20081000 TZCA Dar es Salaam

IN THE COURT OF APPEAL OF TANZANIA AT DAR ES SALAAM (CORAM: NSEKELA, ].A., RUTAKANGWA, J.A., And M)ASIRI, J.A.) CRIMINAL APPEAL NO. 102 OF 2005 TETE MWAMTENGA KAFUNJA & 2 OTHERS ........ APPELLANTS VERSUS THE REPUBLIC .............................................. RESPONDENT (Appeal from the decision of the High Court of Tanzania at Dar es salaam (Ihema, 3.) dated the 14th December, 2001 in H.C. Criminal Sessions Case No. 23 of 1994 JUDGMENT OF THE COURT 16th September, 2008 & RUTAKANG WA, J.A:. The three appellants, Tete Mwantenga (1 st appellant), Ahmed Maulid Kiula (2nd appellant) and .Juma Mazengo Chisengwe (3rd appellant), were among six persons arraigned in the High Court at Dar es salaam under section 196 of the Penal Code, Cap 16 R.E. 2002 for the murder of one Godfrey Shambarai. The murder is said to have taken place on 30th September, 1990 at Kawe Mzimuni in Dar es salaam. 1 1- N 1' • The appellants' co-accused were acquitted by the trial High Court, but in a manner and style which was roundly criticized by counsel for the appellants and respondent Republic alike. We shall have occasion,, later on in this judgment, to make our own observations on this. It will suffice for the moment to say that the appellants were found guilty as charged, convicted and sentenced to suffer death by hanging. They were aggrieved and hence this appeal. In this appeal, the 1 ,2 nd and 3rd appellants were represented by Mr. Said El-Maamry, Mr. Richard Rweyongeza and Mr. Barnabas Luguwa, learned advocates, respectively. Mr. John Mapinduzi, learned State Attorney, represented the respondent Republic. Each appellant, through his own counsel, filed his own memorandum of appeal. However, there is a considerable overlap amongst their grounds of complaint against the decision of the High Court. The same, therefore, may be conveniently combined and summed up as follows: 2 basing his decision on uncorroborated evidence as the prosecution failed to prove beyond reasonable doubt that the appellants committed the offence of murder; That the learhed trial judge erred in law and fact in basing his decision on identification parade evidence which was conducted contrary to procedure; That the learned trial judge erred in law and fact in basing his judgment on the doctrine of recent possession and common intention when there was no evidence to justify invoking these doctrines; and That the learned trial judge grossly misdirected himself in holding that rifle No. B1438, allegedly found in the possession of the 2nd appellant had properly been identified as the one which had been stolen from the deceased in the course of the commission of the offence. It will be discerned from these grounds of appeal that the death of Godfrey Shambarai is not disputed. Indeed, at the trial of the appellants the prosecution proved, without any contest, that the 3 r said Godfrey Shambarai, henceforth the deceased, died on the night of 301h September, 1990 at Kawe Mzimuni. It was equally proved that the deceased died of "haemorrhagic shock" due to a gun shot wound on his left thigh. Equally undisputed was the fact that the gun which caused the said wound was a shotgun. We take it as common knowledge that it is one thing to establish death and/or its cause but another thing to prove murder. The crucial issue to be determined in this appeal, therefore, is whether the deceased was murdered and if so whether the appellants committed that murder, as the trial High Court held. It behoves us now, this being a first appeal, to re-evaluate that evidence and, needs must, reach at our own conclusions of fact on the salient issues. The materialevidence was as follows. The deceased lived at Kawe. He had a shop at his residence. On the night of 30th September, 1990 the deceased was at home together with his housemaid, one Hadija Monica Massima (PW7) and two other girls. It was a dark night as electricity had gone out. ru Before taking their supper, when PW7 was in her room alone, she heard somebody ordering the deceased to remain where he was. The order was followed by a sound of a gun shot. PW7 was frightened and shouted for help, whereupon four strangers entered her room. One of them grabbed her demanding to show them where a gun was being kept. She told them that she did not know. She was beaten but managed to escape. When she returned to her residence, the bandits were gone but she "found a crowd" thereat and Godfrey was already dead. PW7 was categorical in her evidence that she never identified the bandits. The death of the deceased was reported at Kawe Police post. A number of policemen were dispatched to the scene of the incident with Police dogs. Among these, was No. B2460 Corporal Tarimo (PW1). According to PW1, at the scene of the incident, which was in the neighbourhood of two army camps, enabled by moonlight and torchlight, they easily saw footprints which led them up to the