ali amour ahmada vs dpp 2015 tzhc 2173 28 january 2015

IN THE HIGH COURT OF ZANZIBAR HELD AT VUGA CRIMINAL APPEAL NO. 12 OF 2014 FROM ORIGINAL CRIMINAL CASE NO. 87 OF 2013 ALI AMOUR AHMADA ............. APPELLANT V/S D.P.P ............. RESPONDED JUDGMENT Makungu C J AH Arnour Alimada, who is the appellant in this case after being dissatisfied with the decision of the Regional Court (Hon George J. Kazi) appeals to this court against both conviction and sentence and preferred twelve grounds as mentioned in his Memorandum o f appeal. At the hearing of the appeal, the appellant was represented by his advocate Mr. Rajab Abdalla while the respondent was well represented by learned State Attorney Mr. Omar Sururu Khalfan. Mr. Rajab Abdalla vehemently started by arguing in support of the appeal. When he was arguing his 2nd and 3rd grounds of appeal together told this court that the w'hole evidence of the prosecution side was very weak and therefore the conviction based on that evidence was bad in law. He argued that there is no piece of evidence in the statement of PW 3 which shows that the appellant took the victim from Kunduchi to Kisiwandui as alleged in the charge sheet. He for the argued that according to the charge sheet presented before the court alleged that the said offences were committed between January 2013 and October, 2013 and this was not proved before the court. The prosecution has to prove that the offence was done or committed in that year and those months. He said the prosecution in the whole evidence o f the case failed to mention specific time or dates when the offence was committed. On responding to these two grounds Mr. Omar Sururu submitted that the evidence of prosecution was strong and credible evidence. He argued that the prosecution came with 6 witnesses before the trial court to prove the offences and managed to prove those offences beyond reasonable doubt. I have the view that this is very crucial ground of appeal, so I have to examine it carefully before going to another grounds. Looking at the charge sheet in this case, l it shows that the offences were committed between the month of January and October, 2013 but the evidence on record does not support that contention. I feel that it is necessary to produce that charge sheet for ease o f reference HATI YA MASHTAKA MAD/PCR.65/2013 MSHTAKIWA: Ali Amour Ahmada, mwanamme, mtumzima, miaka 40, mwafrika wa Kisiwandui Mjini Unguja. KOSA LA KWANZA: Kutorosha mvulana aliyechini ya uangalizi wa wazazi wake! Kinyume na kifungu 130(b) cha Kanuni ya adhabu Sheria Nam. 6/2004 ya baraza la Wawakilishi Zanzibar. MAELEZO YA KOSA: Ali Amour Ahmada baina ya mwezi wa Januari, 2013 na Mwezi wa Oktoba, 2013 saa zisizojulikana hapo Kisiwanduai Wilaya ya Mjini Mkoa wa Mjini magharibi Unguja bila ya halali ulimchukua hapo Kisiwandui bila ya idhini ya wazazi wake. KOSA LA PI LI: Kumuingilia mtoto wa Kiume kinyume na maumbile! Kinyume na kifungu 150(a) Act No. 6/2004 ya Baraza la Wawakilishi Zanzibar. MAELEZO YA KOSA: Ali Amour Ahmada baina ya mwezi wa Januari na mwezi wa Oktoba 2013 saa zisizojulikana hapo Kiswandui Wilaya ya Mjini Mkoa wa Mjini magharibi Unguja bila halali ulimuuingilia kinyume na maumbile Said Abdalla Yussuf miaka 10 . MADEMA POLISI 7/10/2013 P.P. As shown herein above, the charge sheet shows that offences were committed between January and October, 2013 but according to the evidence on record, PW3 Said Abdalla Yussuf a child aged 10 years also testified to the effect that the appellant committed the offences charged several time no date or month mentioned. In addition for that, PW 6 Salum Omar Mbarouk who is an assistant doctor who examined PW 3 testified to the effect that on 2/10/2013, he received PW 3 suspected to be sexually abused. Whereas according to PW 6 the victim (PW3) was sent to him not on the day he was .................but many days after the incident, and found old penetration. This clearly shows that, the evidence adduced by the prosecution witnesses has not specifically proved the contention the contention that the offence against the January and October, 2013. My main concern is that, can I sustain the appellant’s conviction from that evidence which is tainted with uncertainty of the dates when the offences were committed? This is because o f the uncertainty which exists between the dates found in the charge sheet compared to the statement found in the evidence. Having regard to the entire prosecution evidence on record, I am respectfully in agreement with Mr. Rajab in his submission. Evidence to show that the appellant had carnal knowledge o f PW3 Said Abdalla on any specific date prior to his being charged was crucial and unavoidable. Such evidence, unfortunately, is patently wanting in this case. From the evidence available it cannot be held without demur that the appellant raped PW3on any day prior to his arrest and arraignment. However, it has to be borne in mind that the prosecution in criminal proceedings is under the duty o f proving its case against an accused person beyond reasonable doubt. In doing so, the duty being at the time of framing the charge. As it was observed in the case o f Mohamed Kaningo V. Republic (1980) TLR 279 where it was stated as follows “ ......... it is the duty of the prosecution to file the charges correctly, those presiding over criminal trials should, at the commencement of the hearing, make it a habit of perusing the charge as a matter of routine to satisfy themselves that the charge is laid correctly and if it is not to required that it be amended accordingly.” Also see Charles s/o MakapiV. Republic Criminal Appeal No. 85 of 2012 (Unreported). To be more specific on this issue, the case of Rypba Mariba @ Mungure V. Republic, Criminal Appeal No. 74 of 2003 *unreported) held as follows:- “ It was essential for the Republic which had charged Ryoba with raping one Sara Marwa on 25/10/2000 to lead evidence showing exactly that Sara was raped on the day, a charge the accused was required to answer.” As pointed out cather on, the prosecution failed to produce clear evidence to prove that the offences charged against the appellant w'ere committed between January and October as per the statement of the offence in the charge sheet. I am increasingly of the view that, it is always the duty of the prosecution to make sure that what is contained in the particulars or statement of the offence including the dates when the offence by the evidence and not otherwise. With due respect, in the instant case, the evidence on record is vague and has not specifically proved that the offences against the appellant were committed between January and October, 2013. With such obvious shortfall in the prosecution case, that is why I am reluctant to agree with the prosecution submission due to the fatality of the defect. In view of what has been stated herein above, it is my finding that the prosecution has failed to prove the case beyond reasonable doubt. Without going any further, I think this ground alone has disposed of the appeal as the defect is fatal and is not curable under section 394(1 )(a) of the Zanzibar CPA. I therefore find the appeal to have merit and it is hereby allowed. The conviction is quashed, the sentences o f 3 years and 7 years imprisonment imposed as a result of the conviction is hereby set aside accordingly. The appellant should be released immediately unless restrained for any other lawful reason. Sgd: Omar O. Makungu - CJ 28/1/2015 20 January, 2015 Coram: Ali A. Haji DRHZ Court:The Judgment was delivered today in the presented Mr. Abdalla Juma and Solid Said for D.P.P . Sgd: Ali A. Haji - DRHZ 28/1/2015 I certify that this is a true copy of the original. (George Kazi). REGISTRAR, HIGH COURT - ZANZIBAR