swaburi abdulkarim vs republic 2003 tzhc 89 27 january 2003

/ IN THE HIGH COURT'' OF TA i'ilihlL AT MBEYA APPELL.iTE JURISDICTION (MBEYA REGISTRY) DC CRIMINAL APPEAL NUMBER k6 OF 2002 C/F NUMBER 119 OF 2002 (From the District Court of Njombe District at Njombe Criminal Case Number 5C of 2001) SWABURI ABDULKARIM:::::::::::::::::::::::: s::::APPELLANT VERSUS THE REFUBLIC::::::::::::::::::::::::::::::::::RESPONDED JUDGMENT MACKANJAt J. The appellant^were convicted of armed robbery c/s 285 and 286 of the Penal Code# It was the general allegation of th« Republic at the trial that the appellants stole at gunpoint an assortment of personal effects and «ash c belonging to one Beatus Mahema# The complainant is a businessmaA resident at Makambako where he owns a shop# It was alleged that the appellants foreed their entry into the complainant’s residence at about o+P* they are alleged that the first of all entered the seating room a window before they broke into tte The comjjlainant alleged that the raiders were armed with knives and machetes# The thieves managed to steal she^££l|QO<j^pQ gpoa. "the <xOTplanani1 s rssidence# That thereafter they dragged hinv into his shop* It was the prosecution, case that the burglers ransacked the ^complainant*& residencet thcy^i^rstealing’ a number of personal effects worth. The appellants- vier-o. jxx^st^ aftei* some time* The prosecution palled sixteen witnesses circ of ..bom four witnesses owned to know nothing about the c' c< I l:?ve examined the record ind the best ..Jn I can make of it is that some witnesses gave hearsay evidence# Apart Ifrom saying that he saw the first accused park his car and sat on board, the evident regarding, the interview'the police had with the firs-t accused Michael Lugano*a j CPW5 ) was pure heai*say, -PW7 was nowhere near -the locus criminis, or Lonus - delicti if you wish, PW6-could not tell how he was- able to identify the second ■and fourth accused person. • Abol 'Hctege (PW?; heard of the robbery from PW6^ Jahe Julius (PW9) identified the fifth accused by voice* Felicia Sapinga (PW*11) said nothing that linked the appellants to the crime,, She said only that her • husband owned the motor vehicle -which was allegedly used in the robbery* It .also seems from the testimony-of Justine Nhewa (PW.14) is hearsay when he said that the sixth accused, .was arrested on suspecion.-only, specially after his v/ife told him (PWol^f) that he had abandoned his bicycle Seeing from arrest* There is also the testimony of Moshi Lyanga (PW013) v'hte ulaime i that he succumbed to Police threats when he revealed where the. offensive wo pon that belonged to the ei-Jgvt.i accused p^ioon* Fjj? all practical pu^^osee 'inc. intent PW%13 is an accomplice* I ronicolly* Raphael Kitalina (PVJ-12) cla; med that the 8th accused admitted to him that he had.s’\own the police vlir-ro the gi n w~h. Anyone will see that the testimony of both FW *12 and PW r13 cannot 'oe true ait the same time# On his part the complainant managed to recogfeise the 1st, 2nd aud fourth only. If, as he swore, he could not describe the pistol which wbjs being pointed at his chest flin view of the terrifying circumstances11 • One can pause and ask oneself if the there indeed existed circumstances which were condiuciv* to a c-~ correct identification* What is more the complainant was present when the Police arrested tiie *jst at^^sed* How* then could he hn.ve failed to pick him from the identifi^atioA parade? IA fact ther«» was n© ground for PW«15 to participate in the identification parade Heiausc. fjs the learned trial magistrate put as i*efto^ded at page k of the -lyp^d copy of his jutdgment:- In cross'-cxamination, PW*15 inttr alia, admitted 'ohat he knew the first, the second and the fourth accused thoroughly well before the event by faces, names and residences. He also admitted that he did not mention them to the Police that they were among his assailants* This he did because he did not trust the police in that they could have tipped off the accused and hence interfere with investigation” • In the long run the appellants were con/icted, hence this appea*. M, Mbogoro, learned counsel, acts for the first, second and third appellants* Mr. Mwakolo, learned counsel, represents the fourth appellant* ^r* Mbogoro filed thirteen grounds while Mr. Mwakolo filed six grounds of appeal* Mr* Mbogoro argued the grounds seriatim* When arguing the first ground Mr* Mbogoro contends that the learned trial magistrate had resolved to convict ome of the appellants when he framed the issue he was called upon to determine thus:- ,{The only issue calling for resolvement (si®) is whethe^* it is all accused persons in this case or some of them who robbed FW*1 5 »,r Mr. Mbogoro v/ould have liked the issue to be framed tbuj:- ,fWhether it is the accused in the dock or some cMiev