Hamadi Pastory vs Republic

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (BUKOBA SUB-REGISTRY) AT BUKOBA CRIMINAL APPEAL NO. 20995 OF 2024 (Arising from Criminal Case No. 36 of2023 District Court ofBukoba) HAMADI PASTORY..................................................................... APPELLANT VERSUS REPUBLIC.................................................................................... RESPONDENT JUDGMENT 14th and 19th November, 2024 BANZL J.: Before the District Court of Bukoba (the trial court), the appellant and his colleague, Mahamudu Nyangasha (the first accused at the trial court) were jointly and severally charged with two counts; obtaining money by false pretences and gang robbery contrary to sections 302, 285 (2) and 287C of the Penal Code [Cap. 16 R.E. 2029] (the Penal Code), respectively. In the first count which involved the first accused only, it was alleged that, on 23rd February, 2022 at Hamgembe area, within Bukoba District in Kagera Region, the first accused by false pretence and with intent to defraud did obtain a total of Tshs.6,000,000/= from Charles Ambrozi by assuring him that he can sell him vanilla after the deposit of Tshs.6,000,000/= the fact he Page 1 of 9 knew to be false. It was alleged in the second count that, on the 24th February, 2022 at Kemondo rea, within Bukoba District in Kagera Region, the first accused and the appellant did steal cash money valued at Tshs.41,000,000/= the property of Charles Ambrozi and immediately before such stealing did assault Charles Ambrozi and Jacobo Jofrey in order to obtain and retain such property. The appellant and his colleague denied the charges and, in a bid, to prove the case against them, the prosecution side called six witnesses. In the main, the prosecution evidence reveals that, on 23rd February, 2022, Charles Ambrozi (PW1) and Jacob Geofrey (PW2) met with the first accused who promised to sell them vanilla. PW1 advanced him Tshs.6,000,000/=. On 24th February, 2024, PW1 met with the first accused who came with two motorcycle riders and began a journey to Kemondo and Itongo villages to collect the vanilla. Upon arriving at Kemondo area, the appellant joined them and when the first accused asked them to continue with their journey, PW1 refused. It was at that juncture when the first accused threatened PW1 with a machete and together with the appellant and five other persons, they stole his bag containing Tshs.41,000,000/=. PW1 and PW2 raised alarm and with the help of other people, they managed to arrest the appellant though he had nothing in his possession and took him to Kemondo Police Station. The Page 2 of 9 evidence of PW1 was supported by PW2 who insisted that, the first accused with his colleagues threatened them before they stole the alleged money from PW1. On 28th February, 2022, the first accused was arrested and after being searched in his house, various properties were retrieved and seized including cash money Tshs.3,335,000/=. According to G.5096 D/C Ibrahim (PW4), during the interview, the first accused confessed to commit the alleged offences. His cautioned statement was admitted following an inquiry after being objected on the ground that, it was involuntarily made. In their defence, the appellant and the first accused denied to have committed the alleged offences. According to the first accused, he was arrested at his home soon after he had returned from the shore where he went to collect sardines. The police seized his properties including cash money Tshs.3,335,000/=. On his side, the appellant claimed to be arrested at Kemondo area while he was just walking with his friend and taken to Kemondo Police Station. He stayed in custody for several days before he was arraigned to Court. After receiving the evidence of both sides, the trial court was satisfied that, the prosecution side had failed to prove the case beyond reasonable doubt against the first accused person and thus, it acquitted him on both counts. On the other hand, the appellant was convicted with the offence of Page 3 of 9 gang robbery simply because, he was arrested he the course of escaping from the crime scene. Consequently, he was sentenced to thirty years imprisonment and ordered to refund PW1 the robbed cash, Tshs.41,000,000/=. Aggrieved with his conviction, sentence and order, the appellant through Candid Attorneys lodged this appeal containing three grounds which can be summarised into the following complaints; one, the case against the appellant was not proved beyond reasonable doubt and two, the conviction of the appellant was based on contradictory evidence of PW1, PW2 and PW3. When the appeal was called for hearing, Mr. Gerase Reuben, learned Advocate appeared for the appellant while, the respondent was represented by Mr. Erick Mabagala, learned State Attorney. In his brief submission, Mr. Reuben contended that, the prosecution side failed to prove beyond reasonable doubt that, PW1 and PW2 were in