20111019 TZCA Dar es Salaam

IN THE COURT OF APPEAL OF TANZANIA AT DAR ES SALAAM {CORAM: OTHMAN,C.J., MSOFFE, J.A., And MANDIA ,J.A.) . . ., CRIMINAL APPEAL NO. 119 OF 2011. MAISA S/0 LUCAS MWITA@ KIPARA .... ~ .........................................APPELLANT VERSUS THE REPUBLIC ............................................................................ RESPONDENT {Appeal from the decision of the High Court of Tanzania at Dar es Salaam) {Shangwa, .. J.) Dated the 3 rd day of November, 2009 ·. in Criminal Sessions Case No. 15 of 2007 JUDGMENT OF THE COURT · · ··. 5 SEPTEMBER & 1ST NOVEMBER, 20i1 i' . I OTHMAN, C.J. J I The appellant, Maisa s/b Lucas Mwita ·@ Kipara appeals against the i .j judgment of. the High Court of Tanzania (Shangwa, J.) delivered on 3/11/2009::i in·.,',Cdrriinal Sessions 'case No. 15 of 2007 whereby he was ' ·. ., convicted of the (nurder·of Mariam c/o Mohamed and sentenced to death. -t~ ... the hearing of the appeal, on 5/9/2011, the appellant was represented by Mr. Michael Masaka, learned counsel and the Respondent .. Republic was represented by Mr. Josephat Mkizungo and Ms. Emilia Mkubulo, learned State Attorneys. Briefly, this was the background of the case at the trial court. The prosecution case, as narrated by PW1 (Selemani Athumani) and PW3 (Shabani Athumani) was that on 24/1/2006 at about. 9.45 pm,. the appellant and other unknown. assailants invaded their house at Gaba village, Kinondoni District in the course of which the deceased was cut with a panga. · She succumbed to death due to haemorrhagic shock (Exhibit P.1). PW1 and PvV3 were positive that they had identified the appellant at the scene of the crime; The appellant was arrested on 25/1/2006. The Identification Parade Register, PF 186 (Exh P.2) revealed that at an .identification parade conducted by PW2 (Insp. Phoebe Mra'ngo) · on 30/01/2006, PW1 and PW3 also identified the appellant. In this defence, the appellant, on oath, denied involvement. He set up on alibi that on the night of the incident, he was at home with DW2 (Martinus Lucas), his brother. At the conclusion of the trial, the 1st assessor entered no opinion, the 2nd assessor considered the evidence sufficient to convict the appellant and the 3rd assessor opined that he was not guilty as charged. 2 ·• I In his judgment, the··learned Judge found out that PWl and PW3 had identified the accused at the house. They had also done so during the properly conducted identification parade. He convicted and sentenced him for the offence. Hence, this first appeal. The appellant in his :rnemorandum of appeal principally sought to challenge his conviction and sentence on three interrelated fronts. First, that the findings arrived·.at; by·:the learned Judge that the prosecution had cleared all doubts against him, were indefensible both in fact and law, given the inconsistencies in the evidence of PWl, PW2, PW3 and PW4, which had - affected their credibility. Second, that the conditions during the incident were not favourable to enable PWl and PW3 to correctly·and unmistakenly identify him. Thirdly, that the-identification parade conducted by PW2 and PW4 did not adhere to Police General Order (P.G.O.) No 232 and should not have been relied upon by the Hi9.h Court to anchor his conviction. Before us, Mr. Masaka pointed out that when PWl who was outside the house was examined by. the prosecution, he responded that it was "dark". Yet, he maintainedthatthere was electricity (tube light) outside the house. That PW1 said the appellant was armed with a gun, while it was 3 . ' proved the deceased was attacked by a panga. That PWl testified that the assailants had used a stone to break into the house, but PW3 said nothing about it. He relied on Nyigoso Masolwa V.R (1994) T.L.R. 186 and Wilfred Lukago V.R (1994):T.L.R. 188. He faulted the learned Judge for not resolving contradictions· ·.in . the evidence and relying on the visual identification evidence of PWl and PW3, made under unfavorable . conditions. On the identification parade, ·Mr. Masaka submitted that it did not I I . ' follow the procedure laid down· in P.G.O. No. 232. He urged us to quash and set aside the appellant's conviction and sentence. ! l On his part, Mr Mkizungo unhesitantly, supported the appeal. He . I submitted that while PWl testified that there was more than one person with a cut ear at the identification parade; PW3 said that there was only one person. Furthermore, while PWl said there were 5-6 people who were lined up; PW3 said there were 12. That it was improper under P.G.O 232 for PW4 (D. 3910 Det. Corp.