CR

IN THE COURT OF APPEAL OF TANZANIA AT ZANZIBAR fCORAM: KOROSSO. J.A.. KEREFU. J.A.. And MDEMU. J.A.^ CRIMINAL APPEAL NO. 63 OF 2023 FABIAN KAZIMOTO TOMAS.................................................... APPELLANT VERSUS DIRECTOR OF PUBLIC PROSECUTIONS...................... ..... RESPONDENT (Appeal from the decision of the High Court of Zanzibar at Tunguu) (Issa. J.) dated the 14th day of July, 2022 in Criminal Appeal No. 6 of 2022 JUDGMENT OF THE COURT 22nd April & 6* May, 2024 KOROSSO, 3.A.: Fabian Kazimoto Tomas, the appellant herein was arraigned in the Regional Court for Zanzibar at Mwera on charges with two counts namely, Burglary and Theft. In the first count, he was charged with Burglary with intent to commit an offence contrary to sections 290(1) and (2) and 291(l)(a) and (2) of the Penal Act, No. 6 of 2018 of the Laws of Zanzibar (the Penal Act). The charge in the second count was theft, contrary to sections 251(1) and (2)(a) and 258 of the Penal Act. The essence of the allegations against the appellant in both counts was that on 25/9/2019 between 18.00 hours and 21.00 hours atTunguu, within Central District and Southern Region of Unguja, the appellant and his then co-accused, Abdallah Suleiman Hija (who is not a subject of this appeal) broke into a dwelling house of Sabina Mikael Aluis and stole 47 pairs of Khanga and a big blue bucket popularly referred to as a "doo", all valued at Tshs. 300,000/=. The stolen items belonged to Sabina Mikael Aluis. The factual setting giving rise to the instant appeal as adduced by nine prosecution witnesses who testified is that on 25/9/2019 between 18.00 hours and 21.00 hours, 47 pairs of Khanga and a big blue bucket belonging to Sabina Mikael Aluis (PW1) were stolen from the premises of her house. It was Madai Marcus (PW2), Sabina's husband, who on arrival back home from his business operations found the door of their house broken and the bucket that his wife used to keep some clothes missing, PW2 informed PW1 of the incident, who then came back home and ascertained the theft information from PW2. PW1 went to some of her neighbours to inform them of the incident. The next day, PW2 came home * from his routes and told PW1 that he had seen the stolen bucket at the house of one Bandita Emanual Abushiri (PW4). PW1 went to PW4's house, saw a bucket, and queried her on where she got it from. PW4 informed PW1 that she purchased from one Dulla for Tshs. 9,000/=. Subsequently, PW1 went to Police Station at Tunguu and reported the theft of her items and informed them that she had seen the bucket she believed was stolen from her house at PW4's place. Accompanied by some police officers, they knocked at PW4's house and the police seized the bucket they found. PW4 was questioned and she gave the same information she had earlier given PW1 on where she got the bucket from. Four days later, while at home, PW1 was informed that one Amina Rashid Khamis (PW5) was selling khangas similar to those stolen from her. She followed up the information and on arrival at PW5's place recognized the khangas being sold as those from her. She stated that she identified them because she had marked each by burning it a bit at its corner. PW5 informed PW1 that she got the khangas from one Kijitu (an alias of the appellant) and that the said Kijitu would arrive where they were in a short while. It was PWl's evidence that after a few minutes, the appellant arrived in a motorcycle "bodaboda'1'carrying a bag on his back. On arrival there, the appellant called PW5 who came out with clothes to hand to the appellant. While this was ongoing, some people whom PW1 had prepared rushed out to apprehend the appellant. In the process of the arrest, the appellant threatened those attempting to arrest him with a "pangsT causing them to retreat paving the way for the appellant to run away. PW5 then directed PW1 to go to Paulina (allegedly, the appellant's wife) to follow up on the stolen khangas as she was also selling some khangas. After what transpired, PW1 went back to the police station to report, and with police officers went to the appellant's house and found Paulina at her neighbour's house, selling clothes. Upon being asked by the police for details on the clothes she was selling, she stated that her husband had given her. When they went back to her house, six pairs of khanga were found and she informed them that there were others that she had loaned to some persons such as Maryam Daudi Suleiman (PW7) who acknowledged this. The appellant's wife also took them to where she had sold some khangas which PW1 identified as some of those stolen from her. PWl's evidence shows that the information she managed to gather from Paulina was that some of those who had bought the khangas included Asya Yussuf Suleiman (PW6) and Maryam Mhando Saleh (PW8). According to PW1, Paulina also took her and the police officers to a few of those she had sold khangas to and PW1 managed to identify the khangas they had as those stolen from her. Thereafter, the appellant's wife was taken to the Police Station. According to WP 6296 D/CP Saada (PW9), the investigator, only 15 pairs of khanga were seized. The appellant was later arrested and charged as stated earlier. The appellant's defence was a total denial of the charge and having been found with any stolen item. He challenged the fact that the woman who was alleged