bahati joseph matonya others vs republic 2012 tzhc 185 28 august 2012

IN THE RESIDENT MAGISTRATE COURT OF DODOMA AT DODOMA (APPELLATE JURISDICTION) PRM. CRIMINAL APPEAL NO. 34 OF 2011 (DC) CRIMINAL APPEAL NO. 66 OF 2011 ORIGINAL CRIMINAL CASE NO. 345 OF 2007 OF THE DISTRICT COURT OF DODOMA DISTRICT AT DODOMA BAHATI JOSEPH @ MATONYA & OTHERS APPELLANT VERSUS THE REPUBLIC.................................. RESPONDENT 3/7/2012 & 28^8/2012 JUDGMENT R.I. RUTATINISIBWA. PRM. EXT. J. Three appellants, namely (1).BAHATI JOSEPH @ MATONYA, (2) HASSAN RAMADHAN @ HANS and (3) SIMON MMTYALUMU, appeared before Dodoma, District Court charged with Being in unlawful possession of fire arms c/s 4 (1) (a) and 34 of the arms and ammunitions Act of 1991. They were convicted and punished to serve a term of five years each. Aggrieved by the decision, the instant appeal was lodged. Each appellant filed his memorandum of appeal. If read and put together the three appellants commonly state that the charge was not proved beyond reasonable doubt. The story that gave rise to the instant appeal can briefly be narrated as follows. The particulars of the offence on the charge sheet said that on 8/01/2007 at about 10.15 hours at Ntyuka village in Dodoma Municipal, the accuseds/appellants were found in unlawful possession of one Pistol -Browning, with serial number 44411 and two pumping Action gun with number R. 658131, and R. 659080 without lawful permit or licence. Each accused /appellant was not soft to plead guilty. On the night hours of 8/1/2007 the DCT - Secondary School was invaded by thugs. The watchmen were tied with ropes. The accounts office was broken and opened. PW1, Boniface Asukile, the teacher who received the report from the watchmen reported the matter to the police officials of Mvumi police out post. The police officials 4responded and went at the scene. Then they launched the investigation. They pursued foot prints from the scene. They went up to Ntyuka and succeeded to apprehend the accuseds/ appellants. It was said that the 3rd accused/appellant had a pistol and fired the bullet on the air. That the suspects lead away up to the place where the weapons were hidden. They were un earthed and produced before the court as exhibits. In their defence the accuseds/appellants still resisted. The Respondent was represented by Ms. Mbunda learned state attorney. From day one she was not ready to support the conviction. The appellants were present when the matter was called for hearing they submitted but nothing of assistance was added to the grounds of appeal. The learned state attorney supported her stance, and said that the charge sheet which said that the accuseds appellants were found in unlawful possession of the gun was not proved. That it is not seen any where that the accuseds/appellants were asked to show that legally owned the guns but failed. That the adduced evidence had no bearing to the charge sheet. After sober perusal of the proceedings and the copy of judgment. I agree with the learned state attorney. No witness was heard saying that the accuseds were asked to produce documents for ownership of the guns but failed. The trial court heard from five witnesses. PW1 Boniface Asukile, the teacher at the secondary school were the incident occurred explained how the accuseds were caught. That was also echoed to PW2, Insp. Aloyce Nindi, PW3, DCPL. Joseph and PW4, Lucas Lembile, PW5, A/Ins. Magayane, who posed as an investigator who was assigned the matter to investigate. He wrote the cautioned statements of the accuseds and tendered them in court; though the cautioned statements were wrongly admitted as I will explain later. « It could be not justifiable to task the appellants for illegal ownership of guns while were not asked to produce the documents be it a permit or licence. Another reason advanced by Ms. Mbunda, was that the trial magistrate misdirected himself when convicted the appellants for armed robber/ while were charged with unlawful possession of the guns. I have the copy of judgment before me I am not ready to point the accusing figure to the trial magistrate. The last paragraph which carry the conviction contains the following words. I quote. "For the reasons I have given above, I'm convinced to find that the prosecution has proved the guilty o f aii the accused persons in the offence they stand charged of being in unlawful possession n of fire-arm c/s 4 (i)(a) and 34 of the arms and ammunition Act of 1991 and I accordingly convict them as charged". That quotation makes it crystal clear that the conviction was not directed to armed robbery. I said here above that the cautioned statements were wrongly admitted. The reason is when'' PW5 was tendering the cautioned statement of each accused the accuseds, and l^r. Nyabiri who advocated for the 3rd accused objected. After the objection the trial court was dutiful to conduct an inquiry to find out whether the cautioned statements were taken and freely, (see ) Seleman Abdallah and Others V.R. Cr. App. No. 384 of 2008 (CA) un reported). In the instant case that was not done. By so doing and since the judgment considered the cautioned statements there was no fair trial. That said the instant appeal is allowed. The conviction is quashed and the sentence is set aside. The appellants, each one be released forthwith unless held on other lawful matters. Delivered in the presence of the appellants and Mr. Kyando State Attorney. Right of appeal explained. ( R.I. RUTATI NISIBWA) PRM. EXT. JURISDICTION 28/8/2012 .nT, , Tr PR?f\!CIP/-U. RESfDENT MAS ( EXTENDED JURISDiC ) RESIDENT MAGISTRATE C tlU k 'f uODUMA