrge... This consolidated appeals have no merits, They are all dismissed., !'\ '- -E,L.K, MWIPOPO JUDGE 29.6.98 29/6/9k Hon..•Mwipopo, J. All 3. appellants - bsent They don't wish to be present Mr. Nangela (S.A.) present c/c: DIr. Salim Mriva Court: Judgement delivered in presence of the respondent and in the absence of the Respondent. District Registrar to inform the appellants the results of this judgement. E.L.K. MWLPOPO JJDGE T SIJMBAWANGA 29.6.98 ELKWATLI' 1rns.