abubakari japhary others vs republic 2009 tzhc 138 27 april 2009

IN THE HIGH COURT OF TANZANIA ' ATTANGA CRIMINAL APPEAL NO.3 OF 2008 (Originating from D/C Handeni Cn Case No.32/2007) 1.ABUBAKARI JAPHARY 2.ADAMU JAPHARY 3.ALLY DAUDI f 4.HAMISI MOHAMEDI............................... APPELLANTS J VERSUS THE REPUBLIC.........................................RESPONDENT 2/02/09 & 24/04/2009 JUDGMENT Mussa,J; In the District Court of Handeni, the appellants, along with three others, were arraigned for armed robbery contrary to section 287 of the penal code, chapter 16 of the laws. The particulars were that on the 10th day of January, 2007 at Kwamsala village, Handeni District, they jointly stole a cellular phone handset, a jacket, a sword and a sum shs. 195,000/= in cash all of which were properties of a certain Hussein Salim Mshana. It was further alleged that immediately before such stealing, the appellants and company threatened actual violence to obtain the properties. The appellants stood trial in the same serial order there is presently, whereas, their \' co-accuseds were John Raphael, Abdallah Ramadhani and Ramadhani'Athumani, respectively, the fifth to seventh accused persons. They all denied the charged but; upon full enquiry, it were only the appellants whose case was found proved.to the hilt. Upon conviction, they were, sentenced to thirty years imprisonment. The appellants are aggrieved upon a joint petition of'which-they adopted at the hearing without more. As is customary, I should explore the factual setting, first thing. ' The case for the prosecution was comprised of four witnesses amongst whom Hussein, the alleged owner of robbed-properties; testified as PW.3. On the fateful day, Hussein was behind the wheel of a private motor vehicle enroute from Moshi to Handeni; He was flanked by daughter Sauda Hussein (PW.2) and; around 8.00pm or so, as they drove past Kwamsala village, a tree-trunk was visibly across the road. That being the situation, Husjjgif* slammed the V * brakes on to bring the car to a sudden half and; as it turned out, another motor vehicle, a Toyota Land Cruiser was parked just ahead. Soon after, there emerged a score of persons; immediately descending upon Hussein and his daughter. The man was physically roughed up; had a pistol pressed against his head and; eventually dispossessed of the properties itemized on the indictment. Sauda, the daughter, was not spared by the assailants for she was beaten as well; quite apart from being opportuned to the rare occasion of having to witness the tormenting of her own father. Then, it did not take long before another motor vehicle, a Suzuki Escudo, was vividly in sight and; destined to the same direction as was headed by Hussein. As one would have expected, the bandits charged on it and; 2 the way it appears, its occupants were just as well^subjected to their scrutiny. ^ Moments later, another motor vehicle was in sight,; this one, a Fusso, cruising the opposite direction. Driven by their greed, the scavengers made a go at it but; a sixth sense told the lorry driver to speed up and; that was about it, much as, to the bandits, it was not get-at-able. The Fusso lorry was to cruise over and past the barrier to safety. Next, the bandits resumed their encounter with Hussein, this time, having him availed to hjs motor vehicles' switch. Perhaps, as a measure of pre-caution, the bandits actually had the switch snatched from Hussein the moment they descended upon him. And so, mission accomplished, from their stand point, b& was given back the switch and allowed to drive the remainder of his journey. As to who exactly those bandits were, Hussein was unable to catch a glimpse of the facial looks at any but; Sauda claimed she could identify some, if shown. This, she had told Ludovick Lyimo (PW.l), a superintendent of the police force, who was assigned to investigate the occurrence. Earlier on, the police were cautioned of there' being concerted enterprise to prosecute highway robberies. Such was a claim as comprised in a letter addressed to the Reginal Police Commander from a person in anonymity (exhibit PE.l). In the letter, the fourth appellant was implicated upon as one of the conspirators. The police would not let the cue slip by but; as it were their response was supervened by the occurrence at hand. Naturally, the fourth appellant was the 3 immediate suspect and; so/he was arrested'soon-after. .Somehow, the remainder of the appellants and the co-accused' persons were securely rounded upon suspicion. "v;. V ' Against this backdrop, on the 11th day of January, 2007 the superintendent arranged for and conducted an identification, parade. y There were two suspects, namely, the first and second ..appellants. According to the parade register, adduced into evidence by the superintendent, two police officers, namely, sergeant Mekiad and constable Tamimu were assigned to take charge of the identifying witness, respectively, before and after the parade. The superintendent had detailed and lined up ten civilians for the occasion and; apparently, Sauda was the sole identifying witness. Her name is, nonetheless, no show in the register and; it is, rather, the accompanying civilians whose names appear at the space allocated to identifying witnesses.. Then, it seems, the exercise was gone into in one parade with the suspects crammed in the midst of the ten civilians. Again, if the identification parade register is anything to go by, the first appellant stood 15th in line; whereas, the second appellant was 3rd. When all was set, came the moment of action and, the identifying witness picked out only the first appellant. No foundation of whatever nature was laid by the prosecution in support of its accusation as against the rest of the persons accused apart from the first and second appellants. There was, of course, that letter telling, at large, against the fourth appellant but; to express at once, it was, properly called, entirely hearsay stuff. It 4 should be reminded that a written statement, by a'person not called as a witness, may only qualify into evidence /upon attaining th requirements of section 34(B) of the Evidence Act.vlf at all, exhibit PE. 1 does not live to any of the requirements and; I would not refer to it any further. * Thus, despite the position that the case for the prosecution was ailing inadequately with respect to some of the accused persons; yet, the trial court found all to have a case to answer. Their respective defence statements were quite lengthy but; generally, concerned with the manner under which each was arrested. None of the appellants specifically admitted complicity to the occurrence of which they all took exception. But according to th ttiiftj and fourth appellants; the identification parade was just as v^ell conducted with respect to them, only they- were not implicated. Again, the picture that emerges from the appellants' respective statements is that Hussein was also taken along as an identifying witness but failed all through. This being the storm raised in support of and; to counter the prosecution accusation; the trial court was impressed by the version as told by the prosecution. In the upshot, the appellants were convicted and sentenced to the extent as indicated above. They are aggrieved upon a joint petition comprised of six points of grievance. At the- hearing, the appellants, unrepresented, fully adopted the petition without more. The respondent Republic was represented by Mr. Safari who declined to support the conviction. To him, the, 5 identification parade was a farce’ much as., the witness, Sauda, conceded seeing the first and second appel fant/jcpnhing out of the lock up moments before the parade was conducted:^. Dealing with the points of contention, I need not recite details of the points raised in the lengthy and verbose petition. It seems to f me that the appeal turns upon a narrower compass that has to do with the sufficiency of evidence of identification. To this, I should express at once that there was not the slightest of evidence bearing upon the third and fourth appellants. Their conviction was, rather, assumed from without. The second appellant was, likewise, not identified by Sauda at the parade and; his implication was derived upon a wild claim by Sauda to the effect that the pnan was like hiding his face at the parade, that is, to cheat identification. That the trial court accepted the version as a true account is, indeed, incredible but; for sure, a conviction cannot be so based upon a pole fished claim. As regards the first appellant, the evidence in support of the prosecution accusation is on two levels. First, is the visual identification claim by Sauda followed, second, by her positive identification at the parade arranged by the police. The alleged robbery incident took place at night and the assailants were never known to Sauda prior to the incident. That being so, if there was a case in which an identification parade was essential, this is it. It remains to be seen, however, whether or not the exercise lived up to the requirements* Years back in R.V. Mwango Manaa (1936) 3 EACA 29; the then Court of Appeal for Eastern Africa approved the 6 Identification Parades of which, to my- understanding, are embodied in our police General Orders. Although elementary,, the' rules .are worth reminding and are couched thus:- y;/'?:: 1. That the accused person is always informed that he may have a solicitor