CRIMINAL APPEAL NO

IN THE UNITED REPUBLIC OF TANZANIA IN THE HIGH COURT OF TANZANIA IN THE SUB-REGISTRY OF MTWARA AT MTWARA CRIMINAL APPEAL NO. 38019 OF 2023 ZAIRU ATHUMANI OMARY ——--------------------- ——— APPELLANT VERSUS THE REPUBLIC —.........-———--............................... -- - RESPONDENT 13th & 31s’May, 2024. JUDGMENT Ebrahim, J.: The appellant was arraigned in the District Court of Mtwara at Mtwara charged with the offence of Drug Trafficking contrary to Section 15A fl.) and 2 (c) of the Drug Control and Enforcement Act [Cap. 95 R,E. 20191 as amended by the Written Laws (Miscellaneous Amendments) (No.5), Act of 2021. It was alleged that on the 17th day of September, 2022 at Ziwani area within the District and Region of Mtwara the Page 1 of 21 appellant was unlawfully found in possession of 211.29 grams of cannabis sativa commonly known as “Bhangi". To prove the offence, the prosecution summoned six (6) witnesses and produced seven (7) exhibits to establish that the appellant was arrested by PW6 during his patrol within Mfwara. From oral testimonies of these witnesses and exhibits, it was established that on the material day, PW6 a police officer while on patrol received a call from PW7, one Mfaume Salum telling him that he had blocked the appellant and another person at Ziwani barrier. He went to the said area and searched the appellant. During the search, he found him with a total of 211.29 grams of cannabis sativa (bhangi) which was hidden in his stomach with a t-shirt engrossed in a gazette. He filled a certificate of seizure (exhibit P7) signed by the appellant and PW7. Thereafter, he arrested him and took him to a police station. The impounded substance was examined by the Chief Government Chemist and found to be “bhang”. The appellant was thereafter charged. PW2, a police officer who interrogated the appellant testified that the appellant confessed to being found with the said “bhangi". He Page 2of21 tendered the cautioned statement (exhibit P3) of the appellant. PW5, D/CPL, police officer, tendered the statement of Issa Ahmad Nampelishi under Section 34B (2) of the Evidence Act [CAP. 6 R.E. 2022] which was admitted as exhibit P5 but it was supposed to be exhibit P6 as for exhibit P5 it was the chain of custody. According to the witness's statement as a motorcycle rider on the incident day, he took the appellant to Ziwani. On their way back they were stopped at the barrier by the security guards. One of them asked the appellant what he was hiding. Turning around he found the appellant having something in his t-shirt at his stomach. They were told to sit down and the appellant was told to remove the thing he was hiding. It was found that he had “bhang”. The security guard called the police officer (PW6) who arrested them not knowing that the appellant had “bhangi”. Convinced that the prosecution had managed to prove its case, the trial court entered a conviction against the appellant and sentenced him to serve thirty years in prison. Page 3 of 21 Aggrieved by the conviction and sentence, the appellant has preferred the instant appeal advancing detailed 6 grounds of appeal which I will summarize them as follows; I. The trial court erred in law and fact by convicting the appellant without availing his rights as stipulated under section 293 (2j (3) (4) of The Criminal Procedure Act [CAP. 20 R.E. 2019]; 2. The trial court erred in law and fact by convicting the appellant based on the evidence of PW5 who adduced the evidence of the independent witness who was not called to testify; 3. The trial court erred in law and fact by convicting the appellant based on the evidence of the witnesses whom the court failed to assess their credibility; 4. The trial court erred in law and fact by convicting the appellant without considering the defense evidence; 5. The trial court erred in law and fact by convicting the appellant while the prosecution failed to prove the case beyond reasonable doubt; Page 4 of 21 6. The trial court erred in law and fact by convicting the appellant based on the chain of custody which was broken. During the hearing of the appeal the appellant appeared in person, unrepresented whereas the respondent, was represented by Mr. Jaggard Jilala, learned State Attorney. Supporting the appeal, the appellant prayed to adopt his grounds of appeal and the same be considered by the court. In reply, Mr, Jaggard Jilala, learned State Attorney argued the grounds of appeal in seriatim. Beginning with the pt ground of appeal on contravention of section 293(2)(3) and (4) of The Criminal Procedure Act [CAP. 20 R.E. 2019]. He said provision the cited applies to the High Court is in Pari Materia with section 231 of the same Act; and it which provides for the right of the accused pertaining to his evidence and it applies at the lower court. He added on the point that the lower court complied with the cited law as reflected at page 33 of the typed proceedings and the appellant adduced his evidence under oath. He was also availed his right to call witnesses where he called DW2, Juma Selemani Ismail. - Pages of 21 Mr. Jilala referred to the case of Daktarl Jumanne vs Republic (Criminal AppealNo. 