nurdin abasi nampala another vs republic 2017 tzhc 2225 15 december 2017

IN THE HIGH COURT OF TANZANIA (MTWARA DISTRICT REGISTRY) AT MTWARA CONSOLIDATED CRIMINAL APPEAL NO 47 & 48 OF 2017 (Appeal from the decision of the District Court of Masasi (H.C. Kando, RM) dated 16th February, 2017, in Criminal Case No. 158 of 2016) NURDIN ABASI NAMPALA......................................... 1st APPELLANT RASHIDI AMILI LAIZA @ CHILI................................2nd APPELLANT VERSUS THE REPUBLIC.......................................................... RESPONDENT Date o f last order: 11/12/2017 Date o fjudgment: 15/12/2017 JUDGMENT Twaib, J: The appellants, Nurdin Abasi Nampala and Rashidi Amili Laiza @ Chili were jointly charged, at the District Court of Masasi in Criminal Case No. 158 of 2016, with the offence of grievous harm, contrary to section 225 of the Penal Code, Cap 16 R.E. 2002. It was alleged by the prosecution that on 13th day of December, 2015 at about 00:15hrs at Mpeta village within Masasi District in Mtwara Region, the appellants did use firearm to shoot one Iddi s/o Swedi Lazima on his legs and caused him to suffer bodily injury. The appellants denied the charge when it was read to them. The trial court considered the testimonies of five prosecution witnesses and two defence witnesses presented before it. In the end, it found that the charge against the appellants was proved beyond reasonable doubt. It convicted them as charged and sentenced each of them to seven years imprisonment. They were aggrieved and filed separate appeals in this court. The two appeals were consolidated, argued together and are now being dealt with together in this judgment. In their petitions of appeal, the major complaint is that the charge against them was not proved beyond reasonable doubt. At the hearing of the appeal, the appellants appeared in person and unrepresented. The Respondent/Republic was represented by Mr. Peter Mseti, learned State Attorney. In his brief oral submissions, the 1st appellant reminded the court that he was the first accused at the trial court, and that the allegation against them was that a gun was used in the commission of the offence. But no gun was produced in evidence to prove the use thereof. He added that he does not live in Masasi. He is a resident of Dar es Salaam and was arrested in Dar es Salaam. The 2nd appellant, on his part, submitted that he was arrested at his home at Mbuyuni Masasi for the offence of beating his wife. But when he was taken to the Police, he was told that he was a murder suspect and they wanted to know where his brother (1st appellant) was. He told them that he was in Dar es Salaam. He said that they tortured him and told him that he had used a gun and a bush knife. But no such weapon was not produced in court. Responding to these submissions, Mr. Mseti started his submissions by expressing the position that he did not support the appeal. He submitted that the appellants complained that they were convicted on the evidence of PW1, PW4 and PW5 while they were not identified at the scene of crime. Mr. Mseti admitted that the incident took place at night and therefore a number of factors as laid down in the case of Waziri Amani v Republic (1980) TLR 250 have to be established. In this case, submitted Mr. Mseti, there was electricity at the scene of crime and PW1 and PW2 identified the appellants as they were well known to them. The appellants had first gone to the witnesses' fathers' shop, kidnapped PW1 and PW2, and went to the home of PW1, PW2 and PW4. While at home, discussion continued and their mother screamed for help and neighbours began to come. PW1 was shot in the leg and their father was also shot and later died. That PW1, PW2 and PW4 all told the court that the appellants were with them for a long time. The whole episode took half an hour, from the shop until the homes. PW2 told the court that he knew the 2nd appellant before the date of the incident. It was his view that there was no doubt in the identification of the appellants and therefore this ground of appeal has no merits. On the complaint by the appellants that the evidence of PW1, PW2 and PW4 was from relatives who could have conspired against them, Mr. Mseti submitted that there is no law in this country that prohibits relatives from giving evidence in a case. What is important is the credibility of witnesses. He supported his view with the decision in Ramadhani Sango v Republic, Criminal Appeal No. 175 of 2008, cited with approval in Omar Mohamed, Criminal Appeal No. 118 of 2013 (all unreported). Also responding on the complaint by the 1st appellant that the trial court erred in convicting him basing on the confession of a co-accused (2nd appellant), Mr. Mseti submitted that section 33 of the Evidence Act states that the accused cannot solely be convicted on the evidence of a co-accused. But in this case the confession was not the only evidence which the court used to base the conviction. The court considered the other evidence produced, especially the identification of the appellants. For these reasons, Mr. Mseti concluded that the appellant's appeal has no merits and should be dismissed. In the rejoinder, the 1st appellant submitted that there was no witness who identified him at the scene of crime. They all came to identify him in court. They could not just say that they saw a fair skinned person to mean