19791031 TZHC Arusha

71, • IN THE HIGH C0UT OF TANZNIJ\ ATARUSHA APPELLATE tURISDICTION HIGH COJRT CRIMINAL NO0 28 OF 108, (;OrirgIh ai Crimina1 base No0 104 of 1977 of the Distrie t Court of Arusha. Distric At ArUSb2) - BEFORE E. N0 MtJUO (MRS) Resident Magistrate GODF •' MIR..AM 00000000 00000000000000000 00 000 0 (original Accused) ver$uS C, •. .• THE REPUBLIC 0 . . 0 0 00 0 0 00 0 0 0 0 0 00 0 000000 0 00 000000000 RESPONDENT (Original pcie-ou*oV) JtJDGEMNT •.Mwesluno, J. The ba,.nqüeiorin this appeal is not thequestioflQ.. bias or the part of the lear'ned trial magiørate, for biaSed indeed she could be, but the cruxt of tko matter is wheth6 the appellant together with the othept witth whom he stood chared with armed robbery contrary to sections 285 and 286 / . of tle Penal Code were properly Rnd suiicient1y identified as the pe±'sôns who peretrnted the ails ;od offence On 2lt April 1977 'our accusod oono, n3Ne17, Willy Mng'i 4 1assan Oma, Samweli Joram Shaiva and Godfrey Amirm were, by ArthhDitriet Court presided over by E0N0 Munuo (mrs) Resident Mag.strte, !ound gu. 1 ti , and convicted of ro'bbèry with violence contrary . ,. sections 285 and 286 Of the Penal Codes Upon convidtion the accused persons then eonvicts were committed to the H 1 ghCourt for sentence and they were' éaOh sentenced to nine yea's imprisonment by nr brother Judge Mnavas, as he then was (nov Judge Kiongozi) cm '-th July, 1977. Aggrisved by both conction and sentence GodIrey AInix'am has appealed to this court through the services oe his ;. . learned counsei Mi' . Mahatane •. Ths grounds of appeal which were subéeQuentj.y strongly contest€d by either aide before this c.Qur:t run as ,follows • That the 1eayd. R 0 ident Magietr ate rrëd in finding that the identificaficn.:of the accused pth'sons had beenpiovedbeyonc o:3Oib1e doubt. 2. That the learned Residc.nt i i.ite erred in convicting the appollunt it ' La ce being • • . proved beyond reaionable doubt :• 0000J Tt rt 1 3, That the learned flsi.dent. Magiotrate erred in ioivicting the appellant ac;:it the weight of evidenc&J To resolve this callene by tho r counsel for the appellant on the ftctual pbtin of 'th. c. one has to revert to the evidence in the cao to cce t 1t:r'lished therein. Thiring the night of 17th Pro ri 1Y'1 t obout 3.00 a.m. the first accused person Willy w 'c•s indisputably .:aTD,Fo1d1er dressed in a frili t unifrm was on the way to M0nduli TOPODOFO damp and was ,ai;inc' 'r any lift to reach there.. While so waiting he met three people dreed-in militia uniforms. Those three people t.un6 out to bethe': :.€hreé. accused persons named Hassamed Omar, Semeli J 0ram Sha].ua and Godfrey Amirarn as the evidence then revea1dihthe trial court, - The f6urt together went to the house of P0LI 3, one Shtned Mplapd andknocked at the door, When P0!01 opened the door the four accused persons held him at.p -,un point, ordered his family members out and the house was ransacked purportedly in the cou'-se of a search for toreign exchange or for smuggled goods. cused persons Nos. 2 and 3 held their gurs pointing -at .P.W,I, P.W.8 and other children whiLe: acuso.d pexsons Nos. I and 4 entered the hou e and searched eicry-i hero, by ope.ning boxes, combihg bed, nttresses, cupboards books, papers,. drawers but managed to get only one 20/ shi1lixgs note in Kenyan currency. Then the accused persore Nos0 I and 4 called P.LI 1s1de the house and demanded money ; from him. To save his 11Th and the lives of his ±'am21J members P.LI gave them shs * 400/= in four notes of ioo/= shillings each which he handed over to the fourth accused porsoxi. Then the four accuaedpersons warned P.W.I not to reveal that i.n1dent to any one else or else they would do sonething worse ththi that to him. At the time of be-ing ordered out one of the small children of P. cried and one of the soldierly dres.ed persons cut the small girl with the sword.ofis riffle at the 01SOW and the girl was brought before the trial court and tb learned trial magistrate saw scar of the .hea1e. woupd on the elbow Shortly .ate.r their departure a 999 PoIjc6 vehicle passed on patrol nearby and ?0W01 stopped them .nd. narrated the ordeal he had jit'exéienced -to .tiiem-... T -i Police Officers took the complairiont ith them into thir vehicle