CRIMINAL APPEAL NO 32 OF 2022

IN THE UNITED REPUBLIC OF TANZANIA

IN THE HIGH COURT OF TANZANIA

IN THE DISTRICT REGISTRY OF MTWARA

AT MTWARA CRIMINAL APPEAL NO. 32 OF 2022 (Originating from Criminal Case No. 43 of 2020 in the District Court of Mtwara, at Mtwara.) GABRIEL MOHAMED JAMAL -........................... . .................. — APPELLANT

VERSUS THE REPUBLIC-------- — ..............-.................. RESPONDENT

JUDGMENT Date of last Order: 14.08.2023 Date of Judgment: 10.11.2023 Ebrahim, J The Appellant herein was charged, convicted and sentenced at the District Court of Mtwara at Mtwara for the offence of armed robbery contrary to Section 287A of the Penal Code [Cap. 16 R.E 2002] as amended by Act No. 3 of 2011, [Now R.E 2022]. It was alleged by prosecution that the Appellant on 28th February, 2020 at Indian Quarters area within the Municipality and Region of Mtwara did steal Page 1 of 18 one handbag that contained various properties to wit: Cash TZS. 460,000/=, two (2) mobile phones make Tecno, one pair of gold earrings identity card of BOA Bank, one National Identity Card, one pair of khanga, a paper with the shopping list one medication card for a child and one National Health Insurance Fund Card, All being the properties of Ashura Juma Mushi. Immediately before such stealing, the appellant did cut her by a knife in order to obtain and retain the said properties. In this case, the Appellant was found guilty and convicted and accordingly sentenced to a mandatory sentence of 30 years imprisonment. The Appellant filed six grounds of appeal which are based on the main complaint that prosecution case was not proved beyond reasonable doubt. The basis of the complaints are that PW2 was not sworn nor affirmed and PW1 failed to identify exhibit Pl .The Appellant complained also on the

unprocedural admission of exhibits contrary to the law. When the case was called for hearing, the Appellant appeared in person unrepresented while the Respondent was represented by Ms. Farida Ki o by a, learned State Attorney. Page 2 of 18 The Appellant prayed to adopt his grounds of appeal and the court to consider them. In response to the grounds of appeal, the Ms. Kiobya responded to the grounds of appeal in seriatim. Starting with the 1S! ground of appeal she told the court that PW2 was affirmed by the trial court before adducing his evidence. Arguing on the 2nd ground she stated that PW4 in her testimony stated the name of the patient Ashura Juma Mushi. She argued that it was a slip of the pen of the trial court magistrate. On the 3rd and 4th grounds of appeal she contended that at page 13 of the typed proceedings the complainant identified two phones, one black and silver and another one was gold in colour and the appellant did not object on their admission. Submitting on the 5th ground Ms. Kiobya argued that exhibit P3 and P4 were tendered by PW1 and Section 210 (3) of the CPA was complied with. On the 6th ground she contended that the chain of custody was established because the prosecution called 9 witnesses and tendered 9 exhibits during the trial. She said there was also a certificate of seizure which was signed by the appellant and the independent witness. The same

was admitted in court and all exhibits Page 3 of18 were admitted without any objection. Therefore, prosecution case was proved beyond reasonable doubt. She prayed for the appeal to be dismissed. In brief rejoinder the appellant prayed to be set free. I have gone through the rival submissions as well as the grounds of appeal. It is clear that the conviction of the Appellant was pegged on the doctrine of recent possession. The trial magistrate after hearing the evidence from both sides and make the analysis and evaluation of evidence, at page 16 to 18 of the typed judgement made a finding that the Appellant was mentioned by PW9 one Hadija Mohamed Zuberi who was found with the stolen mobile phone make TECNO black in colour with red line. While PW9 managed to give explanation as to how she got the phone, the Appellant could not give any defence on how he obtained the said phone (exhibit Pl). I would firstly like to begin with the submission by the Appellant that PW2 was neither sworn nor affirmed before giving his evidence. Of- course the evidence of PW2 appearing on the typed proceedings shows that PW2 was not sworn nor affirmed but in the handwritten Page 4 of 18 proceedings, the record shows that PW2 was affirmed. Therefore, PW2 was affirmed but there is a typing error on the typed proceedings. The name written at the admission of exhibit P9 was Amina Juma Mushi while exhibit P9