persons not in court toho committed the robbery.” There may be a difference between the two issues but, in my mindi if there be any difference it will have been brought about by reason of flawj grammatical syntax* I cannot therefore, any judicial bias againjst any of the appellant. This ground would fail* As for second ground of appeal it is Mr. Mbogoro's contention that it will be recalled that there were two •onflieting accounts betwe m PW6 and FW.15 as regards the distance between the shop where the robbery took place and where the car TZA f979 was parked (so as to be easily visible as claimed by PW.15) during the commission of the offence* Whereas Richard K ihombo (PW6) said - k that the distance between the shop and where the car was parked was abiut 100 metres "and the is why I failed to identify the registration number", Kpage 19 of typed proceedings) Beatus Julias Mahena (PWV15) (complainant) saysjth*- .distance •was-20 metrc-s, - This appalling, discrepancy was. disregarded whereas the said.inconsistency «ught to have u~en- resolved in favour oi the accused* PW.15 claimed that PW6 did. no ': read the registration numbers as he ±k illitc*at< bnt PW6 told the Court the .reason why he- could not-read the registration • .numbers is because the car was parked at' a distance of 100 metres and no"k because he does not know 4c4’.'/to read® He therefore submitted-that/the trial court ought to have regarded the conflicting account as material-and as such, hold that the car was at such a distance at which its registration numbers could not be identified* ....... It is contended in the third ground of appeal that the fa*t (that two cars.were seized i»e. TZ/i 7979 and TZ 93358 in connection witn tjie same offence and one of them released after ■cwo week (TZ 9335$) is a plear • indication that FW.15 did not name to the Police the registration number of-the car which ferried the bandits to raid from the scene of crime as. I*o claimed« .Otherwise had he mentioned the said numbers to fch" Fdl: there v/ould be no logic and rational for the Pol-ice to keep the car w,.ih Keg* No* TZ 93358 for two weeks having been told exactly which car between the two was the one involved* *-J As for' the fourth ground which was consolidated with fiffth ground, itcis . the. submission nf. .the appellants that PW015 did not identify Ithe perpetrators of the crime at the time of the commission of the offenvo. PW«15 r.drritt*d in court that he did not mention the names, of. the appellants when he reported the event to the Police and oven when in his Police statKsark# The reason ne gave for so do^jig despite knowing the appellaxr'.s by namds, faces and "residences respectively is ,that he did not trust the Polled! it was submitted by Mr* Mbogoro that the said reason is strange and untenable* Tne basic question which PU.15 failed to answer is why did ho reportJ the matter to the- Police in the first place if he did not have corfidence i1 them. Hence the ••• appellants maintain that PW*15 did. not identify the robbers as he claimed* This fact is corroborated by the circumstances under which the appellants were arrested all the appellants are residents of Makambako* The first appellant was arrested while sleeping in the Car TZA 7979 outside Seneti Hotel* The prosecution did not lead evidence to show that PW.15 led the Police to the first appellant’s home so that they can arrest him before he was found by chance sleeping in the said car* The second appellant was arrested in the afternoon of 25-3—2001 at Makambako Police Station where he had gone to identify things which were said to have been recovered by Folice and which were stolen from his workshop which was burgled before he had gone to Lupembe* /According to undisputed evidence PW.15 saw the second appellant when he came to the Police Counter* The second appellant and PW*15 had been at the Police Station within each other’s vicinity for about almost an hour when suddenly PW*15 poiinked. on the second accused claiming that the second appellant was involved in the robbery as one of the robbers was of the lighter complexion, like the second appellant* Mr* Mbogoro narrated how the third appellant was arrested* Accord'"to learned counsel the third appellant (Chesco Mbilinyi) was caries red a:' 3*00 a*m. on 26/3/2001 by the Police who were not accompanied by / ' . orwi.singlyt however, in the morning of 25/3/2001 PV/*15's yourg brother went to hxs home and notified him that PW,15 (his brother in law) has been robbed. Together they left for Police Station where PW.15 was assisting the Police with investigation* The third appellant met PW.15 there and expressed his sympathy over the incident* Thereafter the third appellant with PW.15*s young brother «ent to PW*15's home where, among other people, the third appollant met PW9 Jane Julius* He stayed