mwalalata fungasha and 3 others vs the republic 2 1996 tzca 14 4 november 1996

Xi'» 5?Lui, COURT OF A P P E A L 0? SJ&ZWlk ATJ^TA ( COSMi R A M A lE A i«I, J . A . , MIZAYAS, J . A . . A n d L r J I V A , J.&A C H B II^ A L A P P E A L *10. 2 8 01? 1 9 9 4 between 1 . I'D IA LA LA xil A G A S H A j 2 * MED30IT S E iE O K D E 8. . APPELLANTS 3 , FAHUSL n iH E IG A 8 4. PET30N SlhEuE 5 AND TEE R EF C JB LIC ........................... .... HESPQITOEtil ( A p p e a l fr o m t h e c o n v i c t .on o f t h e H ig h . C o u r t o f T a J iz a x iia a t K t -o y a ) ( Mkude. J ■) d a t e d t h e 2 1 s t d a y o f h u b r u a r y , 1994 in C r i m i n a l A p p e a l IJo. 8 5 o f 1 9 9 3 j v w d iis n t or j ib cotr.iT RAI-IAIDriANI j J oA* o O n 1 8 D e c e m b e r * 1 9 9 2 a t a b o u t 5 P * r u i n M h o & i. D i s t r i c t , P a t h e r H e rm a n M p e p o ( P I f . 1 ) w a s d r i v i n g a L a n d C r u i s e r t a k i n g t i i a e p a a s s u g a £ £ t o H b o z i M is s io n H o s p it a l. A t H y im b ili V i l la g e h e h ad t o s to p th e v e h i c l e "b e c a u s e b i g s t o n e s w e r e l a i d a c r o s s t h e r o a d . S u d d e n ly a g r o u p o f y o u n g p e r s o n s e m e r g e d fr o m t h e e v .r r o u n d .in g b u s h e s w i t h a l l s o r t s o f w e a p o n s i n c l u d i n g a f i r e a r m w h ic h t h e y s h o t i n t h e a i r fr ig h t e n in g a l l o f th e o ccu p an ts o f th e v e h ic le . The boys s ta r te d b e a t i n g t h e v e h i c l e a n d i t s o c c u p a n t s w h i l e d e m a n d in g m o n e y a n d o ^ e r v a lu a b le s . PIT.1 w a s r e n d e r e d u n c o n s c i o u s * A num ber o f p e rso n s w ere rou n d ed u p by th e P o lic e an d th re e i d e n t i f i c a t i o n p a r a d e s w e r e h e l d o n 21 D e c e m b e r j 1 9 9 2 > 1 F e b r u a r y 5 1993 an d 2 F e b ru a ry , 1993* A t o t a l o f t e n p e r s o n s w e r e i d e n t i f i e d b y PIJ.1 a n d t h r e e o t h e r PTfss A m in a N c h im b i ( P W » 2 ) 5 Am os N y em b e ( P # * 4 ) an-d A n y i n i k e K w a k i b u ja ( F l f . 6 ) . * »*«/ 2 - 2 - Hie ten persons were prosecuted befo?:e the D istric t Court of Mbozi where eight of them were convicted and sentenced t-Q imprisonment terms of th irty .years each* Six of those convicted and sentenced appealed to the High Court of Tanzania at ICbeya* In a w ell articu lated judgment; tha lai/& JaKIIQS^ «!♦ dismissed, the appeals of fc u r of the appellants and i t is these fo u r who have now eome to us to have th eir la s t attempt in the ju d ic ia l process* A ll of the four appellants were no-' represented. They wrote a jo in t memorandum of eppeal oostrbainixig aev<-ji 0<>ira^guen'tly f a l l into three grounds* ? i r s t ? the c r e d i t i l i i y -of the witnesses has been questioned in three d iffe re n t aspects. I t has "been argued that the shot f ir e d in the a i r by the bandits, -caused a l l witnesses to l i e down in the vehicle and so, they were unable to* segr th eir assailan ts* Then a contradiction between ?