20151223 TZHC Dar es Salaam

IN THE HIGH COURT OF TANZANIA DAR ES SALAAM DISTRICT REGISTRY AT DAR ES SALAAM CRIMINAL APPEAL NO. 177 OF 2014 (From the Decision of the Resident Magistrate's Court of Dar es Salaam at Kisutu in Criminal Case No. 64 of 2011) ISMAIL JUMA SHABAN! ..................... APPELLANT VERSUS THE REPUBLIC ............................... RESPONDENT JUDGMENT MKASIMONGWA, J ISMAIL s/o JUMA SHABAN!, the Appellant, stood before the Resident Magistrate's Court of Dar es Salaam at Kisutu, charged with two counts namely: Unlawful possession of Fire Arm and Unlawful )possession of Ammunitions, all Contrary to Sections 4 (1) and 34 · (1) of the Arms and Ammunitions Act [Cap. 223 R.E 2002] read together with Act No 17 of 2010. He was convicted of both offences and sentenced to six (6) years imprisonment in respect of each count. Sentences were ordered to run concurrently. He is aggrieved by both the conviction and sentences hence this appeal in which he has six grounds. 1 The facts of the case are as short as that sometime in 2003 DANIEL MGENDI (PW.5) purchased and was licensed to own a fire arm/pistol make NORINGO with Serial Number 99701093, Calibre 9mm. The pistol and its Magazine went missing on 27/10/2003 when his (PW.5) home was invaded by people who stole various properties from the home. On 13/12/2010 Insp. GILVERT S. KALAGE (PW.2) and E.9655 D/C BENATUS (PW.6) arrested the appellant at classic Bar, Kinondoni. The Appellant confessed to the two police officers that he was keeping in his house/home a pistol. He took the officers to the home which is situated along Ufipa Street, KinondonL The police searched into the house in the presence of ABDUL HALIFA MTAMILA (PW.3) a cell leader. In the search there was seized a . pistol with Serial Number 99701093 and eight rounds of ammunition among others. A Certificate of Seizure was prepared and signed by the searching officer, the independent witness and the suspect. It was produced and admitted in evidence marked as Exhibit P2. Upon having been requested by SSP Wambura, the Regional Crime Officer (RCO), by a letter·, produced and admitted in evidence as Exhibit P3 and upon a physical check of the Pistol, ASP SEBASTIAN MADEMBWE (PW.4) who was dealing with registration of Private owners of firearms in the Department of the Director of Criminal Investigation, established from the data base that the Pistol with Frame No. 99701093, Noringo Pistol (NP), with 9mm is being owned by DANIEL MGENDI and not ISMAIL SHABAN!. PW.4 so certified in writing vide a letter with Ref. No. 00080589/8 of 4/1/2010 (which he said was of the year 2011 and not 2010 as shown) produced and admitted in evidence Marked Exhibit P4. 2 • The facts are also to the effect that PW.7 one D.3947 D/CPL ROBERT interrogated the appellant. The later confessed to have in unlawful possession of the pistol. PW. 7 recorded the appellant's cautioned statement. The same was produced and admitted in evidence marked Exhibit PS. The seized Pistol and eight rounds of ammunition were produced in evidence by PW.2 one Insp. GILVERT S. KALAGE and they were accordingly admitted marked as Exhibit Pl. PW.5 identified in court Exhibit Pl (The Pistol make Noringo No. 99701093) to be his gun that was stolen when his house was invaded by the bandits. In the Appeal, the appellant raised the following grounds; that:- 1. The trial court erred in law and fact when it convicted him upon a retracted or repudiated cautioned statement (Exhibit PS) and without adhering to the basic period for interviewing a suspect. 2. The trial court/Magistrate erred in law and fact when it entered conviction on the basis of incredible evidence of PW.7 who failed to adduce tangible evidence to substantiate voluntariness in the making of the cautioned statement. 3. The trial court erred in law and in fact when it relied on a Certificate of Seizure (Exhibit P2) to enter the conviction without according the appellant with an opportunity to comment on the manner the search was conducted. 3 4. The trial court erred in law and fact when it convicted him on the contradicting evidences of PW.2 and PW.4 on the alleged seized pistol. 5. The trial court erred in law and fact when it convicted him while Exhibit Pl was not properly identified in court. 