JUDGEMENT HAMIS JUMA HAMIS NEW

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (DODOMA SUB REGISTRY) AT DODOMA DC Criminal Appeal No. 26880 of 2024 (Case Reference Number 202409192000026880) (Original from Criminal Case No.13909 of 2023 of Manyoni District Court at Manyoni) BETWEEN HAMIS JUMA HAMIS..................................................................... APPELLANT VERSUS THE REPUBLIC......................................................................... RESPONDENT JUDGMENT 30/10/2023 & 08/01/2025 MANYANDA, J:. Hamis Juma Hamis, hereafter referred to as "the Appellant", is appealing against both conviction of the offence of armed robbery, contrary to section 287A of the Penal Code, [Cap. 16 R. E. 2022] and sentence of 30 years imprisonment and an orderto pay compensation of fine of Tshs. 4,000,000/= imposed onto him by Manyoni District Court, hereafter referred to as "the trial court". Before the trial court, the Appellant was charged with one offence of armed robbery contrary to section 287A of the Penal Code on allegations Page 1 of 29 that on 9/12/2023 during night within Manyoni District in Singida Region, did steal one motorcycle make Haojue with Registration Number MC 332 DDN, chassis number LC6PCJK29MOA42942, black in colour valued at Tshs. 2,600,000/= from Shaban s/o Bakari and at, or immediately after the time of stealing did assault the said Shaban s/o Bakari by using a sharp object in order to retain the thing stolen. The evidence presented by the prosecution through 4 witnesses and 3 documentary exhibits was that on the fateful day, PW1, Shaban Bakari, the victim, when in his business of conveying passengers, commonly known as bodaboda using his motorcycle make Haojue with Registration Number MC 332 DDN, met a client with whom agreed to convey from "Mama Msomali area" at Majengo in Manyoni Township to "Kwa Ninety area" in Manyoni Township for fare of Tshs. 2000/=. On the way while driving his client to the agreed destination, was asked to stop by his client in pretence of having stomach ache. Then, while he was in the process of stopping, was suddenly assaulted by his client; been severely injured was overpowered and his motorcycle robbed and driven away by that person. Page 2 of 29 PW1 narrated the incidence to police alleging to have identified his assailant. That, he identified him by face, attire and statue and the luggage he carried. The Appellant gave a defence of alibi, stating that since November, 2023 up to February, 2024 was employed as a supervisor of a guest house and bar called Super Narumu located at Chang'ombe in Dodoma City he never travelled out of Dodoma Region until on 14/05/2024 when he went to Manyoni and got arrested by police officers. He admitted to have been identified at an identification parade held on 18/05/2024 but refuted all the allegations of assaulting PW1 and stealing his motorcycle. The trial court did not believe the Appellant alibi, as stated above, it found him guilty of armed robbery, convicted and sentenced him to serve 30 years imprisonment. In addition, it ordered him to compensate PW1 Tshs. 4,000,000/=. He is aggrieved by both conviction, sentence and compensation order, hence this appeal. He has raised five grounds of appeal as follows: - Page 3 of 29 1. That, nothing was found when the police officer arresting me [him] no any exhibit [was] tendered before the court (motorcycle) alleged to be stolen and the weapon used to commit the offence; 2. That, [there was] no any witness who is a peace o fjustice (sic) who came before the court to testify that I [he] confessed to commit the offence in order to prove the case beyond reasonable doubt; 3. That, the trial magistrate erred in law and in fact to convict and sentence the appellant while was not taken (sic) any caution statement at the police station in leu was forced to sign the document which he did not know the content therein; 4. That, no any witness who testified before the court [that] he saw the appellant direct by his naked eye committing the alleged offence because it was so early about 0800 hours at night; and 5. That, the material date and time asserted by prosecution side on 9th day o f December 2023 that I [he] committed the offence such date and time I [he] was at Dodoma Region and event occurred in Singida Region. Page 4 of 29 The appeal was argued orally, the Appellant was unrepresented, while the Republic was represented by Mr. Daniel Lyatuu, learned State Attorney. In his submission, the Appellant basically adopted his grounds of appeal and cleaved leave for the same to form his submissions in chief. Then, he prayed for his appeal to be allowed, conviction quashed, the 30 years' imprisonment and