20110228 TZHC Dar es Salaam

1 IN THE HIGH COURT OF TANZANIA AT DAR ES SALAAM CRIMINAL APPEAL NO. 101 OF 2009 Original Criminal Case No. 723 of 2007 Temeke District Court A. Ngasoma PDM KARIM HUSSEIN VERSUS REPUBLIC Date of last Order : 6/12/2010 Date of Judgment : 28/2/2011 JUDGMENT Shangwa, J. The Appellant was charged with the offence of Armed Robbery C/S 287 A of the Penal Code. H.e was so charged 2 1n the District Court of Temeke. He was convicted as charged and sentenced to 30 years imprisonment. Having been dissatisfied with both conviction and sentence, he appealed to this court on the following grounds: 1. That no identification parade was conducted to identify him as P. W. 1 's assailant. 2. That the Police were not involved in the investigations of the offence charged against him. 3. That the evidence which was given by the prosecution witnesses had contradictions on dates. 4. That the prosecution witnesses had their own interest to serve and their testimonies needed to be corroborated. 5. That the evidence given by the prosecution is not watertight. 3 In this case, the prosecution had the burden to prove the following allegations: That on 29 th May, 2007 at about 22.00 hours at Mtoni kwa Azizi Ali, area, Temeke District, Dar es Salaam Region, the Appellant Karim Hussein did steal one Mobile Phone make Nokia, cash Tshs. 113,000/= and a watch make Casio valued at Tshs. 450,000/= the property of Saidi Nassoro and that immediately before• such stealing, he threatened him with a knife in order to obtain the said properties. The question now is whether or not the prosecution discharged its burden of proving the above allegations to the required standard. That is proof beyond reasonable doubt. The prosecution called three witnesses to prove its case. 4 '\ P. W. 1 Saidi Nassoro told the trial court that he knows the Appellant and that on 29/5/2007 at 10.00 hours the Appellant attacked him suddenly and robbed his Nokia mobile phone, cash Shs. 113,000/= and a watch valued at Shs. 40,000/= and that immediately before robbing him the said properties, the Appellant threatened him with a knife, and that when he· cried for help some people came and joined the Appellant and that after robbing him his properties they run away. He then went to report the matter at Kilwa Police Station. He said that on the following day, he went to Azizi Ali area, phoned the Appellant and promised to give him Shs. 50,000/= in case he surrenders his mobile phone to him. He said that on 31/5/2007, the Appellant called upon him and told him to go and see him. .) 5 P.W. 2 Buti told the trial court that on 31/5/2007 Saidi Nassoro told her that he had been rob bed his mo bile phone and that she went with him to Sarafina Bar from where she telephoned the Appellant and introduced herself as Mariamu. She said, later, the Appellant came at Sarafina Bar from where he was found with the mobile phone and got arrested. P.W. 3 Amiwu Mohamed Alawi told the trial court that on 31/8/2007 Saidi Nassoro (P.W.1) went to his office and asked him to accompany him to Sarafina Bar, Temeke for the purposes of arresting the Appellant. He said, he agreed to accompany him to that Bar and that when they reached there, the Appellant came and got arrested. He said after his arrest, they took him to the Police station at Kilwa Road. 6 In his defence, the Appellant denied to have committed the offence charged. lle said that he was arrested at Shell area in Temeke District and taken to Kilwa Road Police Station where he met some other people who were being suspected of dealing with drugs. It is true as stated by the Appellant on the first ground of appeal that no identification parade was conducted for the purposes of identifying P.W. l's assailant. It is true also that the Police were not involved in the investigation of the offence charged as stated by the Appellant on the second ground of appeal. It is true as well that the prosecution witnesses gave contradictory evidence with respect to the dates when the offence charged was allegedly committed 7 just as stated by the Appellant on the third ground of appeal. It seems to me as stated by the Appellant on the fourth ground of appeal that the three prosecution witnesses had friendly relationship and that they might have had the same interest to serve. For the reasons that I will shortly give, I agree with the Appellant on the fifth ground of .~ appeal that the evidence adduced by the prosecution is not watertight. First and foremost, if at all, P.W.1 knew the Appellant at the time of the incident as he claimed in his testimony in chief, why did he not involve the Police for investigation and arresting the Appellant. He simply reported the incident at Kilwa Road Police Station but he never involved 'll 8 the Police from the said station at the time of arresting the Appellant. Instead of involving the Police, he involved P.W.2 and P.W.3 who are his close friends. It is surpr1s1ng to note that P.W.1 claims to have promised to give Shs. 50,000/= to the Appellant in case he surrenders his mobile phone. His promise ends there, it does not extend to cash Shs. 113,000/= and a watch which he claims to have been robbed from him by the Appellant together with his mobile phone. P.W.1 's failure to involve the Police for the investigation of the offence charged and for arresting the Appellant creates doubt as to whether or not the Appellant did commit the offence charged. 9 It seems that there was a collusion of some sort between P.W.1 and the rest of the prosecution witnesses namely Buti and Amiwu who are closely related in order to fix the Appellant so that he may be imprisoned for a long time. Secondly, P.W. l's prosecution scheme for landing the Appellant in prison for a long term of imprisonment is revealed from what he told the trial court and what P.W. 2 told the trial court with respect to the manner on how the Appellant was caught or netted. Whereas P.W.1 told the trial court that the Appellant was netted after being promised by him to be given Shs. 50,000/= upon surrendering his mobile phone to him and after the Appellant had asked him to go and see him; P.W.2 told the trial court that the Appellant was caught at Sarafina Bar after being tricked by her that her name is Mariamu. P.W.2 10 did not tell the court about the relationship between the Appellant and Mariamu. As a whole, the Appellant's prosecution for having committed the offence with which he was charged is blurred. I hold the refore that the evidence on record is short of proof beyond reasonable doubt to find the Appellant guilty as charged. Therefore, I quash his conviction and the sentence which was imposed upon him and order that he should be released from prison henceforth unless he is otherwise lawfully held therein on a different matter. A. F. Shangwa JUDGE 28/2/2011 11 Delivered in open court this 28 th day of February, 2011 in the presence of the Appellant and Mr. Kato, State Attorney for the Respondent. A. F. Shangwa JUDGE 28/2/2011