MOHAMED MICHAEL Procedure for search

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (SHINYANGA SUB-REGISTRY) AT SHINYANGA CRIMINAL APPEAL NO. 181 OF 2024 (Arising from Criminal Case No. 48 of 2023 from District Court of Meatu at Mwanhuzi) MOHAMED MICHAEL ……………………………….…...…1st APPELANT MARIAM PHILIPH………………….………………….…..2nd APPELLANT VERSUS THE REPUBLIC………………………………………....…..RESPONDENT JUDGMENT 7th & 9th August, 2024. MASSAM, J.: In the District court of Meatu at Mwanhuzi, the appellants were jointly and severally charged with three offences of House breaking contrary section 294 (1) (a) and (b) of the Penal Code Cap 16 R: E 2022, Stealing contrary to section 258(1) (2) (a) of the Penal Code Cap 16 R: E 2022, and Unlawful possession of stolen properties contrary to section 311 of the Penal Code Cap 16 R:E 2022. It was alleged that, on 25th June 2023 during night hours at Mshikamano village within Meatu District in Simiyu Region, second and four accused persons (the appellants), unlawfully did found of stolen properties of 10kg of sugar valued at 30,000/=, 8kg of rice valued at 17,500/= and two 1 litres of sunflower cooking oil valued to Tshs. 6,000/= all properties were valued to Tshs. 53,600 /= which belonging to Mohamed Burhani. After the matter being heard the trial court found the appellants guilty and convicted for the offence of unlawful possession of stolen properties and sentenced to five (5) imprisonment. Aggrieved with such conviction and sentence, appellants preferred this appeal with 7 grounds to wit; - 1. That, the alleged stolen properties were not conclusively identified contrary to authority in CHACHA AND OTHERS VS REPUBLIC (unreported), Mwanza Court of Appeal Tanzania, Criminal Appeal Number 12/1997. 2. That, in copy of judgment the trial senior Resident Magistrate erred in law and in fact after conviction he failed to pass contrary to the law and such omission. 3. That, the search warrant or the written authority was not given by relevant police officer so it is contrary to section 38 (1) of the Criminal Procedure Act cap 20 RE 2022. 2 4. That, no receipt was issued of the properties seized contrary to the provision of section 38(3) of the criminal procedure Act cap 20 RE 2022. 5. That, the evidence adduced by prosecution witnesses were at variance with the charged offence. 6. That, the appellants were wrongly joined in the offence of house breaking contrary to section 294(1) (a) and (b) of the Penal Code Cap 16 RE 2022 and in the offence of theft contrary to section 258(1) (2) (a) and section 265 of the same law. 7. That, the offence in all counts were not proved beyond reasonable ground During hearing of this appeal, the appellants were in person, unrepresented while the Republic was represented by Mr. Saguya Goodluck learned State Attorney. Submitting to the appeal, the appellants submitted that they pray to this court to consider their appeal and left free because they have family who depend on them. 3 After taking the floor, Mr. Saguya S/A in his reply he supported the appeal, especially in ground no 1 and 3, and concede that it is true that there was some irregularities in the hearing of the case. Regarding to ground no 1 appellant complained that the stollen properties were not well identified. It was submission of Mr Saguya that stolen properties must be identified in special marks, and positive identified by the complainant of the stolen properties. He went further that in this case PW1 did not well identified his properties in the court.PW1 said that the stolen properties were sugar, cooking oil, rice which was 15 kilograms and sugar was 10 kilograms and when the said exhibits were tendered, cooking oil was two litres but before at the police station he mention nothing about the weight of the said oil. Also, he said that he found appellants with 8 kg of rice but the rice has no special marks so he asked himself how could complainant identify that the same was the one which was stolen? Also, PW5 who was the investigator said that the stolen oil was 5 litres while in the hearing of the case the court said that the said oil was 2 litres.So according to that it was his view that the said evidence was contradictory and weak to prove the appellants case beyond the reasonable doubt. 