order to pay the victim compensation of Tshs. 4,000,000/= be set aside. In his reply submission Mr. Lyatuu, opposed the appeal, supported conviction and sentence. He argued the grounds seriatim, save for the second and third grounds. In ground one, the complaint is that the trial magistrate erred in law to convict the Appellant because neither a weapon alleged to have been used to inflict injuries on the victim nor the alleged stolen motorcycle, were tendered in court as exhibits. The State Attorney submitted that in law it is not necessary to tender in court a weapon used in commission of the offence in order to prove armed robbery. It suffices if it is established that a weapon was used. To support his point, he referred this Court to the Page 5 of 29 case of Daniel John Mwakipesile vs. Republic, Criminal Appeal No. 499 of 2019 at page 14 where the Court of Appeal of Tanzania held that the weapon was not necessary to be tendered in court as it was not found and there were other pieces of evidence to support the assault. As regard to the alleged stolen motorcycle; the State Attorney conceded that it was also not tendered in court. He gave the reason that it was never recovered. He went on submitting that the evidence as to its ownership was tendered in court. He was of the view that ownership evidence, which was undisputed, sufficed to prove that the victim was the owner of the motorcycle which was robbed from him by the Appellant. He added that, in law, it is not necessary to tender in court a stolen item if it is proved that the same was not found but there is evidence of ownership from the owner as happened in this case. He referred this Court in the case of Tembo Songoyi @ Ndogani and @ Others vs. Republic, Criminal Appeal No. 1293 of 2014 of the High Court of Tanzania at Tabora by Hon. Kadilu, J. where he held that non-production of stolen property is not necessary if there was evidence which proves ownership of the robbed motorcycle. Then, he invited this Court to dismiss ground one. Page 6 of 29 In ground four the complaint is absence of eye witness during commission of offence, hence there is no water tight identification. The State Attorney submitted that PW1, the victim, properly identified the Appellant because he was the one who hired the victim to drive him. There was ample of time during fare negotiations and it was harmony between them before the Appellant turned against him. Not only that, the State Attorney also added that there was enough light from solar light electrical lamps lighting from a neighbour restaurant house. Moreover, it was submissions by the State Attorney that the victim gave sufficient description of his assailant immediately after the incident. That, the victim's subsequent identification of the Appellant at the identification parade organized by PW2 provides assurance of identification of the Appellant by the PW1 during robbery. In ground five, the complaint is based on a defence of alibi that the Appellant claims that was in Dodoma since November 2023 to May, 2024, therefore he was not at the crime scene at the time of commission of the offence at Manyoni, Singida on 09/12/2023. The State Attorney submitted in reply arguing that although the Appellant did not give any notice of relying on the alibi under section 194(4) of the CPA, yet the trial Page 7 of 29 Magistrate, took cognizance thereof and after evaluating the same along with other evidence adduced by both sides, correctly disbelieved the same. He asked this Court to dismiss this ground of appeal. In respect of grounds two and three where the Appellant defended that he was not taken to a justice of peace, therefore the trial Magistrate went astray in law and facts in convicting him based on a cautioned statement on which he was only forced to sign without knowing its contents. Mr. Lyatuu submitted in reply conceding that it is true that the Appellant was not sent to a justice of peace. He gave the reasons being that it is not a legal requirement where a suspect confesses before police and his cautioned statement is recorded that he must be sent to a justice of peace. The State Attorney, argued that in this case, the Appellant did not confess to have stolen the motorcycle and did not admit to commit the offence, hence no cautioned statement was tendered in court. He opined that these grounds have no merits and prayed the whole appeal be dismissed for want of merits. Page 8 of 29 In rejoinder the Appellant rejoined in respect of the alibi defence in ground five, that it is true that he could not bring witnesses to support him, but he told the trial Magistrate and was not sure if he wrote the request in the proceedings. Also, the Appellant