6. The trial court erred in law and fact when it held that the prosecution case was proved beyond all reasonable doubt. When the appeal came up for hearing, the appellant appeared in person and the Respondent Republic was represented by Ms. Paulina Fungameza, the Learned State Attorney. In his submission the appellant just added one more ground of appeal. He contended that, the court erred in law and in fact when it entered conviction against him relying on the Pistol (Exhibit Pl) which was not the subject of the charges leveled against him. Whereas it was alleged in the charge sheet that he was met in an unlawful possession of a Pistol make Noringo with Serial Number 99701093 which was not at anytime lost/stolen from its owner, one DANIEL MALUANDA MGENDI, as Exhibit P4 shows, he was convicted by being in an unlawful possession of a Pistol Makrov GN. 99701090. With this and the above shown grounds the appellant prays the court that it allows the appeal. On the other hand Ms. Fungameza, submitted to the effect that, accordingly to the amended charge sheet, the Appellant was charged for 4 being in unlawful possession of a Pistol NP (Noringo Pistol) with Serial No. 99701093. The Pistol was tendered and admitted in evidence as part of Exhibit Pl. PW.5 Identified Exhibit Pl to be the Pistol he owned since 2003 and mentioned it as Noringo Pistol with Serial Number 9901093. On 27/10/2003 the Pistol was stolen when the house of PW .5 was invaded by bandits and the incidence was reported to the police station. As for the 1st ground of appeal, the learned State Attorney submitted to the effect that it is true that the appellant had retracted his cautioned statement. The trial court, however, conducted an inquiry and upon being satisfied that the appellant made the statement, it admitted it in evidence. As to the time of interview, it was Ms. Fungameza's submission that the appellant's allegation on that fact is an afterthought for the same was not raised or discussed in the court below. As such it cannot be introduced at this stage of the matter. In her submission in respect of the second ground of Appeal, Ms. Fungameza contended that, PW.7 was the police officer who recorded the appellant's cautioned statement. The statement was objected by the appellant/accused when the witness wanted to tender it in evidence a result of which an inquiry was conducted. In the process PW.7 turned to be PW.1 and he gave more details in respect of the statement. There were no contradictions in his evidence as the appellant alleges. The witness's story of evidence depended on the questions put to him. 5 As for the third ground of appeal Ms. Fungameza contended that the appellant faults the court below for admitting in evidence the certificate of seizure without giving him an opportunity to comment on whether or not he was satisfied by the manner the search was conducted. The Learned State Attorney submitted that the certificate of seizure was produced and admitted in evidence as exhibit without being objected. The Accused/Appellant, the independent witness and the police officer who conducted the search signed it. As such the certificate was properly prepared and that the appellant cannot be heard now challenging the admissibility of the same. On the 4th ground Ms. Fungameza invited the court to refer to her submissions in respect of the newly added ground above. When she was submitting in the respect of the 5th ground of appeal the learned State Attorney contended that the prosecution witnesses had identified Exhibit Pl (Pistol) by its Serial Number. Most of them did not tell the make of the same for they were not experts. She concluded by stating that in the case before the trial court, the prosecution had seven (7) witnesses. One of them was an independent person. He is the ten cell leader of the area the accused/appellant was living. The witnesses proved the case against the appellant beyond all reasonable doubt. She prays the court that it upholds both the conviction and the sentence imposed and that this appeal be dismissed in its entirety. 