20150603 TZHC mtwara

., IN THE HIGH COURT OF TANZANIA (MTWARA DISTRICT REGISTRY) ATMTWARA CRIMINAL APPEAL NO 30 OF 2014 (Appeal from the decision of Lindi Resident Magistrate Court (D. Ndunguru, RM) in Criminal Case No. 84 of 2012, dated 11 th October 2013) HAMISI S/O ABDALLA~ ALLY@ SINAMENGI .............................. APPELLANT VERSUS THE REPUBLIC ....................................................................... RESPONDENT ll' • • Date of last order: 20/04/2015 • Date ofjudgment: · 03/06/2015 JUDGMENT F. Twaib, J: The Appellant was charged in the Resident Magistrates Court ,·.of Lindi for unlawful possession of Narcqtic Drugs contrary to section 12 (d) of the Drugs and Prevention of Illicit Traffic in Drugs Act, Cap 95 (R.E. 2002). It was alleged by the prosecution and controverted by the appellant th.at-; on 1stday of July, 2012 at Ngingama Nandete village within Kilwa District ·in Lindi Region, the appellant was found in unlawful possession of narcotic drugs to wit, 637.5 kgs of cannabis sativa commonly known as Bhang valued at Tshs 63,750,000/=. After a full trial, the trial magistrate was satisfied of the guilty of the appellant and convicted him as charged. He was sentenced to pay a fine of five million Tanzania Shjllings (5,000,000/=) and in default to serve six (6) years in prison. 1 \: l i...- ..... ~ - -·- ·--~.:~ tcbbie:.. ' . -•t' ·ttt'·v-:$:eaihSF·.., ·---:~ Aggrieved by the conviction and sentence, he preferred this appeal. The Petition of Appeal file by him has a total of seven grounds, which however may be condensed into five grounds as follows: 1. That the trial court convicted the appellant without considering that all witnesses are policemen who had their own interest except for PW2 who also gave untrue evidence due to the existing conflict with the appellant. 2. That the trial court failed to consider the fact that there was a delay in arresting the accused, and there was no RB showing that the accused was wanted for the charge. 3. That the trial court erred in convicting the appellant basing on the search which was conducted in his absence. 4. That trial court failed to take into consideration the fact the appellant's mother and sister who are alleged to have witnessed the search were not called to testify to corroborate the prosecution case At the hearing of the appeal, the Appellant, had no legal representation, whereas the republic was represented by Ms Mangu learned state attorney. At first the appellant had nothing to say in elaboration of his ground of appeal, however in the end he responded to the submission made by Ms Mangu. In arguing the appeal Ms. Mangu responded to the grounds of appeal collectively and, in essence, she supported the conviction on the ground that the prosecution evidence was direct and weighty. She submitted that the direct evidence came from PWl and PW2 (the VEO). That PW2 testified that the bhang was found in the residence of the appellant and the fact that the residence belonged to the appellant was not disputed. She added that the search was conducted in the absence of the appellant, but witnessed by the appellant's mother and sister. That the appellant could not witness the search because he ran away after hearing that he would be caught. . 2 - • - ~ - -·· - - ' She went on submitting that the narcotic drugs were satisfied as .bhang by PWS the : Commissioner for Drugs Control and also gave the value of the drugs thereof (Exhibit P4). It was her view that, there was sufficient evidence to convict the appellant. On sentence, Ms Mangu argued that the six years imprisonment meted to the appellant was proper; her concern however was on the fine imposed on the appellant. That section 12 (d) of the Drugs Control Act, Cap 95 (R.E 2002) talks of Tshs 1,000,000 or · three times the market value, whicheyer is greater. It was her view that the proper fine should have been 63million times three. Responding to the above submission the appellant argued that the offence was committed on 1/7/2012 and he was arrested on 10/8/2012 and there was no evidence to show that he was wanted by the police in this case. He denied having run away during the search arguing that he was in the same village together with her mother and sister and nothing happened on the alleged day. He added that the house where the bhang is alleged to have been found does not belong to him. He submitted also that it was not true that his mother and sister were present during the search. He viewed that had it been so they would have been brought to testify in the trial court. He further pointed out some contradictions in the prosecution testimony arguing that the prosecution claim to have found 32 packets of bhang in the alleged house. That, according to the prosecution witnesses 17 parcels was found in the room on the right and 17 other in the room on the left. He viewed that if it was so then the parcel ought to have been 34. He questioned as to which version was true? Was it 32 or 34? He also submitted that according to the testimony PWl stated that after the search his mother and sister signed the inventory but never brought to give evidence and that the Village Executive Officer who is said to have been present could not know everybody's , home. The chairman of the hamlet would know, but they said was not present and was not brought as a witness. He concluded in his submission arguing that it was wrong for 3 L_ . .:.. ts:ti',;;,I';,. :tWMvmc- . 