refuted to have been identified by PW1 committing the offence, swearing that even if God comes here, he would witness that he was not identified by PW1, the victim at the crime scene. Those were the submissions by the parties. I have carefully gone through the records of the trial court, the grounds of the appeal and the submissions of the parties as depicted above. I found that the main issue in this appeal is whether the appeal is meritorious. Let me start with the complaint in ground one that, nothing was found in possession of the Appellant during his arrest by the police officer as neither a motorcycle nor a weapon alleged to have been used to committed the offence were tendered in court as evidence. I accede to the learned State Attorney's submissions on position of the law that it is not necessary to tender in court a weapon alleged to have been used in commission of armed robbery in order to prove the offence of Page 9 of 29 armed robbery where there are other pieces of evidence proving use of a weapon. In the case cited by the State Attorney, the case of Daniel John Mwakipesile vs Republic, Criminal Appeal No. 449 of 2019 [2022] TZCA 582 (28 September 2022) the Appellant challenged the prosecution's evidence as unreliable for failure to tender in evidence a knife alleged to have been used in commission of the offence. The Court of Appeal of Tanzania cited with approval its earlier decision of Mashaka Juma @ Ntatula vs Republic, Criminal Appeal No. 140 of 2022 [2022] TZCA 506 (15 August 2022) where there were some physical objects not tendered in evidence but of which witnesses testified about, a similar complaint was raised, it held that: - "... failure to tender those objects did not render or did not mean that the witnesses who testified on such exhibits were not credible.... Despite the fact that the said objects were not tendered in court, there was ample evidence from PW1, PW2, PW8 and PW10 incriminating the appellant...." As regard to the second limb of objection that the alleged stolen motorcycle was not tendered in court, I also agree with the State Attorney Page 10 of 29 submissions that since the motorcycle was never recovered, then the documentary exhibits PE3 Collectively namely, motorcycle purchase receipt and its registration card sufficed to establish not only that it existed but also that it was a property of the victim, PW1. It is trite law that where it is established that a thing capable of being stollen was stollen as such, its ownership been well established but the said thing has never been recovered, failure to tender it in court is not fatal to the prosecution's evidence as happened in this case. The case cited by the State Attorney which was decided by this Court, Hon. Kadilu, J. of Tembo Songoyi @ Ndogani and Others vs. Republic, Criminal Appeal No. 1293 of 2014, where a motorcycle was robbed and never been recovered, it was held that non-production of stollen property is not necessary if there is evidence which proves ownership of the robbed motorcycle. I subscribe to this position of the law. This ground lacks merits too. The Appellant challenges the prosecution evidence generally in grounds two, three and four that it failed to prove the case beyond reasonable doubts on grounds of failure to take him to a justice of peace Page 11 of 29 after allegations of confessing commission of the offence before police officers, which he repudiated. The State Attorney's stand is twofold; one, though the cautioned statement was not tendered in evidence, there is no legal requirement for sending to a justice of peace a suspect who confesses before police and his cautioned statement recorded; and two, the evidence proved the case beyond all reasonable doubts. The first fold should not detain me. I agree with Mr. Lyatuu that in law, there is no known law that require to have a suspect who confesses before police to commit an offence taken to a justice of peace to repeat his confession, although, as a matter of consistence assurance, it is desirable to do so. In the case of Bushiri Mashaka and Three Others vs. Republic, Criminal Appeal No. 45 of 1991, (unreported) the Court of Appeal of Tanzania advised that it is safe to have a confessing suspect before police to be taken before a justice of peace as well. This Court, Hon. Mongella, J, also considered a similar complaint in the case of Alex Mwashilindi and Daniel Shombe vs. Republic, Criminal Case No. 86 of 2018) and after making reference to a case Page 12 of 29 decided by the Court of Appeal of Tanzania, the case of Bushiri Mashaka and Three Others (supra) held as follows: - "On the seventh ground, I agree with Ms. Anesius that the law does not make it mandatory