- Osward), the investigating officer, to be involved in con~ucting the parade. There was no evidence how it was conducted and whether PWl and PW3 were together or not. Convicting the appellant, he argued, would lead to a miscarriage of justice. 4 Having closely examined the record, and considering the issues raised, we are of the settled view that this appeal centres on the identification evidence of PWl and PW3 at the house and at the identification parade. First dealing with visual . identification evidence at the house, the law . is well established that it should only be relied upon when all possibilities of mistaken identity are eliminated and the Court is satisfied that the evidence before it is absolutely watertight (See, Waziri Amani V.R (1980) T.L.R. 250), Igola Iguna and Noni @ Dindai Mabina V.R, Criminal Appeal No 34 of 2001 (CAT) (unreported); R.V Evia Sebwato (1960) E.A. 174).The Court is enjoin_ed to examine whether or not the conditions prevailing favour or disfavour:,a correct and unmistaken identification of the assailant. The learned trial Judge reasoned and found: " Both PW1 and PWJ said that there· was electric light beaming inside and outside the house from where the deceased was cut with a panga which enabled them to see the accused properly. Both witnesses described the 5 accused's appearance by saying inter-alia that he had a cut on his ear✓ bald headed and that at the time of the incident he was wearing a T-shirt'~ ....................... ........................ ...................................... . ;, ,, ''Learned counsel for the accused raised doubts that it was not possible for PWJ to see the accused properly and clearly from the toilet which was 50 meters away from the spot where the accused was standing. For me, I think that PWJ was in a better position to see the accused as there was electric light Moreover✓ the robbery incident took sometimes and during that time the accused was moving here and there turning his head left and right which made it possible for PWJ to see a cut on his ear with which he was notably identified. Furthermore, I think that PWJ was as well in a better position to see the accused as he was him at close range when he entered the house to check on what his fellow robbers were doing inside there. " 6 On the whole evidence and with great respect to the learned Judge, we are of the view that the conditions for correct and unmistaken identification of any of the assailants were unfavorable. The incident took place at 9.45 pm, night time. PW1 and PW3 had never seen the appellant before the event. When asked by the third Assessor, PW1 replied that it was "dark", yet in examination'.'"in-chief by the Republic he was adamant there was "tube light" outside the house. His point of observation, at the toilet outside the house, was 50 meters away from the entrance of the house where the purported assailant he identified stood. With that distance in mind and the intensity of the tubelight not disclosed, we wonder how from that range it could have been possible for him to see a cut on an ear. PW1 also testified that the c;3ssailant had come close to the toilet, but again he was silent on the source of light, if any, at the toilet where he hid most of the time of the occurrence. PW3, who was inside the house claimed that there was electricity light which was broken by the assailants. He· also did not reveal the intensity of. the light therein. Moreover, the encounter, a few minutes, was a fleeting glance. With these circumstances, the identification conditions appeared unfavourable for a correct and unmistaken 7 identification of the appellant. With respect, they could not validly be said to be watertight, as held by the learned Judge. Next,· we advert to· the identification parade. The learned Judge held that it had met the test in Rex V. Mwango s/o Manaa (1936)3 E.A. C.A. 29. He found out that PWl and PW3 had identified the appellant by touching him at different times and that no doubt had been cast on the parade conducted on 30/01/2006, five· days after the appellant's arrest. He also found no fault in the .involvement of PW4, the police investigation officer in the parade. The conduct of identification parades is governed by Police General Order (P.G.O) No 232 issued by the Inspector General of the Police by virtue of the powers vested in him under section 7 (2) of the Police Force and Auxiliary Services Act,. .Cap 322 R.E.2002 ( see also, Francis Majaliwa Dues and 2 Others V. R, ,Criminal Appeal No. 139 of 2005 (CAT) (unreported). The pertinent question for determination is whether or not P.G.O No 232 was complied with by PW2. Having closely scrutinized the record, including the Identification Parade Register (Exhibit P.2), first, it does not appear to us that the 8 appellant was accorded the-right to have the attendance of an advocate or a friend, if he so wished, as.