mabrouk so mbinila vs republic 2009 tzhc 226 22 january 2009

IN THE HIGH COURT OF TANZANIA AT TABORA APPELLATE JURISDICTION (Tabora Registry) (HC) CRIMINAL APPEAL NO. 118 OF 2004 ORIGINAL CRIMINAL CASE NO. 202 OF 2002 OF THE DISTRICT COURT OF TABORA DISTRICT AT TABORA BEFORE. J.J.. MACHUMU.; Esq.; RESIDENT MAGISTRATE MABROUK S/O MBINILA...................................................APPELLANT (Original A ccused) Versus THE REPUBLIC................................................................... RESPONDENT (Original Prosecutor) JUDGEMENT. 29/ 10/2008 & 22/ 1/2009 KADURL J. At the trial, the appellant MABROUK S/O MBINILA stood as the fifth accused together with five others. He alone was convicted with the offence of Armed Robbery c/ss 285 and 286 o f the Penal Code. On the 6th March, 2002 the house o f PW1 A shraf s/o Mussa was broken into by bandits who stole a TV set, two cell phones, one pair o f shoes and one set o f coutions. PW. 1 testified that he was threatened with a panga by the appellant with whom he stood face to face. He informed the Police that he could identify the person who had threatened him. He identified the appellant at the Police station after he had heard that the appellant had been arrested and has named other participants in the crime. The appellant had a cautioned statement recorded which was received as exhibit in court. In the cautioned statement the appellant is alleged to have admitted committing the crime and named the rest o f the accused. The appellant, in his grounds of appeal has raised the issue of failure on the part of the investigators to conduct an identification parade given the fact, that PW1 did not know him before the day of the incident. He has submitted that PW1 was the only single witness of identification and the appellant was a stranger to him and therefore PW 1 should have given details or description o f the appellant. The learned State Attorney Mr. Samali declined to support the conviction. He submitted that the identifying witness should have given particulars o f identity such as colour, appearance, height ate; and that there should have been conducted a parade of identification since the identifying witness had seen the appellant for the first time. The issue o f particulars of identity is based on the decision in Bushir Amir V. R. (1992) TLR 65 which the learned State Attorney cited. On the issue o f the cautioned statement, the appellant submitted that it was not voluntarily made and yet the court did not conduct enquiry into ‘it’s voluntariliness. The learned State Attorney submitted that the appellant was not informed of his rights under section 54 Criminal Procedure Act because the Police investigators did not cause reasonable facilities to be provided to enable the appellant to communicate with a lawyer, a relative or a friend of his choice. The trial magistrate based his conviction of the appellant on the evidence of identification and that the appellant led the Police Officers to where his fellow suspects were sleeping. However he had acquitted all the said suspects because they were found with nothing and the evidence against them was weak. In my opinion, the identification of the appellant, should have been . accompanied by a detailed description of the appellant since it was for the first time that the identifying witness claims to have seen the appellant. The cautioned statement was disputed and hence it was necessary to enquire into it’s voluntariliness before it was admitted and relied upon to convict the appellant. In the event, this appeal succeeds. I hereby quash the conviction, set aside the sentence and order that the appellant be released forthwith unless otherwise lawfully held. L.K.N. KADURI JUDGE 22/1/2009