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IN THE COURT OF APPEAL OF TANZANIA AT ZANZIBAR f CORAM: KOROSSO. J.A.. KEREFU. J.A.. And MLAC HA, J J U CRIMINAL APPEAL NO. 685 OF 2023 BIATA GERAD DAUDI.................................................................. APPELLANT VERSUS DIRECTOR OF PUBLIC PROSECUTIONS................................. RESPONDENT (Appeal from the decision of the High Court of Zanzibar atTunguu) (Kazi. J.1) dated the 27th day of July, 2022 in Criminal Appeal No. 04 of 2022 JUDGMENT OF THE COURT 30th April & 8ltl May, 2024 KOROSSO, 3.A.: In this second appeal, Biata Gerad Daudi, the appellant, has appealed to this Court against the decision of the High Court of Zanzibar at Vuga in Criminal Appeal No. 04 of 2022. In the Regional Court of Zanzibar at Mahonda, the appellant faced a charge of unlawful possession of narcotic .drugs, namely heroin, contrary to section 15(l)(a) of the Drugs and Prevention of Illicit Traffic in Drugs, Act No. 9 of 2009 as amended by section 11 (a) of Act No. 12 of 2011 of the Laws of Zanzibar (the Act). i It was alleged that on 18/2/2020 at about 11.30 hours, at Nungwi within North District in Unguja, the appellant was found with 110 packets of heroin that weighed 1.899 grams. The appellant pleaded not guilty to the charge and denied any involvement in narcotic drugs. After the conclusion of the trial, convinced that the prosecution side had proven the charge against the appellant, the trial court convicted him and sentenced him to serve ten (10) years in the Offenders Education Centre (Chuo cha Mafunzo). His appeal to the High Court was unsuccessful. Still aggrieved, he has now preferred an appeal to the Court. To contextualize what gave rise to the instant appeal, a brief background will be relevant. Briefly, the facts as discerned from the prosecution witnesses are that on 18/02/2020 at about 11.30 hours, F. 6343 D/CPL. Shaaban (PW3) of Police Mahonda together with WP 11977 D/C Asia Salum while on patrol duty at Nungwi, saw the appellant running which led them to chase her. DC Asia managed to apprehend her. At the time, on her right hand, the appellant carried a small bag. Subsequently, PW3 and DC Asia took the appellant to Mahonda Police Station where they were received by F. 1957 CPL. Abdulhamid (PW2), the CRO Officer In­ charge. D/C Asia then proceeded to search the bag carried by the appellant. She then retrieved therefrom packets with substances suspected to be narcotic drugs which when counted were found to be 110 packets. The 110 packets were put in a. brown envelope which was marked MAH/IR 52/2020 and handed for custody to G. 4697 D/C Kubiya (PW4), the exhibit keeper. On 19/2/2020, Barik Saium Juma (PW1), a chemist analyst at the laboratory of the Government Chief Chemist received the 110 packets from PW4. Upon his analysis, he confirmed that the substance in the packets was heroin and weighed 1.899 grams. On 20/2/2020, he handed back to PW4 the packets (exhibit PI) together with the certificate of analysis (exhibit P2). The appellant's defence relied oniy on the testimony of the appellant as the lone witness who was in total denial of the offence charged. She testified on the circumstances surrounding her arrest stating that she was arrested when coming from purchasing snacks for tea. Furthermore, she denied allegations of having run away when stopped by the police. At the end of the trial, the appellant was convicted for the offence charged and sentenced as stated earlier. Dissatisfied with the trial court's decision she appealed to the High Court unsuccessfully. It should be noted that a perusal of the record reveals that the High Court, in its deliberation and determination of the case, disregarded the following; one, exhibit P2, the certificate of analysis, and two, the statement of WP 11977 D/C Asia admitted as exhibit P3 in terms of section 34 (1) (2) (d) of the Evidence Act, No. 9 of 2016 of the Laws of Zanzibar (the Evidence Act), in consequence rendering them not part of the prosecution evidence. Still aggrieved, the appellant is now before this Court armed with a memorandum of appeal premised on seven grounds of appeal that fault the first appellate court and which paraphrased address the following five complaints; One, not property analyzing the prosecution evidence that is engrained with inconsistencies and contradictions. Two, failure of the prosecution to prove the case to the standard required. Three, not informing the appellant of her right to legal representation and legal aid. Four, failure to consider that the prosecution witnesses were untruthful and left doubts on the guilt of the appellant; and five, giving value to exhibit that was not read aloud in court by PW1 and thus denying the appellant his right to understand the content and substance of the exhibit. At the hearing of the appeal, the appellant was present in person, fending for herself whereas, Mr. Ali Amour Makame, learned Principal State Attorney assisted by Mr. Ayoub Nassor Sharif, learned Senior State Attorney, represented the respondent, the Director of Public Prosecutions (DPP). Upon being accorded time to amplify his grievances, the appellant began by adopting her grounds of appeal as fronted in the memorandum of appeal filed and urged us to consider them and then allow the appeal. She expressed a preference for the respondent's side to submit first while she retained the right to rejoin thereafter if such a need arose. Mr. Makame commenced by addressing the Court on the mode the respondent will submit in response to the appellant's complaints. After a brief engagement with the Court, he submitted that upon