19821217 TZHC Mbeya

IN THE HIGH COURT OF ThNZANIA ATMBEYA APPELLATE JURISDICTION CRIMINAL APPEAL NO. 43OF 1980 c/F CRIMINAL APPEA LS: IIOS.. 56/80 9 57/80, 58/80, 59/80, 60/80, 61/80, 62/80 63/80, 64/80 9 65/80, 66/80 9 67/80 9 & 68/0. (Original Criminal Case No.38 of l80 of the District Court of 3umbawanga District at Sumbawanga Before: S.J. Lawenä, Resident Magistrate) JANUARY MWEMBAZI and 17 OTHERS. ••, .APPELLANTS Origiiial Accuse.d) versus THEREPUBLIC. . , . . , . . . . . . . . , . . . . . . . . . . . .RESPONDENT (Original Prsecu.tor) CHARGES 1st count: Obstructing Police .Qffiqe.rs in the due execution of their duty o/ 243 (b) of the Penal Oode,Oa, 1.6 .o the laws. 2nd count; Assaulting a PoUc 0ffice in the ie executioi of his duty c/ 243 (b) of the Penal Code.) JUDGMENT MROSO, J., The eighteen appellants who are reresented .j this appeal by learned ctunsel,Mr. Tuldunjoba, were charged with and convictd on two count's namely, 0btructing police offiers in due execution of their duty and of assaulting police officer in due of his duty. Both offcaces fall under section 243(b) of the Penal Code. Thiy wore sentenced to värrying terms of imprisonment. The ?..ppcllantatbrotgh thir counsel are challenging the prpriety of the convictiona and sentences. Two police officcs - P. C. Maharanga (P.Wi) and P.C. Sylvester (PW6 hut more correctly, PV77)of 3umbawa.nga District act out in the early mornthg hours of 7th February, 1980 a.ccompaiued by four -- - 2 - members of the People's militia and went to Lyapona village with a view to arrest certain persons who were alleged to have assaulted some militia people on a previous occassion During evidence in the trial court it was not established with certainty the time the contingent arrived in the village but there is no doubt it was before sunrise, The policemen and their 'mgambo' companions intended to report to the village chairman and therefore went to knock the door of his house in hose early morning hours which P/l - P.C. Maharanga described as still rather dark. We do not 1mo if the police men indentified themselves as they ki:ocked but we are told by the prosecution witnesse3 that the viflage chairman (who was later charged as the 21st accused person ) caine out armed with a bow and arow. and fled. His wife raised alarm that their home was un'dar attack, A similar hue and cry wasP, raised from a nighbour's house where part of the contingent had also gone to knock It was said in the evidence that a large numbè.r of villagers came in response to t1 alarm. .Te:y were armed .with varIous weapons. One of the policemen who had 'a.firearm tried, to use it against the crowd. of villagers but it failed to fire. Fearing for their lives the policouen as well as the Mgambo people ran to escape from theacene.. Apparrnti- ±hy...D6 pursued by the armed. .iUaer P.C. Sylvester was caught and assau1tad. P.C. •aharanga .(PW1),. Paid .. t}.at as it was atill rathc dark he could not identify the people who were assatiting P.C. Sylvcster. One might add. that it would ha been unlikely for him iix any case to identify ther as he was fleein.g from the immenent danger of bing attacked hiulself''by tb.. presumably angry vii 1aers, P.C. Sylvester as well as tho mgabo peole claimed to have beer. able to identify some of villagers who attacked him (P,c, Sylvester). The identification as purportedly donc 1 when later the vi1I.ge men who - 3 - numbered hundreds were rounded up and a cru.de form of an identification parade was staged. The supposed identifation parade has been roundly criticised by the learned counsel for the, appellants as well as by the learned State Attorney for the respondent Republic. I am fully persuaded that no judicial reliance should be placed on that alleged identification parade. There was no evidence how it was staged or the slightofJt indications that the usual safeguards were observed. Tho learned trial magistrate appears to have accepted naively that the. purported identification parade involving a large nuriber of villagers from which the 22 accused persons were piccoc1 out had been properly conducted. For the future guidance of the learned, resident magistrate I suggest to him to read the case of Rex v Mango Manaa (193) 3 E.LC.A. 29 which 8Q owt the rules applicable to idcntification.parades Thait w Court of Appeal decision and those rules were roatd. by Mwakasondo, Ag. J. (as he then was) in the case of Ezekiel Peter v. H. L1977 H.O.D. 165. In' this latter oase it was specifically •stc,tod, ard I agrbc wholly, that for evidence of identification resulting 1''i an identification parade to be of any value, tL' rules of afeguards stated in the L'iango ManaLi case must ho sccpulourly observed. Of course, evidence that thc pr:.risions of 'tiose rules were observed should be given du:-ing the trial, Perhaps I should also ec,atiori that the evidence of identification as given by tie police officcie and the militia people, all cf whom .ierc not locals Lyapona village s was unsatisfactory on another score, Considering that those witnesses, except P.C. •Sylvestor were in a state of flight and in the ease of P.C. SyJ'rester, he waef being assaulted by'a mo'.. in scmidar1os, it cannot be' said with assurance that thcre was oportunity for them to make a correct identification of the assailants. It was said in R v. Eria Sebwato L96Q7 E.A. 174 and. repeated in numerous other cases of this court, some of which are Emmanuel Tunbotele v. H. LuJ6. 7 R.C.D. 164 per Seaton, J. and Wilson 011o v. H. 9968,7 H.C.D. 183 par ItEustafa, J., that where the evidence agaii'ist an accused person is .14 • 4 - entirely one of identification, such oidence must be water—tight. Evidence of identification cannot To said' to be water—tight when the prevailing conditins. like those which obtained in the present case u:Jor apeal, were unfavourable in varicus res)octs. But in the case of the appellants Frocrick Thomas and Maghoi Mkuto (who were 2nd and 8th accscd persons ies- pectively before the trial court) there was undisputed evidence from a fellow villager - P\72 - D.ai:non Tapula that he found them assaulting Sylvoster and that he rescued the policeman from them. When j,iving the±r defence they both admitted that fact. I find that those two were properly convicted of the offonca of assaulting a police officer in due execution of hiE duty, which was the second. count. There was hovievo:, no evidence in proof of the offence on the first count and they ought to have been acquitted on it. I therefore quash their conviotionon the first'oountand set idethe a,entenco imposedon .hemi.n. re,s:e.ctofthat..cour.jt..: Ls for the rcmainin aoollont, o the reasons which I endoavoured to dive earlier in this A1ment, there was no proper evidence against them t stify their being convicd. .1 threforo "rocoed. to q;itheConviCtonS against tiom..eñc1 spt..aside their sontencs. Since they must by now hayecouplptethir prison.sentencs, its pointles tp;oxde' 'heir;'relpasofoIT1 p.'ison.. I am not interforin with the sentence of two years imprisonment on the seco d count imposed on Fredrick Thomas and Mahoi lylkuto andl a nfirra ±t ! ' riQO'. JVIbèya. JtJGE :- - 777 17/12/82" " - .. 'M.r Dhebar. for..TuJ1j.oba:fO-r apeLlants,