Lugalo Barrack's fence. PW1 was unequivocal in his evidence that the Shambaral (PW8). That then was the nature and quality of the prosecution evidence against the six accused at the stage of the closure of the prosecution case. After closing the prosecution case counsel for each accused made a no case to answer submission under s. 293 (1) of the Criminal Procedure Act, Cap 20 R.E. 2002, (the Act). The nub of the four learned advocates' submissions was that the prosecution had failed to adduce an iota of evidence, let alone credible evidence, connecting the accused persons with the death of the deceased. They had, accordingly, urged that High Court to acquit the accused persons without calling on them to defend themselves. The prosecution (Republic) which was represented by Mr. Mdemu, ,J. learned State Attorney, did not make any reply thereto. The ruling of the High Court came two days later. It had two paragraphs only. The court's decision is embraced in the second paragraph. The learned trial judge ruled thus:- have carefully considered the pleas of the defence, the statements on record and I have come to the firm view that all the accused have a case to answer. They are therefore required to defend themselves. In addition there is need to summon C. 1311 Sgt SELEMANI as a witness in this trial. According/y I will exercise my discretion in terms of section 195(1) of the Criminal Procedure Act 1985 and order that Sgt SELEMANI be summoned as a witness in this trial before the defence case starts.. It is so ordered. "[Emphasis is ours]. No. 1311 Sgt Selemani testified as court witness No. 1 (CW1). He told the trial High Court that on 30/09/1990 at about 9.00 p.m. he visited the scene of the crime where he was informed of the deceased's death. After being joined by the O.C.C.LD, one Kingwayi, they entered the deceased's house wherein they "found a weighing machine"and "some proceeds of sale " They also came across "a book detailing the deceased's weapon and a rifle No. 57462, with serial No B. 1438"L They then returned to Kawe Police post while the deceased's body was sent to Muhimbili Medical Centre. Later, at around 00.01 hrs, he received the 2 nd appellant at Kawe Police post from "group of 1K. T officers' w h o told him that they had arrested him at Mlalakuwa and he was possessing a rifle. He then tendered a "rifle" bearing serial No. B1438 as exhibit Cl. Regarding the said rifle's registration card, CAR No.57462, he claimed that it was "not available" as it could not be I traced. While under cross-examination, CW1 admitted that in his statement on the incident, which recorded at Msimbazi Police Station on 14th February, 1994 (some three and half years later), he did. not mention that they had "found a rifle booklet at the scene of murder". After CW1 had testified the learned trial judge called upon the six accused persons to defend themselves. All of them elected to remain silent. In his final submission, Mr. Ntwina, learned State Attorney, urged the learned trial judge to convict the appellants as charged. To him the three were guilty as charged by association. This was because they were seen together on the night of the arrested the 2 nd appellant in possession of exhibit Cl which was proved to have been stolen during the murder. Counsel for the accused persons, Mr. Luguwa, Mr. Chua, Mr. Ndyanabo, Mrs. Makani and Mr. Ngasala, had pressed for the acquittal of all the accused. It was their submission that the prosecution had failed to prove that exhibit Cl belonged to the deceased and further that the identification evidence against the current appellants was very weak and unreliable. The two gentlemen assessors, who aided the learned trial judge, were unanimous in their verdict. They advised that no evidence was led to establish that the deceased owned any gun. They further opined that although the 2n d appellant was arrested while in possession of a gun, there was no cogent evidence to link that gun with the death of the deceased. Without writing any judgment, since he had ruled that all accused had a case to answer, the learned trial judge made the following order: 10 As indeed no evidence has been adduced against the 1 accused SElF OMARI MFA UME, d accused C4 THBER T Z4 CHARIA 6th THOBIAS AND accused ALL Y HA SSA N SHEWEJI, they are accordingly acquitted. They are to be re/eased forthwith unless they are lawfully held for any other lawful cause. Judgment with regard to 3 'P7 &5 accused to be delivered on 311212001 A. This procedure and order was irregular, to say the least. If there was no "evidence" to implicate these accused persons in the murder of the deceased why did the learned trial judge not acquit them, as he was mandatorily required to do under section of 293(1) of the Act? L The said s. 293(1) of the Act provides as follows:- 'When the evidence of the witnesses for the prosecution has been concluded, and the statement, if any of the accused