602 of 2021) [2023] TZCA 18020 (28 December 2023) at page 12 where it was observed that even if those rights were not read to him it would not have been fatal because he exercised all the rights. The 2nd ground of appeal concerns the invocation of section 34B (2) of the Evidence Act [CAP. 6 R.E. 2022] in respect of the evidence of PW5 who tendered the statement of the independent witness. The learned State Attorney submitted that they complied with the requirement of section 34B (2) of the Act after the said witness was nowhere to be found and their efforts could not bear any fruit. He submitted further that the summons was signed by the Street Chairman to show that the witness was nowhere to be found. As per section 34B (2) (b) of the Act, the statement was sighed by the person who made it. Also, the: appellant was availed with a copy of the said statement ten days before the hearing of the case and he did not raise any objection. Therefore, the said provision of the low was cumulatively complied with. Page 6 of 21 On the 3rd ground of appeal on challenging the credibility of PW5 and PW7 Mr. Jilala argued that PW5 and PW7 were credible witnesses and their testimonies were not inconsistent. He referred to the case of Nabibakhsh Pirbakhsh Bibarde & Another vs Republic (Criminal Appeal 663 of 2020) [2023] TZCA 17269 (19 May 2023) where it was observed that the credibility of witnesses is within the empire of the trial court. Responding to the 4th ground of appeal on the non-consideration of the defense evidence he contended that the complaint has no merits because the testimony of the appellant and DW2 was explained at pages 6 and 7 of the impugned judgment. Their testimonies were also evaluated at page 12 of the impugned judgment. He responded on the 5,h ground of appeal on the complaint that the prosecution side did not prove the case beyond reasonable doubt the offence charged was proved by PW6 and PW7 who proved that the appellant was in possession of the "bhangi". Page 7 of 21 Further , PW1 proved that the appellant was found with “bhang" . Speaking of the cautioned statement (exhibit P3) of the appellant he submitted that the appellant confessed. He cited the case of Alex Ndendya vs Republic (Criminal Appeal No. 207 of 2018) [2020] TZCA 202 (6 May 2020) which cited with approval the case of Posolo Wilson @ Mwalyego v. Republic, Criminal Appeal No. 613 of 2015 at page 21 (unreported), the Court observed that: it is settled that an oral confession made by a suspect before or in the presence of reliable witnesses, be they civilian or not rnay be sufficient by itself to found a conviction against the suspect". From the above quotation he brought the attention of the court to the principal that confession by an accused person is the best evidence. Regarding the 6th ground of appeal on the issue of chain of custody. The learned State Attorney submitted that PW6 the arresting officer handed exhibit Pl to the exhibit keeper (PW3). He explained that on 22nd September, 2022, PW3 handed exhibit Pl to PW2 who took it to Government Chemist (PW1) for examination. He explained further Page 8 of 21 that on the same date, exhibit Pl was returned by PW2 to PW3 for custody. Thereafter, on 16,01.2023 the exhibit was released by PW3 for court processes He insisted therefore that the chain of custody was intact and the circumstances concerning the custodian of the said exhibit do not suggest that the same was tampered with. He finally therefore prayed for the Court to dismiss the appeal in its entirety and uphold the decision of the District Court. The appellant had nothing to rejoin. I have considered the parties’ submissions as well as the trial court's proceedings and judgment. The core issue for determination is whether the case against the appellant was proved to the required standard i.e., beyond reasonable doubt. I shall begin to address the 1 2nd, 4th- and 6th grounds of appeal and thereafter proceed to the 3rd and: 5th grounds of appeal jointly. The 1st ground of appeal is in respect of complying with section 293(2) (3) and (4) of The Criminal Procedure Act [CAP. 20 R.E. 2019], Section 293 (2) of the Act, requires the court to call upon the accused person(s) to defend himself/herself if at the conclusion of the Page 9 of 21 prosecution case the court considers that there is evidence that the accused person (s) committed the offence. Section 231 The Criminal Procedure Act fCAP, 20 R.E. 20191 provides that; "PJ At the close of the evidence in support of the charge, if it appears to the court that a case is made against the accused person sufficiently to require him to make a defence either in relation to the offence with which he is charge or in relation to any other offence of which, under the provisions of sections 300 to 309 of this Act, he is liable to be convicted the court shall again explain the substance of the charge to the accused and inform him of his right- fa) to give evidence whether or not on oath or affirmation, on his own behalf; and fb) to call witness in his defence, and shall then ask the accused person or his advocate if it is intended to exercise any Of the above rights and shall record the answer; and the court shall then Call on the accused person to enter on his defence save where the accused person does not wish to exercise any of those rights. (2) Notwithstanding that an accused person elects to give evidence not on oath or Page 10 of 21 affirmation, he shall be subject to cross- examination by the prosecution. (3) Where