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Judgment

IN THB HIGH COUHT OF TANZANIA AT DAHL~ SALAAM APPLATL JUHI.SvICTION HIGH COURT CiUMINAL APP.l!;AL NO-. 66/87 uRIGINAL CHIMINAL CA~E ~0.382/80' U1!' Tff.t DISTHICT CuUR'l' OJ!' .ILALA DIS/l'lUCT AT KlSUTU B.i!.iFO.HJ;; N. P. KIMARO Hl:.SilJJ!.jNT MAGLSTRATE. lJINAN MCJHAM£D •••••••••••••••••••••••• APPELLANT (Original Accused) versus 'fH.c; UNI'l'BD .REPUBLIC ••••••••••••••• RE.SPCJNDENT (Original Prosecutor) J U D G M E N T BAHi;i,TI, J. / This is an appeal by JJiwani Mohamed who was convicted of the offenoe of robbery contrary to .Sec-tion 285 l'Iid 286 of the Penal Code and sentenced to seven years' imprisonmen-t. The appellant was found to ha,ve stolen the sum of Shs. 407,382/65 in. the course of the robbery. He was charged with three others who were all acquitted. The facts in this case were that there was a robbery at MECCO offices on 26th May, 1980. Two robbers entered the MECCO cashier's office as the car_hier n.ctc ·'.-.:ling i'i.r:i.th money for the salaries of MECCO -employeea. These robbers e.ad a :pistol and they ordered everyone who was in the cashier's ·office including Pw.l Mwakimbona to lie down. After the robbers had taken the money, they went away. The cashier rang the wtchman t the p;ate to alert them. Pw.2 Laurian Lichumbaki received the call telling him that the car which was coming at the gate had robbers. PW.2 was with other people at the gate leading out of MBCCO offices. PW.2 told watchman Seleman Juma to close the gate and leave while he himself hid i a nearby \ . s);i.elte.r. '.L'hen. from where he was hiding PW.2 could see the car coming to -bhe gate. The car got to the gate and one person came out of the car to open the gate. PW.2 then left his shelter and was preparing to shoot the car when the person who had opened the gate saw him and shot him first in the stomach. hen the vehicle left. PW.2 was shot with a. pistol and he lost consciousness. But before he became unconscious, PW.2 recognized the person who had shot him, and in court he identified him as the appellant. But he did not recognise the others in the car nor did he note the registration number of the car. A1·1 this happened .at around 12 noon. pw.2 concluded his evidence that there were 4 persons in the vehicle and that the registration number of the vehicle was not recorded in the register book at the gate although it was supposed to be registered. On 26th May, 1980 at about 12 - 12.30 noon, Pw.5 Corpor&l Joseph was at Charig'ombe area. He heard-some shooting at MECCO offices. Then he saw a moto:::- vehicle, Peugeot 504, coming from MECCO offices and one person was escorting tlhe vehicle whi holding a submuchine gun., Then the person with the gun entered the vehicle and the vehicle sped away.