him, he said. The 2nd appellant equally stated that he was not identified at the scene of crime, and that the witnesses said there were two culprits, one tall and fair-skinned, and the other short and dark. It was not clear, he lamented, as to which among them, answered that description. Having carefully considered the submissions of the parties and the trial court record, the issue for determination is whether the evidence on the record is sufficient to uphold conviction and sentence. One of the pieces of evidence that the trial court relied upon in convicting the appellants was the cautioned statement of the 2nd accused (Exhibit P2). However, after closely looking at the cautioned statement, one can see a number of shortcomings. One of them is that the statement was recorded 4 beyond the statutory period of four hours, contrary to the provision of section 50 and 51 of the Criminal Procedure Act. The 2nd appellant was arrested on 22nd February 2015 at Mbuyuni. But his cautioned statement was recorded on 22nd September 2016—about nine months after his arrest. It it now settled that such a statement is inadmissible. As authority for this proposition, I need only cite the case of Gregory David Maokola @ Mbuga v Republic, Criminal Appeal No. 238 of 2009, CAT at Mtwara (unreported) the 2nd appellant's cautioned statement was inadmissible in evidence. That was not the only defect. The cautioned statement also does not contain a certification at the end of it from the recording officer, as required by section 57 (4) of the Criminal Procedure Act, Cap 20 [R.E. 2002], which reads: (4) Where the person who is interviewed by a police officer is unable to read the record o f the interview or refuses to read, or appears to the police officer not to read the record when it is shown to him in accordance with subsection (3) the police officer shall- (a) read the record to him, or cause the record to be read to him; (b) ask him whether he would like to correct or add anything to the record; (c) permit him to correct alter or add to the recordor make any ■ corrections, alterations or additions to the record that he requests the police officer to make; (d) ask him to sign the certificate at the end o f the record; and (e) certify under his hand, at the end of the record\ what he has done in pursuance of this subsection. In the present case, the certification of the recording officer at the end of the cautioned statement of the 2nd appellant reads as follows: UTHIBITISHO: - G.7988 D/C Fanuel nathibitisha kuandika maelezo hayo chini ya K/F 57 NA 58 cha CPA Cap 20 R.E. 2002. This certification does not show whether the cautioned statement was read to the 2nd appellant after it was recorded, for him to make any alteration or addition to it if he so desired, in terms of section 57 (4) of the CPA. Facing a similar situation in the case of Saidi Bakari v Republic, Criminal Appeal No. 422 of 2013, CAT at Tanga (unreported) the Court of Tanzania at page 6 & 7 stated: "Closely considering the record\ in our respective view the certification on the purported cautioned statement does not show if it was read over to the appellant after its recording by PW5 or if the appellant was literate he was given an opportunity by PW5 to read to make any alteration to it if he so desired as was required under section 75 (3) (a) or 57 (4) (a) o f the Criminal Procedure Act Furthermore, even if the cautioned statement would have been recorded according to law, it could still not be relied upon in convicting either the 1st appellant or the 2nd appellant, for the following reasons: One, in the cautioned statement, the 2nd appellant did not confess to have committed the offence charged. The details of the cautioned statement do not implicate the maker (the 2nd appellant) in any way in the commission of the offence. He only mentioned his brother (1st appellant) and one Selemani Chilokote, as the ones responsible. He explained in detail how he came to know about their involvement. Second, though in the cautioned statement the 1st appellant has been named to have been involved in the commission of the offence; still the cautioned statement could not have been considered in convicting the 1st appellant. In principle, for a confession of co-accused to be used against another accused, the accused making the confession must also implicate himself in the commission of the offence. In this case, in making such confession, the 2nd appellant did not implicate himself in the commission of the offence. See the case of Abeid Malifedha & Mussa Stephano v Republic, Criminal Appeal No. 403 "B" of 2013, CAT at Tabora (unreported) at 14 &15 held: ”Section 33 (1) o f the Evidence Act, permits courts to take into consideration a confession o f one accused against the other. But for such provision to come into play, such confessions must also affect the confessing accused...It was thus plainly wrong for the trial court to have used Exh P4 and P5 in convicting the appellants" Therefore, having highlighted the anomalies in the cautioned statement, I hereby hold that the cautioned statement (Exhibit P2) was inadmissible in evidence. It is accordingly expunged from the record. Having expunged the cautioned statement, the only evidence left is that of visual identification by PW1, PW2 and PW4. It is a generally accepted principle of law that the evidence of visual identification particularly in