to have a confession (sic) be taken before a justice o f peace after the same is made before a police officer." In this case, as rightly submitted by the State Attorney, the Appellant did not confess to have stolen the motorcycle and did not admit to commit the offence, hence no cautioned statement was tendered in court. The evidence on record neither show that the Appellant confessed at any time nor that he asked to be sent to a justice of peace for confessing. The second fold that the evidence proved the case beyond all reasonable doubts, shoulders the gist of this appeal. It requires this Court, as a first appellate court, to re-evaluate the evidence. In the case of Jumanne Salum Pazi vs. Republic [1981] TLR 246, this Court, Kisanga, J. as he then was, held inter alia that: - "(i) this court being the first appellate court must consider the evidence, evaluate it itself and draw its own conclusion... " Page 13 of 29 In the circumstances, I will step into the shoes of the trial court and do the needful. The burden of proof in criminal cases is always on the prosecution unless the law otherwise directs and the standard of proof is beyond reasonable doubt. This principle is enshrined in section 3(2)(a) of the Evidence Act, [Cap. 6 R. E. 2022] which reads as follows: - "3(2) A fact is said to be proved when (a) in criminal matters, except where any statute or other law provides otherwise, the court is satisfied by the prosecution beyond reasonable doubt that the fact exists;" Courts have taken a strict interpretation of these words in various decisions. For instance, in the case of Said Hemed vs. Republic, [1987] TLR 117 the Court of Appeal stated in holding number (iv) as follows: - "(iv) in criminal cases the standard o f proof is beyond reasonable doubt. Where the onus shifts to the accused it is on a balance o fprobabilities." As regard to shifting of the burden of proof, the same Court of Appeal of Tanzania stated in the case of Mohamed Said Matula vs. Republic, [1995] TLR 3 in holding (ii) as follows: - Page 14 of 29 "(ii) upon a charge o f murder being preferred, the onus is always on the prosecution to prove not only the death but also the link between the said death and the accused; the onus never shifts away from the prosecution and no duty is cast on the appellant to establish his innocence." Therefore, in criminal cases, the standard of proving an offence is beyond all shadows of doubts and lies on the prosecution, it does not shift to the accused person, where it shifts then the standard is that of balance of probabilities only. In this case, PW1, Shaban Bakari, the victim testified that he was doing a business of conveying passengers using a motorcycle, which business is commonly known as "bodaboda" He used his motorcycle MC 332 DDN make Haojue, Black in colour chassis number LC6PCJK29MOA42942. He was robbed of his motorcycle on 09/12/2023 by 2000 hours by a passenger who hired him to be convey from Kwa Mama Msomali area to Kwa Ninety area for Tshs. 2,000/=. That when PW1 was on the way driving his client to the agreed destination, was asked by his passenger to stop in pretence of having stomach ache. Then, while PW1 was in the process of stopping, was suddenly stabbed five times with a knife by his client. He was stabbed in Page 15 of 29 his right breast, on his right hand and left thigh. He was so severely injured and profusely bleeding that he lost power and his motorcycle was snatched and driven away by that passenger along Itigi road. PW1 narrated the incidence to police alleging to have identified his assailant. That, he identified him by face during fare bargaining as they spent about 2 minutes facing each other at a distance of one step, the area was lit with solar light emitted from solar electrical lamps, bright enough to identify a person. He gave attire description of that person as wearing black suit matched with a white shirt. He wore at his back a black backpack bag and carried a one-liter Uhai Company Water Bottle. He also gave statue description as not-short and not-tall, not slender and not-fat, with black complexion. PW2, ASP Joseph Makita, a police officer who conducted the identification parade, paraded nine (9) persons, the Appellant inclusive. It was witnessed by one Paul Gaitan Eugen, PW3. Their evidence and Exhibit PE1, identification report, is that PW1 identified the Appellant twice, even after exchanging position and attire. The Appellant do not dispute this piece of evidence, but refutes to be the one who committed the offence. Page 16 of 29 The testimony of PW4, WP 6501 D/Cpl Amina, the investigator, is to the effect that she interviewed PW1 who explained to her the whole incident and gave