19890411 TZHC Dar es Salaam

IN THE HIGH COURT OF TANZANIA LT DAR ES SALAAM Af2ELL~TE JUR~SDICTICN CRI1dNi.1 ,L?.i. .8;~1 1 73 OF 1 9v:,; OhIGIN~L CRI~IN~L C~SE NC, 615 OF 19G7 GF .T31 DISTRICT CJU2T JF ILLL~ ~ISTliICT AT KIVUK2NI) BBFGF..E F, T1.,i,ilJ i:£32:::·BlIT ~-L'i.GISTRiiTB) • . -versus i T::-E UNITE:::l hEl-'UBLIC~;;; •• , ~ •••••• · •• ,Il.ES?ONDENT ,JUDGL-TENT MREMA-?RM(EXT,JUH) The appellant ~Jha~aci Sai-i and ~no~hor not in this appeal wsre charged with the offence o:.' robbery wiJ~~ vin1'enc · c/s 2C:5 of the Penal CoCe in the D' ''dot Court of Ilala JJistric-'.;, .:;.>o.r es Jalaa1:1. The particulars of· the offenee J . \ were that foohaweJ. S~idi ( a_p)elh.::1.t) Dnd 11.·;ziri Salur.:i, on 22nd day of 1lpril, 1902 at about 11,3J hours at Mtc.~ mtoneari, Te~eke District, Dar es Salaao Region, both jointly and togeth,.::r st-Jle sr-s, 55, ;]:/- through vio:,.ence means, the property of Ahar.:ied Salim. The tri:.l co~rt after hearing the evidence of three prosecution witn·osses (?;n,?Yi2 anc :PW3) arsd also that of ·the defe~_ce (:SWI .aad DW2) wis satisfi3d that the aJpellant cor.:i~itted the off@nce and ir1 conseque convic·ted hiG1 as charged·, The appellant was sentenced to seven YH.rs ir.1p_ri:aoni;:ie1,, The second accuse-I, Waz-ir Sahu:,, was order:'.ng to serve the saCle <_ilst9dial punishment out na .,.ural J.eal th 0'.'0r. tvvl\ th. iuplau1enttation of the · ·1'entenee i~ respeot of the Jeceased, The appellant i.;ohaL:.ed Saidi was no<i satisfie.d wii. . . the· decision of the District Court, hence tiis appeal. I have. gone through the r;.1emoranduo of .1ppe.al. It is a lengtl..y o.,ne. but '::~-e~ \ only one arguable ground, and that is, .w)Lether fro1:1 'the evidenc.-i and circuu1stanoes of the case PW2 and I"'W3 did i .. ,:mtify the a;ipellant at t·he time· the appellant was allegedly robbed. Mr. Kor.iei, Learned State' ,ittorn.::;y ,ub1.d tted fo·r the Rep\i..'blie ~;1.at th_e Rep;Ql.W is ·supporting convic•tion and thcndore t;1e [; Jpeal should be disr.iis, ( d, In short, the evidence as deposed at thJ trial was to the eff,_ ct that 01 the material date the coLlplainant (PW2) alighted fro~ a bus and was he2ling to at• h.:>use whioh is just hear that bus stand. :,s Le_ was approaching his :;cuse suddee13 he felt a push frou behind • ...i.oeordi.ng to the cowplainant, he saw tw ,)arsons who pushed him~ Then they robbed hi~ of his pla~tic bag containing ~u•,55,0JC/•• The two robber~ then started tu run awliY, but, in the procese the co~~lainant ' (PW2) managed to identify of theu. rnis was the secon:1 accused, Wazir: Salum • now dead-, It was also testified by CtT::.•r.i Mbw'"'ns., (?W3) ¥:ho was the e1:1p:'.oyee of Ahamed Sultan (PW2) that on the ~a~orial dato ~t a~ou~ ~1.JJ a.o. whil~ in the house of PW2 he (-PW3) hear-:!. ..'.'::.'01.:, •.JllL..;ide sh·-:.~~-c 11 thi0f, thief." He looh;d through a windmv -2:nC. so.w t· . ..:i • '.H'.J ~-:·.' · _·unni"1 ~':: ;_y an ·; .. ;'~) .helding a bag, PW3 saw his boss ( ··•.,·. :- ·. · .. ·. '; 2 ":' -.' ';!Jf!wever, as per the evidence., the thieves disalYpeared.. PW3 clairaed; in his evidence that he idantifiad the a~pellunt. On cross-examination bY the appellant (1st accusud) as whether P½3 knew the aJpellant before~ PW3 stated that h0 knew the appell~nt whom ~e used -to see at Mtoni and that the appellant used to play with PV:2 1 s son .• ;r.'he 1.,a ttcr was the.n reported to the police station (Kilwa Road) and ?WI was assigned lo investigated the accused. hccording to PWI, the latter h~ving been tipped by his informer went to the house of the ap~ellant where ~e found both the appellan• and the deceased Waziri, ?WI arrested the ~wo persons and brought them to the police station. An identificatio~ parade was oounted and the co □ Jlainant was called to identify, F::-041 the evidence .PYl2 idP-ntified the two person~ - the appellant and the deceasod. That PU2 identified Waziri (deceased) for ttwo reaaon~:- (1) because PW2 so.w and identifiud hi.J at the, tiL.ie of ep:sode,_ a_nd (2) because vic.ziri was known t::> iW2 as 1o~;h were very close neighbours. In his subwission, tne L_aarne:l. S·,ate iittorney, auo!::g ot::ier things. Stated that the appellcnt was identif~ed by PW2 at the ~ientification p~rade but how PW2 identified the appellant the witness (PW2) did n6t met .)i ve reasons. FroD the outnight I am satisfied that there is merit in tl1is appeal~ The Learned Resident Magistrate failed tc assess the eviden~a ~rope±ly and this failure led her to a wrong conclusion •. The issuo of identifying the appellant was not serious by contested in thG mincl of the tri·i".. magistrate •. She merely relied on the evidence of PW2 and rw3 who were a ma!ter·and servant, respectively. Doth claimed thai. they saw and reeognis1l Waziri (decease~) because they knew hiu before the incident and the fa~t that he was PW2 1 j neighbour. If this latter &Jsertion were. to tc 10~nn as t~~e vereipn what waa the use of the alleged :1entific~tiJn p~rade?