dpp vs f9899 pc hassan said kavindi more fire and 3others 2020 tzhc 1588 13 july 2020

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA IN THE DISTRICT REGISTRY OF SHINYANGA AT SHINYANGA CRIMINAL APPEAL NO. 34 OF 2020 (Arising from Criminal Case No.36 o f 2017 o f the District Court ofShinyanga at Shinyanga) THE DIRECTOR OF PUBLIC PROSECUTIONS.................APPELLANT VERSUS F.9899 PC HASSAN SAID KAVINDI @ MORE FIRE..1st RESPONDENT JUMA MASANJA @ HASSAN.................................. 2nd RESPONDENT RUKIA GEORGE MACHIBYA.................................. 3rd RESPONDENT MASUMBUKO MAKOYE MSELELE........................... 4th RESPONDENT Date o f Last Order: 12/06/2020 Date o f Judgment: 13/07/2020 JUDGMENT C. P. MKEHA. J In the present appeal, the Director of Public Prosecutions is challenging the trial court's decision of failing to admit the Government Chemist's Report as prosecution's exhibit for a reason that urine sample was requested by a police officer whose rank is not the rank of or above the rank of Inspector. Whereas Ms. Mbughuni learned Senior State Attorney represented the appellant, Mr. Kaunda learned advocate represented the respondents. Submitting in support of the sole ground of appeal the learned Senior State Attorney submitted that it was wrong for the trial Magistrate to refuse admitting the said exhibit for a reason that the person who requested the accused's specimen was not a person of or above the rank of an Inspector. According to the learned Senior State Attorney after PW4 had testified to have received the urine sample from DC Najim, the trial Resident Magistrate entertained a view that it was DC Najim who requested the said urine sample. The learned Senior State Attorney went on to testify that DC Najim is yet to testify that he was the one who requested the exhibit in question or not and that, nowhere did the prosecution witnesses testify that it was DC Najim who requested urine samples. Mr. Kaunda learned advocate replied that the trial court correctly rejected the said exhibit as the witness who was tendering the report contravened the mandatory provisions of section 25(1) of the Human DNA Regulation Act, No.8 of 2009. The learned advocate submitted that, neither of the prosecution witnesses testified as to who was actually the requesting officer. In view of the learned advocate, the prosecution failed to arrange their witnesses properly. 2 Whereas the trial Magistrate rejected the exhibit for a reason that urine sample was requested by a police officer below the rank of Inspector, there was a concession from the learned advocate for the respondents that neither of the prosecution witnesses testified on who actually was the requesting officer. The reason offered for rejection of the prosecution's exhibit does not find backing in the evidence already on record. That apart, the trial Magistrate did not make it clear if at all the prosecution was in breach of any rule relating to admissibility of the exhibit in question. To say the least, the said report was wrongly rejected. For the foregoing reasons, I hereby quash and set aside the trial court's ruling dated 10/07/2019. I remit the record to the trial court for admission of the said report. Trial to proceed before another Resident Magistrate of competent jurisdiction. It is so ordered. Appeal allowed. Dated at SHINYANGA this 13th day of July, 2020. I ■ I ll\LI ■ JUDGE 13/07/2020 Court: Judgment is delivered in the presence of Ms. Mbughuni learned 4