reflection, the respondent DPP was in support of the appeal. He advanced the following reasons for their stance; One, he contended that after the first appellate court decided to disregard the statement of WP 11977 D/C Asia (exhibit P3) for impropriety in its admission, it weakened the value of the evidence on the arrest of the appellant and seizure of the 110 packets. According to him, although there is evidence stating that both WP D/C Asia and PW3 arrested the appellant, under the laid down procedures the fact that the appellant is a woman leaves no doubt that the arrest and search were primarily spearheaded by D/C Asia, a woman police officer amongst the two arresting officers. He argued that this fact is amplified further by the evidence of PW3 who adduced that it was D/C Asia who reached the appellant first and retrieved the small bag from her. Also, the fact that it was D/C Asia who ransacked through the small bag found and then counted the retrieved packets which had substances wrapped in foil. It was the learned Principal State Attorney's contention that upon the first appellate court's finding to disregard D/C Asia's statement, in the absence of a search order or warrant and certificate of seizure, the evidence on the appellant's arrest was enfeebled, regardless of the evidence of PW2 and PW3. He argued that, PW3's testimony was that he had witnessed the appellant's arrest and search but that it was D/C Asia who had searched and arrested the appellant. To the learned Principal State Attorney, this meant that DC Asia's statement was crucial to prove the circumstances and conditions of the appellant's arrest and search of her bag. Two, the learned Principal State Attorney argued that the absence of D/C Asia's evidence in essence, also dents the evidence on the sanctity of the chain of custody of the seized 110 packets in that, she was the one who labeled the seized items before handing them over to PW2. He contended that this fact was alluded to in the evidence of PW2 and PW3 who stated that, it was D/C Asia who labeled the envelope where the seized packets were kept and handed it to PW2. It was thus the learned Principal State Attorney's argument that after the High Court disregarded the statement of D/C Asia who had spearheaded the seizure, it created a gap in the evidence on the chain of custody of the seized 110 packets. In addition, which essentially was his third reason, he argued that expunging D/C Asia's evidence as alluded to above, is weakened further by the prosecution side's failure to tender the seizure certificate to support the evidence on the seizure of the 110 packets containing narcotic drugs. He argued that this infraction left the prosecution to only rely on the oral evidence of PW3, whose role had essentially been to give evidence of having witnessed D/C Asia arresting the appellant and seizure of the packets retrieved from the appellant's bag. Evidence, whose value had invariably diminished in the absence of any evidence from D/C Asia, he argued. The fourth reason expounded by the learned Principal State Attorney related to the first appellate court's decision to disregard the certificate of analysis of the 110 packets (exhibit P2), due to not having been read in court upon its admission. Mr. Makame queried the first appellate court's findings that the oral evidence of PW1 was sufficient to prove the details of the, results of the analysis of the 110 packets allegedly seized from the appellant, having disregarded exhibit P2. He stated that had the first appellate court properly examined PWl's oral evidence, it would not have reached that conclusion since the oral evidence of PW1 neither expounds on the conduct of the analysis of the 110 packets nor provides details on the results of the analysis that augurs with the content of the charge facing the appellant. For him, this anomaly rendered the assertion that the 110 packets allegedly seized from the appellant contained narcotic drugs unproven to the standard required. He thus contended that with the highlighted anomalies, it cannot be argued that the prosecution side did prove the charge against the appellant to the required standard. The appellant's rejoinder was brief. She began by extending her appreciation for the learned Principal State Attorney's concession of the appeal. She then reiterated her prayer for us to consider the grounds of appeal and that the appeal be allowed and she be set at liberty. Having heard both sides, we shall proceed by determining all the complaints together and addressing the issue of whether the prosecution proved its case against the appellant to the standard required. Before we proceed thus, we will first address the complaint arising in the third complaint on the failure of the trial and the first appellate court to inform the appellant of her right to legal representation or legal aid. The pertinent issue was whether the trial magistrate had a legal duty to inform the appellant of her right to legal representation or legal aid. On this issue, we are guided by sections 197 and 198 of the then Criminal Procedure Act, No. 7 of 2004 (CPA ZNZ 2004) which provided: - "197- In the absence o f any provision in any other law to the contrary, any person accused before any crim inal court, or against whom proceedings are instituted under this A ct in any such court may o f right be defended by an advocate. 