to be his wife was not called as a witness. The trial court, having heard and considered the evidence from the contending sides, and being convinced that the charge against the appellant was proved beyond reasonable doubt, convicted him on both counts and sentenced him to serve eight and three years in the Education Center (Chuo Cha Mafunzo) for the first and second counts respectively. His co-accused was acquitted. The appellant was aggrieved with the conviction and sentence. His. appeal to.the High Court was unsuccessful. Still dissatisfied, hence his appeal to this Court, ‘The filed memorandum of appeal faults the High Court essentially on the following five complaints: One, relying on fabricated prosecution evidence. Two,' relying on doubtful and uriproven ‘ evidence. Three, showing .'bias against the appellant and failing to analyse evidence on record. Four, failure to consider the defence evidence and favouring the prosecution evidence, and five, failure to consider that the prosecution failed to prove the charge against the appellant beyond reasonable doubt. : ;‘Dn 22/4/2024 when the appeal was called for hearing before us, ; . . .*• „ ■ .). the appellant was present in person, unrepresented, whereas on the part of the r^spdndent/Director of Public Prdsehjtibns-(DPP), Mr. Moharried Salehe ldd, learned Principal'State Attorney, entered appearance assisted by Mr. Ayoub Nassoro ’ShariFf, learried Senior State Attorney, Ms. Safia Selembe Hamisi and Mr. Zueh.a Salehe Zuberi, learned State Attorneys. At the inception of the hearing of the appeal, before calling upon the parties to amplify and respond on the grounds of appeal before us, we invited them to first address the issue of .the propriety of the charge against the appellant as it related to the evidence adduced by the prosecution witnesses. That is whether there was a variance between the charge and.the evidence adduced by.the prosecution witnesses.. The appellant being a layperson had nothing of substance to address us on the issue we raised. On the grounds of appeal, he prayed to adopt them and urged us to consider them. He also intimated his preference for the respondent's side to respond to his grounds of appeal first and that he retains the right to rejoin thereafter if the need arises. On his side, Mr. Iddi began his submission by conceding the variance between the charge against the appellant and the evidence adduced by the prosecution witnesses. He informed us that the obvious discrepancy is particularly in the number of khangas allegedly stolen from PW1. He stated that while the charge states that there were 47 pairs of khanga stolen, the evidence of PW1, the owner of the alleged stolen pairs of khanga was inconsistent in her testimony on this. The learned Principal State Attorney argued that, while at page 5 of the record of appeal, her evidence shows that 40 pairs of khanga were valued at Tshs. 300,000/= were stolen together with a "blue doo", later at page 7 of the record of appeal, she testified that 45 pairs of khanga were stolen. He argued that the number of pairs of khanga allegedly stolen from their house on the ascribed day differed from what was stated by PWl's husband, PW2 who stated that the bucket that was stolen from their house had 47 pairs of khangas, as revealed on page 10 of the record of appeal. The other divergence pointed out by the learned Principal'State Attorney relates to PWl's evidence on how she identified her khangas as it leaves room for speculation. He contended that, her evidence failed to establish a clear and specific type of marking in the said khangas since burning at the corner cannot be taken to be a specific mark taking into account that khangas are widely worn by women in Zanzibar. The lack of proper and specific identification marks creates doubt on the khangas retrieved from various people said to be the ones stolen from PW1 were properly identified and indeed the same ones as the ones stolen from PW1. He urged us to also consider the fact that khangas can be bought from various shops and are easy to transfer from one person to the other. According to Mr. Idd, in such circumstances that the evidence on the number of khangas stolen from PW1 differed from the contents of the charge, which was an important issue, the prosecution side should have sought to amend the charge in terms of section 219 (1) of the Criminal Procedure Act, Act No. 7 of 2018 of the Laws of Zanzibar (CPAZnz). The learned Principal State Attorney argued that the prosecution's failure to amend the charge renders the charge against the appellant unproven. On the consequences in such circumstances, Mr. Idi stated that following their earlier submission on the failure of the prosecution side to prove the charge against the appellant, the conviction against him was improper and the Court should find the appeal to have merit. In rejoinder, the appellant expounded his support for the submissions from the Principal State Attorney and prayed that his appeal be allowed and for him to be set free. Having carefully considered the submissions from the appellant and the learned Principal State Attorney on the appeal before us, we have noted that the respondent's side conceded to the presence of material variance between the charge and the prosecution evidence, particularly on the number of khangas allegedly stolen from PW1. We shall