CRIMINAL APPEAL NO 647 OF 2021 PASCHAL GEORGE PASCHAL VS REPUBLIC

IN THE COURT OF APPEAL OF TANZANIA AT PAR ES SALAAM fCORAM: NDIKA. J.A.. KEREFU. 3.A. And NGWEMBE, J.A.) CRIMINAL APPEAL NO. 647 OF 2021 PASCHAL GEORGE PASCHAL....................... .................................. APPELLANT VERSUS THE REPUBLIC............................................................................ RESPONDENT (Appeal from the decision of the High Court of Tanzania at Dar es Salaam) fMgonva, 3.) dated the 15th day of October, 2021 in DC Criminal Appeal No. 36 of 2021 JUDGMENT OF THE COURT 04th5 09th July, 2024. KEREFU, J.A.: In the District Court of Kigamboni, the appellant, Paschal George Paschal was charged with armed robbery contrary to section 287A of the Penal Code, Cap. 16 (the Penal Code). It was alleged that, on 14th August, 2020 at Tungi Secondary School within Kigamboni District in Dar es Salaam Region, the appellant stole one wristwatch make Laska valued at TZS 5,000.00 the property of one Benedict Petro Lutabingwa and immediately, before and after such stealing, he used a knife to threaten him to obtain and retain the said property. The appellant denied the charge laid against him and therefore, the case had to proceed to a full trial. To establish its case, the prosecution marshalled a total of four witnesses and tendered one exhibit (exhibit PI) which contained, the certificate of seizure, a knife and the wristwatch. The appellant relied on his own evidence as he did not call any witness. Before embarking on the merits and or demerits of the appeal, we find it apposite, albeit briefly, to give sequence of events leading to the arraignment and conviction of the appellant, as obtained from the record of appeal. Gosbert Boniface (PW2), the Deputy Head Master of Tungi Secondary School stated that, on 14th August, 2020, in the afternoon, around 14:00 to 15:00 hours when the students were participating in football and netball tournament at the school compound, four male adults appeared and started to touch the girls, pulled their breasts and searched their pockets. It was PW2's further testimony that the said men pulled knives and threatened the girls but PW2 asked them to remain calm. Meanwhile, the said men moved to the other side of the school compound and attacked students who were playing football. PW2 went on to state that, in a company of one Shaban, he intercepted and pursued the culprits. Three of them took to their heels but one remained behind and they managed to arrest him. That, upon being arrested, more than three hundred (300) students who were armed with stones and sticks wanted to attack him but PW2 stopped them. PW2 stated further that the said culprit was arrested with a knife and a wristwatch which belonged to Benedict Rutabingwa Petro (PW4), who was a student of Form III B in that school. In his testimony, PW4 stated that, on the fateful date, during the iunch time, they were invaded by unknown people who demanded money from them. According to him, the said culprits were three in number and one of them asked for his wristwatch which he gave him after being threatened with a knife. PW4 stated further that the three culprits ran away but one remained who was brought to the school compound and then to police. Sams Mhagama (PW3), who was also at the scene of crime, supported the narration by PW4 that, on the fateful date they were invaded by three culprits who demanded to be given money. That, since they did not have the money, the said culprits went away. CPL Alex (PW1), the investigation officer testified that on 14th August, 2020 while on duty, he was informed about the incident and having interrogated the appellant he confessed to owning the knife that was found with him. PW1 received the knife and the wristwatch and prepared a certificate of seizure. The said certificate together with the knife and the wristwatch were admitted in evidence collectively as exhibit PI. In his defense, the appellant who testified as DW1 stated that on the fateful date, while on his way back home, he passed at Tungi Secondary School, to his surprise, he was apprehended by the teachers who claimed that he was involved in the armed robbery incident. He stated further that the said teachers threatened to hit him, but Police rescued and took him to the Police Station. He thus denied any involvement in the alleged offence. Having heard the evidence from both sides, the learned trial Resident Magistrate was convinced that the prosecution had proved the case against the appellant to the required standard. Thus, the appellant was found guilty, convicted and sentenced to thirty years imprisonment. Aggrieved, the appellant unsuccessfully appealed to the High Court where the trial court's conviction and sentence were upheld. Still