unfavourable conditions such as during the night is of weakest kind and most unreliable and the court must not act on it unless all possibilities for mistaken identity are eliminated and the court is satisfied that the evidence of identification is water-tight. See the case of Waziri Amani v Republic (1980) TLR 250. Explaining the factors to be considered for the evidence of visual identification to be relied upon, the Court of Appeal in the case of Shamir s/o John v Republic, Criminal Appeal No. 166 of 2004, CAT, at Mwanza (unreported) at page 11 had this to say: "It is now trite iaw that the courts should closely examine the circumstances in which the identification by each witness was made. The Court has already prescribed in sufficient details the most salient factors to be considered. These may be summarized as follows: How long did the witness have the accused under observation? At what distance? In what light? Was the observation impeded in any way, as for example, by passing traffic or a press o f people? Had the witness ever seen the accused before? How often? If only occasionally, had he any special reason for remembering the accused? What interval had elapsed between the original observation and the subsequent 8 identification to the police? Was there any material discrepancy between the description o f the accused given to the police by the witnesses when first seen by them and his actual appearance ? According to the record, PW1 Iddi Swedi Lazima began his testimony by stating that he knows the 2nd appellant prior to the incident. But in his whole testimony, he did not say whether he saw the 2nd appellant at the scene of crime and his role, if any, in committing or facilitating the commission of the offence. He kept on mentioning the 1st appellant as the person whom he saw holding a gun and who shot them. However, as to what the 2nd appellant did, PWl's testimony is silent. Similarly, PW2 Lazima Yahaya Lazima. In his testimony, he pointed out the 1st appellant as the person he saw committing the crime. He told the trial court that he did not remember the 2nd appellant. His testimony partly reads: "...we were invaded by robbers at our shop. Suddenly two men one had two machete and one had a gun. I remember that the 1st accused is the one who had a gun, I don't remember the 2nd accused ....the 1st accused decided to shoot our father and my brother." Similarly PW4, in his testimony, Jafari Lazima stated that he saw the 1st appellant and another person. He did not say who the other person was. The relevant part of his testimony reads: "That was on 13/12/2015 at night while we were at home I saw two robbers l.e 1st accused person and another accompanies " Therefore, from the testimonies of PW1, PW2 and PW4, I am of the settled view that the 2nd appellant was not identified at the scene of crime. On the other hand, their evidence removes all possibilities of mistaken identity as far as the 1st appellant is concerned. The manner in which the incident occurred, the movement from the shop to the home and back to the home with the electricity on, and taking into consideration that the whole incident took about half an hour, I am satisfied that the witnesses had all reasons to remember the 1st appellant, Nurdin Abasi Nampala, as the person who committed the offence that night. In view of the above, it is my finding that the 1st appellant was properly identified at the scene of crime and all the possibilities for mistaken identity as far as the 1st appellant was concerned were eliminated. On the other hand, these same witnesses were honest enough not to implicate the 2nd appellant, whom they did not see or positively identify at the scene. In fact, they all witnesses kept pointing at the 1st appellant and the role he played at the scene. His complaint that the gun was not tendered in court is of no consequence. It is not necessary that the weapon alleged to have been used be tendered in evidence. Witness testimonies can sufficiently prove the use of weapons. Equally, the 1st appellant's complaint about the witnesses being relatives has no legal basis. As Mr. Mseti argued, what is important is their credibility. The witnesses were found credible and reliable. I therefore find that the 1st appellant Nurdin Abasi Nampala (1st appellant) was properly convicted. However, the sentence of seven years imprisonment imposed on him is not lawful. The sentence under section 225 of the Penal Code does not fall under minimum sentence provisions. Hence, the trial magistrate ought not to have gone beyond his normal sentencing powers under section 170 (1) (a) of the Criminal Procedure Act. The law restricts the sentencing powers of Resident Magistrates at five years unless the sentence provided falls under minimum sentences. I have already found that it does not. On that ground, I set aside the sentence of seven years imprisonment and substitute for it a sentence of five years imprisonment, which the trial magistrate had power to impose. Except for this reduction in sentence, the appeal by the 1st appellant, Nurdin Abasi Nampala has no merit and is hereby dismissed. As for the 2nd appellant, Rashidi Amili Laiza, his appeal is allowed. Unless there exists some other reason for his continued incarceration, I order that he be released from prison forthwith. DATED and DELIVERED at Mtwara this 15th day of December, 2017 F.A. Twaib Judge 15/12/2017 li