20090427 TZHC Tanga

~ "'""..,;·. ,,. ':,fc·· ,-! . ·IN THE HIGH COURT OF TANZA:NIA , ', ~ -. .. . ., ,AT TANGA , ·:.i:. . · CRIMINAL APPEAL N0.3 OF 2008- - - ·.•.· {Originating from D/C Handeni Cr.. Case No.31/~007} · ,I _:-,._··: ::_ • 1.ABUBA~RI JAPHAR 2.ADAMU JAPHARY 3.ALLY DAU DI :. .·, 4.HAMISI MOHAMED! . .-.. ~ .......... ~ ... ~ .......... APPEl.LANTS VERSUS THE REPUBLIC ............._........................... RESPONDENT 2/02/09 & 24/04/2009 ;j,:1 JUDGMENT . , ·:.· . Mussa f J·I V 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, Handen_i District, they jointly stole a cellular phone handset, a jacl<et, 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· · ahd 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 Jo . the hilt. ,,. Upon ,·, . conviction, they were, sentenced to thirty years'Ymp~i,so~ment. The appellants . are aggrieved upon a joint petition ofJhi~fij~hey adopted at th~ hearing without more. As is customary, I shoui}:r-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 behindthe wheel of a private motor vehicle enroute from Moshi to HandenL 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,· Hus~ir¥ slammed the .,,. brakes , on to bring the car to a sudden half and; V as it turned 01:Jt, 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 indictmeht. 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 sig_ht and; destined to·. the same direction as was headed by Hussein. As one would have expected, th~ bandits charged on 'it and; 2 the way it. appears, .., its occupants were just as' wert'.subjeqed .. .. to their , ', ~ ~.- ' ; ' ' scrutiny. ' . :.-..·\. -. : .<-:· ... . -~·. '.· Moments later, another motor vehicle was in .sight(.this one, a Fusso, cruising the opposite dfrection. Driven by ·th~i~/-·:g:reed, the . ' .·.: .:· SCqvengers . made a go at it but; a· sixth sense told the lorry :cl.river to . . . speed up and; that was about it, much as, to the bandits, 1t·Wc3S not get-at-able. The Fusso lorry was to cruise qver and past-the· barrie~ to safety. Next, the bandits resumed their encounter with Husse-in,· .\ \ . 1 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 ·,. !t,- . ·- .. so, mission accomplished, from their stand point, ~-· 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 .1), 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.1). In the _letter, the fourth appellant was impl.icated upon as one of th_e conspirators. :The police would qot 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· sooH:after .. Someho"'!, the remainder of the appellants and. the· co-accJiic:t: . ... . '.p&sbns .- .. . were . ~ . .{;. :,._.· .: securely rounded upon suspicion. _;. 1-: - Against this backdrop, on the 11th d?Y of Jan.L1~t;y,,·2007 the superintendent arranged for and conducted an identific~tion. parade. V • • • • There were two suspects, namely, : the first and ·second ,.~ppellants. . . . . According to the parade register, adduced into· evidence by the . . superintendent, two police officers, namely, sergeant Mekiad a·nd·· 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 iden~i,ying witness. Her name is, nonetheless, no show in the register an~; 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 appellai:it. 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 ano second appe.llants. There w~s, of course, that letter telling,· at large, against the fourth appell~nt but; to express at once, it was, properly. called, entirely hearsay stuff. It 4 .. stiould be reminded that a written statement,·~;> _a/perso~ not calle.d . . , ~ ;_ . ·.: •.. , ' ; as a witness,· may only qualify 'into evidenc~. ·-~-~p6n q~air,ing th ,• requirements of section 34(8) of the Evid~nce A~f::ltat';all, exhibit .\ \ . . ·., ' '. ·.·:· PE.1 does not live to any or the requirements and; l _w~u1d not refer '! . . . -~ : . ' to it any further. Thus·, despite the position that the case for the : p~~s~qition --~- was . ~ ailing inadequately with respect to some of the accused p_ersons; yet, the trial court found all -to have a case to answer. Their respective defence statements were quite lengthy but; generally, c:oncerned ~ -~ . with the manner· underr which each was_ arrested. None of the appellants specifically adrnitted complicity to the occurrence of which they all took exception. But according to ,th ~ifci and - fourth . ~ appellants; the identification parade-was just as vt,ell conducted with respect to· them, only th.ey, were not implicated. Again, the picture .that emerges 'from the appellants; respective statements is that_ Hussein was also taken along as ·an identifying w'itness but failed all- through. . This being the storm raisec::I in support of and; to counter the prosecution accusation; the tr'ial 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. tf{e-- .