possession of Tshs.41,000,000/= at the time of commission of the alleged offence. He added that, according to PW2, they got such amount from master dealers of vanilla but none among those dealers was brought to Court. He further argued that, the conviction of the appellant was based on contradictory evidence of PW1, PW2 and PW3. According to learned counsel, while PW1 said they were robbed Tshs.41,000,000/= on 24th February, PW2 Page 4 of 9 said, it was on 23rd February, 2022, and PW3 said, the robbery was committed on 24th February, 2022 and the amount involved was Tshs.49,000,000/=. These contradictions cast doubt on when the offence was committed and what amount was robbed from PW1. He therefore prayed for the appeal to be allowed by quashing the conviction and setting aside the sentence and order made against the appellant. In his reply, Mr. Mabagala supported the appeal on the reason that, the offence against the appellant was not proved beyond reasonable doubt. Expounding his stance, he submitted that, the appellant and the first accused were charged with the offence of gang robbery but at the end of the trial, the first accused was acquitted while the appellant was convicted. He added that, in law, the offence of gang robbery cannot be committed by one person as it was stated in the case of Kamugisha Elizeus William and Another v. Republic (Criminal Appeal No. 625 of 2020) [2023] TZCA 18001. In that regard, after the trial court had found that, there was no evidence against the first accused, it could not have convicted the appellant with the same offence of gang robbery. He concluded his submission with a prayer for the appeal to be allowed. Page 5 of 9 Having carefully considered the evidence on record together with the submissions of the learned counsel for both sides, the issue for determination is whether the appeal has merit. As alluded above, the appellant was charged with the offence of gang robbery together with the first accused but at the end of the day, he was the only one who was convicted with the said offence. Now, the next question for consideration is whether the charge of gang robbery could have been committed by the appellant alone. Section 285 (2) of the Penal Code provides that: "Where two or more persons steal anything, and at or immediately before or immediately after stealing, use or threaten to use actual violence to any person or property in order to obtain or retain the thing stolen commits an offence of gang robbery." (Emphasis supplied). According to the provision of the law above, for the offence of gang robbery to be established, the prosecution should prove that; one, there are two or more persons; two, they must steal anything and three, they used or threatened to use actual violence in order to obtain or retain stolen thing. The main ingredient of the offence of gang robbery is that, it must be committed by two or more persons. In other words, the offence of gang Page 6 of 9 robbery cannot be committed by one person. In the case of Kamugisha Elizeus William and Another v. Republic {supra}, it was held that: "In our considered view, in the circumstances of this case, the charge against the 1st appellant on gang robbery cannot stand as the prosecution evidence did not prove that there were two or more persons who committed the offence contrary to section 285 (2) of the Penal Code. ...It is thus our finding that, the charge of gang robbery against the 1st appellant alone cannot stand to warrant his conviction." In the matter at hand, the trial court after analysing the evidence on record, it concluded that, the prosecution evidence was wanting in respect of the first accused for both offences, obtaining money by false pretences and gang robbery. Now after acquitting the first accused on the charge of gang robbery, the trial court committed an error to convict the appellant because, the offence of gang robbery cannot be committed by one person. By convicting the appellant alone, it means that, the offence of gang robbery was committed by one person which defeats the spirit of section 285 (2) of the Penal Code that establishes the offence of gang robbery. Under those circumstances, the appellant was wrongly convicted with the offence of gang robbery. Page 7 of 9 have sufficed to acquit both, the appellant and the first accused with the offence of gang robbery. From the foregoing reasons, I find the appeal with merit and I hereby allow it by quashing the conviction and setting aside the sentence and order against the appellant to repay the victim Tshs.41,000,000/=. Consequently, I order his immediate release from prison unless otherwise lawfully held. 19/11/2024 Delivered this 19th day of November, 2024 in the presence of Mr. Gerase Reuben, learned counsel for the appellant who is also present, Mr. Erick Mabagala, learned State Attorney, Hon. Audax Kaizilege, Judge's Law Assistant and Ms. Elizabeth Kobelo RMA. Right of appeal duly explained. Page 9 of 9