-.2 - pW.5 could see 5 people in the vehicle and one of them was the appellant, who was normally the driver of the vehicle although he was not·driving. it on that day. The vehicle had Muhimbili Medical Centre emblem at :f,,ts side. When an identification parade was conducted .at Chang'ombe Police Station on 28th May·, 1980, PW .5 managed to identify the· appellant as the person who had been in the robbery vehicle~ PW.5 even identified the robbery vehicle. PW.5 kriew the appellant since 1980 because he used to go to Muhimbili Medical Centre and he knew him as a driver. - Then there was the evidence of PW .6 J\li Ngome, the offi-cer in Charge of Police 'l'emeke 1.listrict (OCiJ) •.. He said that he was informed of the robbery of over .Shs. 400, 000/=. He took detectives and commenced investigations. He found out in his investigations that the vehicle used in the robbery was a peugeot 504 with the Muhimbili Medical Centre emblem, with registration number SU. 455. On learning that the vehicle belonged to Muhimbili Medical Centre, PW.6 contacted Professor Nhonoli of Muhimbili Medical Centre. tie also traced the appellant whom he arrested on 27th May, 1980. The appellant admitted to have been driving the vehicle on 26th May, 1980, but he denied any involvement in the robberyo PW.6 took. the appellant to his (appellant's) residenc·e- which he searched. Then the appellant informed PW.6 that he kept his clothes at th_e home of one Hassan Amani ,. his uncle. On searching the room of Hassan Amani• some 49,000/= was recovered. In his defence the appellant gave a sworn statement -and he called two witnesses. The gist of his defence was ·that _he was the driver of Pro.fessor Nhonoli (i.JW.2) of Muhimbili Medical Centre, and that on the day in question he drove Professor Nhonoli at 7.00 a.m. to go to TAZARA Hostel. Then at 9-.00 am. he left with lJ'vJ .3 the wife of Professor Nhonoli ( DW .2). At about 9.45 am. he took chicken to 'l'wiga Hotel. 1'hen at 11.45 he was back "'t .Professor Nhonoli' s residence where food was prepared ancl he ate, and that it was at about 12.07 pm. that he found Professor Nhonoli at TAZARA, ~~ostel. Professor Nhonoli sant him b~~ck to his residence. Then next day he was arrested an<l searched but nothing was found with him.· Professor Nhonoli DW.,2_ga'i!ie evidence to the effect that the appellant who was his driver, drove him at 8.45 am. to TAZARA HO~TBL. Professor Nhonoli told the appellant to come for him at 12 noon. At 12 noon the appellant came to •r.A.Z11.HA HuS'l'}!;Lo Then after 20 minutes they left. Mrs. va Nhonoli DWo3 also gave evidence. She said that on 26th May,. 1980 she was driven by the appellant to Chang' ombe Shule ya Uhuru. ht about 10015 or 10.30 am. she was driven back homeo Then at 12 noon the appellant went to collect DW.,2. DW.3 said in cross- examination that at 12 pm. t_he -driver was at her home and that he left froa there at 12.0 or 12.15 pm. .. •.• /3.

3 - In her judgment the learned ~esident Magistrate found that the motor vehicle No.SU 455 belonged to the Muhimbili Medical Centre and that the appellant was driving it on the material day.- The learned Magistrpte also found that the appellant had left the residence of Professor Nhonoli at around the time of the robbery and that his time of return was not marked anywhere. bhe found the appellant guilty as ., .. " charged anu convicted.him as charged. In his petition of appeal the appellant set out mainly three grounds of appeal. These are as follows:-

That the learned Resident Magistrate erred in law in admitting and believing hearsay evidence that the motor vehicle which was used in the commission of the robbery had the registrajion number Bu 455
The learned Hesident Magistrate erred· in law and in fact in finding thut the appellant was sufficiently identified by the witnesses. 3~ The learned Hesident Magistrate erred in fact and in law in ignoring the defence of the appellant and in failing to find that it cast some doubt against the prosecution case. The H&public tlid not suppQrt the conviction arguing that important witnesses were not called when they should have been called. This case leaves a lot to be desired because many persons are mentioned but they were not called as witnesses. s pointed out by Mr. 11arando, learned counsel for the appellant, the cashier, together with the person who mentioned the regist°ration number of the robbery car to the :Police and also the watchman who was }'lith Pw.2 at the gate should have been called as witnesses. The recortl is silent on why these witnesses were not summonede These witnesses would have shed more iight on the identity of the robbers, the registration number 0f the vehicle ·used in the robbery and the time when the robbery took plao•·• The evidence of these witriesses is necessary in this appeil in ord~~ to meet the ends of justice. T.he appellant was convicted and sentenced just towards the end of May, 1987, and in view of the seriousness of the offence together with the amount of money involved I find it necessary to have additional evidence on the matters I have indicated above. It is therefore ordered that additional evidence be taken fro the following persons by the trial court:- ·l. The person who was the cashier at the material time and from whom the m.oney was stolen on the material day. He should be asked about the identity of the robbers and the time of robbery. .
tieleman Juma who was a watchman at the gate. He should be asked about the -identity of the robbers and. the time of the robbery. •••• /4.
The person who gave the registration number SU 455 to PW.6 Ali Ngome. He should be asked to give evidence on how he could see the registration number. It is further ordered that after the evidence ·has been taken, the record together with the additional eyictence should be forwardad to this court for the finalization of the appeal. In case the witnesses be found, the record she. _d be fore:arded to this court with the additional evidence .recorded (if any) f·ur final disposal. }'or the avoidance of doubt, it is directed that in case no witness is found and no additional evidence recorded, the record should still be for~~rded to this court for the final determination of the ?ppeal. It.is so ordered~ . . . ~~~~···~~-······-···'. __ ::.,, ·------- 7 A. BAHAT{'= JUDGE ·\ 11/8/19~~8 ~£:.. - Judgment del::i.vered. ~r. Marando for Appellant, Miss Munissi for Hepuhlic. lJhR ES SALAM-1 11th .k.ugu.st, 1988.,

