20171121 TZCA Dar es Salaam

IN THE COURT OF APPEAL OF TANZANIA AT PAR ES SALAAM rCORAM: LUANDA, 3.A., MZIRAY, 3.A. And MW AMBEGELE, 3.A.^ CRIMINAL APPEAL NO. 493 OF 2016 THE D P P .................................................................................................. A PPELLAN T VERSUS 1. MIRZAI PIRBAKHSHI @ HADJI 2. AZIZ 3UMA KIZINGITI 3. SAID MASHAKA MRISHO RESPONDENTS 4. ABDULHARMAN MTUMWA LUKONGO (Appeal from the decision of the High Court of Tanzania, at Dar Es Salaam ) (Dvansobela, 3.) Dated the 2nd day of November, 2016 Criminal Session Case No, 24 o f 2015 JUDGMENT OF THE COURT 1st November & 4th December, 2017 LUANDA, J.A.: In the High Court of Tanzania (DSM Registry), the above named respondents stand charged with Trafficking in Narcotic Drugs contrary to S .16(1) (b) (i) of the Drugs and Prevention of Illicit Traffic in Drugs Act, Cap 95 RE. 2002 (the Act.). We are saying they stand charged because the trial is yet to be concluded. It is alleged in the charge sheet that on or about the 7th day of September, 2011 at Africana Mbuyuni area within Kinondoni District in Dar Es Salaam Region, the respondents did traffic in Narcotic Drugs namely, Heroin Hydrochloride weighing 65730.67 grams valued at TZ Sh 2,300,573,450.00 and Cocaine Hydrochloride weighing 30537.51 grams valued at Tsh. 1,068,812,850.00 all total valued at Tsh. 3,369,386,300.00. All the respondent pleaded not guilty to the charge. So, the trial commenced. The prosecution opened its case by parading the first prosecution witness an officer from the office of the Government Chief Chem ist one Bertha Mamuya (PW1). When she was about to produce the boxes allegedly containing the said drugs, after she had carried out analysis, the defence side which was represented by Mr. Johnson Jamhuri and Mr. Yasin Membar learned counsel who also appeared for the respondents in this appeal, resisted the tendering of the boxes on the ground that PW1 is not the custodian of those boxes as such she is not competent to tender them. Further, it is not shown how the same landed on her hands as the custodian of those boxes is Insp. Neema. The appellant argued vigorously in opposition of the objection raised and said PW1 is competent witness to tender the boxes. This is because she is the one who carried out the analysis the contents found in the boxes, sealed and signed. After hearing the argument of the parties, the trial learned judge made a ruling, the subject matter of this appeal, where he said that PW1 is not a competent witness to tender the boxes. Aggrieved by the decision, hence this appeal lodged by the Director of Public Prosecutions (the DPP) as permitted by S. 6 (2) of the Appellate Jurisdiction Act Cap 141 R.E. 2002 . In this appeal, the appellant was represented by Ms. Monica Mbogo and Mr. Kenneth Sekwao learned Principal State Attorney and State Attorney respectively. On the other hand, the respondents continued to enjoy the services of Mr. Jamhuri Johnson and Mr. Yasin Membar, learned advocates. The two are also representing the respondents in the High Court of Tanzania as said earlier on. The appellant has raised three grounds of appeal namely, we reproduce " 1. That, the learned Honourable Judge erred in law and facts when rejected to admit the three boxes as exhibits on the ground that the witness PW1 was not the right and competent witness to tender it as she was not the custodian o f it. 2. That, the learned.Honourable Judge erred in law and facts when held there is no explanation on how the exhibits were removed from custody o f Neema and put into the hands o f PW1 as there was no dispatch. 3. The learned Honourable Judge erred in law and facts when he held that there is no suggestion or indication that the said Neema is unable to come to court she being the custodian o f the same." Ms. Mbogo argued with force all the three grounds which we shall shortly discuss that PW1 was a competent witness to tender the boxes. Initially, Mr. Johnson resisted the appeal contending that PW1 was not a proper person to tender the boxes. However, upon reflection, Mr. Johnson conceded to the arguments raised in the appeal that PW1 is a proper person to tender the boxes. Arguing the first ground, Ms. Mbogo said PW1 is the one who analyzed the contents found in the boxes, sealed and signed. In terms of 4 S. 127 (1) of the Evidence Act, Cap.6 RE 2002, PW1 is a competent witness to tender the boxes. She referred us to our decision in the D P P V. K ris tin a d / o B is k a s e v s k a ja , Criminal Appeal No. 76 of 2016 (CAT - Unreported). First and foremost it should be borne in mind that PW1 has not yet finish tendering her evidence. However, the evidence she has already given indicates that she received the boxes containing 67 packets