CRIMINAL APPEAL NO 30223 OF 2024 NEW 11

IN THE UNITED REPUBLIC OF TANZANIA IN THE HIGH COURT OF TANZANIA IN THE SUB-REGISTRY OF MTWARA AT MTWARA CRIMINAL APPEAL NO. 30223 OF 2024 (Arising from the decision of the District Court of Newald at Newaia in Criminal Case No. 69 of2023) RASHID ABDALA HALFANI.............................................................. APPELLANT VERSUS THE REPUBLIC.......................................... RESPONDENT JUDGMENT 28h February & 25" March 2025. DING'OHI, J; The appellant, Rashid Abdala Halfani, was charged before the District Court of Newaia at Newaia (the trial court) with the offence of Grievous harm contrary to section 225 of the Penal Code [CAP. 16 R.E. 2022]. The charge sheet postulated that on the 27th day of November 2023, at Namangudu village within Newaia district in Mtwara region, the appellant did grievous harm to Zaituni Abdallah Mmakuani (the victim) by cutting her with a sharp object on her left arm. After a full trial, the appellant was convicted and sentenced to serve seven (7) years imprisonment. On top of Page 1 of 21 that, he was ordered to compensate the victim at TZS. 3,000,000/= for injuries sustained. Feeling aggrieved and/or dissatisfied with the above findings, the appellant has brought the present appeal to this court, seeking to challenge the decisions made contrary to his expectations. At the trial, the prosecution side summoned and depended on the evidence of three witnesses: Zaituni Abdallah Mmakuani, who testified as PW1, F5440 D/Surgent Daniel (PW2), and Frednand Modestus (PW3). Reliance was also placed on two tended exhibits: the cautioned statement (Exhibit Pl) and Police Form No. 3 (Exhibit P2). On the other hand, the defence had two witnesses, namely, Rashid Abdala Halfani, the appellant herein who testified as the DW1, and Hamza Mohamed Yatima (DW2). Before going into the merits and demerits of this appeal, I feel constrained to, first of all, give brief facts of the case leading to the appellant's arraignment and conviction, as they can be gleaned from the record of appeal. Zaituni Abdallah Mmakuani (PWl/the victim) avowed that on 27th November 2023, at 00:00hrs in the night, while sleeping at her house, she heard someone come and knock on the door. He ordered her to come out. Under the state of being afraid, the victim stayed inside for a Page 2 of 21 while without responding. She then immediately heard people calling out, "Thief, thief!" As soon as she wanted to open the door to find out who the thief was, the appellant, who is her ex-husband, appeared, holding a machete, and grabbed her hand, telling her that 'today is your last day/ The appellant raised the machete and tried to hit PW1 in the face. When she tried to stop him, the victim was cut with a machete in her hand, which caused severe injuries and profuse bleeding. The victim fell and lost consciousness. When she gained consciousness, she found herself in the hospital after she was attended by Frednand Modestus, the Medical Doctor (PW3). In his evidence, the PW3 told the trial court that on 28th November 2023, he conducted a physical examination of the victim and found that the victim's two bones in the hand were broken, and she had lost a lot of blood. He added that there was also serious injury to tendons and nerves. The evidence of PW3 was also supported by PW4 No F5440 D/Surgent Daniel, who interrogated the appellant on 27th November 2023 at 16:99 in the evening. Upon interrogation, the appellant, through a cautioned statement (Exhibit Pl), is alleged to have confessed to committing the offence charged. Page 3 of 21 As I have already said, to prove his innocence, the appellant paraded one witness, Hamza Mohamed Yatima (DW2), who, I think unexpectedly, testified against him. DW2 testified that on a material date at midnight, while they were asleep, he heard the sound of a woman raising an alarm. On following the alarm, the DW2 saw and identified the PW1 (appellant's wife), lying down. The PW1 had wounds on her hand. The appellant was also seen detained near thereat. The Village Executive Officer was called to come to the scene. DW2 maintained that the appellant was the one who attacked the victim. In his sworn defence, the appellant testified that on 11th November 2023 at about 00:00hrs in the midnight, there were attackers who broke into his second wife's house and needed a motorcycle. Luckily, it was not there. It was at the victim's house, his first wife's. After seeing that, the attackers beat him up and broke his leg. The following morning, the appellant was taken to the Newala police station. It is the appellant's stance that he was not involved in beating the victim, who was his first wife. According to him, there was a possibility that the victim was beaten up by attackers at her house. Page 4 of 21 As I have eluded somewhere herein above, after hearing the evidence of both parties, the trial court was satisfied with the evidence