there while PW9 recalled and narrated to him the robbery incident* PW*15 met the third appellant there when he returned from Police* He thereafter left for his home only to be arrested at dawn (more than 2*t hours after the incident)* By any stretch of imagination the above circumstances under which the appellants were arrested are not compatible with the claim by PW.15 that .he knew the appellants by names, faces and residences. As regards the sixth ground of appeal it is submitted that the trial court erred in law and in fact in attaching much weight on the identification parade which was superfluous^ the facts of this case* It is contended that the indentification parade was superfluous as PW.15 said that he knew the appellants "by names* faces and residence ^nd hence conducting an identification parade would not have achieved anything0 Identification parade is conducted only when the complainant says he did not know the suspect before but can identify him if he secs him as was the case in Hassan Juma Kanenyera 8c Others Vi R . ^99g7r.L.R. 100. As for the seventh gron"'1 c -ppeal it is submitted that it was imperative for the prosecution to call at least one more witness other than the complainant (PW.15) to corroborate what he said in court. No such witness was forthcoming* Although PW.16 was the investigator of this case he was not present when any of of the appellants were being searched, This ground is particularly relevant for the third appellant in whose home a lipstick alleged to belong to was found. Absolving the prosecution from the duty to tender the search order the trial court said that any matter which was admitted at the preliminary herring; cannot be retracted later# The third appellant ac>.itted in oour tho1' "I a4: wae found at his home and which was taken oy Fu.’'.oe were two photog.-a^hs- Oi - photograph became of interest when PW©15 told the Police at the search that one of the persons posing in the photograph (the other was the third appellant himself) was the very person who commanded and drove the HIACE on the fateful night (but significantly the person in the said photo was not the appellant in Criminal Appeal No.^-2/2002 as alleged by PW*15 in his testimony). Mr# Mbogoro states that this is a further proof that in fact PW..15 did not identity any of his robbers. It should be borne in mind that the other photo was taken after FW.1 5 purportedly identified the person in the photo as one of his robbers. It turned out, however, that the said suspect was bed ridden at Ilembula Hospital for about a month before the event and the "Kitongoji" Chairman confirmed this to the Policc. The third appellant told the court that the said lipstick was found at a children play ground quite a distance from his home* The defence argues that this assertion was not seriously challenged by the prosecution* Even if for argument's sake it can be said that the lipstick was found in the third appellant's home, it was not sufficiently identified so as to distinguish it from any other lipstick. It was not even in the original prosecution list of exhibits. It is for these reasons that it is submitted it was necessary to call an independant witness who was present during the respective searches in the appellant's homes in the absence of a search order rather than the overzealcus PW.15 alone. It is the defence case when arguing the eith ground that that part from identification parade which has already been challenged earlier in their submissions there was nothing material linking the appellants with the offence. And as regards the ninth ground of appeal they contend that the trial court convicted the appellants, particularly the third appellant, became the court said in para three of the said page that among the reasons for convicting this appellant is the confession of the third accused (who has since passed away) which implicated this appellant. Nowhere in the trial court’s record is there such evidence. The tenth ground of appeal is based on the fact tLa'. j "Urc appellant was FW.15*s brother-in-law. Jane Julius (PW9) was FW.15's sister staying with him. There was undisputable evidence in the trial court to the effect that for a long time the third appellant was staying in PW015's home. Hence for PW9 to say that she did not know the third appellant before the event is and must be a blatant lie. /mother blatant unabashedly told the court that the police allowed her brother to sign on her behalf as she was illiterate in spite the fact that the established practice and law is for illiterates to sign their Police statements and even other documents by a thumb print. Hen#e even her loliee statement which was produced by the third appellant and admitted as exhibit appeared to have been tempered with and doctored and PW.15*s signature appears to be a foreign