20000727 TZCA Dodoma

IN 'fi-1]; COURT OF Ji.PP:1£/u, OF 1.r/.JfoANIA ,,; 8£.. DQ]2~ CRI1-1INAL APPEAL NOo 142 OF 1999 B:B,"1'\vEEN Jli'MJJ'JN:.t OMARY @ I~lUKBNYE. • • • • • • APP.ELUNT AND THE REPUBLIC • • • • .. 0 0 0 0• 0 •• R&SPONDBNT (Appeal from the judgement of the High Court of •ranzania at Dodoma) . 1' (!(yand'2.,.,1"__~) ;,,I ,. l dated the 2nd day of August, 1999 1 in :-j _Crin~~_Case Noa. 4o of_~9.§, l ~WDAWPA l i l ·.l :1 Ali Athumani (PW.1) was a driver of a tuxi with registration number TZC 2837 which had a:n ••ASAI.(.N• sticker. On 5/2/98, at about l l I 7 oOO a.m. 1 along Market Street, Dodoma, PW .1 was hired by three people. 1 ,1 One of them sat in the front seat and the other two in the rear seat. Before they got to their destination, PW.1 stopped at the request of his passengers. He was immediately manhandled: he was blindfolded by those in the rear seat and his legs were tied together by tho one in the front· seat. His arms, too, were tied together, he was forced to -.· .. sip drugged juice and was abandoned at a plac~ called Mlimwa Hill. PW.,1 was seen by one Boniface Hiharnbi Mzoe (DW.2) the same day at 6 p.m. an in L, unconscious state and he recovered the following day in the Genere.l Hospital. He identified the appell~t as the one who w~,in the front seato ••• /2 2 - On the same day, 5/2/98, Ally Karim ciadrudin (PW.2), was robbed at gun point in his shop along Tembo Avenue at about 9.15 a.m. Three people got into his shop: one held a pistol against hi5 (PW.2'e} ~ac., another had a gun and the third one took a total of 420 1000/- !roin ~wp different drawers. The whole saga took three minutes and then th~ r•~bere scuttled. PW.2 managed to walk out and saw them fle.eiug ~..,D. taxi with registration number TZ,C. 2.839 ¾Jhi.eh ha.d. an 1.1.A1iAI~i• .stick.er .. One maidservant of PW.2, Az.iza Ismail, (PW.3) said that while she was in a room bchinci the shop, she heard some eommotion in tl:L2. ~ and she saw two anned perso~. She ran out through the hind door and went to the front side to see what was happening. She identified th~ ·· --ap~t. as~- ci.ne- ~- :~- ,a .gu.n ~ a& wliit-0 cap which eovf;.l"od ~ t of his face. Then the two robbers got away in a tax.:i. witl:l. ~.ew:m~ number Tic 2837~ The other .servDnt was Mwajuma Abdallah (PW.4). She_, too,,., ~!lS ¼i1 the hind rooms when the shop was invaded. Ghe went to th~ !i-ont e-.~~- and eaw the appeJ.1.~t i.n.s-i<iP -tho '-DOP hQJ..i;i.n5 .a gun. ~n~ ;o.~p,,;+~i,f. ~,~t ........ .: -- . _a_p~a.nt:. b-Oc;;i.uea J:tl.s loft ear had a cut mark. .. Ola.- Q:OfiMJ~P3inmti1 . . said that she was outside at a gate in front of the shop whiGh w~ l~~~~ met.ers away. The appellant, she said 1 left in a white ASAKA taxi -~~~-- WEJE, parked 20 meters away. '£he appellant was arrestclby D/Cpl. Dickson (PW.?) upon intelligence given to him by an informer who mentioned two other rohb~.s- ~~:. by names. The informer told PW.7 that the other two robbers had left the town and that the appellant was preparing to leave for Dar es 3 ~4 The appellant WclS arrested when he boarded a bus bound for Dar es Sal.acllll on 6/2/98 at 6.30 a.m. a few kilometers away ;from Dodoma. 6 3 Two identification parades \:lerc organized by Inspector Genupa . (P\v.8). 