person before the committing court has been given in evidence, the court, if it considers, after hearing the advocates for the prosecution and 11 for the defence, that there is no evidence that the accused or any one of several accused committed the offence or any other offence of which, under the provisions of section 312 to 321 indusive of this Act, he is liable to be convicted, shall record a finding of not guilty' [Emphasis is ours]. This is a mandatory provision, which must always be strictly complied with. As section 53(2) of the Interpretation of Laws Act, Cap 1 R.E. 2002 directs, where the word shall in a written law is used, the duty imposed must be performed. The trial courts cannot ignore it and force an accused person to defend himself. In so saying we are not advocating that the trial court in its ;1 decision on a no case to answer submission should scrupulously scrutinize the entire evidence before it at that stage. That is not the law. The classical explanation of what a prima facie case amounts to was given by the then Court of Appeal for Eastern Africa in the Tanganyika case of RAMANALAL BHA7T V. R. [1957] E.A. 332. It said, at page 334, that:- 12 "Remembering that the legal onus is a/ways on the prosecution to prove its case beyond reasonable doubt, we cannot agree that a prima fade case is made out if, at the close of the prosecution the case is merely one which on full consideration might possibly be thought sufficient to sustain a conviction. This is perilously near suggesting that the court would not be prepared to convict if no evidence is made, but rather hopes the defence will fill the gaps in the prosecution case. Nor can we agree that the question whether there is a case to answer depends only on whether there is 'some evidence • irrespective of its credibility or we,rht, sufficient to put the accused on his defence'. A mere scintilla of evidence can never be enough nor can any amount of worthless discredited evidence. It is true as WILSON, J. said, that the court is not required at that stage to decide finally whether the evidence is worthy of credit, or whether if believed it is wei'hty enough to 13 prove the case condusively; that final determination can only properly be made when the case for the defence has been heard. It may not be easy to define what is meant by a 'prima facie' case, but at least it must mean one on which a reasonable tribunal properly directing its mind to the law and the evidence could convict if no explanation is offered by the defence ' [Emphasis is ours]. This holding and definition with which we are in full agreement was quoted with approval by the same Court in yet another case originating from Tanzania. This was the case of MURIMI V. R. [1967] E.A 542, whose facts shall be alluded to later on. As we have attempted to show earlier on in this judgment, by the time the prosecution closed its case in the High Court, it had managed to show that the deceased died on the night of 30th September, 1990 at his residence. It had also established that the deceased had died from a shotgun wound. No iota of evidence had been led to exclude the possibility of the said wound having been 14 self-inflicted. Even if it is argued, for the sake of argument, that the fatal wound was not self —inflicted, by the time the learned trial judge ruled the accused persons to have a case to answer, there was no scintilla of evidence before him to show that the fatal wound had been inflicted by the appellants jointly or by any one of them. The 2nd appellant had been only evidence before him was that the arrested at a place, far from the scene of the incident, in possession of a gun, described by the witnesses to be a rifle, which gun was not even part of the evidence before him. There was, in short, no iota of evidence at that stage, to connect the appellants and their "acquitted" co-accused, with the death of the deceased Godfrey Shambarai. In MURIMI V. R. (supra) the prosecution had failed to establish a prima facie case against the appellant Murimi. Instead of acquitting the appellant,. the trial magistrate held that he had a case to answer, inspite of the prosecution's failure to call a vital witness. The trial magistrate decided to call that witness under s. 151 after the accused had testified. It was on the evidence of that court witness that the conviction of the appellant was mainly predicated. 15 Murimi appealed to the High Court which dismissed his appeal. On a further appeal to the Court of Appeal for East Africa, the question arose as to whether the prosecution had established a prima fade case against the appellant which Would have justified the trial magistrate requiring the appellant to enter into his evidence. After re-appraising the prosecution evidence, the Court concluded that the prosecution had failed to establish such a case. The Court held that the provisions of s. 205 were mandatory. It went on to say, at page 546, that:- "........the law requires a trial court to acquit an accused person if a prima facie case has not been made out by the prosecution. If an accused is wrongly called on for his defence then this is an error of law........ " In his arguments in elaboration of what we indicated above as the first ground of complaint in this appeal, Mr. Rweyongeza emphatically argued that the learned trial judge erred in law in holding that the appellants had a case to answer. We are, respectfully, in agreement with him. 16 As rightly argued by Mr. Rweyongeza, a plea is not part of the evidence unless it is a confession or contains an admission relevant to the offence under inquiry. As was clearly stated by the Court of Appeal for East Africa in the case of STEPHEN USIN & LEUBEN KISSA V. UGANDA, Criminal Appeal No. 48 of 1973:- "When a plea of not guilty is entered, any words used by the accused in answer to the charge which amount to a derogation of the plea must be disregarded completely" All the same, in this particular case, when the information was read out to the accused persons, each one said:- "It is not true' Such a plea, in our view, could not be relied on to establish a prima facie case. - In our considered opinion, it was a misdirection on a point of law on the part of the learned trial judge, to take into account the pleas of the appellants in determining whether or not they had a case to answer. It was equally wrong to consider the so called 17 "statements on record". We are using the phrase 'so called' deliberately because we do not know which statements he had in mind. This is because going by the record of proceedings, there was no statement before him given by any accused person before the committing court which the learned judge would have considered under s. 293(1) of the Act. It would, therefore, not be disrespectful to the learned trial judge to say that the ruling was not based on any evidence before him. He accordingly erred in law in ruling that the appellants and their co-accused had a case to answer. They were entitled to an acquittal as of right. We shall now, proceed to consider the propriety of invoking section 195(1) of the Act and calling CW1 as a court witness and whether the latter's evidence salvaged the prosecution case after all. Section 195(1) of the Act provides as follows:- "Any court may, at any stage of the trial or other proceeding under thisAct, summon any person as a witness, or examine any person in attendance, though not summoned as a witness, or recall and re-examine any person 18 a/ready examined; and the court shall summon and examine or recall and re- examine any such person if his evidence appears to it essential to the just dedsion of the case." So, all things being equal, the learned trial judge had the power to summon CW1 as a court witness. However, it ought to be pointed out here that the circumstances justifying the invoking of this section will differ in each case. This will always depend not on the nature of the case but on the nature of the evidence. As already indicated in this judgment, it is the duty of the prosecution and not of the court, to prove the guilt of the accused. It is also settled law that the accused has no burden of proving his innocence. Therefore, this section should be resorted to by the courts very sparingly and when it is absolutely necessary. In any case, it should never be invoked when that would work to the prejudice of the accused, thereby occasioning a miscarriage of justice. All these safeguards are taken, it must be recalled, not out of compassion to wrong-doers or to increase the loopholes through which criminals escape the 19 consequences of their crimes. All these procedural safeguards are essential for justice, in our view. It will be instructive to recall, with approval, what Justice Douglas of the U.S. Supreme Court once said. He said:- • "it is not without significance that most of the provisions of the Bill of Rights are proceduraL It is procedure that spells much of the difference between rule by law and rule by whim or caprice. Steadfast adheherence to strict procedure is our assurance that there will be equal justice under the law from "IF WE ARE To A CT AS FREE MEN' Saturday Review Literature, February 13, 1954 at page 9. We agree with him entirely. It was from this perception of the accused's procedural rights in our criminal justice system that the Court in MURIMI'S case said, in relation to s. 151 of the C.P.C., at page 546:- "There are numerous decisions of the Hiih Court of Tanzania and of this court to the 20 effect that it is the duty of the trial court under the latter part of the provisions of s. 151 to call a witness if h/s evidence appears to the court to be essential to the just dedsion of the case, and this is so even if the evidence results in strengthening the prosecution's case............... fl The provisions of s. 151, must however, be read and considered together with other provisions of the Code and in particular in so far as this case is concerned with ss. 205 and 206. The relevant portion of 5. 