20091214 TZCA Dar es Salaam

I IN THE COURT OF APPEAL OF TANZANIA AT DAR ES SALAAM I {CORAM: LUANDA, J.A.; OTHMAN, J.A.; AND MJASIRI, J.A. CRIMINAL APPEAL NO. 120 OF 2006 BETWEEN HEMED ATHUMANI SILAJU ••••••••••••••••••••••••••••••••••••••••••••••••• APPELLANT AND TH.E REP-UBLIC ••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••• RESPONDENT {Appeal from the decision of the High Court of Tanzania at Dar es Salaam) {IHEMA, J} th dated the 14 day of September, 2007 in Economic Appeal No. 3 of 2001 •••••••••••••••••••••••• JUDGEMENT OF THE COURT 26th October & 17th December,2009 MJASIRI J.A.; In the Resident Magistrate's Court at Kivukoni, Dar es Salaam, the appellant, Hemedi Athumani Silaju together with two others were charged and convicted of being in unlawful possession of firearms and seven (7) rounds of ammunition contrary to . section 13(1) of the Arms and Ammunitions Ordinance Cap 223 R.E. 2002 read toget,her with paragraph 21 of the First Schedule and section 21 of First Schedule of the Economic I and Crime Control Act No. 13 of 1984 as amended. T~e Republic entered I a nolle prosequi in favour of one of accused person an~ the other accused I person was acquitted. The appellant was sentenced to ~erve a consecutive 1 ' term of 21 and 15 years respectively. The appellant appealed to the High Court where he was also not successful save for the fact that the High Court ordered that the sentences of 21 years and 15 years imposed by the trial Court should run concurrently and not consecutively, hence the appeal I to this Court. The background to this case is that the appellant who was accompanied by other people was ambushed by the prlice at Mtoni kwa Azizi Ally within Temeke District following information received by the police that they intended to commit a crime. At the trial the prosecution case was that on November 7, 1995 on or at about 20.00 hours at Mtoni I kwa Aziz Ally area within Temeke District in Dar es Salaam region the I appellant was found in possession of one pistol by the, make of Star Cal. 7.62 No. SB 21141 without having a valid arms licence or authority what so I ever at the time he was arrested. The prosecution called three witnesses in support of its case. The arresting officer was not called as a witness. The appellant filed 5 grounds of appeal and he lqdged an additional ground of appeal at the trial. The said grounds of appeal are summarized as under:- 1. The learned High Court Judge erred in law and fact in upholding the appellant's conviction based oh a cautioned statement which was retracted I and or repudiated and admitted by the trial Court without holding an enquiry. 2. The learned High Court Judge erred in law and fact in upholding the decision of the trial Court based on the testimony of PW1 and PW2. 2 I I 3. The learned High Court Judge erred in law and fact in upholding the decision of the trial Court which failed to take into consideration his defence of alibi. 4. The learned High Court Judge erred in law and fact in upholding the sentence of the trial Court which was excessive and illegal. 5. The learned High Court Judge erred in law and fact in upholding the decision of the trial Court which conducted the hearing without the consent of the Director of Public Prosecutions. 6. The learned High Court Judge erred in law and in, fact in upholding the decision of the trial Court without taking into consideration that the appellant's request for a copy of proceedings was denied leading to his failure to conduct a proper defenc~. I At the hearing of the appeal, the appellant was unrepresented and the Republic was represented by Ms Maryam Mvano, learned State Attorney. The appellant asked the Court to consider his memorandum of appeal as part of his submission. With regard to the first ground of appeal, Ms Mvano conceded that the cautioned statement of the appellant was improperly admitted as an exhibit as no enquiry was conducted by the Court despite the fact that the appellant objected to the production of the document on the basis that it was obtained involuntarily. Ms Mvano further s4bmitted that the appellant's cautioned statement cannot be relied upon. 3 I In relation to ground No. 2 that the evidence of PWl and PW2 was not sufficient to ground a conviction, Ms Mvano submitted that the evidence of PWl and PW2 was sufficient to prove the case against the appellant. According to her though the serial number of the pistol admitted as Exhibit Pl differed with the one stated in the charge sheet, the ' difference is so minor and does not go to the root of the case. She also submitted that there was no requirement under the law for the prosecution to call a specific number of witnesses. On ground No. 3 relating to the defence of alibi, Ms Mvano submitted that no such defence was raised by the appellant during the trial. • - ' I In relation to ground No 4. Ms Mvano conceded that the sentence was illegal as it was contrary to what has been provided under the law. Ms Mvano submitted that ground No. 5 has no legal ba·sis as the consent of the DPP was obtained. In relation to ground No. 6, that trial Court failed to avail the appellant with copies of the proceedings, Ms Mvano stated that there was no legal