descriptions the Appellant as shown above. That, the Appellant was arrested and brought to her on 14/05/2024, upon interrogating him, she doubted the identity, hence, proposed an identification parade be conducted. It was her evidence that the Appellant was identified by PW1 as a person who assaulted him. She tendered Exhibits PE2, a PF3 and PE3, motorcycle registration number and purchase receipt collectively. The Appellant gave a defence of alibi, stating that since November, 2023 up to February, 2024 was employed as a supervisor of a guest house and bar called Super Narumu located at Changombe in Dodoma City, he never travelled out of Dodoma Region until on 14/05/2024 when he went to Manyoni and got arrested by police officers. On 18/05/2024 was identified at an identification parade by PW1 purporting the Appellant was a robber of his motorcycle. He refuted all the allegations of assaulting PW1 and stealing his motorcycle as he was even not in Manyoni. As it can be seen, the prosecution evidence on one hand is basically evidence of identification, that is the Appellant was identified by the victim Page 17 of 29 at the crime scene. On the other hand, the Appellant gave a defence of alibi. The State Attorney argued that since the Appellant did not give a notice of relying on alibi defence under section 194(4) of the CPA, the trial court was entitled to disregard it, albeit, the record shows that the trial court took cognizance but correctly disbelieved it. In law and logic, such pieces of evidence are mutually exclusive because they cannot co-exist. Once one is believed, the other becomes automatically redundant. This position of the law was well described by the Court of Appeal in the case of Venance Mapunda and Another vs. Republic, Criminal Appeal No. 16 of 2002. The same position has been restated in cases without a number. In the case of Kubezya John vs. Republic, Criminal Appeal No. 488 of 2015 the Court of Appeal of Tanzania stated as follows: - "The fact that the appellant was identified at the locus in quo diminishes his alibi." See also Abdallah Mussa @ Banjoo vs. Director of Public Prosecutions, Criminal Appeal No. 13 of 2008 and Edgar s/o Kayumba Page 18 of 29 vs DPP (Criminal Appeal 498 of 2017) [2020] TZCA 156 (2 April 2020), where the Court of Appeal of Tanzania echoed on reliabilities of evidence between identification at the crime of scene and defence of alibi by stating that when visual identification evidence of a witness is believed, the evidence of alibi by an accused person dies a natural death. In Edgar s/o Kayumba's case (supra), the Court quoted with approval a passage from its earlier decision in the case of Abdallah Hamis Salum @Simba vs. Republic, Criminal Appeal No. 68 of 2008 (unreported) where it held that as follows: - "It follows that the trial High Court having believed PW1 and PW2 on the evidence o f identification o f the appellant, the appellant's defence o f alibi dies a natural death." A question that follows is which of the two pieces of evidence in this case is believable. In this matter, there is no dispute that the incident took place at night, it was at 2000 hours of 09/12/2023. PW1, the victim, purported to identify his assailant by giving some descriptions as explained above. Later on, after a lapse of more than five months, on 14/05/2024, PW1 purported to identify his assailant as the Appellant at an identification Page 19 of 29 parade organized by PW2. The trial court believed the identification testimony by PW1 and convicted the Appellant. It is a settled law that the person can only be convicted on evidence of identification if the trial court is satisfied that such evidence is watertight. The Court of Appeal of Tanzania gave guidance on reliability of visual identification in the famous case of Waziri Amani vs. Republic [1980] T.L.R. 280, where it held that: - "The evidence o f visual identification is o f the weakest kind and most unreliable. As such, courts must not act on visual identification unless and until all possibilities o f mistaken identity are eliminated and the court is satisfied that such evidence is watertight." Moreover, in the case whose determination depends on identification, it is very important for the trial court to scrutinize the evidence on conditions favouring a correct identification as it was held by Court of Appeal in the case of Raymond Francis vs. Republic [1994] T.L.R. 100. That a number of factors have to be considered to ensure that the evidence is watertight. Page 20 of 29 As to what water tight evidence means, the Court of Appeal of Tanzania stated the factors in Sostenes Myazagiro @ Nyarushasi vs. Republic, Criminal Appeal No. 276 of 2014, where it