of the only eye witness (PW1), the victim, and in corroboration of the evidence of the doctor (PW3) and the appellant's cautioned statement (Exhibit Pl) that the charge against the appellant, at the trial court, had been proved beyond reasonable doubt. The appellant was thus convicted and sentenced as aforestated. Undaunted, the appellant is before this court with a total of six (6) grounds of complaint; one, that the prosecution side didn't prove its case beyond a reasonable doubt; two, the learned trial magistrate misdirected himself to hold that the cautioned statement (Exhibit Pl) was procured per the law, while in fact, it was illegally recorded; three, the evidence on record was not properly examined, evaluated and analyzed hence miscarriage of justice; four, how the proceedings at the trial court were conducted was irregular or/and improper; five, the documents (Exhibits Pl and P2) were not properly identified and thus they were illegally admitted, thereby causing serious injustice on the part of the appellant; six, there is no watertight evidence on the appellant's identification. Page 5 of 21 At the hearing of the appeal, the appellant appeared in person without legal representation, whilst the respondent/Republic had the service of Ms. Farida Kiobya, the learned State Attorney. When given the floor to argue his appeal, the appellant submitted that the main ground of his grievance is that the prosecution did not prove the charge against him beyond a reasonable doubt on the following reasons: first, according to him, it is not true that he recorded the caution statement before the police and admitted that he had committed the offence. He clarified that it was alleged that the cautioned statement was recorded on 27th November 2023, while on that date, according to him, he was under police custody at the police station for another offence. He thus maintained that, indeed, on the date and time when the offence is alleged to have been committed, he was under custody at Newala police station. He thus posed a question as to how he could commit the other offence while he was under custody for another case. Second, the appellant submitted that the offence is alleged to have been committed at night, but no source of light was mentioned, which helped the victim to identify him. Third, the trial court failed to evaluate the evidence in the trial court, thus arriving at a wrong decision. Fourth, the procedures of the hearing of the Page 6 of 21 case at the trial court were done illegally. He elaborated that the exhibits Pl and P2 were admitted contrary to the law. For example, he stated that the PF3 was filled in on 5th December 2023, while the victim is alleged to have been taken to the hospital on 28th November 2023. In her submission in opposition to the appeal, the learned State Attorney opted to start with the last ground of appeal that there is no watertight evidence of the appellant's identification. Ms. Kiobya submitted that on page 22 of the trial court proceedings, the victim testified that she properly identified the appellant at the scene of the crime as she knew him even before because he was her husband. Further to that, Ms. Kiobya submitted that the victim not only identified the appellant by his voice but also by face because they lived together and at the scene of the crime there was bright moonlight, which helped her to properly identify the appellant. She referred this court to the case of Maige Issaka @Magembe vs. Republic (Criminal Appeal No. 130 of 2022) [2025] TZCA 56 (21 February 2025), which referred to the landmark case of Waziri Amani vs. Republic [1980] TLR 250. According to her, a visual identification may be proved if it is made by persons who know each other, Page 7 of 21 if there is the help of light, and if the distance between the victim and the appellant is close. Turning to the 2nd and 5th grounds of complaints, the learned State Attorney conceded that exhibits Pl and P2 were admitted contrary to the law. Ms. Kiobya submitted that it is true that those exhibits were not properly admitted as the relevant law was not followed in admitting them. The learned State Attorney outlined the procedures that have to be considered when a party intends to tender something as an exhibit. According to Ms. Kiobya, before the exhibit is admitted to court, the Magistrate or Judge will first consider if there is any objection. Then, the court will allow parties to argue for and against the objection. Thereafter, the court will proceed to rule whether to admit or refuse to admit the exhibit for the interest of justice. She bolstered her stance with the landmark case of Nyerere Nyague vs Republic (Criminal Appeal Case 67 of 2010) [2012] TZCA 103 (21 May 2012). Ms. Kiobya also referred me to pages 26 to 27 of the trial court's proceedings, which, according to her, is the area where it shows that the procedures were not followed when the trial court considered