undaunted, the appellant has preferred the present appeal. In his separate memoranda lodged on 1st June, 2023 and a supplementary memorandum lodged on 20th June, 2023, the appellant has raised a total of sixteen (16) grounds of appeal. The said grounds, closely examined, boil down to seven main grounds, namely; first, failure by PW2, PW3 and PW4 to describe the alleged stolen wristwatch; second, the visual identification of the appellant by PW2, PW3 and PW4 at the scene of crime was not watertight to eliminate all possibilities of mistaken identity; third, failure by the prosecution to avail the statement of PW2 made at the police to the appellant; fourth, failure by the prosecution to summon key witnesses to testify before the trial court; fifth, failure to consider the appellant's defence; sixth, the certificate of seizure (exhibit PI) was unprocedural admitted in evidence; and lastly, the prosecution case was not proved to the required standard. At the hearing of the appeal, the appellant appeared in person whereas respondent Republic was represented by Mses. Nura Manja and Regina Kayuni, both learned Senior State Attorneys assisted by Mr. Clement Masua, learned State Attorney. Upon taking the stage to amplify on the grounds of appeal, the appellant adopted the grounds of appeal and his written submission lodged in Court on 27th June, 2023 and opted to initially hear the response of the learned State Attorneys while reserving his right to rejoin, if need to do so would arise. In response, Ms. Manja from the outset, declared her stance of supporting the appeal. Nonetheless, before starting to respond to the grounds of appeal, she referred us to the third ground in the memorandum of appeal together with the third and sixth grounds in the supplementary memorandum of appeal and argued that the same are new as they were not part of the grounds canvassed and determined by the first appellate court. It was her argument that, since the said grounds were not deliberated and decided upon by the first appellate court, they were improperly before the Court as it lacked the requisite jurisdiction to entertain them. To support her proposition, she referred us to the case of George Maili Kemboge v. Republic, Criminal Appeal No. 327 of 2013 [2014] TZCA 203: [30 October 2014: TanzLII] and urged us not to entertain the said grounds, unless they involve points of law. As for the certificate of seizure (exhibit PI), Ms. Manja readily conceded that it was un-procedurally admitted in evidence as its contents was not read out after its admission in evidence. She thus implored us to expunge it from the record. Submitting in support of the first, second and fourth grounds, Ms. Manja conceded that the visual identification of the appellant at the scene of crime was not watertight, as PW2, PW3 and PW4 did not give proper descriptions of him, such as his attire, physical features and or any special marks or symbols. She added that, since the appellant was not known to the said witnesses prior to the incident, they were expected to give further descriptions on how they managed to identify him to av<pid mistaken identity. As for the alleged stolen wristwatch, Ms. Manja also conceded that the same was improperly tendered by PW1 and admitted in evidence, without being identified by PW4 who was alleged to be the owner of the same. It was her argument that, since PW1 was not the owner of the said watch, it was required to be first identified by PW4, by laying foundation of what would make someone else to identify it, before it was shown to him by the prosecuting attorney and prior to its admission in evidence. She argued that, since the said watch was identified at the police station, it is even not clear if the one tendered before the trial court as an exhibit was the same watch retrieved at the scene of crime. She thus challenged the evidence of PW4 by stating in general terms that his stolen wristwatch had black exterior, make 'Laska' without giving distinctive features of the same to differentiate it from other watches of the similar nature. She added that, even the police officer who was alleged to have arrested the appellant at the scene of crime was not summoned to shed more light on how the said watch was seized at the scene of crime. In respect of the arrest of the appellant at the scene of crime, the learned Senior State Attorney pointed out some inconsistencies in the testimony of PW2 which she claimed that had further weakened the prosecution case. To amplify her point, she referred us to pages 13 to 15 of the record of appeal, where PW2 testified that he is the one who apprehended the appellant at the scene of crime while during cross examination, he stated that the appellant was chased and restrained by more than three hundred