the accused, after he has been informed in terms of subsection (1), elects to remain silent the court shall be entitled to draw an adverse inference against him and the court as well as the prosecution shall be permitted to comment on the failure by the accused to give evidence. (4) Where the accused person states that he has witnesses to call but that they are not present in court, and the court is satisfied that the absence of such witnesses is not due to any fault or neglect of the accused person and that there is likelihood that they could, if present, give material evidence on behalf of the accused person, the court may adjourn the trial and issue process or take other steps to compel attendance of such witnesses." I have examined the trial court handwritten proceedings and it reflects that after the prosecution has closed their case; the ruling on the case to answer was delivered and there is a response from the accused (appellant). For clarity, the same is hereby reproduced: Page 11 of 21 "RULING After this Court heard evidence of the prosecution case in relation with the offence of which the accused person was charged with, this court find that the case to answer against the accused person has established. Hence under section 231 CPA accused person is addressed to make his defence. Signed 18.06.2023. Accused: I will make my defence under oath and I will call witness. Sighed 16.08.2023." Having found that the prosecution case had established the case against the appellant, the trial court went on explaining to the appellant his right to defend the case against him. The appellant that he was ready to defend his case and that he would bring a witness. Therefore, the trial court complied with the requirement of section 231 of The Criminal Procedure Act [CAP. 20 HE. 20191. Moreover, even if the complaint was true, it is our opinion that the appellant was not prejudiced in any way because he managed to mount his defense Page 12 of 21 and called one witness DW2 to support his defense case. Daktari Jumannevs Republic (Supra). 2rd ground of appeal, concerns the provisions of section 34B (2) of the Evidence Act [CAP. 6 R.E. 2022]. The provisions of section 34B (2) of the Evidence Act [CAP. 6 R.E. 2022] are cumulative and all the paragraphs (a) to (f) have to be complied with i.e., it must be reasonably impracticable to call the deponent; the statement must have been signed by him; it must contain a declaration of the person who read it to the effect that it was so read. Now in the present appeal, PW5 tendered the said statement of Issa Ahmad Nampelichi who was nowhere to be found as per the endorsed summons by the Street Chairman. The statement was signed by PW5 who made and it contains his declaration. Before tendering the statement, the same was served to the appellant and within ten days from the service of the copy of the statement, there was no notice or objection to the statement being so tendered in evidence. Page 13 of 21 In the instant case, Issa Ahmad Nampelichi stated that he could read and write thus section 34B(2)(f) had no effect. Therefore, PW5 tendered the statement of Issa Ahmad Nampelichi in compliance with section 34B (2) (a) to fe) of the Evidence Act fCAP. 6 R,E, 20221. Thus, ground two lacks merit. As for the 4th ground of appeal that the trial court did not consider the evidence of the appellant at the trial court; as rightly argued by the learned State Attorney, the appellant’s evidence was well considered. At pages 6, 7, and 12 of the impugned judgement in considering the defence evidence the trial court stated as: follows: "Accused person during his defence case denied to have been found possessing the narcotic as alleged in the charge. He told this court that the who (sic) carried the cargo was person and he was rider of that motorcycle. His witness fold this court accused person was given that motorcycle as boda boda by his boss. During cross examination by the Public Prosecutor the accused person testified that after arrested he signed on the document. Juma Seleman Ismail (DW2) (sic) inter alia testified that he do remember when he go back he met Page 14 of 21 with his wife: who told him that motorcycle which he handled to the rider, that rider does not bring money. He went to find that rider but he missed. Thereafter he went to the police station and as there were people who arrested with. One was Zairu who was motorcycle by his wife. During cross examination by Mr. Mattaka Hamis Public Prosecutor, Juma Seleman Ismail testified that Zairu told him that he was found with bhang. He added that he don't know about that issue as he was not present at the arrest of the accused person. Defence of the accused person does not raise any doubt on the prosecution case in relation with the offence charged with the accused person." The above-reproduced paragraphs tell it dll that the trial court considered the appellant’s defense. Therefore, ground four also lacks merit. The 6th ground of appeal is on the chain of custody. Chain of custody requires that the whereabouts of the evidence must be established at all times from its seizure by a competent testimony. Therefore, evidence must establish that the object has not changed or been altered between the events and the trial. If there is any time Page 15 of 21 between the day of the incident and the day