admitting exhibits. The learned State Attorney submitted further that in this case, the appellant objected to the Page 8 of 21 admissibility of Exhibits Pl and P2, but the trial court proceeded to admit all exhibits without hearing the parties to the case on the objection raised and considered the same. It is the learned state attorney's submissions that even for the sake of argument, Exhibits Pl and P2 are disregarded/expunged from the trial court records, there is still the evidence of PW1 who testified on how the appellant forcefully attacked her. To maintain her position, the learned state attorney cited the case of Selemani Makumba vs. Republic (Criminal Appeal 94 of 1999) [2006] TZCA 96 (21 August 2006), where the Court of Appeal held inter alia that in gender-based violence cases, the best evidence is from the victim. According to her, the evidence of PW1 also corroborated the evidence of PW3, the doctor who examined and attended to the victim. Replied to the 3rd ground of appeal which the appellant complained that the evidence in the trial court's records was not properly examined, evaluated, and analyzed, Ms. Kiobya briefly contended that a complaint has no merit as well because the record is clear that the learned trial magistrate evaluated, examined and analyzed the same before he reached to a just decision that the prosecution side at the trial court proved the Page 9 of 21 charge against the appellant beyond a reasonable doubt as shown on pages 1 to 8. Opposing the 4th ground of appeal in that the proceedings at the trial court were conducted irregularly/and improperly, Ms. Kiobya asserts that the record is very clear that the trial magistrate properly followed all required procedures of the criminal cases' trials. For instance, the learned State Attorney narrated the way the proceedings were taken from the first day when the appellant was taken to the trial court up to the last day of conviction and sentence. According to her, there was no improper procedure that was done by the learned trial magistrate. Turning to the first complaint that the case was not proved beyond a reasonable doubt, it was submitted by the learned State Attorney that the complaint had no merit at all. The learned state attorney submitted that the appellant was charged with grievous harm. According to her, there are two ingredients to be proved for that charge. First, whether the person was injured and whether it was the appellant and not any other person who injured the victim. Ms. Kiobya argued that the record is clear that the prosecution side managed to prove all ingredients through three witnesses who testified against the appellant. According to her, the evidence by the PW1 was corroborated by the evidence of the PW3. She was of the view that PW1 was a reliable witness on her evidence against the appellant because she managed to mention the appellant as the one who assaulted her immediately after she regained consciousness. The learned State Attorney went on to submit that even the defence witness, DW2, supported PWl's testimony that she was injured by the appellant, as shown on page 7 of the trial court proceedings. In his brief rejoinder, the appellant reiterated his submission in chief and mentioned one Amani Akili to be the person who assaulted the victim and not him. I have dutifully considered the grounds of appeal and submissions by both sides. The issue drawn therefrom is whether the appeal has merits. At the outset, I shall determine the grounds of appeal in the same manner as indicated by the learned State Attorney. I have reminded myself that this being the first appellate court, under normal circumstances, it is entitled to re-evaluate the entire evidence on record by reading it together and subjecting it to critical scrutiny and, if warranted, arrive at its own decision. The task is emphasized by our Apex Court in numerous decisions. Page 11 of 21 For instance, Nyamhanga Joseph @Chalicha @Chango vs. Republic (Criminal Appeal No. 359 of 2021) [2025] TZCA 137 (28 February 2025) and FB General Contractors and Another vs. Bank of Baroda Tanzania Limited (Civil Appeal No. 202 of 2022) [2025] TZCA 61 (24 February 2025). Starting with the 6th ground of appeal, the appellant maintained that the offence is alleged to have been committed at night, but no source of light was mentioned, which helped the victim to identify him. On the other side of the coin, the learned State Attorney entreated me not to entertain this ground because the victim properly identified the appellant at the scene of the crime as she knew him even before because he was her husband, and there was moonlight, which helped her with the identification. Having examined the trial court records, I wish to start by stating that it is a cardinal principle of the law that generally the evidence based on visual identification is one of the weakest and most unreliable kinds of evidence unless such evidence is presented and