'lne first was on 10/2/98 at which PWs. 3 and 4 picked the appellant and the second was on 19/2/98 when PW.1 also id(;;)ntified tho;; appellant. The learned trial me.gistrate, the 12.te M.SllMO, RH, was satisfied with the identification of the appellant and convicted him. The appellant wae, sentenced to an imprisonment term of 30 y0ars. He appealed nnd was supported by thG Republic which opposed the conviction. Nevertheless, the Righ Court, KY.ANDO, J., dismissed th~ appeal and upheld the conviction. This is the ~econd appecl. by the appellant and it was argued before us by Mr. Njulumi, learned advocate. We may as well say it here that the Republic,. represented by Mr. Hagomo., Principal State Attorney, once again allign!i:d with the appellant in opposing tho conviction. It was because of this stand of the Republic that we found it necessary to outline the prose,cution ca.se in dEltail. l'lr. Njulumi had two grounds of appeal: One, he contested the of identification of the appellant and, two, he criticised the refusal L KYANDO, J., to uccept the evidence of Bonifc:\ce Miho.mbi Mzee (DW.2) • As for identification, Mr. Njulumi submitted that the witnesses were required to offer an explanation as to wny they were able to recognise the appellant. This information had to b~ given before they made the identification. ll~ cited ~.PE.?1,_l)_~d Allut-Y...n~~ (1942) ~.A.C.A. 72. 'I'h.e learned advocate said that PWs. 1 1 3 and 4 did not· say that the appellant had a. cut .mark on the left t:ar even at the examination-in-chief .:: .. - .. . ·~~_j -~ :::-_. ..• but e:i..-plhl.ncd so upoo ,cross:-exemination,• ':ich'E/'·[_,/~ned co~el stiggJsted . .· . . . ·.... ·r ·,:; •. . . ...:i•·: :_... • .,·; ;11. . .. that these wi tnesser:; werE/:tJ.ppcd. on that ident:i.f:i.cation mark. He pointed ••• /4 . t .,.. 4 - out -J:;hat the appellant was held in Police custody for four days b6fore the first identification parad~ was mounted, So; he submitted, there was an opportunity of coaching. Mr~ Njtilumi also questioned the ~bility of PWs. 3 and 4 to identify the robbers when the incident took a very short time, three minutes, and whert one of the robbers• whom they said was the appeliant, had a cap on. Also, the learned counsel. said, th~ witnesses were a distance away. .do, he argued, the conditions were not proper for identification. The i.oarn~<i. courwcl ii.\lpo. point«;~ out som~ inoonaii.t,.Qnci.es. within the evid~nce of PW.3 with respect to the identification of the get away v~icle., l"lr. Njttlumi showed tha.t PW.3 was D.1.so contradicted by PW•4. on the issue of the vehicle~ Mr. Magoma, the learned Principal. State Attorney, added to what Mr. Njulumi .saj,d. .l'ftr.:. M;agoma e,cp:Lainod the.t. the ;i:ros~cution wi tnessos quastiQned also differed as to the number of the robbers. He furthor · l._ t;ba credibility of PW.1 in identifying tho person who robbed him hi.$ ~iii~._ Mri. Ma.goma submitted that _.pad Pd.1 1dClntifiad hi..Q ~~1..1..nnt. then ~'- ap~Umlt .sb.oul.cl. ~-have ~ n charged with the robbery of th~ P@ie~~: We are aware that courts have held on e.. number ·of· times that where, . l'-L",°•·•(t the evidence alleged to implicate an accused person is entii:-cly of identification, that evidence must be absolutely watertight to justify a conviction - B.!-~~-.~~-~-~~9.1?~~'t'?. fi9fl:j} J.!joA. ~74 and ~~~i Amani v._, .fu. /598cj] T.L.R .. 250. It has also been said that as a matter of pra~tic~ corroboration is required where idgntification is made in unfavourable Our predecGssor, the Court of Appeal for EnstE:rn Africa, said in Mohamed -.---., ..~._-- ( 1942) 9 E.A. C.A •. 72 at 73 that ~--._, ...............Bin Allui ... 'I ! ., 5 ". o. in every c~ se in which there is a question as tot, a identity of the accused, the fo.ct of there having been a description given and the terms of that description are matters of the highest importance of which evidence ought t'J.vmys to be given • ., •" Now, t~ Court did not say that in every identification a description has to be given. No. 