205 states: F Sect/on 206 provides that if it appears to the court that a case is made out the court then calls upon the accused for his defence in accordance with this section. The provisions of s. 205 are mandatoty . ......... We do not consider that s. 151 was designe4 nor should it be used, to • empower the trial court immediately after the prosecution has closed its case to call a witness in order to establish the case against the accused, except possibly, when the evidence is of a 21 purely formal nature. The onus is on the prosecution to prove its case and the Criminal Procedure Code provides that an accused shall be acquitted if at the end of the prosecution case this has not been done ....." The Court further held that what the trial magistrate had done was "to put the court in the position of undertaking the task of the prosecution' In the Court's view, that position:- is so fundamentally contrary to our system of justice that we are satisfied the errors of law in this case are such as have occasioned a failure ofjustice........... The appeal was accordingly allowed. We firmly believe that the holdings in the MURIMI case are as valid and sound today as they were forty years ago. Indeed, this is the case even in England. In the case of Yuill v. Yuill [1945] 1 All E.R. 183, the Court of Appeal stated that in criminal proceedings the court has a right to call and examine a witness. However, the court further observed that this discretion should be exercised with care. 22 Also, in RI'. HULUSI, R VPURVIS(1973) 58 Cr. App. Rep. 378, it was unequivocally held that after the close of the defence case the right of the court to call a witness is usually limited to cases where matters have arisen ex impro v/so which no human ingenuity could have provided for or foreseen. There is no dispute in this appeal on the fact that the learned judge predicated the conviction of , the appellants on the evidence of CW1, particularly, the rifle (exhibit Cl). Even Mr. Mapinduzi, in all sincerity, told us that if the evidence of CW1 were to be disregarded, "it would have been difficult for him to support the conviction of the second appellant." What more does one need to prove beyond any doubt that the learned trial judge put himself into the position of the prosecutor. That he did so, was an error of law which occasioned grave injustice to appellants. Those of us who have had the duty of administering equal justice to all who come befOre us imposed on us, have always to remain alive to the fact that the provisions of s. 195 (1) of the Act should never be invoked in utter disregard of the mandatory 23 provisions of ss. 230 and 293 (1) ofthe same Act. Furthermore, we should always keep in mind this wise counsel given by Justice Brandies of U.S. Supreme Court:- "The position of a judge has been likened to that of an oyster anchored in one place, unable to take the initiative, unable to go out for things, restricted to working on and di'esting that which the fortuitous eddies and currents of /iti'ation may bring his way' That, indeed, is our position in our adversarial system, Section 195(1) of the Act notwithstanding. All said and done, we are of the firm view that the learned trial judge committed a fundamental error of law. The same occasioned grave injustice to the appellants. This finding alone would have entitled us to allow the appeal of the appellants in its entirety and end our discussion at this juncture. But in deference to the learned trial judge and Mr. Mapinduzi, who zealously supported the conviction of the second appellant, we shall go a step further. This is 24 because after acquitting the appellants' co-accused, the learned trial judge wrote a judgment in which he found the appellants guilty as charged and convicted them. In this appeal counsel for the appellants have argued that the conviction of the appellants was not warranted by the evidence on record. Mr. El-Maamry argued that the identification evidence of PW4 and PW6 against the first appellant was unconvincing. He also submitted that assuming that exhibit Cl belonged to the deceased, there was no evidence to prove that it was stolen by the person found possessing it in concert with the first appellant. He also severely criticized the failure by the prosecution to tender admissible evidence to prove that exhibit CW1, was the property of the deceased. This, he said, would have been achieved by the tendering in evidence the rifle's C.A.R. [Central Arms Registry] card or its duplicate, under section 63 of the Evidence Act, Cap R.E. 2002, which was not done. On his part, Mr. Luguwa, apart from associating himself with the views of Mr. El-Maamry, added that there was no direct evidence 25 We shall deal with the appeal by the first and