¥.2 and Pl.r%6 as to which of the robbers went away with the gun of P57.1 was highlighted. Lastly* ihe jneraory of the witnesses vc,s questioned in view of the time lapse between the event and the holdiixg of the id e n tificatio n parades. She second ground of appeal was that the id en tificatio n parades were irre g u la r in that ju stices of peace were not present and the two police Constables who escorted the suspects and who took the witnesses to the parades were not c alled as witnesses. The la s t ground 'was that none o f *tstm stolen property was found in the possession of any o: the appellants* At the hearing of the appeal we allowed every appellant ta add any ground or amplify the seven grounds already contained in the memorandum of appeal* 'The main contribution which a l l four of them made was that th eir clothes and bodies were sa d irty , a fte r being in police custody fo r about eight days,that they were palpably conspicuous * They also said that because of the beatings they received from the Police, th e ir clothes were blood stained and so prompted the witnesses to pick them up at the parades* » ®» */3 - 3 - On behalf o:r the respondent/Republicr Tir« Shio, learned Principal State Attorney, pointed out that a l l thes'J points raised "by the appellants have been dealt with adequately by KvITDE J. in the f i r s t appeal. We agree i ith Ilr. Shio in that rr yird. But in addition this Court does not concern i t s e l f with matt of facts on second appeal •when the two lot-er Courts are in agreement. The issue of c r e d ib ilit y of witnesses haa been adequately dealt ith on factu al basis except with respect tc the fourth appellant, wi. ioh we s h a ll deal with shortly* No issues of Inw have been raised with tspect to c r e d ib ilit y . —Eie same is true regarding the conduct of t..t; id e n tif icatiocn parades* Ite fourth appellant, that is Person S it eke, pointed out. that he was ident-'fied by one witness only and that was PW.1. Hi© appellant said, and Mi,„ Shio conceded, that PIT*2 claimed to have id e n tifie d the fourth appellant in the id e n tificatio n p ,rade but that is not supported by the id en tificatio n parade registers s-t.b.-.itted as Exhibits P—Bs P—C, P-D and P-S* MKUDE, J. erred "when he took i t t ' . . e t h e fourth appellant was id e n tifie d by PITs. 1 and 2* Kow, the le caed judge allowed the appeals of Maluko Sherihati, the fourth appellant at the High Courtj and of Julius Dailoj the sixth appellant at the 3igh Court* She main reason fo r allowing the appeal of Maluko was that he was id en tified by PW*4 only. Also with respect to Julius he was id en tified Tqy PW.2 only and then in Court not at any of the id en tificatio n parades where the appellant was absent, So, the learned judge, i t would appear, was not comfortable with the id en tificatio n by a sin gle witness, We think that had the learned judge re a lise d that the fourth appellant was also id e n tifie d by a single witness, and not by two witnesses as he thought, he wou i have extended the same doubt to the fourth appellant* So? we stop into the shoes oi the learned judge and do what he would have done: give the ben efit of doubt to the fourth appellant. • • • tr/4 4 So, the appeals of the f i r s t three appellants, that is? Mwalalata Fungasha, 2Iedsoa Siiikonde and 1 ar i ,1 liwilenga axe ■dismissed.* The appeal of the fourth appellant, Petson 3itei.ce, is allowed. His conviction is quashed and the sentence is set aside* He should "be released from prison immediately unless tii.oi'e i a anothex la w fu l season fo r detaining him. We so order HATED at- KB^IA th ia 4-tii day o f iiovemaexj. 1 A * S . L , aAKAEIAIII JUSTICE 0? APPEAL II,S. KKSAVA3 JUSTICE C? APPEAL D . 2 . LUBUVA JUSTICE OP APPEAL 1 C ertify that th is is a true copy of -tiie o rig ia a i*