of trial during which the location of the item cannot be accounted for, the chain is considered broken as observed in the case of Paulo Maduka & Others vs Republic (Criminal Appeal i 10 of 2007) [2009] TZCA 69 (28 October 2009), Also, in the case of Zainabu d/o Nassor @ Zena v. The Republic, Criminal Appeal No. 348 of 2015 (unreported) it was stated among others that the underlying rationale for ascertaining a chain of custody is: "To show a reasonable possibility that the item that is finally exhibited in court as evidence has not been tempered with along its way to the court." Applying the above observations and the holding of the Court to the present case, the chain of custody in the instant case was established by oral and documentary evidence. It was established by PW6 that the seizure of the exhibit Pl was done on 17.09.2022. PW6 (the arresting officer) surrendered it to PW3 (storage). On 22.09.2022 PW3 handed the exhibit to PW2, D/CPL Lameck who took it to PW1 for analysis and returned it to PW3 on the same day. PW3 then Page 16 of 21 surrendered exhibit Pl to PW5 who tendered exhibit P5 before the trial court. Noteworthy, PW2, PW3 and PW6 evidence was not seriously challenged by the appellant during cross-examination. Thus, as both exhibits Pl and P5 were received as evidence without objection, the appellant cannot be heard to complain at this stage of the appeal. As the Supreme Court of India observed in Malanga Kumar Ganguly V. Sukumar Mukherjee, AIR 2010 SC 1162 that: - "if is trite that ordinarily if a party to an action does not object to a document being taken on record and the same is marked as an exhibit he is estopped and precluded from questioning the admissibility thereof at a later stage. It is however trite that a document becomes inadmissible in evidence unless the author thereof is examined, the contents thereof cannot be held to have been proved unless he is examined and subjected to cross-examination in a Court of Law." In the present case since PW3 was not fully cross-examined by the appellant after exhibit P5 was admitted into evidence, I find that his complaint at this stage to be unfounded. Page 17 of 21 Lastly is on the 3rd and 5fh grounds of appeal on the credibility of PW5 and PW7 and the complaint that case was not proved beyond reasonable doubt. The Appellant has raised a number of issues showing that the prosecution case was not proved to the hilt. On the incident day PW6 while in patrol within Mtwara town, he received a call from PW7, the security guard at the Ziwani barrier. Informing him that he has blocked the appellant and another person at the barrier. PW6 went to the crime scene, where he interrogated and searched the appellant. During the search, he found the appellant with a total of 211.29 grams of cannabis sativa (bhangi) which was hidden in his stomach with a t-shirt engrossed in a newspaper. PW6 tendered certificate of seizure [exhibit P7) which was sighed by the appellant and PW7. Thereafter, he arrested and took him to a police station. The impounded substance was examined by the Chief Government Chemist and found to be “bhangi”. PW2 interrogated the appellant and testified that the appellant confessed to being found with the said “bhangi". He tendered the cautioned Page 18 of 21 statement (exhibit P3) of the appellant. PW5, D/CPL, police officer, tendered the statement of Issa Ahmad Nampelishi under Section 34B (2) of the Evidence Act [CAP, 6 R.E. 20221 Which was admitted as exhibit P5 but it was supposed to be exhibit P6 as for exhibit P5 it was the chain of custody form. Basing on the above prosecution evidence of PW5 and PW7 the question is whether there is a cogent reason for this court to disbelieve them. In the case Goodluck Kyando v. Republic, (2002) TLR 363 the Court of Appeal held that; "every witness is entitled to credence and must be believed and his testimony accepted unless there are good and cogent reasons for not believing the witness. " Deriving from the above holding, I have followed the testimonies of PW5 and PW7 and found no strong reasons for disbelieving them considering the fact that their testimonies were consistent with the evidence of other witnesses. The version of the PW7 evidence is corroborated with the certificate of seizure [exhibit P7). As rightly Page 19 of 21 evaluated by the trial court, exhibit P7 shows that indeed the appellant was found with exhibit Pl. Further to that, PW2, a police officer who interrogated the appellant on the incident day where he confessed to have been found with the said “bhangi” tendered the cautioned statement which the appellant neither raised an objection nor cross-examined the witness. It is a settled law that failure to cross-examine a witness on an important matter ordinarily implies the acceptance of the truth of the witness evidence. See the case of Damian Ruhele vs Republic [Criminal Appeal 501 of 2007) [2012] TZCA 160 (2 March 2012). In the instant case, therefore, failure by the appellant to cross-examine PW2 means the admission of a fact that he voluntarily recorded the cautioned statement in which he admitted to be involved in the offence of drug trafficking. From the above background, 1 find the entire appeal to be un- meritorious and I dismissed it in its entirety. Page 20 of 21 Ordered accordingly. R.A Ebrahim JUDGE 31.05.2024 Page 21 of 21