-~he purpose. of a pali~e. identifieat.:i.on parade is to ( nable the corr.plainan-t +,o pie~ out_from amen~ several persons paraded tcgether with the suspc,J· the real quspeet who, although not know to th& co~:lainant before, -~as sa~~ and .identi:fi~d bY the corJplainant at the ti □ e uf the incident. In i:.c view, the suspeots should not be persons previously Lnown by the complain~rt otherwtae the 1.1eaning of mixing up the suspects L:.nd ~•ther ~·ersuw• i.:.ncoonec·':t,1d to the Q.~tlaint oomplained of wou.lcl be shc:::.r nous.J..:. > -~f :·;,)t -~,:r:?loss. - Again, PWI (Sgt Hamadhani) did not e:c)lain in evid.,::":~1ce the · t"Jps he took to lilOu.nt the identification .parade. He sitl>lY s..:..id 11 IJ.ontificat::. l. l parade was eonduet~d, The complainant identified t~a8 a~ tho ones who rc·led him· shs,55,JJ.:J/-, '. We fraLJ.ed c~arge ~ . against:, -t..ae..:--------,n PW1 did not say in hi_s evidence .the proced.u::-e that Cl~st be followo( in anY poliea identifioation parade. ;twas not cade known tl the qourt how many people were involved in ths paraJe, the right -~ thJ ouopects t6 chosa any posi_tion _in any line in the parade, the re_:.~-~-' in w::.·i ting of the pare. ce, 7 et, ,oe tera •.., his .i$ a serious Ofilission i!l. t!"..:;J ,,-~·osecu·~ion case which .I. 1aves a reasonable doul•~~-- dou,bt in court:_;_, .~ ..,.. l L..-J. ... - ,.. -. ~o,J . : -· not there was at...v i,d~nt:i:f'~eation .parade •.... T}:1_0 trid l,t __ :·: ...:1..,ider thi.:i poi:n.t and as such her d,:_ici.s:i,:>:;_ Not_wi th standing what I have atteDpte,d to observe above, asslltling that there war a proper identification pbrade, can it be said that PW2 and PW3 identified the appella~ts when the bag was .snatched plaintiff from I ,n the complainant? The alleged drn□ a tJok ~lace at ab6ut 11.")1 a.m., that was during the broad day light. It was raining according according to the I . evidence. PW2 had just ali1shte2l fr,i.1 a bus. I should. iuagine he was ·not alone who disefilber~ed frou the bus. His house i~ just hear the bus stand. Although it was raining as alle~ed I doubt if the road was co~pletely ecputy of pedestrians and ~otorists, If ?¼2 walked in the rain before she was atta•~ed, other persons: toa 2 could walk in the saLle rain as PW2 as opposed to the evidence of PW2 and ?W3 th'lt al·'.;hou 6 r. ?W2 raised alarm pe:,ple did met reepond as it was rai~~ng. If PW3- ·the e~~loyoe of PW2, manage~ tc respond whe~ he came out fro □ PW2 1 s house and joined PW2 to chase t:10 suspects, why □ et other persons frora .?W2 1 s house and fr•JD the neighbours? The ev~.de:n:ie of PW2 and PW3, as I have mentioned in passi~g above, is that of the ruas~er and servant and iheir evidence cannot escape a concurr nt s~pport as they were having a common 0 \terest. to serve- ~lthough the condition, it was a day time, was one favourable to identify the a1)pellant 2nd the othe:r'.' suspect, tho coii.Jplainan ·: and. his servant did not describe to 0he court the ph,Ys:i "Jal appearance of the a.f) . _iellants, · the type of clotha~ they wore on that day, Et ce tora 1 for the purpJse of verifying to the court tLat they did nto J~ly see the appellant but also ~iat they identified hi~ physically. L In the light of what I have statej rbove the co~viction ag3_nst the appellant was baseless, tho appEl:ant st.uli ~ot have been c~n-JJted as the evidence against :him •di::l not reach the st .mdard required to fL.r. the appellant guilty of the offence charge b~y~~j =easoJjble doubt, Tharefo1~ the appellant is to be releasea fort~~~t~ unlo~e ~tJre ~re Jther leg~l.·re~do:~ to detain him. · It is so ordered_. A C ,; I:iEEML C ?RM(EXToJUR.) 11/4/=9 })AR ES GALAAIVI I CERTIFY T~iAT IT IS A. THlJ.li S0.!:'Y FRJivl THE ORIGINALo