20110408 TZCA Tanga

IN THE COURT OF APPEAL OF TANZANIA 1 ATTANGA (CORAM: MSOFFE, J.A., LUANDA, J.A., And MANDI~. J.A.) CRIMINAL APPEAL NO. 321 "A" OF 2009 KARIM . SADRUN @ MOHAMEDAL ............................................... I APPELLANT VERSUS THE REPUBLIC ••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••• RESPONDENT (Appeal from the Judgment of the High Court of Tanzania I atTanga) (Mussa, J.) dated the 30th day of January, 2009 in Criminal Appeal No. 14 of 2008 JUDGMENT OF THE COURT 4 & 8 April, 2011 LUANDA, J.A.: The appellant KARIM s/o SADRUN @ MOHAMEDAL and YUNUS s/o I ABUU were jointly and together charged with armed rolDbery contrary to 1 sections 283 and 286 of the Penal Code, Cap. 16. At the close of the prosecution case, YUNUS was acquitted as he had no case to answer; I whereas the appellant was found to have a case to answer. The appellant 1 I gave his defence. At the end of the trial, he was convicted I and sentenced to thirty (30) years imprisonment and 12 strokes of the can~. The appellant was dissatisfied with the finding of the trial court, he unsuccessfully appealed to the High Court. Still aggrieved, he has come to I this Court of Appeal. In this appeal, the appellant had the services of Mr. Juma Nassoro learned counsel; whereas the respondent/Republic was represented by Mr. Faraja Nchimbi. Mr. Faraja Nchimbi supported the conviction and sentence. I In the memorandum of appeal, Mr. Nassoro raised three grounds. I However, having read the grounds raised, we are of the settled view that all the three grounds can be condensed into one ground that is the I evidence was insufficient, the prosecution did not prove its case beyond ' reasonable doubt. Briefly the prosecution case was this:- Zuwena Ally (PW1) a businesswoman and resident of Chumbageni, Tanga Municipality was once i married to Yunus s/o Abuu (the one acquitted). The two divorced. Under I the said circumstances, she knew Yunus very well. 2 I I , I I I As regards to the appellant, PW1 said he was their f~iend. After the I I breakdown of the marriage, PW1 happe~ed to get a layer one Nassir Ahmed (PWS) a businessman from Zanzibar. I On 19/9/2003 during day time PW1 and PWS rented p room at In by the Sea Hotel within Tanga Municipality. The appellant knew they would be II I in that hotel through PW1 whom they m~t on the same /day somewhere I I within Tanga Municipality before. However, the evidence on the i prosecution was not forthcoming as to -why the appellarjt went to meet I PW1 and PWS. Be that as it may, it is on record that /the appellant is I I reported to have gone there even before the two had ~rrived. Then he II went for the second time. This time he was lucky. He met them. PW1 alone I I talked to the appellant. What they talked., PW1 did not di'sclose. However, I -' I I whatever the position PW1 then requested the appellan~ to bring her of I mobile phone charger from her homesteacl. The appellant/left. I I I I On coming back, the appellant was accompanied! with three other I I ! people who were armed with pistols and a knife. Aniong those three, I Yunus was one of them. It is the prosecution case t~at the two were : I I 3 roughed up, beaten, threatened etc. Later PWS cheated death as the bullet fired missed him. Money and a bag were taken. The bag was later recovered; the assailants dropped it down. The matter was reported to police and eventually the appellant was charged. In his defence the appellant raised an alibi. The court rejected it and convicted him. There is no doubt that the case depends wholly bn credibility of I witnesses. Both lower courts were satisfied that the witnesses were credible and truthful. Mr. Nassoro submitted that the evidence of PWl arid PWS contain a number of contradictions. For instance he said PWl said the bandits had ' two pistols; when PWS said one. There is also contradiction as to where the gun shot was fired. PW2 said in the room; whereas PWl and PWS said outside. In view of the contradictions, Mr. Nassoro said that it is doubtful whether really robbery was committed. 