students who were armed with stones and sticks. The learned Senior State Attorney argued that all these discrepancies create doubts in the prosecution case which should be resolved in the appellant's favour. Upon being probed by the Court as to whether the appellants defence was properly considered by the courts below, Ms. Manja submitted that the appellant's defence was not properly considered by both courts. Finally, and based on her submission, she concluded that the prosecution case was not proved to the required standard and urged us to allow the appeal, quash the conviction and set aside the sentence imposed against him and set him at liberty. In his brief rejoinder, the appellant welcomed the stance taken by Ms, Manja to support the appeal. He also urged us to allow his appeal and set him free. Having carefully considered the grounds of appeal, the submissions made by the parties and examined the record before us, the burning issue for our consideration is whether the prosecution proved its case beyond reasonable doubt. At first, we are enjoined to determine Ms. Manja's submission that the third ground in the memorandum of appeal together with the third and sixth grounds in the supplementary memorandum of appeal are new complaints and should not be considered by this Court as they were not raised and determined in the first appeal. Indeed, it is settled that this Court is precluded from entertaining purely factual matters that were not raised or determined on the first appeal. This position has been reaffirmed by the Court in numerous decisions - see, for instance, the cases of Abdul Athuman v. Republic [2004] TLR 151 and Sadick Marwa Kisase v. Republic, Criminal Appeal No. 83 of 2012 [2013] TZCA 389: [29 July 2013: TanzLII]. In that regard, this Court will not entertain the said grounds of appeal for lack of jurisdiction as per the dictates of the provisions of sections 4 (1) and 6 (2) of the Appellate Jurisdiction Act, [Cap. 141 R.E. 2019] which specifically empowers this Court to deal with appeals from the High Court and subordinate courts with extended jurisdiction. As for the remaining grounds, we wish to start by stating that, this being a second appeal, the Court will rarely interfere with the concurrent findings of fact made by the courts below. The exception to the rule is when the findings are perverse or demonstrably wrong - see the Director of Public Prosecutions v. Jaffari Mfaume Kawawa, [1981] TLR 149 and Mussa Mwaikunda v. The Republic, [2006] TLR 387. Therefore, in determining this appeal, we shall be guided by the above stated principle. With regard to the certificate of seizure (exhibit PI), having perused the record of appeal, we agree with both parties that it was un- procedurally admitted in evidence as, indeed, the record of appeal bears it out at page 10 that its contents were not read out after its admission in evidence. We thus outrightly expunge it from the record. On the second and fourth grounds of appeal, we agree with the concurring arguments by the parties that, PW4, the claimed owner of the alleged stollen wristwatch did not properly identify the same at the scene of crime. It is also on record that, even during the trial, PW4 did not identify the said watch by laying foundation of what would make 10 someone else to identify it, before it was shown to him by the prosecuting attorney and prior to its admission in evidence. In his testimony found at page 19 of the record of appeal, PW4 stated in general terms that his stolen wristwatch had black exterior, make 'Laska' without giving distinctive features of the same to differentiate it from other watches of the similar category. It is our considered view that, in cases of this nature, identification of the allegedly stolen item is of paramount importance. A mere mention of the makes of the same, as happened in the case at hand, is not sufficient to prove the case against the accused person. In Vumilia Daud Temi v. Republic/ Criminal Appeal No. 246 of 2010 [2013] TZCA 443: [10 June 2013: TanzUI], when confronted with an akin situation, we relied on our previous decision in David Chacha & 8 Others v. Republic, Criminal Appeal No. 12 of 1997 (unreported) where we stated that: "It is a trite principle o f law that properties suspected to have been found in possession o f accused persons should be identified by the com plainant conclusively. In a crim inal charge it is not enough to give generalized description o f the property. " See also Abdul Athuman @ Anthony v. Republic, Criminal Appeal No. 99 of 2000 (unreported) and Joseph Mkumbwa & Another v. Republic, Criminal Appeal No. 94 of 2007 [2011] TZCA 118: [23 June 2011: TanzLII]. In the instant appeal, since the allegedly stolen watch was not sufficiently identified by PW4 as