mntter. It is tkus submitted that the trial court ought to have totally disregarded PW9’s testimony. It is contended in eleventh ground of appeal that in effect the trial court shifted the burden of proof from the prosecution to the appellants. This the trial court did by creating a mountain out of the appellant*s apparent weakness of their defence* That this attitude by the trial court is clear if one perused page 10 to 11 of the typed judgment. For instance at page 10 he says the first appellant must be found quilty becauses interalia, he parked the cap at odd. bcnyot he gave conflicting stories when asked by Police as to whore he had been;he defied his employer's order of parking the car at 10.00 p.m. As for the second appellant the trial court, enteralia, said that he was uf a lighter complexion the fact that PW»15 pounced on him meant that he must be the one involved. Otherwise he was suppossed to call other people with lighter complexion who were arrested but later on released which he had failed to do. It is submitted that the tendency by the trial court of relying on ^rcsunied weakness of their defence in convicting thei.. amounted to shifting the burden of proof from the prosecution* If is trite law that the appellant could have even decided to remain silent in court when called upon to give the defe,.. ?e I-at that oo-lr1 not have meant a lesser burden on the prosecution of proving th ?ir guiltio»yjnd reasonable doubt. The twolth ground has been abandciie^ It has been submitted in respect of the thirtenth ground that from the very start this was a dubious case. After the prosecution had fielded the first four witnesses and who all turned hostile (actually "hostile'1 is not the appropriate word as what we mean is that they decided to tell the truth i.e., that they know nothing about the appellants' case but have been foroed to come to court and purport to know something) the trial court oughtto have been on its guard that what was before it was not a genuine case but a semi fictitious one full of haJ f truths and unconnected joints. It was not by accident that the prosecution decided to field t’.ie complainant as P’ .V*15 to enable him to come to court every day with the aim of ’.earing all the evidence so that, in the end, he could fill in the gaps in the prosecution case. Mr. Mwakolo, learned counsel for the Swaburi Abdulkarim, who featured as the second accused at the trial, submitted that charge against his client was not proved because all prosecution witnessed swore that they did not know hirn* All that linked him to the charge is a can of milk that FW9 and FW.15 admitted bore no special mark. Such identification, he said, is unacceptable, citing: George Mlingjwe v. R . ToL.R. 10 at p a11. It is argued in the second of appeal that the evidence of identification of PW6 and PW.15 was toe weak to found a conviction as their testimonies are contradictory of one another regarding the number of bandits who invaded their house: Jeremiah Shemv/eta v. R. ^ 9 8 2 7 T.L.R. 228 at 229* In essence learned counsel submits that there was not such watertight evidence of identification which could found a sound conviction: Rashid Ally v . Republic 9? at p« 98. It is also argued that there was no particularly strong evidence, showing special marks, which would entitle th<= trial court to hold that a TV set, a cable •and an empty tin of powdered milk belonged to the complainant and to no other person in the world* The Republic offerred no argument to counter the defence* In my observation which appear in the opening part of the judgment, and upon considering the arguments by learned counsel, I am indeed satisfied that no case was made out upon which a sound conviction could be founded* I would allow the appeal* The appeal is allowed* Conviction in respect of each appellant arc quashed. Sentence in respect of each appellant is set aside. The order bywhich pieces of personal property that were seized from the appellants and later restored to the appellant are set aside* Those pieces of property be restored from whomever they were seised* This orde» excludes the guns which may only be restored to any appellant if he can prove lawful ®wner* Accordingly, it is ordered that Swaburi s/o Abdulkarim, Abel Mhelela, Andrew Romanus Njovu and Chesco Mbil:\nyi be discharged from prison forthwith unless the continued detectention in custody be continued on some othear legally justify ground* Judgment tp be delivered by the District Registrar on 27th January, 2003< o ^ ' Oi ' A J *M• MACKANJA s f IU',^.3. * ( JUDGE 22/1/2003 Coram: S.A# Lila, DR For Appellants! Mr# Mwakolo, Advocate ) For Respondent: Mr* Malata, S*A„ Present C/C: Mbasha Order: Judgment delivered today. sgd: S 0 A* LILA DISTRICT REGISTRAR 27/1/2003 Certified true copy of the original. i n . / - - ’ DISTRICT REGISTRAR