ahmed shilla mkumbo vs the director of public prosecutions 2010 tzca 18 25 november 2010

IN THE COURT OF APPEAL OF TANZANIA AT ZANZIBAR fCORAM: MUNUO. J. A.. KILEO. J.A. And BWANA, J.A.) CRIMINAL APPEAL NO 235 OF 2010 BETWEEN AHMED SHILLA MKUMBO............................................................. APPELLANT AND THE DIRECTOR OF PUBLIC PROSECUTIONS................................ RESPONDENT (Appeal from the decision of the High Court of Zanzibar at Vuga [Mwampashi, J.] dated 23rd June, 2009 in Criminal Appeal No.05 of 2009 JUDGMENT OF THE COURT 16th & 25th November, 2010 KILEO, J.A. The appellant Ahmed Shilla Mkumbo was arraigned before the Regional Court for Zanzibar at Vuga for the offence of unlawful possession of fire arms and ammunitions contrary to sections 4(1) and 34 (2) of the Arms and Ammunition Act, No. 2 of 1991 of the laws of Tanzania. He was sentenced to ten years imprisonment. Upon appeal to the High Court his conviction was sustained. His sentence was however reduced to a fine of i three million shillings or seven years imprisonment. Being still aggrieved he has come to this Court on a second appeal. The facts of the case briefly show that upon information received, the police on 12/02/2007 at around 01.20 pm arrested the appellant who, upon being searched was found to be in possession of a pistol bearing No. E W 4510. The pistol had eight rounds of ammunition in its magazine. The case for the prosecution consisted of nine witnesses. One of the witnesses, Saulo Ndutu (PW1) was a police officer from the Forensic Bureau of Police Headquarters who examined the firearm that the appellant was accused of having in his possession. According to his examination the firearm was a Russian make pistol which was in good mechanical condition. He also certified that the bullets were real. The person who had been lawfully entrusted with the pistol testified in court as PW7. It appears from his evidence that he discovered that the pistol was missing from his room after he had been asked by the police whether the pistol bearing No. E W 4510 belonged to him. Apart from the police officers who were involved in the search of the appellant there was also a civilian one Ali Hassan Mkondo (PW3) who witnessed the search. The appellant's defence at the trial was a general denial of possession of the firearm. The appellant who appeared in person before us filed 12 grounds of appeal. These grounds may however be condensed into the following: -that both the courts below misdirected themselves in applying Act No. 2 o f 1991 o f Tanzania while the relevant law is Zanzibar Act No. 6 o f2004. -that the High Courtjudge erred to rely on the evidence o f an expert who is not legally recognized. -that he was convicted on fabricated evidence. -that the High Courtjudge erred to uphold conviction while there was no complainant in the matter. -that it was wrong to base conviction merely on weak defence. The Director of Public Prosecutions was represented by Ms Fatma Hassan, learned State Attorney. She was assisted by Mr. Juma Msafiri, learned State Attorney. Resisting the appeal, the learned State Attorney submitted that the appellant was properly charged and convicted under the 3 Union legislation because the Constitution of the United Republic of Tanzania permitted the use of that legislation in terms of Articles 4 (3) and 64 (4). The learned State Attorney pointed out that section (2) of the Arms and Ammunition Act satisfies the requirement of Article 64 (4) of the Constitution as it clearly stipulates that it will apply to both sides of the Union. Responding to the appellant's complaint that the courts below erred to rely on the evidence of a ballistics expert who was not legally qualified, Ms Hassan argued that the witness had knowledge and four years of experience in ballistics and therefore both the trial court and the High Court were justified to accept his finding that what was sent to him for examination was not a toy as suggested by the appellant but was actually a pistol which had eight live rounds of ammunition in its magazine. Referring to an Indian case, Nellabothu v. Garre -AIR 2003 AP 2001 the learned State Attorney pointed out that expertise may be acquired through experience as well as through training. She also argued that there was no legal requirement that the ballistics expert had to be gazetted for his evidence to be accepted by the court. Ms Hassan maintained that once the prosecution had proved possession of the firearm by the appellant their burden was discharged and it was upon the appellant to show that his possession was lawful. As for the complaint that there was no independent witness during the appellant's search, Ms Hassan argued that though there was no requirement in law that there be such a witness, nevertheless there was one in the form of PW3. This case centers primarily on credibility of witnesses. However, before we come to that we wish to comment albeit very briefly, on the complaints which were listed by the appellant in his memorandum of appeal. Starting with the complaint that the appellant was wrongly charged under a Union legislation instead of a Zanzibar legislation, we are satisfied that