198-Where in any Crim inal trial involving a capital punishment, the accused is not represented by an advocate, and where it appears to the High Court that the accused has no sufficient means to engage an advocate, the court m ay assign an advocate for his or her defence a t the expense o f the State." The right to legal representation is a human right of prime importance for an accused person to ensure the conduct of a fair trial. However, this right is expected to be exercised by the accused person in need of such service by either engaging a legal counsel or seeking legal aid as stated in the above provisions. It should be noted that under section 198 of the CPA ZNZ 2004, the provision is invoked in trials involving capital punishment and the accused person has not sought representation, and the court may at its discretion assign an advocate for his or her defence at the. expense of the State. As to how, when and under which circumstances such a right is exercisable, in the case of Samwel Kitau vs Republic, Criminal Appeal No. 390 of 2015 (unreported), when addressing the import of section 310 of the Criminal Procedure Act, Cap 20 of the Laws of Tanzania (CPA) which as stated in Msanif Ramadhan Msanif v. Director of Public Prosecutions, Criminal Appeal No. 454 of 2019 (unreported) that the provision essentially encompasses the context of sections 197 and 198 of CPA ZNZ 2004, the Court elaborated that:- "... However, for other cases, legal assistance can be obtained upon request and only when the certifying authority considers that there is a need. It is therefore not automatic. There have been a number o f situations where an accused person has been granted legal aid after putting in a special request However, this position only applies to free legal aid, otherwise an accused person is a t liberty to engage an advocate." In light of the above, we are of the view that there is no provision of the law that compels the court to inform the accused of his right to legal representation and if that was the case the provision would have categorically stated thus as stated in the case of Moses Muhagama Laurance v. The Government of Zanzibar, Criminal Appeal No. 17 of 2002 (unreported), when discussing a similar concern. In criminal trials, it is an accused who is expected to initiate such a process and not otherwise. Furthermore, the Court in the case of Maganga Udugali v. Republic, Criminal Appeal No. 144 of 2017 (unreported) stated that it is the duty of the accused to show his need for legal assistance and that failure of the court to inform and provide free legal service to an accused 10 of his legal right is not fatal. Therefore, for the foregoing, we find the complaint to be misconceived. Moving to the complaint that the prosecution failed to prove its case to the standard required, what will guide us in our determination is the well-settled legal stance that a second appellate court should refrain from interfering with a concurrent finding of fact by the trial and first appellate courts. The Court may interfere as such only when it is satisfied that there has been misapprehension of the evidence, miscarriage of justice or violation of some principles of law or procedure by the courts below (see, Amrata! Damodar Maltaser and Another t/a Zanzibar Silk Store v. A. H. Jariwalla t/a Zanzibar Hotel [1980] T.L.R. 31, Felix Kichele and Another v. Republic, Criminal Appeal No. 159 of 2005 and DPP v. Jackson Mtares and 3 Others, Criminal Appeal No. 2 of 2018). In the instant appeal, both the trial and the first appellate court were satisfied that the evidence on record pointed to the guilt of the appellant beyond reasonable doubt. The issue for us is whether there is a basis for us to interfere with the said finding. Suffice it to say, having carefully considered the evidence before us, we agree with the learned Principal State Attorney's assertion that the ii evidence before us leaves a lot to be desired. We are of that view for the following reasons: One, as expounded by the learned Principal State Attorney, after the statement of D/C Asia was disregarded by the first appellate court, undoubtedly, this dented the prosecution evidence relating to the appellant's arrest, search, and seizure of the 110 packets. This is because D/C Asia was the officer who arrested the appellant and allegedly seized the said 110 packets from her bag. This fact together with the failure of the prosecution to tender the list of seized items (certificate of seizure) and the absence of an independent witness during the search and seizure of the said packets further weakened the prosecution case. The evidence of PW3 is that the appellant was arrested while he and D/C Asia were on normal duties of patrol. The charge alludes that the offence was committed on 18/02/2020 around 11.30 hours and thus the applicable arrest, search and seizure were as provided in the Act. Section 33(1) of the Act, essentially alludes to the application of the CPA ZNZ 2004 during arrest, search and seizure under the Act. It stated: "The provision o f any iaw in force in Zanzibar dealing with arrests, search, seizure and powers and duties o f investigation by officers o f the policer customs, revenue or any other person having power o f arrest, shall apply to this A ct." 12 Indeed, at the time of the conduct of the trial, the applicable procedure for arrest, the conduct of search and seizure by the police in places including where the appellant was arrested was governed by Criminal CPA ZNZ 2004. PW3's evidence shows that the appellant was arrested without a warrant as the arrest occurred while on patrol. However, this omission may not be a great concern as we are mindful of the provisions of section 22 of CPA ZNZ 2004 addressing arrests without warrants. It states: "22. Any police officer may, without an order from a m agistrate and without a warrant, arrest - (a) any person who has been