from Inspector Neema. She opened them and saw the contents - powder substance. She then examined the powder substance, sealed and stamped. It were those boxes which she wished to tender, hence the objection. In upholding the objection raised the learned trial judge said as follows:- "The objection however is sustained on three grounds. Frist, PW1 was not the custodian o f the exhibit. Second, there is no explanation how the exhibit was removed from the custody o f Neema and put into the hands o fP W l. There is even no dispatch. Third there is no suggestion or indication the said Neema is unable to come to court, she being the custodian. The objection is sustained but with the direction that the exhibit should be admitted for identification purposes and then Neema tender it." 5 We wish to point out at the outset that we had travelled through the evidence of PW1 on record, there is nowhere indicated that PW1 said Insp. Neema was the custodian of the boxes intended to. be tendered. Assuming that Insp. Neema was the one who had the custody of the boxes, is PW1 not a competent witness to tender the boxes? In Kristina case cited supra, the facts are almost similar with this case in that when an officer from the office of the Government Chief Chemist was about to tender the Exhibit alleged to be drugs, an objection was taken out by the defence that the witness was not com petent to tender it. The trial High Court sustained the objection raised. On appeal, this Court said as follows:- "Since the envelope was addressed to the Government Chemist and PW1, a Chemist in that Office is the one who analysed the same/ we buy the argument by the learned Senior State Attorney that PW1 was in the circumstance with full information and knowledge o f the envelope and therefore, a competent witness than anyone else to tender in court, the envelope and its contents." 6 In our case, PW1 in. her evidence she has tendered so far shows that she had come into contact with the boxes by seeing, touching, analyzing the contents therein and finally wrote a report. So, what she intended to produce is something which is within her knowledge and possession at one point in time . Her evidence is direct oral evidence falling under S. 62 (1) (a) and (c) of the Evidence Act, Cap. 6 RE 2002 which reads a s ■follows 62 (1) Ora/ evidence must, in ai! cases whatever, be direct that is to say:- (a) I f it refers to a fact which could be seen, it must be the evidence o f a witness who says he saw it; (b) N/A (c) I f it refers to a fact which could be perceived by any other sense; or in any other manner, it must be the evidence o f a witness who says he perceived it by that sense or in that manner. A person who at one point in time possesses anything, a subject matter of trial, as we said in Kristina Case is not only a competent witness to testify but he could also tender the same. It is our view that it is not the law that it must always be tendered by a custodian as initially contended by Mr. Johnson. The test for tendering the exhibit therefore is whether the witness has the knowledge and he possessed the thing in question at some point in time, albeit shortly. So, a possesser or a custodian or an actual owner or alike are legally capable of tendering the intended exhibits in question provided he has the knowledge of the thing in question. Turning to the second ground, we have shown that PW1 is yet to finish tendering her evidence. PW1 did not say that after she had finished analyzing the contents in the boxes she handed over the same to Insp. Neema. It is therefore not correct to put words in P W l's mouth that she had handed over the boxes to Insp. Neema. And so the need to explain how PW1 came about the boxes was prematurely made. The finding by the trial learned judge is not borne by the record. As regards the third ground o f appeal indicated supra, like the second ground, the trial learned judge was also wrong when he held that Insp. Neema was the custodian o f those boxes. There is no such evidence on record at the moment. 8 Ali in all, we agree with Ms. Mbogo that the intended exhibits were wrongly rejected. The appeal has merit. The same is allowed. We quash and set aside the ruling of the trial learned judge and remit the record to the High Court for admission of the boxes. We further direct the trial to proceed before the same learned judge unless there are reasons for not doing so as mandated by S. 299 (1) of the Criminal Procedure Act, Cap 20 R.E. 2002. Order accordingly. DATED at DAR ES SALAAM this 21st day of November, 2017. B. M. LUANDA JUSTICE OF APPEAL R. E. S. MZIRAY JUSTICE OF APPEAL J. C. M. MWAMBEGELE JUSTICE OF APPEAL I certify that this is a true copy of the original. J. K. KAMYUZ.A REGISTRAR COURT OF APPEAL 9