this complaint is without merit. Article 4 (3) of the Constitution of the United Republic of Tanzania stipulates: "For all purposes of the efficient conduct of public affairs in the United Republic and for the allocation of powers among the organs specified in this Article, there shall be Union Matters as listed in the First Schedule and there shall also be non- union matters which are all other matters not so listed." Defence and Security are listed in the First Schedule to the Constitution as Union Matters. There is no ambiguity about the application of the Arms and Ammunition Act, (Cap223) to Zanzibar. Section 2 of the Act states: "2. Application (1) This Act shall apply to Tanzania Zanzibar as well as to Mainland Tanzania. (2) This Act shall apply in relation to all firearms other than armaments to which the provisions of the Armaments Control Act, apply." Coming to the evidence of the ballistics expert there was no dispute that apart from the fact that the witness had attended three short courses on the subject; the witness had also been in the field for four years thus gaining experience on the subject. In the Nellabothu case (supra) referred to by the learned State Attorney it was held: "One becomes an expert in the field o f handwriting and signatures by training and experience and constant observations. It is not a developed science where there can be a regular course or training to be undergone in any institute and given the degree or diploma in regard thereto. " We find the above reasoning to be sound and we adopt and extend it to expertise with regard to ballistics. Another complaint raised by the appellant is that he was convicted of possession of the pistol without there being a complainant. Again this complaint has no merit at all. As rightly pointed out by Ms Hassan in the prosecution of a case of unlawful possession of firearm what the prosecution is required to do is just to prove possession. It does not matter that the owner is not known. In this particular case however, the lawful owner was actually known. The appellant also challenged the finding of guilt against him on account of there being a contradiction between the charge and the evidence concerning the make of the pistol. It is true that the charge sheet states that the pistol was of Chinese make while the expert stated that it was of Russian make. We are however settled in our minds that this disparity was so trivial as to affect the outcome of the case. The fact remains that the appellant was found having in his possession a pistol which he could not account for. We did point out earlier that this case centers primarily on credibility of witnesses. Both courts below found the witnesses to have been credible. This Court has dealt with the question of credibility in a number of cases. One such case is Ali Abdallah Rajab V Saada Abdallah Rajab And Others (1994) TLR 132 (CA) in which the Court held: "(i) Where a case is essentially one o f fact, in the absence o f any indication that the trial court failed to take some material point or circumstance into account, it is improper for the appellate court to say that the trial court has come to an erroneous conclusion (it) Where the decision o f a case is wholly based on the credibility o f the witnesses then it is the trial court which is better placed to assess their credibility than an appellate court which merely reads the transcript o f the record." 8 In another case, Omari Ahmed V Republic (1983) TLR 52 (CA) the Court also held: "the trial court's finding as to credibility o f witnesses is usually binding on an appeal court unless there are circumstances on the record which call for a reassessment o f their credibility" We must say that we have not found any reason which call for a reassessment of the witnesses' credibility. The case against the appellant was watertight and there will be no justification for interference with his conviction. On the sentence the appellant submitted that the one passed by the High court after it had reduced the one meted out by the trial court was too harsh. The High Court reduced the sentence of 10 years imposed by the trial court to three million shillings fine or in default seven years imprisonment. With the kind of offence charged with and the kind of weapon that the appellant was found with he should count himself lucky. Obviously, where a person unlawfully acquires a firearm such as a pistol which is a lethal weapon, it can be safely inferred that it is so acquired with the intention of using it in the commission of a crime. Courts have a duty, 9 through its pronouncements in judgments to protect the citizenry from the danger that may arise from unlawful possession of firearms. More to that we are satisfied that no grounds have been advanced to show that the sentence meted out to the appellant was manifestly excessive, or that the learned appellate judge was wrong in assessing it. There can be no ground in the circumstance for interfering. In the result, the appeal has no merit and is accordingly dismissed in its entirety. DATED at ZANZIBAR this 25th Day of November 2010. E. N. MUNUO JUSTICE OF APPEAL E. A. KILEO JUSTICE OF APPEAL S. J. BWANA JUSTICE OF APPEAL