abdallah others vs republic 1995 tzhc 15 29 december 1995

IN THE HIGH COURT OF TANZANIA AT DAR.ES SALAAM CRIMINAL APP. NO. 172/94 HIYARI ABDALLAH & OTHERS........... APPELLANT Versus THE REPUBLIC ••••••••••• ~•••••·•••••• RESPONDENT '. convictions for The appellants are appearing agains-ctheir the offence of robbery with violence and a sentence of fifteen years imprisonment imposed on each one of them by the District Court at Kivukoni, Dar es Salaam (Shonga DM). They were charged with committing the robbery on 18.7.1990 at around 3.00 a.m at Buguruni kwa Malapa in Ilala District, Dar es Salaam. They were charged together with Kulwa Salum and HamisSalum. 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.1), the complaint, was at another place attending a funeral of his broth9:'. H~ had left at his place a lady, Sharifa Ally ~he did net testify) and the place was a room ~a a house which had eight tenants in all. At night,as shown, the rn bl-~~;-'G place was in vaded by /. vrllos'tolea number of iterns, after threatening the occupsJ s w.i.thdeath. One of the tenant2 in the house was Abdul Hemed (PW,2). He testified that at the 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 heard noises of people 1n the complainant I s rOOII:demanding, :'letapesa tutakua s~~i II and a reply saying "pesa sijui zilipo na hakun2 pesa1i• He sa1.ci he climbed up the ceiling of his room and from·there he pewpedj.nto the complainant's room. He said he saw .Zou~obher~ 'Out he was able to identify only Hiyari Abdallah the first appellant, amongst them. The first appellant, he told the trial court in his evidence, was neighbor of theirs. PVl.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 themselves with breaking the door as he was opening it for them himself. He said on hearing this the group of robbers fled. He said he and neighbours who then ~urned up tried to give chase but the robbers escaped. He said he and two others, including Sharifa, then went to Buguruni Police Station to report the incident. He said they were given two P 01ic9 Officers, D.46 39 pc. Manyika (PW.3) and D. 4947 pc. John (PW .9), and then returned to the scene. At the scene they found marks of robbery but they were able also to notice foot prints of the alleged 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 shot& in the air. The firing alleged extracted a reply from Seleman1- Khatibu, the second appellant, (who was the fifth accused at the trial) which was, "Vi tu vimo humu ndani na vyot.e vimekuja na Hiari". Hiyari then allegedly opened the door and all the sus- pected robbers were then found in the house, several items wer also recovered and these were said to have been the property .! the complainant stolen during the robbery. The suspects we.e then arrested and taken to the Police Station at Buguruni. There they were charg j._·.-~_l..:.:'~e offence in this case. Latel they were taken to court afj 8.:. 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 witness atand. 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 K1gongo Bar. The music there he said was being played by Marquis Jazz Band. He said at around midnight he set out to return home, He said when he reached home his mother would not open the door for him so he decided to go to his friend, Selewan Hatib~ •... ,,, .. ~. ~"... 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 Y~atibu, he testified that on 17.7.90 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 Meizi~ Mwizil ~ and they were then arrested by the Police. He denied that he was involved in the robbery charged in this c·ase. 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 (1942) GEACA 72 and contend that the identification byPW.! w~. completely unreliable and ought not to have been acted on by the trial court. I am of the view myself that if thc: conviction had re~ted. only on the evidence of PW. 2 ~ the appellaYlts would indeed have been having genuine complaints againstche judgment of the trial cO-lrt. But i: ! i-1:,c ~:·~"'.viction) was not based, on that evidence alone. It wcco ~3.st:.' on the foot-prints that led [Mm up to where th..2appellants Welte tQuno. the scene of the robbe:..'Y and aprehended. AL:;o 7_twas based on -che evidence, ,that they were found with the stolen items soon after the ••bb~.•y. Th~s evidence, taken togetherproved, in my viewing the ~lity of the appellants beyond all reasonable doubt. The trial eovrt was justified therefore in convicting them and their appeals to this court are completely meritles. They are hereby dismissed in their entirety. LoA.A. KYANDO JUDGE ,-- 4 DAR ES SALAAM,; CERTIFIED TRUE CO 29/1?'8r" ORIC INAL,~', / ./ .~'ppeJ..ial1G':" .. :~. ./present. '/f;' '.,.\ r~0 C!,/ >-:"1.-0:.;',-~ ".f.; ~~ ~---) ~-. 'J; ~.5. -::;;;rRT (~11 J. .•,-, .•.._ ,-_L \. ..1_