and as soon as thyarrivd at Tota1 5.percl Etstdn P.W01 saw and identified the firstaccuscd person viho wao standing there. P.C. ChaLe P.C. dhale (P.W6)waih •th 999 m.toriichicle' took the f i r s t accused and led him to t 1 c PoJcc. jttirjn nere he was searched and found With hs .127/15 of, ;hich one was 100 1= shillings note0' 0 The comp1ihant still remained at thc Police Station to wait ±or th6 militia man to see whethur he could,identify his duiprits when all militia men would cola..:'t theolice Station to reu±n their firearms0 Indeed tiiat'Ippened when at about:500 a.m. PJ.I 'observed the file of militia men passing and returning their rifles as they rctrnê from their patrol duties of their previous night, Straignt 'away P.W.I identifted accused Nos. , 3 and 4 hen they returned their riflos along with many 0 ther0 InnW view there ou1d not have been a beier, though admittedly impromtu, identification parade than that. Natura1ly P.C. Gaspar (.W.7) who was on duty at the Police Station arrested them immediately..aiid.berched them. He found accusea..No.2 in possession of ll1/. and a 201= shillings note in Kenyañ currency. Accused No3 :w found with s.1081= while the fü.±'th accused was foui with sh...286/85. The accused, persons were.hen chargedand.taconbeI'ore the court. In their doence firstard fourth acciused 1orsons in sworn statements denied any j.nvoli,erc.nt ir trc ocnco but said they saw militia men h:rrassn t'NL SooIi y'uths with a fxog jimping oxercise or rtihcr pUniohrient.and later on the youths pointed thoi.r house to the mi1ita IIICn and militia men were, seer by the first . .....rid fourth accused persons entering thathouse. Th.o.scco'idand tird.pcused persons in unsworn stterpents deiied tri, offe ...cos but agreed on the frog—jumping punishment. which theT admi.niste.ed on the Somali. youth. 0 Upon the abotre evidence the learned criel e s1deflt Magistrate, as she then was (Now Senior Rés.ideflt ivIgistrate) rightly directed herself that the uethticn in 'hócathe was whether or not the accused persons committed the offec Severally or jointly and'further. pointed out that tb.e.:•., question of tdeuti1icat1on was s1giificant but I. would nrself correct that in this c ase the question of idantificatiQn is , —cruc ial:. TheA.th tr.ial;,court:w.exat to discus s • tI,t,-uqst.ion' 0fl in the light of evidence before it and I ,.tbink at thiS. H stage the better course, lfl; my. ViSw:, is tO quote vex'batim what 0 the trial court said and .I:guo.te.: .. 0 : .../4 "The alleged robbery : -4- "he alleged robbery occiirred at 3.00:.a.m. ThereWa a lanio burning in the hois of .P.W01,. .W.I,P.W,2 and P0W. 5 all ey& witnèses testified that all the family nirnbérwere asleep when the so called Police knocked on the door and domandd entry in order to search for foreign :...currncy. P OW O 2 was ordered to ouen the bxe while accused.numbers one and fou earched all over the house and while ccused numbers two and three pointed their rifles at P. 1N0 I and his deeñdants . . S.. .: so as to silence them0 .Durir the search the1ac.usecl took a 20/=.shillings Kenyan urreny note which accordingto the arresting officer who testified as P6Vt iwas .found.on the person of accused N0.20 Al]. the four accused were in uniform0 Soon after the intervosion P6W,I idontified accused N061 who was in miI.tery uniform and was standing at the TotE.l petrol tttion. There was light at the•said petroi stat:ion, so POW.I identified a.ccused NO.1 who was in military uniform afld was sta..ndln&1 at the Total petrol Btat.on and whereby (( I POWO6 went to arrest him. Hardly a few hours later at about identified the three nulitian men 1ho had invaded his house together with accus.d NQbI. The tine sequence is also crucial iii this case, The robbery occurred at cso'tt 3.00 a:.m. and by 5.00 a.m. the complainant .à& .1dentif1d all the fdux accdsod who aried.:: .. but the 1'obbery. Th.eo.was liht in thO.... •house it was about •aawn and the interval of just about two ho.ir weuld eriable th coffiplainant, his wife rae cor to 1oLntiy 'the accused without the least 01 ifLiu1 . The 999 Police witnessed the mes there •wa in the complcinant t s house minutes after the robbery. A.S.P. Kapriir1a of the District C.I.D. visited tho scene at OoOO a,m0 and con±'irrned. the same as per hi • testiniy (P.w.4). The plea of the accused that the robbery was fabricated is threfbre of no merit at all.