held that: - "Watertight identification in our considered view, entails among other things the following: How long the witness had the accused under observation. What was the estimated distance between the two? I f the offence occurred at night which kind o f light existed and what was its intensity. Whether the accused was known to the witness before the incident Whether the witness had ample time to observe and take note o f the accused without obstruction such as attack, threats and the like which may have interrupted the tatter's concentration." The same position in the case of Chacha Jeremiah Murimi and 3 Others vs. The Republic, Criminal Appeal No. 551 of 2015, Court of Appeal of Tanzania, at Mwanza, (Unreported), where the Court held that, "Admittedly, evidence o f visual identification is o f the weakest kind, and no court should base a conviction on such evidence unless it is absolutely watertight; and that every possibility o f a mistaken identity has been eliminated. To guard against that possibility the Court has prescribed several factors to be considered in deciding whether a Page 21 of 29 witness has identified the suspect in question. The most commonly fronted are: How long did the witness have the accused under observation? At what distance? What was the source and intensity o f the light if it was at night? Was the observation impeded in any way? Had the witness ever seen the accused before? How often? I f only occasionally, had he any special reason for remembering the accused? What interval has lapsed between the original observation and the subsequent identification to the police? Was there any material discrepancy between the description o f the accused given to the police by the witnesses, when first seen by them and his actual appearance? Did the witness name or describe the accused to the next person he saw? Did that/those other person/s give evidence to confirm it." The rationale is to ensure elimination of mistaken identification by looking at both factors favouring accurate identification and factors disfavouring the same as was held in Jaribu Abdallah v. Republic [2003] TLR 271, by the Court of Appeal of Tanzania that: - "In matters o f identification, it is not enough merely to look at factors favouring accurate identification, equally important is the credibility o f the witness: The conditions for identification might appear ideal. But that is not guarantee against untruthful evidence. The ability o f the witness to Page 22 of 29 name the offender at the earliest possible moment is in our view reassuring though not a decisive factor." Another question is whether the identification in this case was water tight. In his testimony, PW1, said his assailant was a stranger to him. He spent about two minutes, at a one-step distance looking at his client with help of light from solar powered electrical lamp from a nearby restaurant. As explained above PW1 gave some attire and statue descriptions of his assailant to PW4. However, it is doubtful if PW1 actually still remembered the structural features of his assailant he described to PW4 more than five months later and that the same undoubtedly matched with the Appellant's features at the identification parade. I say so because, first, as stated above, the person who assaulted him was a total stranger to him. Second, the time of two minutes he spent conversing with his client in harmony environment is in real sense too small for him to make any meaningful marking, unless that person had peculiar marks such as visible skin scars or other infirmities. Third, the light tensity was not elaborated by PW1 to PW4, since light from solar powered lamps depend on batteries charge of which Page 23 of 29 fades as night deepens, it was imperative for light tensity to be well explained. Four, there is no evidence telling how the person PW1 was called to identify looked like five months later, was he in the same attire, was he still maintaining the same statue. It was important for PW1 to give special reasons for remembering his assailant at the identification parade five months later because the descriptions he gave to PW4 as being not-fat, not-slender, not-short not-tall with black complexion, are too general qualities which any other person can have or may acquire as time passes in life. To use the words in Chacha Jeremiah Murimi and 3 Others (supra) the witness should have special reasons of remembering the suspect whom he just met at one occasion. Five, there is no explanation on how the assailant was traced and nabbed, was it pursuant to the descriptions given by PW1 to PW4? I say so because PW4 simply said the Appellant was arrested and brought to her. It was imperative