concerned in any cognizable offence, or against whom a reasonable com plaint has been made, or credible inform ation has been received, or reasonable suspicious exists, o f his or her having been so concerned." Nonetheless, there was no complaint of impropriety of the appellant's arrest thus we shall not dwell on this issue any further. The query nagging us is whether there is evidence that the appellant was searched and the 110 packets were seized from her bag. This is because according to PW3 and PW2, it was D/C Asia who arrested the appellant, searched her, retrieved packets from her bag, counted them and then seized the 110 packets therefrom. PW2 stated that he received the 110 13 packets from D/C Asia, but did not testify that he also recounted them and verified their number. The importance of having an independent witness during the search of the accused person to provide independent evidence was restated in the case of Jibril Okash Ahmed v. Republic, Criminal Appeal No. 331 of 2017 (unreported). Therefore, in the absence of evidence from or the statement of D/C Asia or evidence from any other independent witness, we are convinced that there is no other available evidence to substantiate the seizure of the 110 packets from the appellant to the standard required. A fact conceded by the learned Principal State Attorney in his submission. In addition, there was neither a report of the seized items tendered into evidence as required by section 40 of the Act nor a list of the seized items signed by witnesses as required by section 147 (3) or 148 (2) of the CPA ZNZ 2004. The importance of having such a list was stated in the case of Malik Hassan Suleiman v. S.M.Z [2005] T.L.R. 236, which interpreted the provision of the then section 114(1)(2) of the Criminal Procedure Decree, Chapter 14 of the Laws of Zanzibar, a provision similar in content to section 148(1)(2)(3) of CPA ZNZ 2004. The fronted anomaly above leads us to the question of whether what is alleged to have been seized from the appellant was what was 14 analyzed by PW1. This is because as alluded to above, no evidence is on record from D/C Asia showing that she handed over the seized packets to PW2. PW2's evidence of having received the packets from D/C Asia is lopsided in the absence of D/C Asia's evidence or documentary evidence to support it. Although, there is evidence that subsequently PW2 handed packets to PW4 for custody and that PW4 took the packets and handed them over to PW1 for analysis, we are of the view that the break in evidence either oral or documentary between the seizure of the packets from the appellant's bag and handing them over to PW2, creates a break in the chain. We have also observed that there was no explanation provided by the prosecution for the failure to provide the list of the items seized and to comply with the search and seizure procedures. We thus find that had the High Court Judge carefully considered the circumstances of the search and seizure, especially after expunging the statement of DC Asia, he would have found the evidence wanting. Two, undoubtedly, the decision of the first appellate court to disregard exhibit P2 and the statement of D/C Asia, left holes in the prosecution case as stated herein. It is on record that after it decided to disregard exhibit P2 in the determination of the case before it, the High Court was of the view that the oral evidence of PW1 that addressed the analysis of the seized 110 packets was sufficient to prove his findings of 15 the analysis of the 110 packets. Having examined the evidence of PW1, we differ from the finding of the first appellate court. Like the learned Principal State Attorney, we are of the firm view that, PWl's oral evidence is limited in context and does not provide the requisite details for us to conclude that it proficiently reflected the contents of the analysis of the seized packets to establish what is in the charge. We are convinced that PWl's oral evidence primarily addressed his professional competence, work experience and what transpires upon receiving samples for analysis, especially from the Police Force. He acknowledged having prepared and signed the certificate of analysis which was tendered and admitted as •exhibit P2. He explained what transpired on 19/2/2020 upon receiving the brown envelope with 110 packets labeled MAH/IR 52/2020 from PW4. Being an expert, we believe, the report he generated from the analysis was very important to substantiate the contents of the charge. Therefore, in the circumstances, we agree with the learned Principal State Attorney that had the first appellate Judge properly considered the import of PWl's oral evidence as it relates to the findings of the analysis, he would have found that the essential facts to prove the charge against the appellant were not proved. For the foregoing, we are of the firm view that the prosecution failed to prove the charge against the appellant beyond reasonable doubt. 16 We find our determination above, sufficient to dispose of this appeal. In fine, we allow the appeal, quash the conviction meted to the appellant and set aside the sentence. We order her immediate release from the Offenders Education Center (Chuo cha Mafunzo), unless otherwise lawful held. DATED at ZANZIBAR this 7th day of May, 2024 W. B. KOROSSO JUSTICE OF APPEAL R. 1 KEREFU JUSTICE OF APPEAL L. M. MLACHA JUSTICE OF APPEAL The Judgment delivered this 8th day of May, 2024 in the presence of the appellant in person and Mr. Annuwar Khamis Saadun, learned Principal State Attorne^for the respondent Republic is hereby certified as a true copy, J R. LYIMO TY REGISTRAR tfbURT OF APPEAL 17