third appellants first. Admittedly, the evidence connecting the first and third appellants came chiefly from PW4 and PW6. These two witnesses alleged that they saw and identified the two appellants at Mialakuwa J.K.T. barracks on the night of 30/9/1990 and were the ones who disappeared while the second appellant was arrested. But, were these witnesses truthful and were the conditions prevailing then conducive to an unmistaken identification? We have carefully studied the evidence of these two witnesses as well as that of PW1, PW2, PW3, and PW7 on the issue and we have found it both sufficiently wanting in cogency and contradictory. PW4 said that on that night he saw four people, contrary to the evidence of PW2 and PW3 who testified to have seen three people. However, PW4 belied himself while under cross-examination when he said that he saw three people. PW6, on his part, was adamant that they were four in number. On the state of lighting at the area, these pill witnesses also contradicted themselves. PW2 said that the area was well lit by "spot/security Iight' He was supported by PW3 on this. PW4, however, said that there was "electricity light from the groceries' But, they were all contradicted by PW6 who said that it was a dark night and further that as those four persons "were wa/king in a single file," they only managed to identify the one who was in front of them.. This one, he said, was the second appellant. S In our own evaluation of the evidence we have found PW6 to have been a bit truthful. The fact that it was a dark night was confirmed by both PW1 and PW7. We have found nothing on recor& to make us doubt the veracity of these two witnesses. However, as the footprints from the house of the deceased led right to the fence of the barracks where the soldier witnesses were on guard duties, their evidence cannot be free of suspicion. Hence, the contradictions, if not open lies, in their evidence. Whatever the case, we are convinced that there is no evidence at all to prove that the first and third appellants were the people who were with the second appellant and managed to avoid arrest by running away. Even the evidence of CW1 did not touch them, at all. For this 27 reason, even Mr. Mapinduzi did not support their conviction and 1 urged us to allow their appeal. On our part, we have no reason to hold otherwise. The first and second appellants, in our settled view, were wrongly convicted. Their appeal is accordingly allowed. Their conviction and sentence are hereby quashed and set aside. Regarding the second appellant, his case is glaringly different. He was arrested, as already shown, by PW2, PW3, PW4 and PW6 in possession of a gun, claimed to be a rifle. He has not disputed these facts and it was that gun which has led him to the doors of this Court. Mr. Mapinduzi relied on these facts in urging us to dismiss his appeal. In spite of these facts, Mr. Rweyongeza has tried to impress upon us that the second appellant's appeal is not hopeless at all. It ) is his submission and conviction that the prosecution evidence contains no smoking gun against the second appellant. This is because, he argued, no credible evidence was led by the prosecution to prove that the deceased owned a gun, and if he did, there is no proof that the gun allegedly found in the possession of the second appellant was the property of the deceased. Relying on the decision of this Court in the case of ALLY BA KA RI & PILl BAKARI [1992] 28 T.L.R. 10, he implored us to hold that the doctrine of recent possession was wrongly invoked by the learned trial judge to find the second appellant guilty as charged. Unarguably, the prosecution rested its case against the second appellant on the doctrine of recent possession. It is, indeed, no derogation to say so. We recall it was distinctly stated by the Eastern Africa Court of Appeal in the case of R.V. BAKARII S/0 ABDULLA (1949) 16 EACA 84, as follows: "Possession by an accused person of property proved to have been very recently stolen may not only support a presumption of burglary or of breaking and entering but of murder as well, and if all the circumstances of a case ) point to no other reasonable condusion the presumption can extend to any other charge, however penaL" This case was cited and followed by this Court in the case of ZENO JAMES And ANOTHER V. R., Criminal Appeal No. 35 of 1993, (unreported) which involved an offence of armed robbery. 29 However, as it has been consistently held in a number of cases by this Court, the doctrine of recent possession must not be applied too readily. For instance, in the case of JAMES s/o PAULO @ MASIBUKA & ANOTHER V. R., Criminal Appeal No. 61 of 2004 (unreported), this Court lucidly said:- "Quite clearly, as a matter of law and logic, it is essential for a proper application of the doctrine of recent possession, that the stolen thing in the possession a. the accused must have a reference of the charge laid against the accused. That is to say that the presumption of guilt can only arise where there is cogent proof that the stolen thing possessed by the accused is ) the one that was stolen during commission of the offence charged, and no doubt, it is the prosecution who assumes the burden of such proof and the fact that the accused does not claim to be the owner of the property does not relieve the prosecution of that obligation" [Emphasis is ours]. 