~!t~rSS, sauda, conceded seeing the first and second appellant;::~9ming' out of the · . , ' ... . ·.:.-::• ':,:·. ~' ' . lock up moments before the parade was conducted>\. . ~<--' ·. . :•,:. Deal~ng with the points of contentid~, .I need n6t-t~cite details of' the points raised in the lengthy and verbose petiti~h.. . It seems to · . me that the ·ap~e~I ,turns upon a narrower compass.~hat.h_flS to ·do with the sufficiency of evidence of identification. to tfffs, I sh<Duld express at once that there was not the slightest of evidence bearing upon the third and fourth appeUants. Their conviction w~s, rather, assumed from without. The second appellant was, likewise, not identified by Sauda at the parade and; his implication \'.Vas derived upon a wild claim by' Sauda to the effect that the _v-an· was like hiding his face at the parade, that is, to cheat identific;ation; 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 p~le 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 as~ailc:mts 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 th~ .\ ' 6 Identification Parades of which, to my. understandihg, are embodied in· our police· General Orders. ·Although elem~~t~ry,:: ·:·. th~'. rul~s: . are -~' · . .-:. worth reminding and are.couched thus:- - 1. That the accused person is always informed thaf . . he may have a .. ! .·, . solicitor or friend present when the parade takes place;. 2. ·That the officer in-charge of the case, .although . fl~·•....... /nay 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 ~mong, at least, eight P~tsons, ~ ' . as .\ \ . far as possible of §imilar age, height, general appearance and class of life as himself or herself; 5. That the.accused is allowed to take any posi.tioi1 he choose~ ' ¥ and· that he is allowed to change his ppsition after. eacp identifying witness has left, if he so desirt;:s; ; I : \ 'i 6~ Care to be exercised that the witnesses i}re not allowed to 'i ' 'i I .communicate with each other after they have been to the · : parade; - 7. Exclude everyperson 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, ·1t is suggested the whole parade be asked to do this; 7 . ... j.i ~?,.. 10. See that the witness touches the person, he ide(ltifies; ,, . . ,t,i(; j " ·. 11: At the termination of the parade, -or: ''d(Jrihg the parade, • :'. ·:-• • ,I ,• .,,. • ask · the accused if he is satisfied that the -.pji'r,ade -/s being conducted in" a fair manner and make a note of hls'reply; 12. In Introducing the witness, teti him that. group of people who may or I may not contain _th~ .,spspected x~ ·will see a • ... ., person. Don't say 'pick out somebody" or influence_·him in any way whatsoever and; 13. Act with scrupulous fa_irness, otherwise the va/.Lje of the .. identification as ev[pence Will depreciate considerably. When all extracted 'and applied to the situation,.,$af· .\ _., hand, it does not come out clearly from the testimony of the SlJ_Perintendent 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-c~arge 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 th~ time immediately -ahead of -the parade. For ·another, neither was it specifically revealed as to where exactly the suspects and the civUian 8 ' .- ~ •.-:. -... ,·. ~ ./ partitipants were placed. Sergeant Mekiad, wno. w~tf.".in~charg.~ of the .· ,.,, ,! witness before the parade made but a -Jl~etin~ftef~rent~ to the parade without specifying what he actually did and,'\~ot~i_¢articuiarly, ' . .· s• . •the positioning of the witness as against the - suE/pects. Such , ,l :., particulars as to the positioning of the identifying witnes;f v~r2us that • p • • •. • •• of the suspe~s and civilian participants are critical so· a~ 5~>..:_:satisfy one, ih terms of instruction No,3, that the identifying witn_ess 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 ~ r~: 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-shads and; this is;,:1ow the fourt:H: . ~ Two suspects were, as I said, crammed up in one ..9arade 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 id~ntification parade is considerably depreciated. .• In the lig_ht of the foregoing, the ,evidence a"s _tq the identity of - - the perpetrators of the alleged robbery is far from being watertight. ' . 9 _.., That being the position, it is unsafe to allo~ t~e: tonvic;tion against all the. appellants to stand. In-the. end "result,: . ·> ~~~~al :.· ~his $UCceeds ' .. following which the conviction and sentence: :-~r~/' 'respectively, quashed and set aside. \The appellants . should ·b_e-:~r~leased . . ..·. from. ) J -;., • .--, ·.: ~ustody forthwith unless held there for some othe~-; l~wful cause. Order accordingly. K.M. SA, l. 26/03/2009 Coram: Before: Mussa, J. Appellants: All presents For the Republic: Mr. Iboru the parties. K.M. 11\ll..l'sill,;;;;JIA, J. 27/0 /2009 \ ' 10