6 ,.1 By way of rejoinder, the appellant submitted that Exhibit P4 does not show that the alleged pistol was stolen from PW.5 who told the court that it was stolen from him. Otherwise SSP Wambura would not have inquired of its owner. The Appellant added that he did not make any statement to the police. The statement was obtained out of torture. He also submitted that Exhibit P1 was tendered in court against the law. He prays the court the appeal be allowed. That is all from the parties. In its decision the trial court had the ,, following to say:- ''Having red (sic) all the evidence it is quite clear that the said weapon were (sic) found in accused (sic) house and that the accused was having them illegally. As clearly stated in his own confession exhibit PS also see in exhibit P3 and exhibit P2. With the above reason this court finds the accused person guilty of the two counts of being found in unlawful possession of firearms contrary to section 4 {l} of the Arms and Ammunition Act [Cap. 223 R.EJ read together with Act No. 17/2010 that the (sic) was found (sic) possession one pistol No. 99701090 and the 8 grounds of ammunition without license or permit" 7 Before going to the merits of the Appeal, I find it material worth to clearly show the status of the records of the lower court. ·The case the Appellant was facing in the lower court according to the record was instituted on 11/4/2011 upon presentation and admission of the charge sheet in which the appellant was facing two counts namely:- 1st Count: Being in unlawfully possession of Fire Arms c/s 4 (1) and 34 (1) of the Arms and Ammunition Act (Cap.223 R. E 2002). Particulars of the offence in respect in this count are that:- ''ISMAIL JUMA SHABAN charged that on or about 1:fh day of December, 2010 at about 19.46 hrs at Ufipa Street Kinondoni within Kinondoni Municipality in Dar es Salaam Region was. found in possession of fire Arm to wit pistol make MAKROV with S/No. 99701090" 2 nd Count: Being in unlawful possession of Ammunitions c/s 4 (1) and 34 (1) of the Arms and Ammunition Act (Cap. 223 R.E 2002). f, Here the prosecution alleged that:- ''ISMAIL S/0 JUMA SHABAN charged that on or about 1:fh day of December, 2010 at about 19. 40 hrs at Ufipa street Kinondoni within Kinondoni Municipality in Dar es Salaam Region was found in unlawful possession of 8 Rounds of Ammunition of Pistol without license or permit" 8 The record shows further that on th~ 5th of May, 2011 the prosecution made a prayer to substitute the charge sheet. The prayer was granted and or 17th of May, 2011, the prosecuting State Attorney is recorded to have said the following to the court. "This case is for Preliminary hearing. We are ready to proceed We pray to read the charge which we have substituted" The charge sheet is that dated at Dar es Salaam on 12th of May, 2011. It has again two counts as follows:- -. 1st Count: Unlawful possession of Fire Arm contrary to Section 4 (1) and 34 (1) of the Arms and Ammunition Act [Cap. 223 R.E 2002] read together with Act No 17/2010" Here the prosecution alleged that:- ''JSMAIL JUMA SHABAN on 13h day of December, 2010 at Ufipa Street within Kinondoni Municipality in Dar es Salaam Region was found in unlawful possession of Fire Arm one Pistol make NAROV with Serial Number 99701090 without license or permit" 2 nd Count: Unlawful possession of Ammunitions contrary to Section 4 (1) and 34 (1) of the Arms and Ammunition Act [Cap. 223 R.E 2002] read together with Act No. 17/2010. 9 ,, Particulars of the offence in respect of this count read as follows:- ''JSMAIL S/0 JUMA SHABAN charged that on or about 1:fh day of December, 2010 at about 19.40 hrs at Ufipa Street Kinondoni within Kinondoni Municipality in Dar es Salaam Region was found in unlawful possession of 8 rounds of Ammunition of Pistol without licence or permit" The accused person was called upon to plead to the charges after they had been duly read over and explained to him. He pleaded not guilty and a Preliminary Hearing was conducted on that day, that is lih day of June, 2011. Again the record shows that on 9th day of July, 2011 the case was called to the court when again the prosecuting learned State Attorney, presented as follows to the court. "We have one witness we pray for short adjournment we also pray to amend charge" The court granted the prayer and adjourned the matter to 14th day of June, 2011 for hearing warning the witness to attend without failure. The record bears a charge sheet dated and signed at Dar es Salaam on 9th day of June, 2011. · As the former two charge sheets, this had two counts which are: 1st Count: "Unlawful possession of Fire Arms contrary to Section 4 ( 1) and 34 (1) of the Arms and Ammunition Act [Cap. 223 R.E 2003] (I think it was intended to be 2002). Particulars of the offence as shown under this count are that:- 10 ''ISMAIL S/O JUMA SHABAN charged on about 1.:fh day of Decembe!';- 2010 at about 19.40 hrs at Ufipa Street Kinondoni within Kinondoni Municipality in Dar es Salaam Region was found in unlawful possession of Fire Arm one Pistol make NOR/NGO with S/N 99701093 without license or permit" 2 nd Count:Unlawful possession of Ammunitions Contrary to Section 4 (1) and 34 (1) of the Arms and Ammunition Act [Cap. 223 R.E 2002] read together with Act No. 17/2010. Here the prosecutions alleged that:- ''ISMAIL JUMA SHABAN on 1.:fh day of Decembef';. 