19700521 TZHC Mwanza

IN THE HIGH COURT OF TANZANIA AT MWANZA. APPELLATE JURISDICTION MWANZA REGISTRY) CRIMINAL APPEAL N0,:641 65, 66, & 90 OF 1970 ORIGINAL CEININAL CASE NO. 435 OF 1969. OP THE DISTRICT COURT OF KIGOLIA DISTRICT AT KIO-OMA Before: B.D.Chipota, Esq: Resident Magistrate. JUNA SAIDI ANZURUNI isi ) 3.FALIJALASAID 4. JUMA MOHM'IED ), • • ) ' - • APPELLANTS (Original Aecuseds) Versus THE REPUBLIC. . .., . ., .... . ... .... . RESPONDENT * (Original Prosecutor) CHARGE: Personating Public Officer under section 100(2) of of P.C. 2nd Count: Robbery with violence c/s 285 and 286 of the Penal Code. JUDGEMENT . Seaton J. These four appeals have been consolidated. T110 appellants, together with a fifth accusod who was acquitted, were jointly cherFed on two counts with hawing personated a Public 0f:icer and robbery with - violence. It was alleged that, falsely representing themselves as Police Officers, they had arrested and searched Ilbengi Antoine, the ciplainant, and stole from him 70 Congolese Zaire (valued at T. shs. 770/—) while threatening him with violence. The complainant is a Congolese national and the events were alleged to have occurred while he was on a business visit to Kigoma town. The trial cosaienccd before the District Magistrate but after five prosecution witnesses were heard, the Resident Magistrate replaced him. A note on the record indicates that the previous Magistrate having left for a ix—mon-th courso t the accused persons were all content for the case to proceed without re—call of previous witnesses. This procedure is sanctioned under s. 196 of the Criminal Procedure Code. 1 -lowevor, in the present case s it seems to have contributed to some confusion since neither Magistrate appears to have observed fullr the guiding principles laid down in Amiralilsrnail vsR. (IT.L.R. 370). In tile record of the evidence as well as in the judgment, the accused persons were referred to merely by numbers and not by name. The prosecution witnesses diverged considerably in teir evidence as to the position and location of the appellants and their behaviour at the time of their arrest. These matters were important because the identification of the appellants rested mainly on the ovidence of the complainant - all the rest was circumstantial. The complainant said the first two accused wore standing a few paces outside the bus but attempted to run away when the Police began to arrest the first two accused; however the other prosecution witnesses variously described the first two accused as sitting or standing outside the bus or at tho door of the bus intending to move' inside at the time of their arrest, with the third and fourth accused outside. . - 2 -. to move inside at the time of their arrest, With the third and fourth accused outside. It is not known to what extent the discrepancies were caused by the fact that the complainant spoke no Swahili and his testimony had to be translated from Lingala (two different interpreters being successively used). Nor is it clear whether the accused persons retained their same positions in the dock before each Magistrate. It is noted that their positions as enumerated and described in the charge sheet are different from tlie way they are enumerated at the beginning of the judgment. Learned State Attorney has pointed to other discrepancies and irregularities to all of which I need not refer. The fifth accused was acquitted because the learned Resident Magistrate considered the evidence of the complainant as to identification was unreliable; he had given a discription to the police from which they arrested the fifth accused but no identification parade was hold. It istrue the fifth accused produced an alibi while the appellants did not. But in the circumstances of this oase learned State Attorney submitted that the evidence of the complainant ['1 as to identification should not have been considered sufficient against the appellants either had the trial cou:t properly directed itself. For all of the above reasons, learned State Attorney stated that the Republic reluctantly did not support b1iO convictions. With respect, I agree that the record of proceedings is so unsatisfactory as to leave a reasonable doubt as to the proper identification of the appellants. I haveoonsidered whether a re—trial should he ordered, but it seems this would result in great delay and inconvenience as the comp1ainnt and his wife are not resident here and have already returned to Congo. - The appeals are accordingly allowed. The convictions quashed and sentences set aside. The appellants, who hove already served about 6 months of the sentences imposed, are to be released from custody forthwith unless otherwise lawfully detained. Delivered in Court at Mwanza this 21st day of May, 197 0 - •1 (E.E.SEATON) JUDGE. Mvvanza