kubwayo so karim vs republic 2007 tzhc 457 31 august 2007

IN THE HIGH COURT OF TANZANIA AT TABORA APPELLATE JURISDICTION (Tabora Registry) (DC) CRIMINAL APPEAL NO. 98 OF 2002 (Original Criminal Case No. 115 of 2001 of Kibondo District Court at Kibondo) BEFORE: P.Y. MAUMBA - SENIOR DISTRICT MAGISTRATE KUBWAYO S/O K A R IM ............................................. APPELLANT Versus THE REPUBLIC.......................................................... RESPONDENT JUDGMENT 1/8/2007 & 31/8/2007 CHINGUWILE. J. Before the Kibondo District Court the appellant was charged jointly and together charged with Kagoma Mavukilo, Ndalinde Pasiano, Nizigimana Daudi, Ndagijimana Nestory, Damased Malamucha and Nsengimana Jackline with two counts of unlawful possession of firearms contrary to section 4(1) of the Armaments Control Act Cap 246 R.E. 2002 and unlawful is possession of ammunition contary to section 11(1) of the same Act. When the charge was read over to the accused persons, the first accused Kagoma Mavukilo, the fifth accused Ndagijimana Nestory and the l seventh accused Nsengimana Jackline pleaded guilty to both counts. Upon conviction the 1st and 5th accused were sentenced to serve fifteen years imprisonment with eight stokes of a cane each for the first count and while the 7th accused was sentenced to five years imprisonment. They were also sentenced to serve fifteen years imprisonment and eight strokes of a cane each for the second count. The seventh accused was sentenced to serve six years in respect of the second count. The sixth accused was acquitted. After trial the appellant together with the second accused were convicted whereby they were of all the two counts. Each was sentenced to serve ten years imprisonment for each count. Being aggrieved by the conviction and sentence of the trial court, the appellant is now appealing to this Court. The appellant who did not wish to appear has raised seven grounds of appeal. He is attacking the testimonies of the prosecution witnesses especially the evidence of PW1 D/Cpl Peres. He is contending that there was no evidence to link him with the commission of offence. Mr. Bulashi learned State Attorney who appeared on behalf of the Republic did not support the appellant’s conviction and sentence. He is submitting that there is no evidence to link the appellant with the preferred charges. When reading the record of the trial court, I have noted that the appellant and his co-accused were charged under sections 4(1) and 11 (1) of the Armaments Control Act. I therefore invited the learned State Attorney to address the Court on the correctness of the charge laid against the appellant. This was done by way of a written submission. The Republic submits that the charge is defective as it refers to section 4(1) which is a definition section. They further submitted that as section 11(1) prohibits the conveyance of arms or possession of arms without authorization, then it was property before the Court. They argue that the irregularity is curable under section 388 of the Criminal Procedure A ct Cap 20 R.E. 2002, because the appellant entered his plea of not guilty which indicates that he understood the charge. Before examining the record of the trial court, I have to resolve the issue of the charge facing the appellant in order to satisfy myself on the correctness of the charge laid against the appellant. The appellant was charged for contravening the provisions of section 4(1) and 11(1) of the Armaments Control Act. No.1 of 1991 which is now Cap 246 R.E. 2002. Section 4 of the Armaments Control Act is a definition section and section 4(1) does not exist. Section 11(1) prohibits unauthorized possession and conveyancing of firearms. Therefore there was no need of citing a non existence provision while there is a provision of the law which is self sufficient. However this error is curable under section 388 of the Criminal Procedure Act Cap 20 R.E. 2002. As correctly pointed out by the learned State Attorney, the appellant pleaded not guilty to the charge. He is still claiming that he is innocent. This shows that the particulars were adequate therefore enabling him to understand the charge. In my view the mistake did not cause any failure of justice. After analysing the evidence on record, it is my view that there is no evidence which connects the appellant with the alleged offence. The appellant is mentioned by PW1 (see page 5 of the typed proceedings) and the following statement is what connects the appellant with this offence. “When interviewing her the 2nd accused. 4th accused passed near police station Karaqo. On their wav from Mtendeli. We were informed as we did not know them before. We decided to apprehend them and locked them”. PW1 further stated that “We found the 2nd accused 4th accused talking in Kirundi but we did not understand what they were talking”. Although in his testimony PW1 claims that after that he asked them to escort him to the camp, he does not say that the appellant was mentioned by any of the co­ accused. In my view, the arrest was done randomly. Also PW2 who accompanied PW1 to conduct the search does not mention the appellant. He only mentions the second accused Ndalinde Pasiano. According to it is the second accused who led them to the place where the said arms and ammunitions were hidden. The testimony of PW2 did not corroborate the evidence of PW1. In the circumstances, I am satisfied that the prosecution failed to discharge their duty of proving their case beyond reasonable doubt. In the instant case there is no scintilla of evidence against the appellant. Therefore the appellant’s conviction can not be supported. I quash it and set aside a sentence of ten years imprisonment and eight strokes for each count, imposed on the appellant. He should be released from jail unless otherwise held in connection with other matters. A.F. CHINGUWILE JUDGE 31/8/2007 Judgment delivered in the presence of Mr.Manyanda State Attorney. A.F. CHINGUWILE JUDGE 31/8/2007