'rhe Court said that if a description has been given then that is a matter of the highest importance and that a court ought to be told of that description first by the describers &"ld then by those to whom the description was reported. ~E--~:r.-~are instances where a witness c:aIL..identify a person in an identification parade without having pointed out any identification - features. This is purticulary so where a parade is held a few days after an incident. That is why a witness is permitted to request a suspect, for instance, to walk. A witness may thereby refresh his/her memory of a pE:rson he/she hud seen. In the present appeal, the identification parade in which PWs. 3 and 4 were involved took place five days after the event. That was quite recent. It would have been perfectly in order, in our opinion, if these witnesses merely identified the appellant as a person they saw at the robbery. However, PWs. 3 and 4 claimed that they identified the appellant because of the cut mark on the ear. It is abundantly clear that they had not given that description to any body. If that was the identifying mark, it is our considered opinion that they could not have missed reporting it to the Policeo Admittedly, they did not say whether they reported it or they did not. However, the evidence of PW.,7 is loud and clear tha.t they did not .. 6 We are satisfied that the Police, PW.7, was led to arrest the appells.nt by the information from an informer. PW.2 said that ti:lere were customers in the shop at the time it was invaded and that those customers rushed out. So, these customers and other persons who were outside the shop, were in a better position to observ0 the robbers because they were mere spectators and were not emotionally involved. It is, highly improbable that PWs. 3 ond 4 identified the appellant beco.use of the cut mark on the left car.· From their evidence it was not possible for them to have Geen th1;: cut mark. According to Pw.4 she w;:u;, at a gate which was 20 meters from the shop. We are satisfied that she just could not have seen the cut mark on the ear of the appellD.nt from that far. PW.3, ·on the other hend, went out of the building through the hind door and rushed to the front side of the shop to see what Wc'JS happcnio.g inside. This was done within the three minutes taken by the whole drama~ Of course, much depends on the distance which PW.3 had to cover. But PW.3 was in intense 1;;motional state which affocted both her decision making power ru1d actions. She snid 11 I have nev~r been threatened with a gun. I was frightenedo•i In that si tuntion one wondors whether the three minutes were sufficient for her to have done all that she claims to hav0 done e.nd be in a frame of mind requirt:::d to .scrutinize the robbers and so, sec the cut mark on the ear. PW.2 was very close to the robbers in the shop and was with the.m during the whole of those three minutes, yet he did not notice the cut mark on the left ear. This makes the credibility of PWs. 3 and 4 even more doubtful. Moreover, PW.3 mentioned two robbers to have been in the shop and who also got away. PW.4 saw only one robber. But there were three robbers as told by PW o 2 and that w2.s the number gi vcn to P\~. 