Judgment

3 - In her judgment the learned ~esident Magistrate found that the motor vehicle No.SU 455 belonged to the Muhimbili Medical Centre and that the appellant was driving it on the material day.- The learned Magistrpte also found that the appellant had left the residence of Professor Nhonoli at around the time of the robbery and that his time of return was not marked anywhere. bhe found the appellant guilty as ., .. " charged anu convicted.him as charged. In his petition of appeal the appellant set out mainly three grounds of appeal. These are as follows:-

That the learned Resident Magistrate erred in law in admitting and believing hearsay evidence that the motor vehicle which was used in the commission of the robbery had the registrajion number Bu 455
The learned Hesident Magistrate erred· in law and in fact in finding thut the appellant was sufficiently identified by the witnesses. 3~ The learned Hesident Magistrate erred in fact and in law in ignoring the defence of the appellant and in failing to find that it cast some doubt against the prosecution case. The H&public tlid not suppQrt the conviction arguing that important witnesses were not called when they should have been called. This case leaves a lot to be desired because many persons are mentioned but they were not called as witnesses. s pointed out by Mr. 11arando, learned counsel for the appellant, the cashier, together with the person who mentioned the regist°ration number of the robbery car to the :Police and also the watchman who was }'lith Pw.2 at the gate should have been called as witnesses. The recortl is silent on why these witnesses were not summonede These witnesses would have shed more iight on the identity of the robbers, the registration number 0f the vehicle ·used in the robbery and the time when the robbery took plao•·• The evidence of these witriesses is necessary in this appeil in ord~~ to meet the ends of justice. T.he appellant was convicted and sentenced just towards the end of May, 1987, and in view of the seriousness of the offence together with the amount of money involved I find it necessary to have additional evidence on the matters I have indicated above. It is therefore ordered that additional evidence be taken fro the following persons by the trial court:- ·l. The person who was the cashier at the material time and from whom the m.oney was stolen on the material day. He should be asked about the identity of the robbers and the time of robbery. .
tieleman Juma who was a watchman at the gate. He should be asked about the -identity of the robbers and. the time of the robbery. •••• /4.
The person who gave the registration number SU 455 to PW.6 Ali Ngome. He should be asked to give evidence on how he could see the registration number. It is further ordered that after the evidence ·has been taken, the record together with the additional eyictence should be forwardad to this court for the finalization of the appeal. In case the witnesses be found, the record she. _d be fore:arded to this court with the additional evidence .recorded (if any) f·ur final disposal. }'or the avoidance of doubt, it is directed that in case no witness is found and no additional evidence recorded, the record should still be for~~rded to this court for the final determination of the ?ppeal. It.is so ordered~ . . . ~~~~···~~-······-···'. __ ::.,, ·------- 7 A. BAHAT{'= JUDGE ·\ 11/8/19~~8 ~£:.. - Judgment del::i.vered. ~r. Marando for Appellant, Miss Munissi for Hepuhlic. lJhR ES SALAM-1 11th .k.ugu.st, 1988.,

Dinan Mohamed vs Republic (HC Criminal Appeal No 66/87) [1988] TZHC 117 (11 August 1988)

Judgment

Discussion

Dinan Mohamed vs Republic (HC Criminal Appeal No 66/87) [1988] TZHC 117 (11 August 1988)

Judgment

Discussion