--------------- ----- I have not the le,st doubt in my.mind, that each of the accused is guilty. .1 convict each accused on the strong evidexce BLgaizzt them severally and jointly. I so find and order Against all th.o evidence as summarized abovô dndas I. ttified by P.w.I, P.w.2, PUWO5 and the two Police Officers (Pàfi and P.W.4).who risited.the scene and found the hous&ir1.a mea with things thrown all over the appellant wants tl4s Court to diaaesciats itself with tba .fizinga and ooxiclu.siofl :,arrived at by the trialcourt. In the view of this oit the'eourt b6low did a poper analysis of the ev1denL6 before it andat the end rrive.d at ...../5 the cprreqt • V 5 the correct :ndius.ion.' V.. The1earned coinse1 for the appellant heforethis Coutheavily: attacked the learned trial magistrate for, what he ca1led bias in the conduct 01 the ril simply Vbecauàeoñ5/4/77 after hearing two witnesses for the prosecution the learned trial magistrate cancelled the bail.Vof the accused persons which had been rcnted.to them oarlieon 18/2/77 by another magistrate and she remanded theni 1 The learned counsel for the appellant further submittédtha'tsince the leui'nedtrial magistrate gae no legal reasohs for cancelling the bail then it must be infe're1 that she did so because after ho'ring two prosecutiQn witneihdcoñvicted the accused per.esiner.;rnind.afld depr1ved the dàfence of an unbiased hearing.. :. With respect, this court does not ngrec vj i th the above reasoning s presented by the learned counsel fo' the 1. appellant. A' trial magistrate is not automatically, bound:,,:. by the grant of bail S previously granted by his or her colleague. One of the obvious condi.tions for refusing to grant bail is the gravity of the alleged offence. No doubt, an armed robbery allogation is a very &:r V V offence for It • goes to the very root of the s&fty of the society and avoiding possible repetition of th sa.me:is oneof'the.things•a tra court has to guard against0 In fact the loarVncJ. trja1: V magietrate in my vieW, could cancel Vth s'i. hail even before hearing any witness no she rs net laly bound to abide by the bail terms granted by her colleague. Admittedly the granting or not granting of hail during trial is adisc.re.tion1 decision but the said discretion j1Bt be exercised judicisously. The aucetion is hc5w jud±ciously and in my considered opinion one way of doing it judiciously is to consider the intriscic gravity of the alleged offence V in the light of the security of the society. The only unfortunate omissin here was the fact that the learned trial magistrate did not state in somany words why she cancelled the bail but from the nature of the alleged offence the reeon would not be far to find as I have indicated above. In the final analy$ia this court respectfully agrees with Mr. Mwale, learned State AttOrney who appeared for the Respondent that the case against the nVpellant and his three colleagues was proved beyond all reasonable doubts and thus V appeal against conviction is dismissed. V.0076 As regards S 0. 6 As regards the sentence of 9 (nine) yrs' imprisonmen.t imposed by.jny brother Judge on 01 tho accused persons, if anything, I feel inclincd to the _t is. on the lenient v .. aide taklnE into account ho sri0.usnecs' Y offonce of armed.pbbery.not by ordinary civilirns hut by members of armed forces whose b'sic ddty is t ssfogurJ the soty of the people of this country and not to harass them in such brutal.. manner. .. . My above view notwithstandingmy hnds are tied up for h•avirig.be.en a decision on sentence by this very court I cannot exercise powers of enhancement an for that restriction by the laws, of this country the appellant ard , his colleagues have ..to...tliaiik their lucky stars, In the. final event the appeJ. is dimissed in its entirety. DeIivered.in:open court at Arusha thi.s3lst dy o, ..... . J October,1 979 , 0 . •0 EAM/PTSC E. 10 MUESIUMO JUDGE For Appellant Absent and nrepcescr -itcd.. 00 p or Aespofldent (Repuhlic) Mr. MWale, State.Attorney. 0 0 *I..HEREBy CERTIFY THIS t O BE TRUE COPY OF TI ' 00• ORIGINAL. 0 0 0 0 . 0 .. ..... :.. (DISTIdIGIsTRAR) ARUSHA . ......., 0. 0 0