for the prosecution to lead evidence on how PWl's assailant was traced and arrested because PW4 mere suspected the Page 24 of 29 Appellant to be PWl's robber because of a history allegation of stealing motorcycles she purported to hear from him, she stated as follows: - "On 14/05/2024, the accused Hamis Juma Hamis was arrested and I interrogated him. He told me that he has committed armed robbery and stole motorcycles in different places here in Manyoni and Dodoma. But he denied to stole (sic) the motorcycle wth registration number MC332 DDN. The way I saw him, was lik e ly the victim describing him (sic)." (emphasis added) As it can be seen, PW4 who investigated this case, did not led evidence which linked the Appellant with a person described to her by PW1; instead, there were mere suspicions of unproven allegations of committing other incidents. It is settled law that suspicion however strong is not enough to find the accused guilty of an offence charged, instead, suspicion entitles an accused to an acquittal, on a benefit of doubt. There is a plethora of authorities on this principle of law. See: MT 60330 PTE Nassoro Mohamed vs. Republic, Criminal Appeal No. 73 of 2002 (unreported); Masoud Mgosi vs. Republic, Criminal Appeal No. 195 of 2018, [2020] TZCA 1810 (8 October 2020), Adinardi Iddy Salimu Page 25 of 29 and Another vs. Republic, Criminal Appeal No. 298 of 2018, [2022] TZCA 9 (11 February 2022), and more recently in Elirehema Macha vs Republic, (Criminal Appeal No. 571 of 2019) [2023] TZCA 128 (20 March 2023) to mention a few. In the latter case the Court stated at page 13 as follows: - "It is trite principle o f the law that suspicion, however strong is not enough to find the accused guilty o f an offence charged. Instead, suspicion entitles an accused to an acquittal, on a benefit o f doubt." As regard to the evidence of identification parade Exhibit PE1, at which the Appellant does not dispute to have been identified but refutes involvement in commission of the robbery. In my understanding of the law, evidence of identification parade is meaningful if the identifying witness gave special descriptions which assist him to identify the suspect at the parade. The Court of Appeal in the case of Muhidini Mohamed Lila and Another vs. Republic [2018] TLR 236 held in roman (i) as follows: - "It is trite law that, for evidence o f an identifying witness to be credible, such witness must have given the description o f the suspect before he made identification at the identification parade. Since therefore, in the case in hand, Page 26 of 29 the requirement o f giving the description o f the suspect prior to the identification parade was not complied with, there is no gainsaying that the evidence obtained from the parade is unworthy o f credit." Similarly in the case at hand, PW1 did not give peculiar or special identification descriptions other than general ones that his assailant was not-fat, not-slender, not-short not-tall with black complexion, his identification evidence, without special reasons for remembering his assailant more than five months later, is unworthy of credit. To this extent, identification evidence in this case is shaky and unreliable. It follows therefore that the defence of alibi by the Appellant stands. The trial court did not direct itself on the strength of identification evidence adduced by the prosecution. Had it analyzed it thoroughly, could have arrived at a conclusion different from what it found. In the upshot, for reasons stated above, I find the appeal as rich of fruits. Consequently, in exercise of powers endowed upon this Court under the provisions of section 366(1)(a)(i) of the Criminal Procedure Act, [Cap. 20 R. E. 2022], I do hereby make the following orders: - Page 27 of 29 1. I allow the appeal, quash the conviction and set aside the sentence of 30 years imprisonment that was imposed on the Appellant; 2. I also set aside the compensation order of Tshs. 4,000,000/= to the victim; and 3. The Appellant be released from prison forthwith unless is withheld for other lawful cause. Order accordingly. Dated at Dodoma this 08th day of January, 2025. F.K. MANYANDA JUDGE Delivered at Dodoma this 08th day of January, 2025 in the presence of the Appellant, Hamisi Juma Hamisi and Ms. Faudhiat Mashina, learned State Attorney for Republic. Appeal allowed, conviction quashed and the sentence of 30 years imprisonment is set aside. The compensation order of Page 28 of 29 the Appellant to pay the victim Tshs. 4,000,000/= is set aside. The Appellant be released from prison forthwith unless is otherwise withheld for other lawful cause. Right of appeal dully explained to the parties. F.K. MANYANDA JUDGE Page 29 of 29