all factors that would affect proper identification are eliminated with all possibilities of error in the identification process. This position has been highlighted so many times Page 12 of 21 by the Court of Appeal of Tanzania, and to show that this position continues to exist, the Court, in its recent decision of Pius Makeja vs. Republic (Criminal Appeal No. 128 of 2022) [2025] TZCA 85 (25 February 2025) stated as follows; 'On numerous occasions, the Court has stated that in criminal cases where its determination depends solely on identification, the evidence on conditions favouring a correct identification is of utmost importance. Subjecting the evidence of PW3 to guidance the Court gave in the often- cited case of Waziri Amani v Republic (supra), the evidence of PW3 is of visual identification. It is of the weakest kind and most unreliable; we have to eliminate all possibilities of mistaken identity before acting on the evidence of PW3.' Further, the Court of Appeal of Tanzania, in its famous case of Waziri Amani vs. Republic (Criminal Appeal 55 of 1979) [1980] TZCA 23 (6 May 1980), outlined in detail some thresholds to guarantee or for assuring that an unmistaken identification does not occur. It was observed inter alia that; Page 13 of 21 'Although no hard and fast rules can be laid down as to manner a trial Judge should determine questions of disputed identity, it seems dear to us that he could not be said to have properly resolved the issue unless there is shown on the record a careful and considered analysis of all surrounding circumstances of the crime tried. We would, for example, expect to find on record questions such as the following posed and resolved by him: the time the witness had the accused under observation; the distance at which he observed him; the conditions in which such observation occurred, for instance, whether it was day or night-time, whether there was good or poor lighting at the scene; and further whether the witness knew or has seen the accused before or not.' In the instant case, upon scrutiny, the visual identification evidence of PW1 (the victim) appears on pages 21 and 22 of the trial court proceedings on how she was able to see and identify the appellant. She was quoted as saying that; 'I live at Namangudu village, I am peasant, I live with my two children. On 27th November 2023 at 00:00hrs in the night, I was at home sleeping, I Page 14 of 21 heard someone coming and knocking the door of my place ordering me to come outside while insulting me, I stayed for a while inside without responding, then I heard scream: thief, thief, I opened the door to see who was the thief, before I can do anything, my ex-husband namely Rashid! Abdallah Alfani hold my hand saying it was my last day, he had the machete on his hand, I raised up the machete as he intended to cut me on my face, I tried to block the attack and the machete ended up cutting my hand as you can see. I identified Rashidi Abdallah Alfani by his voice because I was used to him as my ex-husband, also there was bright moon lights which enable me to recognise him properly. Rashidi Abdallah Alfani is in court now, this is the one, the accused person. That is all.' From the above extract, the identification of the appellant by PW1 is said to be by way of recognition of being her ex-husband. In several cases, it was observed that recognition evidence is more reliable than identifying a stranger when there is clear evidence of sources of light and their intensity. The said position was accentuated in Saidi Athumani vs. Republic (Criminal Appeal No. 292 of 2022) [2024] TZCA 480 (20 June 2024), where Page 15 of 21 the Court of Appeal drew inspiration from the case of Hamis Hussein and Two Others v. The Republic, Criminal Appeal No. 86 of 2009 (unreported) wherein it was held: 'We wish to stress that even in recognition cases, where such evidence may be more reliable than identification of a stranger, dear evidence on the source of light and its intensity is of paramount importance. This, is because, as occasionally held, even when the witness is purporting to recognize someone he knows, as was the case here, mistakes in recognition of dose relatives and friends are often made.' Having carefully scanned the evidence of PW1 in the record and with the reference of legal principles laid down hereinabove, I am of the view that PW1 (victim) had properly identified the appellant on the fateful day. In the event, therefore, I agree with the learned State Attorney that this ground is baseless. The third ground of complaint, which is general, is that the trial court failed to evaluate the evidence. This ground should not detain me much. Undoubtedly, on my careful scanning of the records, I observed that the Page 16 of 21 learned trial magistrate had properly examined and evaluated the evidence of both parties. So, this ground is therefore unfounded. The 2nd, 4th, and 5th grounds of the appeal raise complaints