rashid seif vs republic 2008 tzhc 254 10 november 2008

IN T H E HI GH C O U R T OF T A N Z A N I A AT MTW ARA A P P E L A I E JIJ RIS I) ICTI ON C R I M I N A L A P P E A L NO. 54 O F >008 O R I G I N A L C R I M I N A L CA S E NO. 67 O F 2007 O F T H E D I S T R I C T C O U R T OF N A C I I I N G W E A D I S T R I CT AT NACIIINGWEA B E F O R E : O.M. KING WE LE ESQ - R.M. R A S H I D S E I F ---------------------------------------------------------------- A P P E L L A N T VE RS US TI I E R E P U B L I C ----------------------------------------------------------- R E S P O N D E N T 5/1 1/2008 & 10/1 1/2008 JUDGMENT S. A. Lila, J. T h e a p p e l l a n t R a s h i d S e i f w a s indicted before the district court o f N a c h i n g w e a j o i n t l y w ith six ot he r pe rs on s w h o w ere acq ui tt ed for no case to answer., Said j u m a ( 2 lul A c c u s e d ) , Bak-.tri Ally ( 3 IU a cc u s ed ), said Omari (4 lh acc us ed ). Abciaiiah Ngalenga ( 5 th A c c u s e d ) and Fadhili Masudi (6lh Accused), a n d . a l s o M a t e s o N a s s o ro M h a i w e r a ( l sl a c c u s e d ) w h o pleaded guilty lo the charge a nd was s en te nc ed to c orp ora l p u n is h m e n t, lor c o n s p i r a c y io c o m m i t an of f e n c e contrary lo section 384 : •° conn i) siore b r e a k i n g c o n t ra ry to se c tio n 29 6( a ) ; 2 iu! c ou nt ) and stealing contrary to S.265 o f the Penal C o d e ( 3 K‘ coiaii). 1'he ap pe ll an t was c o n v ic t e d with ihe offence of store breaking and was s e n te n c e d to serv e three years im p r i s o n m e n t . T h e c o n v i c t i o n and s en te n c e a g g r ie v e d him, he nce this appeal. T h e a p p e l l a n t did not indicate, in his m e m o r a n d u m o f app eal , that he w i s h e d to a a p p e a r d u r i n g the h e a r i n g o f his ap peal. In t e r m s o f p ro vis o (i ) o f sectio n 34 (1) o f the m a g i s t r a t e s ’ cou rts Act, 19S-1 (Cap 1 1 k.K 2002) he is taken to h a v e not w i s h e d to a p p e a r du ri n g the he ar in g o f his appeal. So the h e a r in g o f the a p p e l l a n t ’s appeal pr o c e e d e d in ii;.-. a b se n c e . 'The learned State A t t o r n e y w h o a p p e a r e d be fore me, Mr. M k u d c , d e c li n e d to icsist the appeal. On 5 /3 /2 0 0 7 , the trial c ourt record s h o w s , R w e j e P r im a ry c o - o p e r a t i \ e s o ci e ty g o d o w n w as b ro k e n into and 31 litres o f bay fid an c h e m i c a l valued at T s h s . 4 6 1 , 0 0 0 / - and 4 litres o f b a y ie t o n c h e m i c a l valued at T s h s . 3 6 . 2 2 0 / - all total va lu ed al 'fs.hs.49S, 12 0 / — stolen from therein. An in ve st ig at io n w as c o n d u c t e d and die sev e n s u sp e c ts w e r e arre st ed O ne O m a ri R a s h i d C h i n g u l i a village i ix e c u ii v e O f f i c e r for M k o k a vill ag e did not tell h o w they c a m e to know that die sev e n s u sp c e is w e r e im pli ca ted in the c o m m i s s i o n o f the o f f e n c e as he only said he w as in f o r m e d by villagers and the a p p e l l a n t w a s m e n t i o n e d b\ T ‘ A c c u s e d . P\V2 o n e R a s h i d A m o u r a m il it ia m a n w h o a rr e st ed the s u sp e c ts m e n t i o n e d by PVvl said he arrested the app ell ant at M a k a n j i r o village in K u a n g w a district, l.indi Re gio n. P\Y3 one S e le m a ni C h in ju n i a s ec re ta ry w im die socie ty said n o t h i n g on h o w the sus pe c ts w e re im p lic a te d. P\V--i on e S a iu m iVlalibiclie a m il it ia m a n t^ave a similar evidence to that o f PW 2 and insisted that the appellant was m entioned by the 1st Accused. I i The appellant, in his sworn defence at the trial, denied involvement in the comm ission o f the crimes. l ie said on 5/3/2007 he was at M koka village and was not arrested but was arrested on 5/4/2007 at M akanjiro village Ruangwa w hen on the way back home from M andaw a K ilw a where he had followed m oney from his sister for weeding cashewnut. His evidence finds support from his concubine Sina M oham ed (DW2). The appellant have preferred four grounds o f appeal whose cumulative thrust was that the prosecution did not prove the charge against him beyond doubts as he was not seen By any one comm itting the offence, nothing stolen was found in his possession and that the 1st accused one Mateso Nassoro who pleaded guilty to the charge is the one who committed the offence. On his part the learned State Attorney who, as indicated above declined to support both conviction and sentence, have submitted that there was no eye witness to the incidence o f the godown being broken, nothing was found either in the appellant’s house or in his physical possession and that the appellant’s conviction was based on his being implicated by other suspects whose evidence needed corroboration which was missing. lie concluded by saying that the appellant was convicted on mere suspicions which, in law, according to the decision in B e n ed ict A je tu V .R (1983) T .L .R 190, can not be basis to found conviction however strong it may be. I have followed and considered these arguments by the learned State Attorney. fI have thoroughly gone througlj the trial court record, as well. I would, in all circumstances o f this case, respectfully sustain Mr. M ku de’s contentions. The learned trial magistrate, I am unhappy to say, convicted the appellant on no evidence at all. As rightly submitted by the learned State Attorney, it was not established in uncontroverted evidence that the appellant was seen committing the offence or was found in possession o f such stolen chemicals. He was simply mentioned by 1st accused who did not even give evidence to incriminate the appellant such that corroboration would be required. The appellant’s movement to Kilwa and later his arrest at Makanjiro R uangw a immediately after the incidence may have raised suspicion. But on the cited authority o f B en ed ict A je tu V .R (1983) T .L .R 190, mere suspicions how ever strong it may be can not found a conviction. With respect to the trial magistrate, it is elementary that it takes sufficient evidence which is legally admissible in court o f law, to convict a person o f a crime. M oreover such evidence has tp prove the guilt o f the accused beyond all reasonable doubts. For all the foregoing reasons, I allow the appellant’s appeal, quash his conviction, set aside his sentence and hereby order him be immediately released from prison unless otherwise lawfully held therein. JU D G E ' '*■ a 10/ 11/2008 A \ s.a irnVr .)unci- 1(IT!/?('(if-'