4 I Mr. Nchimbi on the other hand submi~ed that pieces pf the evidence I of PWl, PW2 and PWS were strong enough to ground a conviction. I He said I I the incident occurred at day time; the appellant was famillar to witnesses I (PWl and PWS) and the incident took some time. I I I I This is a second appeal. We are alive to a well know1 principle of law that the second appellate Court will rare;ly interfere wit~ the concurrent findings of fact by the Courts below. But the second ap~ellate court will I interfere if it is shown on the record that there are misdirections or nor- , I directions on the evidence (See The DPP v laffari Mffiume Kawawa I [1981] TLR 149). We wish to point out from the outset that prosecution case contains a number of contradictions and lack of coherence as we shall discuss here I I under. To start with the evidence of PWl and PWS1· PWl said, we reproduce: I I "The first accused [appellant] was the one !who I I beat me, he also took my mobile, my chain/ and : I ' I thereafter they all run away. When theri got I I out, we tried to chase them they droppe~ the I I I I 5 i . I :: I ., bag and fired a bullet, they (ried to fire to ~y ~ ., paramour un,ortunateIy wasI not In1ureu/ . . ·"' I re ''II I collected the bag and then vyent to report tpe incidence at Chumbanen) ::, Statidn. I I Police I ·1 ·, Between the two accused persons in the d°ick :i I ·1 it's only the first accused that came to 0ur I ·I I room." I I PWS on the other hand said:- I I 'I I ''I was shocked to hear a :hard knock on )the 1 ! ·. I door, Zuwena opened the, door then K~rim : I entered inside/ so I continV,ed with my restI on I I the bed after some three minutes ., other three I persons whom I did not ~~ow entered in)ide, . I they were carrying a hybur .paper bag they took I : I a pistol from that bag and pressed it on/ my :, •I nec!y the other pointed another pistol to me : I and third was armed with: a long knife/ ~erim ·: I had nothing but the mi!ster of the ~hole : I operation. He ordered his colleague to beatI and I I I I I 6 I I I I I I I I troll me and they ordered tne to give the(n I money." I According to PWl it was the appellant only who entJred their room. . I By necessary implication the rest were outside. If they w¢re outside how I I did they beat PWS, because PWS said the appellant order~d his colleagues , I to beat him. Further if we go along with: PWS evidence Jt what time did ' I . I the appellant beat PWl if what PWS had .'said was true tnat I the appellant , I was ordering his colleagues to beat him. PWS did nqt say when the I appellant said so he was also beating P~l ! Further, if ;really what PWS : I had said was true about the pistol to have been wrappeq in a paper bag, , I we failed to comprehend why PWl fail to see and say so if the two were I inside? I . I As regards to the evidence of PW2, we also find / his evidence not I credible. In his evidence in chief he said:- I I I I I "We first heard a gun fire from room No. I 209 (sic), we got out and saw our guest comin~ out running but had only towel and was ruJning , I towards the swimming club. We had a r¢scue I I 7 I I I I I I him by chasing the bandits ran away. 'I I managed to identify Karim we did not manage I I /' to arrest them. Those bandits dropped one b~g we recovered it and returned to its owner. " , I First, PW2 did not say the place he was when he heard the gun fire. He I did not say the distance from the place he was to room 'no. 206. If he really saw the bandits, why did he fail to disclose, their number? Furthermore, PW2 testified that they were a number of ,people. This is because, he used "We" and that PWS wore a towel. But PWS said, we quote:- ''I had to chase them while naked while yelling I out for help. One to this I got a help from passersby who Joined me in chasing ,the bandits, one of the bandits turned back 'and fired against me ... " We don't think PWS could not be able to identify PW2, a guest house attendant if really he was also around. PWS again differed with PW2 as to 8 I I ~ " the time the gun shot was fired. To crown 1t all, in the abs~nce of a spent • cartridge further raised doubt whether reallJ robbery was co~mitted. In sum we find the appeal has merit. The conviction !is quashed and I sentence set aside. The appellant is to be released from prison forthwith unless he is detained in connection with ot~er lawful cause. i DATED at TANGA this 8th day of April, 2011. I J. H. MSOFFE l JUSTICE OF APPEAL I 8. M. LUANDA l JUSTICE OF APPEAL W. S. MAjlA I ~;i-1<r~~e,, JUSTICE OF APPEAL 0" ,to.\ -~.gr,ti~~~, I is is a true copy of tl;le original 'r.,;,r:i),;,:_ :~ .' t .')_t•~.--·~ \) ~~~✓- --- =~ ,. -~~-- E. Y. MKWIZU I DEPUTY REG'.ISTRAR COURT OF APPEAL 9