2010 at Ufipa Street within Kinondoni Municipality in Dar es Salaam Region was found in unlawful possession of 8 rounds of Ammunition of Pistol without license or permit" The record is silent if the new charges were read over and explained to the accused person and asked to plead. Instead on 11th of July, 2011 the prosecution's case was opened and a total of seven witnesses testified in favour of the prosecution. In short the prosecution evidence is to the effect that one DANIEL MGENDI (PW.5) is the lawful owner of a Pistol make NORINGO with Serial Number 99701093. He purchased it sometime in April, 2003. Sometime later, his house was invaded by the thugs who stole from therein, among others, the pistol. On 13th day of December, 2010, the appellant with 11 other fellows were under the police arrest at Kijitonyama Police Post where he admitted to one E.9652 D/C BENATUS (PW.1) to have in possession of a pistol. PW.1 took the appellant to his home where a Pistol Make NORINGO with Serial Number 99701093 and 8 rounds of ammunition were retrieved in the search which was witnesses also by a ten cell leader. Pw.5 identified the Pistol which was produced in evidence marked as Exhibit Pl to be his stolen one. This evidence in my view tends to prove or support the charges brought against the appellant as per the charge sheet dated the 9th of June, 2011 and not the former two. The charges in the later sheet were never read and explained to the accused person/appellant nor was he asked to plead thereto and his plea recorded. This was in total contravention of Section 228 of the Criminal Procedure Act [Cap. 20 R.E 2002] which reads as follows:- "The substance of the charge shall be stated to the accused person by the court and shall be asked whether he admits or denies the truth of the charge" The Section provides for the Mandatory duty of the court to state to the accused person the substance of the charge and ask the accused whether he admits or denies the truth of the charge. It is necessary under the law that the court should state the substance of the charge to the accused person with a view to bring to his attention such particulars as may be necessary for giving him reasonable information as to the nature of the offence charged. This is also necessary as the accused should not be 12 ,/ embarrassed or prejudiced in his defence. Failure by the court to state the substance of the charge to the accused person in this instant case, in my view is fatal. This is because, the accused was tried with an offence which was not made known to him. As such the proceedings, conviction and the sentence imposed by the lower court cannot stand. In this appeal there are several grounds as shown above. On the basis of the error of the court highlighted above, I find it being not necessary that in determining this case the court should engage itself in discussing them. Instead, I will invoke the powers conferred upon this court under Section 373 (1) (a) read together with Section 366 (1) (a) (i) of the Criminal Procedure Act [Cap. 20 R.E 2002] and therefore quash the proceedings and conviction entered in the lower and set aside the imposed sentences. The Appellant be set free from jail if he is not therein for other lawful causes. Dated at Dar es Salaam; this 23 rd day of December, 2015. \ ,I ~ E. J. Mkasimongwa JUDGE 23/12/2015 13 Date: 23/12/2015 Coram: Mkasimongwa,J For Appellant: Present For the Respondent: Absent Court: Judgment delivered in Chambers this 23 rd day of December, 2015 in the presence of the Appellant and in the absence of the Representative of the Respondent Republic. d~ E. J. Mkasi mongwa JUDGE 23/12/2015 Order: The Respondent be notified/served with the copy of this Judgment. ~~ E. J. Mkasimongwa JUDGE 23/12/2015 14