amiri ally another vs republic 2007 tzhc 228 16 may 2007

IN THE HIGH COURT OF TANZANIA

AT TABORA

APPELLATE JURISDICTION (Tabora Registry) CRIMINAL APPEAL NO. 126 cf 127/2005 ORIGINAL CRIMINAL CASE NO. 76 OF 2004

OF THE DISTRICT COURT OF URAMBO DISTRICT

AT URAMBO BEFORE: J.A. KHALIK1, Esq. PRINCIPAL DISTRICT

MAGISTRATE 1. AMIRI ALLY................................................................... APPELLANTS 2. KAWILI MRISHO (Original Accused) Versus THE REPUBLIC ............................................................RESPONDENT (Original Prosecutor)

JUDGEMENT 14th May, 07 & 16th May, 07. MUJULIZ1, J. The Appellants were charged with and convicted of, the offence of Armed Robbery c/ss 285 and 286 of the Penal Code, (Cap. 16 R.E. 2002), and consequently sentenced to serve a 30 years jail term each. They were ordered to compensate the stolen property worth Tshs. 280,000/= and 30,000/= as compensation to the complainant for injuries suffered. The appeals are both against conviction, sentence and orders of the District Court dated 31/05/2005. It was alleged before the District Court that the Appellants Amir s/o Ally and Kawili s/o Mrisho had on the 25th day o f September, 2004 at about 01.00 hrs. at Kalemela “A” village within Urambo District, Tabora Region stolen cash Tshs. 200,000/= one Bicycle - “AVON” (40,000/=) and one mattress (40,000/=) all totaling Tshs. 280,000, the properties o f one MUSSA S/O RAJAB and that immediately before or immediately after stealing, they had used a panga in order to obtain or retain the stolen properties. According to the record the 1st Appellant, Amir s/o Ally was first charged on 30/09/04. The second Appellant Kawili Mrisho was added to the charge on 28/02/2005. Both appellants appeared at the hearing and adopted their respective Petitions o f Appeal without more. The Republic was represented by Mr. Rweyongeza learned State Attorney. For good reasons the republic did not support the

conviction and sentence. It was argued before me that there was simply no sufficient evidence adduced to convict the appellants. The Republic is correct. For that reason I will not dwell into the grounds of appeal raised by the Appellants. Starting with the 1st Appellant Amir Ally: It was pointed out to the Court that there are noticeable shortcomings apparent on the face o f the record. The offence with which he was charged was said to have been committed on 25/09/2004. But according to the record he was not charged until 5 days later, on 30/09/2004. In his defence this appellant says he was arrested on 26/09/2004 at 8.00 p.m and remanded in custody. But no evidence was lead on the part of the prosecution to reburt this assertion. As it is therefore he was remanded in custody for over 4 days for unknown reasons. This is contrary to the express provisions of Section 32 (1) of the Criminal Procedure Act, (Cap. 20 R.E 2002) which requires that once a suspect has been arrested without a warrant then he must be brought before a court of law within 24 hours from the time o f his arrest. In absence of explanation for the failure to comply with the law, his detention was unlawful. Secondly it was argued that the evidence o f all three prosecution witnesses was to the effect that they had seen their assailant for the first time at the scene of the crime. However, since the victim must

have been traumatized by the surprise and injuries suffered at the time of the attack it is difficult in such circumstances to have had opportunity for positive identification. In support o f this position I was referred to RAYMOND FRANCIS V. R. /1994/ T.L.R. 100:- “Since all the witnesses admitted seeing the appellant for the first time during the incidence on that day , it was necessary in their evidence o f identity to describe in detail the identity o f the Appellant when they saw him at the time o f the incident ” There was no such evidence adduced in the case before this court. The learned state Attorney therefore supported the 1st Appellant on his 5th ground that, in the circumstances, there ought to have been conducted an identification parade, which renders support to the 1st Appellant’s claim that indeed the offence could have been tramped up. As for the 2nd Appellant’s case; the three witnesses claimed that they new him from before. But, according to the learned State Attorney, why then, if they knew his residence, didn’t they have him arrested at the earliest time possible. As it is however, he was only charged on the 28/02/2005. This was five long months after the alleged offence was committed. There was no evidence adduced by the Police to explain the delay. Yet according to the testimony of this appellant, he was at his home going on with his day to day life for

all this time. It was argued basing on the decision o f the Court o f Appeal of Tanzania in JUMA SHABAN @ JUMA V.R. Criminal Appeal No. 168/2004 (MZA) (Unreported) where it was held, that, “a delay in arresting the suspect who it was claimed to have been identified and was around all along costs serious doubts on the evidence o f identification.” The facts in the case before me cast doubt on the credibility of the three prosecution witnesses I entirely agree with the submissions and reasoning of the learned State Attorney for the Republic on all aspects. The Learned Trial Magistrate erred in law in discounting the 2nd Appellant’s defence as to why there was unexplained delay in effecting his arrest if indeed it was true as alleged, that he had been identified. The trial magistrate had wrongly ruled that it was upon the accused person to explain the delay and whether he was not at the scene o f the crime on the night in question. It is trite law, that, in criminal trials in our jurisdiction, the burden of proving the charge lies squarely on the prosecution - to prove the accused’s guilt beyond reasonable doubt. What would a lantern lump be doing to be alight at such odd hours of the night in a rural setting? It was incumbent upon the prosecution to call witnesses to confirm how and when they were first informed about the identity of the assailants by the victims. This is one

instance whereby hearsay evidence is not only admissible, but is required by law to corroborate an allegation that the witness of identification did describe how he had identified the suspect at the earliest time possible. The learned trial magistrate erred in law therefore, in ruling that the evidence of the ten cell leader or other neighbors would have amounted to nothing since it would only have been hearsay. The trial Magistrate failed to address the issues o f law and misdirected himself in holding in the way he did, leading to a manifest error of judgement occasioning an injustice to the Appellants. In the premises the convictions are quashed. The sentences are set aside as well as the orders o f compensation. The Appellants are acquitted of the offence o f Armed Robbery c/ss 285 and 286 o f the Penal Code, (Cap 16 R.E. 2002). The Appeals succeed. The appellants should be released forthwith unless they are held on other lawful custodial orders. 16/05/07 Delivered in the presence of the Appellants, and Mr. Zacharia learned State Attorney for the Republic.