now move to determine whether the stated variance exists and if so, whether it is curable in law and the consequences thereto. It is well established that a charge is the foundation of criminal trials whose purpose is to inform the accused person of the nature and magnitude of what he faces to enable him to prepare his defence. This position is well settled and has been a subject of discussions in various decisions of the Court including Mussa Mwaikunda v. Republic [2006] T. L. R. 387 and Remina Omary Abdul v. Republic, Criminal Appeal No. 189 of 2020 (unreported). Indeed, section 167 of the CPA Znz provides that a charge or information shall have a statement of the offence charged which shall describe the offence in ordinary language without stating all essential elements of the offence and avoiding as far as possible use of technical terms. After the statement of the offence, what should follow is the particulars of such offence set out in ordinary language. Accordingly, it is expected that for an accused person to have a fair trial, the stated particulars should be informative enough and allege essential facts (ingredients) of the offence required by law to enable the accused to align a proper defence. In the instant case, parties are not at issue with the statement of the offence or how the particulars of the offence are framed. The concern is on the number of khangas alleged to have been stolen by the appellant from PW1 as expounded in the particulars of the offence and the evidence adduced. Whilst the particulars of the offence show that 47 pairs of khanga were stolen, PW1, the owner of the khangas stated otherwise. In her testimony, her evidence was inconsistent on this, stating that 45 and then 40 pairs of khangas were stolen from her house. In the first appeal, 9 the High Court did not address the variance in the charge and the evidence adduced concerning the number of pairs of the stolen khanga, but dealt with it as a discrepancy in the evidence. It considered the fact that the prosecution had conceded to this discrepancy but propounded. that it was minor as an error in memory, an assertion which the High Court agreed with. In our scrutiny of the record of appeal, we discerned that on page 5 lines 12-14 of the record of appeal, PW1 stated that; ”... The clothes which was stolen were kanga 40 pairs valued 300,000/= Tsh." PW1 further stated at page 7 lines 9-12 of the record of appeal; "...77?e doo (bucket) which was stolen was blue in colour containing 45 pairs o f khangas having different names and colour..." Although PW2's testimony was that 47 pairs of khanga were stolen from the house in line with the number stated in the particulars of the charge, what is clear is that the evidence of PW1, who owned the alleged stolen khangas did not augur with what was in the particulars of the charge. It was expected that the owner of the stolen khangas would have been the one to categorically prove the number of the stolen khangas. Unfortunately, in the instant matter, this was not the case. As argued by the learned Principal State Attorney, the variance and the lack of clarity on the number of khangas stolen from the prosecution witnesses, which 10 we find to be a critical element in proving the offence charged, rendered the charge defective. For the foregoing, we are of the firm view that had the first appellate court taken into account the said anomaly in the charge, it would have also found the charge defective and not only addressed it as a minor discrepancy in the evidence adduced by the prosecution witnesses? Having found the charge to be at variance with the evidence adduced and thus defective, the available remedy in similar circumstances is found in section 219(1) of the CPAZnz. It states: "Where, a t any stage o f a trial before the dose o f the case for the prosecution, it appears to the court that the charge is defective, either in substance or form, the court may make such order for the alteration o f the charge either by way o f amendment o f the charge or by the substitution or addition o f a new charge as the court thinks necessary to m eet the circumstances o f the case." In the present case, taking account of the above provision, and the variance of the charge as against the evidence adduced at the trial, it was incumbent that the charge should have been amended. In the case of Thabit Bakari v. Republic, Criminal Appeal No. 73 of 2019 (unreported), where the Court dealt with variance of the charge with the evidence about stolen items, we stated: - li "It is well settled that in such a situation, failure to amend the charge sheet is fatal and prejudicial to the appellant This is because such anomaly leads to serious consequences to the prosecution case.’' Again, in Mashaka Bashiri vs Republic, Criminal Appeal No. 242 of 2017 (unreported) the Court held that: - " The failure to amend the charge sheet is fata! and prejudicial to the appellant and hence leads to serious consequences to the prosecution case " (see also, Issa Mwanjiku @White v. Republic, Criminal Appeal No. 175 of 2018 (unreported). In the present case, the record of appeal shows that the charge was not amended at any stage of the trial and was used to convict the appellant. In such circumstances, what remains is the fact that the charge remained unproven since the evidence adduced did not prove the charge effectively as PW1, the owner of the alleged stolen property failed to prove that 47 pairs of khanga were stolen and gave different numbers as stated herein. (See, Ryoba Mariba @Mungare v. Republic, Criminal Appeal No. 74 of 2003, Christopher Rafael Maingu v. Republic, Criminal Appeal No. 222 of 2004, Anania Turian v. Republic, Criminal Appeal No. 195 of 2009 (all unreported). We thus find this concern to be meritorious. 