is written Ashura Juma Mushi. After going through the trial court records, I found that PW4 testified about the patient one Ashura Juma Mushi. Therefore, it was a slip of the pen of the trial magistrate in the handwritten proceedings. Indeed, the Court of Appeal has in a number of cases illustrated the cumulative principles guiding the invocation of the doctrine of recent possession as a base of conviction. In the case of Joseph Mkumbwa & Another vs. Republic (Criminal Appeal No. 94 of 2007) [2011] TZCA 118 (23 June 2011), the Court of Appeal held that; "Where a person is. found in possession of a property recently stolen or unlawfully obtained, he is presumed to have committed the offence connected with the person or place where-from the property was obtained. For the doctrine to apply as a basis of conviction, it must positively be proved, first that the property was found with the suspect second, that the property is positively the property of the complainant third, that the property was recently stolen from the complainant; and lastly that the stolen thing in Page 5 of 18 possession of the accused constitutes the subject of the charge against the accused.” [Emphasis is mine]. Court of Appeal, in discussing the same issue in the case of James Kisabo ©Mirango and Another vs. The Republic, Criminal Appeal No. 261 of 2006, quoted with approval the case of Alhaj Ayub @ Msumari &

Others vs. R, Criminal Appeal No. 136 of 2009 (Unreported) which held that for a doctrine of recent possession to apply; it must be positively proved that the property was found with the suspect; property is positively the property of complainant; property stolen from the complainant; and that if was recently stolen. It was further held in the cited case above that: "In order to prove possession, there must be acceptable evidence as to the search of the suspect and recovery of the allegedly stolen property, and any discredited evidence on the same cannot suffice, no matter from how many witnesses". I am mindful of the fact that this is the first appeal, therefore I am obliged without fail to subject the entire evidence into objective scrutiny in seeing as to whether the doctrine was properly invoked. Page 6 of 18 Starting with the propriety of the search and seizure. Section 38 (1) of the Criminal Procedure Act [R.E 2022] provides that: “38. -(I) Where a police officer in charge of a police station is satisfied that there is reasonable ground for suspecting that there is in any building, vessel, carriage, box, receptacle or place- fa) anything with respect to which an offence has been committed; (b) anything in respect of which there are reasonable grounds to believe that it will afford evidence as to the commission of an offence; (c) anything in respect of which there

are reasonable grounds to believe that it is: intended to be used for the purpose Of committing an offence, and the officer is satisfied that any delay would result in the removal or destruction of that thing or would endanger life or property, he may search or issue a written authority to any police officer under him to search the building, vessel, carriage, box, receptacle or place as the case may be." Deducing from the quoted provisions of the law, no search of a premises shall be affected without one; search warrant, two; the presence of the owner of the premises, occupier or his near relative at the search premises, three; the presence of an independent witness who is required to sign to verify his presence and four; issuance of a receipt acknowledging seizure of the stolen property. Page 7 of 18 The above provision of the law is read together with Paragraph 18 (a) - (g) of the Police General Orders No, 226. From the records, there is testimony of PW3 who stated that from the police station they were accompanied with the Appellant and other police officers, together they went to conduct search at the place where the Appellant was living. It is from this search that the said one pair of earrings, patient card, one trouser, t-shirt, piece of paper with shopping list and prices were seized (exhibit P8). From the look of it, the search was not at all an emergency one. PW3 had

time to arrange the seizure by alerting and acquiring assistance of the: police officers and an independent witness. PW3 did not state anywhere that the search was an emergency one and infact she had time to arrange for the search of the Appellant's residence. From the evidence of PW3, I find that there was time to secure a search warrant or a written authority to allow her and her colleagues to conduct the search as required by law. I am of the firm view that the absence of a search warrant questions the legality of the search itself. It is obligatory to appreciate the rationale for the requirement of the search warrants as it is considered to be a civilian's pillar to lean-on as a Constitutional Right Page 8 of 18 to dignity and privacy of a person. In the circumstances therefore, I expunge from the record exhibit P8. On the issue whether exhibits P3 (card from Kinondoni Hospital) and P4 (the paper list of goods and prices) were read in court after being admitted. I hastily concur with the Appellant that the same were not read. This is according to the proceedings on record. However, it follows the question as to whether the omission is fatal and may attract the court to expunge them from the record. As a general rule where any document is tendered and admitted in court as an exhibit without being shown or read in order to afford an opposite party chance to know its contents,