1i$iF . him to be sentenced to six years imprisonment and a fine of Smillion. He viewed that the same was too high because his earning is not more than 500,000/= I have given serious consideration to the arguments advanced by the parties above. The determination of this appeal will hardly depend upon resolving the following five points: One, evidential value of the evidence of related witnesses and their credibility; two, contradictions; three delay in arresting the accused and its effect in the prosecution case; four, failure to call the appellant's mother and sister who are alleged to have witnessed the search; and, five, whether the appellant was found in possession of the Narcotic drugs. On the first point the appellant claim that the trial court convicted him without considering that all witnesses are policemen who had their own interest except for PW2 whom he also challenged his credibility claiming that he gave untrue evidence due to the existing conflict with him. At the out set I must state that the evidence of related witnesses may be found credible and believed just like any other evidence, and there is no rule of law or practice which requires such evidence to discredited, unless of course there is a ground to do so. (See the case of Mustafa Ramadhani Kihiyo vs. Republic (2006) TLR 323). However in this case out of five witnesses who testified for the prosecution only two were policeman. That is PWl ASP Deogratius Massawe and PW4 E 9417 D/CPL Silvester, all these witnesses testified not to know the appellant before and therefore they had no reasons to implicate the appellant for the offence he did not commit. The appellant claimed that he had conflict with PW2, but he did not say he had conflict with PW3 militiaman, who according to the testimony is his neighbour. The trial court found M,,Mthe ·witnesses credible and reliable and therefore there is no basis upon which to discredit the testimony of PWl and PW2 policemen as their testimony was equally corroborated by PW3 militiaman. Thus the first point is answered in favour of. the prosecution. 4 rmr· i:z 1.tr . : it: On the issue of contradictions, it is the principle of law that not every discrepancy in the prosecutions witnesses may cause the prosecution's case to flop. It is only where the gist of evidence thereof is contradictory then the prosecution case will be dismantled. (See the case of Said Ally Ismail v Republic, Criminal Appeal No. 241 of 2008 CAT, AT Mtwara (Unreported), His lordship Ramadhani O) In our case the appellant submitteq that according to the prosecution witnesses 17 parcels was found in the room on the right and other 17 in the room on the left. He viewed that if it was so then the parcel ought to have been 34 and not 32 as the prosecution claim. He questioned as to which version was true? Was it 32 or 34? However on going through the evidence it appears to me that the contradictions pointed by the appellant are real. According to the evidence there were 32 bags of bhang (Exhibit P2) and two bags of bhang seeds (Exhibit P3), and therefore there were 32 bags of bhang as the prosecution has testified. The other two bags which the appellant confuses with are seeds of bhangs, of which if you combine them the total will be 34 bags. This point as well is answered in the favour of the prosecution. On the third point the appellant questioned, why it took so long for him to be arrested. He submitted that the offence was committed on 1/7/2012 and he was arrested on 10/8/2012 and there was no evidence to show that he was wanted by the police in this case. He denied having run away during the search arguing that he was in the same village together with her mother and sister and nothing happened on the alleged day. It is a principle of law that unexplained delay in arresting the accused may raise reasonable suspicion as to his involvement in the commission of the offence. The same position was taken in the case of Juma Shabani @ Juma versus Republic, Criminal Appeal No. 168 Of 2004, CAT, at Mwanza (Unreported) at page 9, the court stated: 5 .... it is curious that the appellant was not arrested soon thereafter. It took well over a year and there is no explanation about it.. .. neither the investigating officer in this case nor any other police officer for that matter gave evidence at the trial in this case. As the appellant has persistently maintained that he remained at the village throughout without being arrested until 6.3.2001 when he was arrested, the investigating officer would be in a better position to clarify on the issue. The police would testify whether they looked for the appellant soon after the incident but could not arrest him perhaps because he had disappeared from the village until the time of his arrest, more than a year later. As this was not done, it raises doubt as urged by the appellant that PW.1, PW.2 and PW.3 may well not be truthful in their evidence ... " · Distinguishing the facts of the above case, in our case the prosecution through out in their testimony gave reasons for not arresting the appellant on the day when they searched his house and found narcotic drugs. They all testified that they could not arrest him because he was not there. PWl said: "we traced him to the play ground but didn1: find him"and the appellant's mother told them that the farm where he had gone was very far. When PW3 was re examined by the republic he said: "from his home to the shamba it takes almost 6 hours'~ And according to PW2 the appellant having noticed that he was a wanted person, he escaped. The appellant posed the question about the delay in his arrest to PW2 during cross examination and PW2 responded: " ... after the event you escaped that is why it took a long time to arrest you. Under the circumstances it suffices to say that the prosecution gave reasons for their delay in arresting the appellant, and therefore his complain on the same has not basis. On the issue of failure to call his mother and sister who are alleged to have witnessed the search, the appellant argued that his mother and his sister did not witness the search because if it were so they would have called them as witness. In law there is no particular number of witnesses that the prosecution must call to prove a fact (Section 143 of the Evidence Act;. Cap 6 R.E. 2002). Even a single witness may be sufficient to prove a fact and the important thing is for such witness to pass a test of reliability. (See the case of Anil Phukan v. State of Assam (1993) AIR 1463) 6 ZS -:.