12 We are alive to the fact that the above findings are sufficient to dispose of the appeal, however, in the interest of justice and for completion, we find it apposite to address the five complaints raised by the appellant conjointly under one issue on whether the prosecution did prove the case beyond reasonable doubt. Taking into account the charge against the appellant, plainly the prosecution side was supposed to prove that there were 47 pairs of khanga and a doo stolen from PW1. Suffice it to say, what we have endeavored to show when discussing the previous issue, was that there was no proof that 47 pairs of khanga were stolen from PW1. This is because apart from the fact that the number of stolen khangas was not proved. In convicting the appellant and affirming the same, the trial and first appellate courts applied the doctrine of recent possession. The High Court was convinced that the appellant was found in recent possession of the allegedly stolen goods relying on the evidence of PW1, PW2, PW3 and PW5. We have gone through the evidence of all the prosecution witnesses, and are of the view that had the High Court Judge carefully considered the evidence he would not have concluded that recent possession was proved. In Joseph Mkumbwa and Another v. Republic, Criminal Appeal No. 94 of 2007 (unreported), the Court set out rudiments for invoking the doctrine of recent possession: - 13 "First, that the property is positively the property o f the complainant. Second, that the property was found with the suspect. Third, that the property was recently stolen from the complainant. Fourth, that the stolen thing in possession o f the accused constitutes the subject o f a charge against the accused. It must be the one that was stolen/obtained during the commission o f the offence charged." In addition, in Matola Kajuni & Three Others v. Republic, Consolidated Criminal Appeals Nos. 145 of 2011, 146 of 2011 and 147 of 2011 (unreported) the Court said: - V/7 order fo r the doctrine o f recent possession to hold, the prosecution m ust establish, inter alia, beyond any doubt that the alleged recovered property which is the subject m atter o f the charge to have been duly identified and belongs to the complainant Having carefully gone through the laid down conditions for a court to invoke the doctrine of recent possession, we are convinced that the evidence in the instant case does not fall within its ambit for the following reasons; One, there was no proof to the standard required that the seized khangas belonged to the complainant, PW1. This is because khangas are clothes that easily transfer and the evidence by PW1 did not provide that 14 her khangas had any specific marks to conclusively ascertain the seized khangas were the ones stolen from her house. There was no other witness to support her claims that she had burnt her khangas at the corners or that the seized khangas were burnt at the corners. On the colours and messages found in PWl's khangas, we find such claims cannot in any way be taken to be special marks to distinguish PWl's khangas from others since most khangas are colourful and known to have messages. These are very general marks that we find cannot identify khangas that were stolen from PW1. We are thus of the firm view that, had the trial and first appellate courts carefully scrutinized the evidence, it would have reached a similar conclusion. Second, the seized khanga's were found at different places with PW4, PW6, PW7 and PW8 and some with one Paulina (alleged to be the appellant's wife) however, she did not testify. In those circumstances, there is nothing to lead us to prove even constructive possession on the part of the appellant. Third, the evidence of PW1 and PW2 proves there was theft of khangas from their house, but whether it was the seized khangas we have shown above, lacks clarity and is inconsistent on a material fact of the number of khangas stolen. We have already in essence discussed the fourth ingredient when addressing the previous issue and therefore, it is not fulfilled. For the foregoing, we are of the firm view that 15 the doctrine of recent possession was not applicable in the instant case and the case against the appellant was not proved beyond reasonable doubt. In the event, we find the grounds of appeal to be meritorious and consequently, allow the appeal. The conviction against the appellant in the first and second counts is quashed and the sentence for each of the two counts is set aside. We order that the appellant be set free unless he is held for some other lawful cause. DATED at ZANZIBAR this 4th day of May, 2024. W. B. KOROSSO JUSTICE OF APPEAL R. J. KEREFU JUSTICE OF APPEAL G. J. MDEMU JUSTICE OF APPEAL The Judgment delivered this 6th day of May, 2024 in the presence of the appellant in persoruanc! Mr. Ali Yussuf Ali, Principal State Attorney for the respondei^f^f3p5pfT9q\9^y certified as a true copy of the original. IMO EGISTRAR APPEAL 16