or friend present when the parade takes place; 2. That the officer in-charge of the case, although he may be present, does not carry out the identification; 3. The witness do not see the accused before the parade; 4. That the accused is placed among; at least, eight persons, as far as possible "of similar age, height, general appearance and class of life as himself or herself; 5. That the accused is allowed to take any position he chooses, and that he is allowed to change his ppsition after each identifying witness has left, if he so desires; 6. Care to be exercised that the witnesses are not allowed to communicate with each other after they have been to the parade; 7. Exclude every person who has no business there; 8. Make a careful note of after each witness leaves the parade, recording whether the witness identifies or other circumstances; 9. If the witness desires to see the accused walk, hear him speak, see him with his hat on or off, see that this is done. As a precautionary measure, it is suggested the whole parade be asked to do this; i 10. See that the witness touches the person he identifies; 11. At the termination of the parade, or faring the parade, ask the accused if he is satisfied that the parade is being conducted in a fair manner and make a note of his reply; 12. In introducing the witness, tell him that he will see a group of people who may or I may not contain the suspected person. Don't say "pick out somebody"or influence him in any way whatsoever and; 13. Act with scrupulous fairness, otherwise the value of the identification as evidence will depreciate considerably. When all extracted and applied to the situatiorv.athand, it does not come out clearly from the testimony of the superintendent as to first, whether or not the first and second appellants were informed that they may wish to have a solicitor or friend present during the parade and; second, as is obviously apparent, the superitendent along with sergeant Mekiad were just as well in-charge of investigations on the case but; still, they took a role in the parade. These are the police officers who opened up the investigations, traced up the suspects and; preferred the indictment. Thus, in compliance with instruction No.2, such were persons, least expected to participate in the parade. Third, it did not flow, upon evidence, as to exactly where, for one, Sauda was placed, that is, at the time immediately ahead of the parade. For another, neither was it specifically revealed as to where exactly the suspects and the civilian participants were placed. Sergeant Mekiad, who was. jn-charge of the witness before the parade made but a fleetingO'reference to the parade without specifying what he actually did and, more particularly, the positioning of the witness as against the ' suspects. Such particulars as to the positioning of the identifying witness versus that of the suspects and civilian participants are critical so as to,satisfy one, in term's of instruction No,3, that the identifying witness did not see the suspects prior to the parade. No wonder comes about a claim from Sauda, that she actually saw the second appellant coming out of the lock-up, moments before the parade. The odds are that she was positioned at a place where the suspects were in sight. Still more to the parade slip-shods and; this isjjow the fourth: Two suspects were, as I said, crammed up in onejparade the results of which the exercise could barely have lived up to instruction No.4. The instruction is to have the suspect lined up amongst, at least, \' eight persons of which it would have been neater if the officer in­ charge arranged for two separate parades with respect to each, suspect. These were not the only misnomers, albeit, the crucial ones of which, I am afraid to say, if ever there was a messed up parade, there could not be a more vivid example than there is to the one at hand. To.me, the entire exercise was a giant mess and a departure from the general instruction the result of which the evidential value of the identification parade is considerably depreciated. In the light of the foregoing, the evidence as to the identity of the perpetrators of the alleged robbery is far from being watertight. 9 That being the position, it is unsafe to allow the conviction against all the appellants to stand. In the end result,;’this appeal succeeds following which the conviction and sentence -are>: respectively, quashed and set aside. The appellants should be . released from custody forthwith unless held there for some other lawful cause. Order accordingly. 26/03/2009 Coram: Before: Mussa, J. Appellants: All presents For the Republic: Mr. Iboru Judgment delivered in the presence o .the parties. K.M. MBSSa TJ. 27/04/2009 10