distinct from other watches of similar nature, let alone not being properly identified before the trial court, sheds doubt in the prosecution case as to whether the watch purported to have been identified by PW4 at the trial was actually the same watch stolen at the scene of crime. Likewise, it is not clear, if the watch identified by PW1 at the Police Station was the same watch which was tendered in court as an exhibit because the same was tendered in evidence by PW1 without being first identified by PW4, who was the alleged owner of it. In Mustapha Da raja ni v. Republic, Criminal Appeal No. 242 of 2008 [2012] TZCA 75: [19 March 2012: TanzLII], we emphasized that: '7/7 such cases, description o f special m ark to any property allegedly stolen should always be given first by the alleged owner before being shown and allow ed to tender them as exhibits." Similarly, in the instant appeal, since during the trial PW4 did not properly identify the allegedly stolen watch before being tendered by PW1 as an exhibit, the said omission had further watered down the strength of the prosecution case. We wish to emphasize that, in cases of this nature, proper identification of the allegedly stolen items is of paramount importance. A mere mention of the items stolen, as in the case at hand, is not sufficient. The stolen item being of general nature which did not have any distinct marks to differentiate it from others of similar category, it cannot be safely vouched that it was positively identified by PW4. We thus agree with the parties that the case against the appellant was not proved beyond reasonable doubt. Our determination of the above grounds would have been sufficient to dispose of the appeal. However, we find it necessary to also consider the appellant's complaint on the failure by the prosecution to summon the police officer who arrested the appellant at the scene of crime as testified by PW1 at page 11 of the record of appeal. We are alive to the requirement of section 143 of the Evidence Act that no specific number of witnesses is required to prove a case, and it is the discretion of the prosecution to call the witnesses which they find most suitable to prove their case. However, the said discretion on the part of the prosecution must be exercised judiciously to advance the cause of justice. Admittedly, the evidence of such officer would have shed more light on how the said stollen wristwatch was seized at the scene of crime as PW1 did not testify on that aspect. It is therefore our settled view that, the failure by the prosecution to field such an important witness, 13 without reasons, would have prompted the trial court to draw an adverse inference against the prosecution. For purposes of emphasis, in the case of Boniface Kundakira Tarimo v. Republic, Criminal Appeal No. 351 of 2008 [2011] TZCA 194: [4 October 2011: TanzUI], when considering a similar matter, we stated that: "...It is thus now settled that, where a witness who is in a better position to explain some m issing lin ks in the party's case, is not caiied w ithout any sufficient reason being shown by the party, an adverse inference m ay be drawn against that party, even if such inference is only a perm issible one." Earlier on, the Court had made corresponding remarks in the case of Aziz Abdallah v. Republic [1991] T.LR. 71. The totality of the foregoing leads us to the conclusion that the prosecution case was tainted with doubts which in our criminal jurisprudence requires us to resolve in favour of the appellant. In the circumstances, we are satisfied that there is no evidence on record which could have been safely relied upon by the trial court to convict the appellant. It is our further view that, had the first appellate court considered the issues discussed above, it would have come to the inevitable finding that it was not safe to sustain the appellant's 14 conviction. Since the above finding disposes of the appeal, we see no compelling reasons to consider the remaining ground of appeal raised by the appellant. In the event, we find merit in the appeal and allow it. Accordingly, we quash the appellant's conviction and substitute it with an acquittal resulting into setting aside the sentence imposed on the appellant. Consequently, we order for immediate release of the appellant from prison unless he is being held for some other lawful cause. DATED at DAR ES SALAAM this 5th day of July, 2024. G. A.M. NDIKA JUSTICE OF APPEAL R. J. KEREFU JUSTICE OF APPEAL P. J. NGWEMBE JUSTICE OF APPEAL The Judgment delivered this 9th day of July, 2024 in the presence of the Appellant in person, through video conference at Ukonga Prison and Ms. Mossie Kaima, learned Senior State Attorney for the Respondent/Republic is hereby certified as a true copy of the original.