such omission is fatal as observed in Steven Salvatory v. Republic, Criminal Appeal No. 275 of 2018, Court of Appeal of Tanzania at Mtwara {unreported). Nonetheless, the oral evidence of the witness who tendered such codument was into elaborating the content of it, such omission is not fatal. This is due to the reason that the purpose of reading the document is to make the opposite party know its content and prepare his/her defence. In the case of Chrizant John v. Republic, Criminal Appeal No, 313 of 2015, CAT at Bukoba (unreported) it was underscored that: Page 9 of 18 "In the circumstance of this case however, we rush to agree with Mr. Ngole that since the Republic called PW4 Florence Kayungi, the doctor who conducted deceased's autopsy, and because the evidence of that witness capitalized on exhibit Pl and he- explained in detail the deceased's cause of death, also that his advocate was given chance to cross examine her, it cannot be accepted that the appellant was denied opportunity to know the contents of exhibit Pl.... Applying the above statement in the matter at hand, PW1 the victim who tendered exhibit P3 said that it is the card of her child which was issued by Kinondoni Hospital and the exhibit was only to prove that account. On exhibit P4, PW1 testified on the contents of it to be a piece of paper which she recorded her shopping list. Thus, it is my concerted

opinion that the Appellant was not prejudiced as he knew the content of the documentary exhibit tendered. I see no need of expunging the said exhibits from the record. This ground of appeal therefore, lacks merit and I hereby dismiss it. Going back to the issue whether the doctrine was properly invoked. Beginning with the first requirement that the property must have been found with the accused (Appellant),: the testimonies of PW2, PW3, Page 10 of 18 PW5, PW6, PW8 and PW9 would shade some light PW2 A/lnsp. Azizi in charge of Anti-robbery department investigated the incident and by using the information received from PW9 who was found with one of the stolen mobile phones, trapped and arrested the Appellant at Kianga pom be shop. He testified that when the Appellant was searched, he was found with two cellular phones Tecno and Itel black in colour, Tecno gold in colour make T465 (exhibit Pl ) was one among the stolen phones. During the search, there was a sub-ward Chairman, Hamis Athumani Ally as an independent person who also signed the certificate of seizure (exhibit P5 and P7J . PW2 also said that the mobile phones found with the Appellant and PW9 are the ones that were stolen at the incident involving armed robbery of PWT. The victim (PW1) identified exhibit Pl. PW3 G1224 D/C Florence stated that she was with her fellow police officers and the Appellant coming from the police

station going to the place where the Appellant was living. Upon searching his room, they found one pair of earrings, patient card, one trouser, t-shirt and: a piece of paper of the shopping list with price which were all stolen from PW1. Together with an independent witness one Ahmadi Twa ha Mwichande (PW8) both of them signed the certificate of seizure (exhibit P8 collectively). Thereafter, she took Page 11 of 18 the Appellant back to the police station for further legal actions. PW4 medical assistant received the victim (PW1) on 28.02.2020 at Ligula Hospital for treatment. She said, PW1 had a wound with severe bleeding on her hand which was caused by a sharp object. She tendered PF3 [exhibit P9) to that effect. PW6 the retired magistrate recorded the extra judicial statement of the Appellant of which it was alleged that the Appellant confessed to commit the alleged offence. PW9 said the Appellant gave her a cellular phone make Tecno black in colour in consideration that he become his girlfriend. On 02.03.2020 when she was with the Appellant, she was called by her mother to go back home where she found police officers who asked her about the phone. PW9 told them she got it from the Appellant and took the police at the pombe shop where the Appellant was. The Appellant was arrested and they were taken to the Chairman and the said phone (exhibit Pl) was seized. Later, they were

taken to the police station. As alluded earlier, the principles of application of the doctrine of recent possession are cumulative. The question now comes as to whether the properties were positively identified as the properties of the complainants and they have been recently stolen. Ashura Juma Page 1.2 of 18 Mushi (PW1) was the victim who testified before the trial court that on the night of 28.02.2020 around 0900hrs after she had closed her shop, she went home. While parking her car she was invaded by a guy wearing a black mask and stabbed her with a knife on her hand. She dropped her handbag and bandit took the handbag which had ceil phones black and silver, earrings, summary of her business goods, NHIF card, kitenge, BOA Bank identity card, OPD card of her child and TZS. 460,000/= and run away. She called for help. Her neighbours took her to Ligula hospital among them was PW7. On 04,03.2020 she was called to identify her properties which were found with the Appellant. She managed to identify her cell phones one with gold in colour with airtel line {0693767337) inside. Another one was black with scratch screen [exhibit Pl collectively), earrings gold in colour scratched [exhibit P2), hospital card of her child [exhibit P3) and a piece of paper which she recorded her shopping list (exhibit P4). In proving as to whether the stolen properties were positively identified by the