30 In order to successfully apply this doctrine to the peculiar facts of this case the prosecution had to answer satisfactorily, that is beyond reasonable doubt, these pertinent questions: - (I) Did the deceased own any gun in his lifetime? If he did, what was the type, make and classification of that gun? Was that gun in the actual possession of the deceased at the time of his death so as to have been stolen by his killer (5)? Was exhibit Cl, the property of the deceased? If exhibit Cl was the property of the deceased, was it the very one which was in the possession of the 2 second appellant at the time of his arrest? We have dispassionately scanned the entire evidence on record. We have found scanty evidence going to provide satisfactory answers to these questions. 31 found bare assertions not supported by any concrete proof. PW7, who was residing with the deceased, did not know if the deceased had any gun. The deceased brother (PW8) only said in passing that the "deceased owned a rifle gun" without elaborating. The star court witness (CW1) told the trial judge that the deceased had been his friend since 1981. However, as he admitted, he never knew that he "owned a rifle until the day of his death' If by this he meant that he knew for the first time of this fact on 30/09/1990, then he was relying on what he described in his evidence "a book detailing the deceased's weapon and a rifle No.57462". He further testified that he gathered from that "book" that the rifle's serial No. was B1438. This was not enough. CW1 told the trial court that he had been in the Tanzania Police Force since 1975. Yet his evidence lacked the necessary details which would have helped the trial judge and ourselves to provide conclusive answers to these two critical questions. Apart from his failure to tender that "book" in evidence, he never clarified whether the same was a firearm license issued under section 5(2) (a) (ii) of 32 I a the Arms and Ammunitions Act, Cap 223 R.E. 2002, and Regulation 12(a) of the Arms and Ammunitions Regulations. Also his evidence did not shed any light on the calibre, type and maker's number of the rifle allegedly owned. All this could be obtained from the licence. If its original was missing, then its duplicate would have sufficed as rightly argued by Mr. El-Maamry. If the worst came to the worst the I firearms Register kept at the Central Arms Registry would have met the exigencies of the case. These documents could have conclusively answered quEstions (I), (ii), (iii) and (iv) posed above. Of course, we have also found no evidence to answer the third question. We have also serious and genuine reservations on whether exhibit Cl was the very rifle which was found in the possession of the second appellant. This is because neither PW1, PW2, PW3, PW4 nor PW6 recorded in their statements to the police the type of rifle the second appellant was arrested with. As if that was not damning enough, none of them identified exhibit Cl to the court to be the very weapon the second appellant was arrested with on the night of 30th September, 1990. This was a fatal omission. There is no 33 I credible link, therefore, between exh. Cl and the rifle the second appellant was arrested with. For these reasons, we fully associate ourselves with the opinions of the two gentlemen assessors in the High Court and uphold Mr. Rweyongeza submissions. The learned trial judge, therefore, erred in finding that CW1 had bolstered and/or salvaged a non-existing prosecution case against the appellant. It is our conclusive finding that the prosecution failed to adduce material evidence to prove that the deceased owned a gun, leave alonea rifle of whatever description, in his life time. Even if the deceased owned one, the prosecution totally failed to prove that exhibit Cl was the property of the deceased, apart from failing to prove that it was the one the second appellant had in his possession when arrested by N \W PW3 and his colleagues. In fine, we hold that the second appellant was also wrongly convicted. We allow his appeal by quashing his conviction and 34 sentence which are set aside. All the appellants are to be released from prison forthwith unless they are otherwise lawfully held. DATED at DAR ES SALAAM this day of October, 2008. H. R. NSEKELA JUSTICE OFAPPEAL E. M. K. RUTAKANGWA JUSTICE OF APPEAL S. MJASIRI JUSTICE OF APPEAL I certify that this is a true copy of the original. S.S. MWANGES SENIOR DEPUTY REGISTRAR 9 35