that exhibits Pl and P2 were admitted contrary to the law and that the procedures of the hearing at the trial court were done illegally. I must, at the outset, agree with the learned State Attorney that the cautioned statement (Exhibit Pl) and Police Form No. 3 (Exhibit P2) were admitted by the learned trial magistrate contrary to the law. In the instant case, the records show that after the prosecutor had prayed to tender the PF3 and the cautioned statement as exhibits, the appellant objected to the admission of the aforementioned. However, something that I find strange is that the learned State Attorney was not given a chance to counter-argument on the admissibility of the PF3 and cautioned statement. The learned trial magistrate continued to admit those documents as if there was no objection raised. That is irregular. The crucial question is whether such irregularity has caused a miscarriage of justice. The position was clarified by the Court of Appeal in the case of Mbaraka Ramadhani @Katundu vs. Republic (Criminal Appeal No. Page 17 of 21 185 of 2018) [2021] TZCA 27 (18 February 2021). The Court observed as follows: 'We restated that if the accused person objects to the admission of a cautioned statement (confession) for whatever reason, the trial court must stop the trial and conduct an inquiry, or a trial within trial, to determine the point objected.' The Court again in Salum Yunusi Ngongoti & Others vs. Republic (Criminal Appeal No. 219 of 2018) [2021] TZCA 28 (18 February 2021) took a leaf from the decision of Omari Iddi Mbezi and Another vs. Republic (Criminal Appeal No. 227 of 2009) [2014] TZCA 2226 (1 March 2014) where it was held that: 'The Court in OMARI IDDI MBEZI, VISITOR CHARLES, JOHN ANDREW & SAFARI IDDI MBEZI V. R (supra) also spelled out the consequences for failing to follow the established procedure when an accused person object a proposed admission of a confessional statement. The trial court must stop the trial and immediately conduct an inquiry or a Page 18 of 21 trial within trial to determine the point the accused person is objecting.' From the above-cited legal position, I think the admission of the objected-caution statement without conducting an inquiry and the admission of the objected PF3 without giving the other side a chance to argue on the admissibility of the said exhibit is a contravention of the law. I have considered whether upon expunging the appellant's cautioned statement and PF3, the court may go further to consider the remaining evidence. I think it may depend on the circumstances of the case. That takes me to the next issue of whether the case against the appellant has been proven beyond a reasonable doubt. The Court of Appeal in Syridion Michael vs. Republic (Criminal Appeal No. 262 of 2022) [2024] TZCA 365 (15 May 2024) referred to the case of Magendo Paul & Another vs. Republic [1993] T.L.R. 219. It was stated that; 'For a case to be taken to have been proved beyond reasonable doubts, its evidence must be strong against the accused person as to leave remote possibility in his favour which can easily be dismissibie.' Page 19 of 21 r In the circumstances of the case at hand, as I have intimated earlier, the appellant was charged with the offence of Grievous harm contrary to section 225 of the Penal Code [CAP. 16 R.E. 2022]. As rightly argued by the learned State Attorney, for the offence to be proved, there are two elements to be proved by the prosecution. One, whether the victim was assaulted and sustained injuries, and two, whether it was the appellant and not any other person who injured the victim. See also the position made in the case of Michael Adrian Chaki vs. Republic (Criminal Appeal 399 of 2019) [2021] TZCA 454 (9 September 2021). Having considered the submissions of both parties, and after carefully scrutinizing the evidence of PW1, PW3, and DW3, the fact that PW1 had sustained grievous harm cannot be disputed because even the appellant in his evidence does not dispute that. The only crucial issue now is whether it was the appellant who had caused PW1 to suffer the said grievous harm. It is clear that PW1, in her evidence, was able to identify the appellant when he assaulted her. Her evidence was also supported by the testimony of DW2, who was the appellant's witness and who clarified in his testimony that he saw the appellant at PWl's house shortly after the incident took place. I would have no reason not to believe that witness. In light of the above findings, I am of the firm view that the prosecution side at the trial court managed to prove beyond all reasonable doubt that it was the appellant who did grievous harm to the victim. Consequently, the appeal is therefore devoid of any merit. It is hereby dismissed. DATED at MTWARA this 26th day of March 2025. Court: Judgment delivered this 26th day of March 2025 in the presence of Mr Edson Laurance Mwapili, the learned State Attorney, and the appellant Page 21 of 21