-Z - - tfo/t s rzwet: -~--~J --- = ⇒ J•::_._..-.-:: ____________ - - In this case PWl, PW2, PW3 and PW4 witnessed the search, and testified for the same and were found reliable by the trial court. The appellant's mother and his sister, according to the testimony also witnessed the search. But the prosecution chose not to call them; possibly they knew that they would have turned hostile in order to help the appellant. The possibility of the appellant's mother and sister to turn hostile may be gathered from PWl' testimony at page 11 of the typed proceeding, responding to the question from the trial court when he said: ''his relative requested me not to make follow up of the case and will give me money .. "For this reason the appellant complaint on this point also fails. On the forth issue, as to whether the appellant was found in possession of the narcotic drugs, the appellant argued first, that the search was conducted in his absence, second, the house in which the bags of bhang were found did no belong to him. Ms Mangu was of the view that the testimony of PWl, PW2, PW3 and PW4 was direct and weightier and proved beyond reasonable doubt that the appellant was found in possession of Narcotic drugs. She added that the appellant was absent during the search because he ran away after discovering that his house was going to be searched. It is undisputed fact that the search was conducted in the appellant absence. According to the prosecution evidence the appellant escaped having notice that his house was going to be searched. With this I agree with the trial court findings that the presence village executive officer legalized the search. Further, according to certificate of seizure (Exhibit Pl) the mother and the sister of the appellant witnessed the search, and according to the prosecution witnesses the appellant's mother was the first to enter the house after they broke the door in her presence. All these added weight to the prosecution case. Similarly the claim by the appellant that the house was not his was properly dealt by the trial Magistrate at page 8 and 9 of its judgment when he said: ' "The issue is whether the house in which bhang was found being of the accused or not. From the evidence of the prosecution PW2 being a village executive authority and justice of peace of that area, testified to know the 7 - .• ,- "'FiJfFts :~mt: n :z:zt" ., accused very much as his resident and further that he knows that, the house belongs to the accused person further that he is the one who called the mother and sister of the accused before the door was broken ... Further, PW3 the militia man testified that he knows the accused very well and that he had married his sister born to his elder father ... it is PW3 who went on testifying that even the date when the accused person was arrested, at that night he with the policemen werit . direct to the same house of the accused where bhang was discovered and that having knocked the door the accused got out and was arrested and taken to Masako Police Station ... " [Emphasis added] In view of the above discussion I am satisfied that the Narcotic drugs (Exhibit P2) were found in the house of the appellant, and the appellant was therefore in possession of the same in view of the construction of possession given in .the case of Moses Caharles Deo v Republic, [1987] TLR 134. In the said case it was held: "For a person to be found to have possession actual or constructive of good it must be proved either he was aware of their presence and that he exercise control over them, or that the goods came albeit in his absence at his invitation and arrangement. As the rightly held by the trial court in the absence of reasonable explanation from the appellant as to whose bhang was it, it leads to the conclusion that the said bhang belongs to the accused person. The appellant was rightly convicted on the offence charged. On the issue of sentence the appellant submitted that it was wrong for him to be sentenced to six years imprisonment and a fine of five million. He viewed that the same was too high because his earning is not more than 500,000/=. Mis Mangu on her part argued that the sentence of six years in prison was proper, except on the issue of fine which she viewed that according to section 12 (d) of the Drugs and Prevention of Illicit Traffic in Drugs Act, Cap 95 (R.E 2002) the proper fine should have been 63million times three. 8 I agree with Ms Mangu on her interpretation of the provision under which the appellant was charged. As the valued of drugs (Exhibit P4) is Tshs 63, 750, 000/= the greater fine under the circumstances was supposed to be Tshs 63, 750, 000 time three. I therefore set aside the fine imposed by the trial court and substitute with it a fine of Tshs 63, 750, 000 times three (191, 250,000/=). In conclusion hereof I dismiss the appellant's appeal for lack of merits. DATED and DELIVERED at Mtwara this 03 day of June, 2015. ~~ JUDGE 9