-,is required under paragraph 2(d) of the Order. Second, paragraph 2(k) provides: "Persons selected to make up the parade should be of similar age, height, general appearance and class life" (Emphasis added). While PW2 said that some of the people on the parade had cut marks on the ear, PW3 was categoric that only one of the persons lined up, i.e. the appellant, had a cut on his ear. This material contradiction goes to the root of the propriety of the p9rade. Third, while we agree with the learned . Judge, that the Order does .not specify the exact number of days an · identification parade is to be conducted following the arrest of a suspect, the critical question her~- i? whether or not the five days delay that intervened between the appellant's arrest on 25/1/2006 and the conduct of the parade on 30/1/2006 was explained by PW2 or PW4. It was simply not explained, let alone having been satisfactorily explained. In such circumstances, it is not known for certain that PW1 and PW3 had no opportunity to see or to be seen by the appellant at Kawe Police Station as is required by paragraph 2(i) of the Order. 9 Fourth, under paragraph 2(b) of the Order, the officer-in-charge of the case i.e.(PW4) may be present at the parade, but he is not to take part in conducting it, a task confined to an officer unconnected with the case (i.e PW2). With all the ,entries ::in the Identification Parade Register (Exh P.2) entered by PW 4 and n_0t PW2 as is required under paragraph 2(w), again we are not assured that '.he played no active role in its conduct. It was also PW2's evidence that PW4, the arresting and investigation officer, was in-charge of the parade::witnesses. Yet, paragraph 2 (e) of the Order provides: "Officers who made the arrest or who took part in the investigation will not be sent to bring or notify witnesses to attend the parade and will not communicate with them before the parade is held." On the totally of the . evidence, with greater respect, we are of the considered view that there was a series of material non-compliances with the Order, which rendered the identification parade evidence untrustworthy to cement the appellant's identification. No doubt, had the learned Judge properly scrutinized the evidenc~ against all the requirements of the Order, he would have arrived at the same conclusion as we have, that the parade could not be relied upon -to· reinforce the purported identification of the appellant by PW1 and PW3 during the night of the incident. One final point. The 3 rd ·-'Assessor opined that the appellant was not guilty. He reasoned: "There is contradiction between the testimony of PW2 and PW4 with regard to the identification parade. The said parade was conducted by PW2. The report was made by PW4 who was an investigator of the case. I think that PWJ could not easily identify the accused during the night of the i(Jcident as he was standing far from him and it is not known how strong the electric light was at that moment 11 With respect, in his. judgment, the learned Judge did not give any reasons why he disagreed-withthe 3rd assessor, as he oughtto have done. It is worth re-emphasizing:that the opinions of assessors as triers of fact, do matter and require due consideration by the trial Court, otherwise their role in assisting the Court, prescribed in section 265 of the Criminal 11 . {1 Procedure Act, Cap 20 R:E~- 2002 would be rendered illusory and cosmetic. This should not be the case. In the result, with both the identification evidence at the house and at the identification parade:·hardly credible and reliable, the appellant's conviction could not have been proved beyond reasonable doubt. We accordingly quash his conviction and set aside the sentence imposed. The appellant is to be set free forthwith unless otherwise lawfully detained in custody. The appeal is hereby allowed. DATED at DAR ES SALAAM this 19th day of October, 2011. M. C. OTHMAN CHIEF JUSTICE J. H. MSOFFE JUSTICE OF APPEAL W. S. MANDIA JUSTICE OF APPEAL <=: J :s If J.S. MGETTA DEPUTY REGISTRAR COURT OF APPEAL 12