NA TZHC Dar es Salaam8

IN THE HIGH COURT OF TANZANIA AT .. DAR ES SALAAM CRH-HNAL APP. NO. 172/94 HIYARI ABDALLAH & OTHERS •••••••••••. .APPELLANT Versus THE REPUBLIC •••••• , ••••• ~ •••••••••• _RESPONDENT KY ANDQ.,_.J : ·. The appellants are appearing against their convictions for ,the offence of robbery with violence and a sentence of fifteen years imprisonment imposed on each.one of them by the District Court at Ki vukoni, Dar es- Salaam ( Shonga n:,l) • They were charged with committing the robbery on 18.7.1990 at around 3.00 a.mat Buguruni kwa.Malapa iri Ilala District, Dar es Salaam. They were charged together with Kulwa Salum and Ha.mis Salum. Kulwa Salum was acquitted, Hamis Salum was sentenced to strokes of corporal punishment and he has not appealed. Nor has the Republic appealed against the sentence. The evidence upon which the appellants convictions were based was that on the night of the alleged robbery Jumanne Mwamtemi (PW.I), the complaint, was at another place attending a funeral of his broth~~~. He ;1.ad ·1eft at his place a lady, Sharifa Ally (she d.i.c~ :..1.ct _test:..fy) and the place was a room in a house which had eight tenants in all. At night, as shown, the r·, i:11-:~ ..---r; place wa:: invaded hj _,.·. 1.rt10 stole a number of items, after threatening the occupa--:-:L· ·r. i,·,i.tL death. One of the tena::it::, -:_n ·sh~ house was Abdul Hemed (PW ,_2), He testified that at t~e time of the alleged robbery he went out of his room to go and attend the call of nature. As he was returning to the room he he-ard noises of people in the complainant's roorr_ r"icms.nding, ;iieta pesa tutakua s~_~i II and a reply saying 11 pesa sijui zilipo na hakuna pesa 11 • He said he climbed up the ceiling of his room and from there he ~e.ped j.nto . the comJ? 1 ainan t' s room. He said he . . saw . - L ±;our . • robher~ out he w~s able to. identify only Hiyari Abdalla0- the first appellant,.· amongst them. ... ..... . /2 .- = 2 = .. The first appellant; he told the trial court in his e·,xidence, was neighbor of theirs.· PW. 2 · testified further that later the robbers wanted to ·move to his room. ·He said he heard them say the should break the door of his room _but he said he told them, after arming himself with a panga, that they should not bother th ems elves with breaking the door as he was opening it for them , himself O He said on hearing this the group of ro_bbers fled. - He said he and neighbours who then :Eurned up tried to give chase but the robbers escaped. He said he and two others, including Sharifa, then went to Bugu.:tuni Police Station to report the incident •. He said they were given tvw Police Officers, D.46 39PC. Manyika (PW.3) and D. 4947 PC. John (PW.!3), and then returned to the scene. At the scene they found marks of .robbery but they were able (-J also to notice foot prints of the alleges robbers. They followed those prints up to a house where they found an electric iron outside the door. The iron was one of the items stolen from the complainant's house. The Police Officers then f~red gun shots _in the air. The firing alleged extracted a reply from Selemani Khatibu, the second appellant, (who was the fifth accused at the trial) which was, ;fVitu vimo humu ndani na vyote vimekuja na Hiari 11 • Hiyari then allegedly opened the door and·all the sv.s- pected robbers were then f6und in the house, several items wer also recovered and these were said to have been the property ef the complainant stolen during the robbery. The suspects weJte then arrested and taken to the Police Station at Buguruni. There they were charg, ·i ··" -;_,_ -::_'__._e. offence in this case, Later they were taken to court e.f i ct~ seen, the court convi•ted. them ·as charged. In their defences appellants Hiyari Abdallah and Seleman Khatibu elected to give evidence on oath from the wi tnes~ etand,. Appellant Ally Ramadhani elected . to remain silent.. The first ~ appellant, Hiyari Abdallah, testified that on the night of 'the. robbery charged in this case he had attended a dance at KJ,gongo Bar. The music there he said was being played by Marquis Ja~z Band. He said at around midnight he set out to r_eturn home~ He said when he reached home his mother would not.open the door for hi_m so he rl.ecided to go to his friend 9 Seleman Hatib~• = 3 = He said there he found the other appellants and as they were . asleep they were awakened by the Police. He said they were then arrested and taken to the Police Station where they were charged with robbery with violence. He denied involvement in the robbery.· As for the second appellant Selemani Khatibu, he testified that on 1707.90 he visited a friend at Vingunguti, Buguruni. He was he said, with Hamis Salum, the third accused at the trial. He said at a. round.10.45 they both returned to the- ' .place where they were later awakened by noises of the Meizif Mwizi ~ i and they were then arrested by the Police. . He denied . that he was involved in the robbery charged in this case~ The learned trial magistrate accepted the evidence· led or adduced by the prosecution and on the basis of it he, as seen, convicted the appellants. In this appeal the appellants impugn the de~ision of the magistrate. In particular they contend that there was no or correct identification of them as the robbers. They have referred the court to MOHAMED Vs, REx I (1942) GEACA 72 and contend that the identification by PW•-~· w~~ completely unreliable and ought not to have been acted on by the trial court. I am of the view myself that if thr: conviction had -re~ted ' only on the evidenc'? cl' PW. 2 5 the appellants would indeed have been having genuine complaints· against ·:::i12 judgment of the trial co·-1rt. But i · 1 i- 1 :•" ":· --:viction) was not based on that .' ·; evidence alone. It we:·:; ~ ..:i.::,1:: on the fc.Jt-prints that led ·t»tm the scene . of the· roob1-,:..7 i.:tp to where the appellants we1fe . found.· and aprehended. AJ.::;o _.;_ t was based on tl1e evidence that they were found with the stolen items soon after the robe-,y. Th.s . evidence' taken togetherproved' in my viev✓i,ng the' ~&1-il ty of the appellants beyond all reasonable doubt. The trtal".ovrt ,, was· justified therefore in convicting them and their appeals to this court are completely meritles. They are hereby dismissed in their entirety. L.A.A. KYAN~ DAR ES SALAAi:Ji" 29/1:'-:>r, _ . - JUDGE _\.pl-·t',J..iEuf".':.i · - 1 : J.· . . , present. 7 r ' i~CS:)C/ \1.. 1~ •. . ) • ... ) .:: ~-- (:l-l~_Y1,.; .....__,...1i_