requirement to furnish the appellant with a copy of the proceedings during the trial. This requirement applied at the stage of the appeal. After going through the record, and submissions by the appellant and the learned State Attorney, we would like to make the following I observations. We are inclined to agree with the learned State Attorn~y I that the cautioned statement of the appellant (Exhibit P4) was wrongly I 4 I I admitted in Court given the fact that the appellant objected to the admission of the said statement and n6 enquiry was made contrary to I the requirements under the law. See Emmanuel Joseph @ Gigi I Marwa Mwita v Republic, Criminal: Appeal No. 57 of 2002, CA I ( unreported) and Twaha s/ o Ali and five others v Republic, Criminal Appeal No. 78 of 2004 (unreported) / The crucial issue to be determined in this appeal is whether the evidence of PWl and PW2 was enoug~ to establish beyond reasonable doubt that the appellant committed the 6ffence. According to the charge I sheet, the appellant on November 7, 1995 at about 20.00 hours at Mtoni I kwa Aziz Ally area within Temeke District in Dar es Salaam Region was found being in possession of one pistol, lthe model of Star Cal. 7.62 "No. I SB 21141 and unlawful possession of ammunition. According to the I evidence of PWl, he searched the appellant I and found him with a pistol I No. 582114A. PWl did not state the make of the pistol nor the caliber of I the pistol. He did not make any reference to the ammunition. However, he I testified that the gun had 7 cartridges. PWl further testified that the pistol I was then taken to the ballistic expert. On cross examination by the I appellant PWl stated that he showed the pistol to his colleagues but did I not make a PPR Receipt on the same. The pistol had six bullets. PWl did I not state in his testimony which officerlwas handed over the pistol at the police station nor did he state who harided over the pistol to the ballistic I expert. It is obvious that the police ~procedures for searching, seizing, I receiving, handling and storing of the firearm were not complied with. I' 5 I The chain as who seized, received, stored and handed over the seized I firearm was not established. PW2 stated in his testimony that the appellant was arrested at Mtoni I kwa Azizi Ally. However on cross examination by the appellant he stated ; that the appellant was arrested at Saba Saba fare grouryds and he was I found with a pistol and cartridges and that the pistol was handed over to 1 the head of the group. PW2 did not give the name of the head of the ' group nor did he give a description of the make, serial number or caliber of the pistol. I Unlawful possession of firearms !s a serious offence and it is ' therefore expected that the proper procedure would I be followed in handling the pistol which was alleged to have been, found with the appellant. In view of the fact that the cautioned statement• of the appellant I cannot be relied on as evidence, the only evidence linking the appellant , I with the offences is the testimony of PW1 and PW2. The serial number in I respect of the gun tendered in Court differed with the 0ne in the charge I sheet and no description of the caliber was given, hence the information on the caliber of the pistol was not part of the evidence. ; PW2 also contradicted himself on the place where the appellant was arrested. It is i therefore obvious that there were inconsistencies and discrepancies on the testimonies of PW1 and PW2. We are of the view that the contradictions go I to the root of the matter. 6 In the case of Mohamed Said Matula v Republic 1,995 TLR 3 it was held that where the testimonies by witnesses contain inconsistencies and contradictions, the court has a duty to address the inconsistencies and try to resolve them where possible; else the court has to decide whether the inconsistencies and contradictions are only minor, or whether they go to ' the root of the matter. In a criminal case the burden of proof is on the prosecution to prove the case against the appellant beyond reasonable doubt. The burden never shifts. Given the status of the evidence on record, such evidence is not sufficient to prove the charge against the appellant.· Had the learned judge considered the above aspects we think he would. have come to the inevitable conclusion that it was not safe to sustain the conviction. As the success of this appeal depends as to whether or not the evidence produced by the prosecution proved the case against the appellant beyond reasonable doubt, we see no reason to delve into the other grounds of appeal. Our finding on the said grounds would have been merely academic. For the foregoing reasons, we hold that the appellant's conviction was not proper. We accordingly allow the appeal, q~ash the conviction and set aside the sentence of 21 years imprisonment. The appellant is to be released forthwith from prison unless he is otherwise lawfully held. It is so ordered. 7 I I DATED at Dar es Salaam thi~: 14th day of December, 2009. B.M. LUANDA JUSTICE OF APiPEAL ' M.C. OTHMAN 1, JUSTICE OF AP.PEAL S. MJASIRI JUSTICE OF APPEAL I' I certify that this is a true copy of the original. i ~- I 1 N.N. CHpSI DEPUTY REGISTRAR i I 8 i I I I !