7 by his informer• ••• /7 fl r t· 7 L:ikewise, PW.1 was hir~d 2.nd overpowered by three passengers. So, there were at lesst three robbers. Thus, PW.3 missed se;eing one whole human being while PW.4 failed to notice two live bodies, We wonder whE.:ther they were able to notice a small cut mark on the ear if they were unable to realise complete bodies, There is also the discrepancy surrounding the g(;t. aw°'1 ~ , PW.3 was affirmat~ve .on the regi.stration number 9! th.e ear. Fir~ 1 she ~ave the imp~j.01\ tha~ sh~ r~ad out the num~ h.e,re-elf• Then &b.c .sai4 that she was illiterate but quru.if~ that by stating that ish- can read a li~ Finally, she f,l).J,egvd that she was told the r~istr.e.tion l\Ulllbe:' ~ PW.La. R ~ P ~ ~ ~ : r ~ y ~n~~d to have_ told F~J.3 the reg:i.s-trat.i.,o,ll. numb.et. Faithful to tha~ -d,.)nial~ 1-W.4 h~J'-elf-dj,d ~ · recite the registration number of the cur in her cvid.ene,c. i.51-e m~ly Finally, what took place at the identification, ~ ~ 1 ~ it. own iitory" Fi'i. 4 conies$ eel in court to hiwe · a ~ -:i.d:elui.:i.!~g ~ cf the rowo She picked him on the second tir,10. She ~'l.i.n,ed. l'.al" Wlure on the ground that it v1e.s her first ____ time. to.__ gr:, to_ th€ l'olic.e. That :i,s a lwne excuse.·· Needles,s -to s~,y tQ-p~ it __ wrus her first time t.o be .c.on!~ by an armed p~rson in the shop y0t she elaimed . .. to have spotted the cut .,., ~· mark on the ear. The condition at the Police Station wU:> more eonducive to a smoother identification than the one obtained at the shop. PW.3 also identified the appellant on the second roundo She said ;,r wos looking for the mark on the eaz" I So, we are a shade unsure if PWs. 3 tmd 4 had seen the cut mark which enabled them to identify the appellant as one of the robbers. In fact if they had don0 that they would have told PW.? about the mark and the latter would have said so. ,_· ' : {: - ft,, ...._::: 8 Now, let us briefly look at PW1. He gained consciousness e.t the General Hospital the following day. We have not been told at what t:i,me. How0ver, PW.7 arr0sted the appellant at about 6.30 a.m, on that following day. We can safely say that PW.1 \\lc\S not instrumental in the arrest of the appellant or else Pt~o7 would have said so. It is also doubtful whether he had actually seen the cut mark. Like the oth(;)r witnesses, if he had seen the mmk one wonders. why he did not report that. 'I'hen h~ ad:nitted that the time was very bri~n Besides, he had an earlier passenger and for a longer time, from Chamwino to the bus stand in town, whom he could not recall. He is in the same boe.t 1r.ri th ·Pws. 3 and 4. As for the second gr-ound of appeal, we agree with both counsel that the loarne;:d first appellate judge erred. 'l'he prosecution submitted the statement of DW.2 but did not call him ~,s a witness. The defence, on the other hand, demanded him to be produced in court. That is how DW.2 became a defence witness. We agree with the learned judge that what DW.2 said, apart from the fact that he came across the unconscious PW.1, is cock-and-bull story. ]for reasons adVDDCE:d above, we are satisfied the.t PWs. 1, 3 and 4 did not notice the cut mark on the le:ft oar of the appellant. Now, when they claim that they werQ able to identify the appellant at the identification parade because of that mark, they portray themsdves to be unabnshed liars. Wo ma.st say that the case was both :poorly investigated and prosecuted. w~ allow the e~peal, quash th~ conviction, set asid9 the sentence • and order the immediate release of thG appellant unless h~ is otherwise legally ince.rcerutcd. • . . /9 -t 't -.· •"':'<; >,', .-.'."1'~ ·1 9 J " DA'l'J!iD at DODOMA thi5 27th . day of June, 2000. Ao b. Lo RAMADHi1.NI JUSTICE .......... __ ,...,__._.., OF ._...,..~~ APPEAL D.z. LUBUVA 1U§!t9.!J?IJJ>l~ K.B. Ko LUGAICTNGIRA I ,certify that this is a true copy of the original;. /J<,J ,;,u,. , !tL Ct..,. ( No~ - MWAIKUG~ ) . s_:g.'~J.QK DJlPw'Y .. REG:UYr..Blrn