victim, the case laws go further to require description of the properties by their distinctive mark. This principle has been well discussed in the case of Ally Bakari and Pili Bakari v R [1992] TLR 10 Page 13 of 18 cited case in Fredrick William & Others vs Republic (Criminal Appeal 73 of 2009) [2011] TZCA 81 (31 January 2011) it was stated as under: "It is essential for a proper application of the doctrine of recent possession, that the stolen thing in the possession of the accused must have a reference to the charge laid against the accused. That is to say that the presumption of guilt can only arise where there is cogent proof that the stolen thing possessed by the accused is the one that was stolen during the commission of the offence charged, and, no doubt, it is the prosecution who assumes the burden of such proof." In the instant case, PW1 who had a duty to prove that the items subject of the case were indeed hers. The substance of PWl's evidence detailing how she was invaded is contained at pages 12 to 13 of the typed trial court proceedings, where she stated as follows: “On 28/02/2020 around 09:00 pm. I was in my shop. I closed it and go back home. I reached at home at my gate I dropped my two children. I packed the car but before entered inside a guy wearing black mask stabbed me with a knife at hand, I dropped my hand he took it and run away, I shouted o ut my

neighbo urs came out they took me to Ligula hospital where I got treatment. Page 14 of 18 In my bag (handbag) there two celt phones black and silver, earrings, summary of my business goods, NHIF cards, clothes kitenge: BOA Bank identity card & OPD card of my child. There was also cash money of Tshs. 460,000/=. On 4/3/202.0 while I was at the police station. I was called to identify my properties; I was told that there were found with the accused and the accused asked me for forgiveness. I do remember him; he is the one in court. At the police station I managed to identify my two cel! phones, my earrings, OPD card of my child and my summary note. If I am to be shown my cell phones today, I can remember them because one with gold colour has a line inside and the black one its screen has been scotched. I have used my line Airtel; I do remember my number 0693767337.” [Emphasis added] The above is the detailed information on how the stolen properties were identified by complainant's (PW1), Following the above evidence, the trial court made the following order, at page 13 of the trial court typed proceedings, admitting the properties: “COURT: Two cellular phones make Tec no, one is black and another is gold in colour are received, admitted and marked as exhibit P1 collectively. " [Emphasis added]. Page 15 of 18 The above quotation from the evidence of the complainant who

also testified as PW1 and also the observation of the trial court reveals the following: One, although the stolen two cell phones were black and silver according to the evidence of PW1, the phones which the Appellant was found with and the other one PW9 was found with which were tendered as exhibit Pl collectively at page 13 of the trial court typed proceedings, were Tecno. Therefore, it was not correct for the trial court to accept Tecno cellular phones as PW1 phones. According to the complainant (PW1), the stolen cell phones were black and silver. In respect of the admitted Tecno cellular phones, there Was no evidence that such phones were stolen nor that they belonged to the complainant. Two, although the items stolen and recovered were allegedly the properties of PW1, there was no evidence showing that indeed any such item was the property of that witness. What is on record is a mere statement throughout that the PW1 identified the properties but there it is nothing on record showing how did that witness identify the properties as hers. Identification of the recovered items ought to have Page .16'of 18 specifically be proved by referring to specific and peculiar marks on the items in question. PW1 had a duty to prove that the items recovered and presented in court were distinctly and specifically hers and no one else. Her evidence ought to have been able to eliminate all

possibilities, real and potential that the properties might not have been hers. The properties having been normal trade items, there was no demonstration of any unique features or marks on such items to assist PW1 in specifically identifying them as hers. There was therefore no credible evidence to prove that the recovered goods had any relation with the complaint to the exclusion of the whole world. Clearly, with the above shortfalls, particularly that of failure to positively prove ownership of the recovered properties to have been owned by the complainant, the doctrine of recent possession was improperly invoked in view of the principles in Joseph Mkumbwa & Another vs. Republic (Supra) . From the above, I find that the doctrine of recent possession coupled with the fact that there was no search warrant was not rightly invoked. I therefore allow the appeal and order appellant's immediate release from prison unless otherwise lawful held. Page 17 of 18 R.A Ebrahim

JUDGE 10.11.2023. Page 18 of 18