4 Again, in ground no 3, appellants complained that there was no written authority or search warrant issued and appellants were searched with the policemen and his rank was not known. In section 38 of CPA directs who required to conduct search without search warrant. He added that, PW1 said that he went to the house of appellant and conducted the search, however the law direct that the search must be conducted by a specific officer and can not be conducted randomly. He fortifies his argument with the case of Remina Omary Abdul v Republic, Criminal Appeal No. 189/2020 in page no 30, where the court held that the search which conducted randomly is not free from the possibility of the search object been planted. Mr. Saguya agreed that the search which conducted was against the requirement of the law which was not free from the possibility of the said stolen properties to be planted. Furthermore, Mr. Saguya argued that the way certificate of seizure was crafted suggests that the said search was conducted by one person and others were witnesses, but in this case the hamlet leader of Mshikamano said that ‘’we conducted search’’ that means that the said search was conducted randomly and twice ,he added that at first when the search conducted nothing were found but when the search conducted in the second 5 time they found the said properties, Again the certificate of seizure was identified by PW5 which had some irregularities. Moreover, the respondent counsel argued that all grounds of appeal no 1 and 3 goes to the root of the case and there was no need of dealing with another grounds of appeal. Finally, he prayed this court to left free appellants. In rejoinder, the appellants had nothing to add than to insist this court to left them free as they have family to attend. Having gone through the submission of both parties, the trial proceedings and judgment. I find the main issue to dispose this appeal is whether the ground of appeal no 1 and 3 has merited or not. Starting with 1st ground of appeal, that the stolen properties were not conclusively identified. At this point Mr. Saguya submitted that stolen properties must be identified in special marks and PW1 failed to identify the stolen properties. PW1 said that the stolen properties were sugar, cooking oil, rice which was 15 kilograms and sugar was 10 kilograms but two litres of cooking oil was tendered as well as 8 kg of rice but the rice has no special marks how could he identify that the same was the one which was stolen? 6 In the case of Joseph Mkumba and Another vs Criminal Appeal No.94 of 2007 (unreported). The court 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 be proved, first, that the property was found with the suspect, second, that the property is positively proved to be the property of the complainant, third, that the property was recently stolen from the complainant and lastly, that the stolen thing constitutes the subject of the charge against the accused." (Emphasis is mine). See also the case of Chacha Mwita and 2 others vs. Republic, Criminal Appeal No. 302 of 2013 CAT Mwanza. Indeed, on the basis of the principles set out in the above case, the prosecution has the onerous duty to positively establish that the property retrieved from the accused is the very same one which was stolen from the complainant; before the doctrine of recent possession is invoked. In the case under consideration, the recently retrieved properties were sugar, cooking oil and rice. It was unfortunate that all items are common trade merchandise which can be obtained quite easily, and in the absence 7 of any special mark on the same, it may not be possible to achieve a proper and adequate identification of a recently retrieved property in this category. Such evidence of positive identification is glaringly lacking in this case. I therefore, agree with the learned State Attorney that the doctrine of recent possession was wrongly invoked in the circumstances. This ground of appeal is allowed. On the third ground of appeal that, appellants complained that there was no written authority or search warrant issued. Mr Saguya submitted that, appellants were searched with the policemen and his rank was not known. From submission of both the parties and passing through court records. The records revealed that the search was conducted by G 5446 D Coplo Said (PW5), but the records is silent whether he is police officer incharge of police station or he had a written authority to conduct search. Therefore, it is the view of the court that, the procedure of conducting search was not adhered as it required under section 38(1) of the Criminal Procedure Act cap 20 R: E 2022 Moreover, the records showed that PW1 went to the house of appellant and conducted search. This court agrees with submission of Mr. Saguya that 8 the search must be conducted by a specific officer, can not be conducted randomly as it held in the case of Remina Omary Abdul vs. Republic, Criminal Appeal No. 189/2020 in page No. 39 the court held that the search which conducted randomly is not free from the possibility of the search object been planted. With all these observations, the discussed ground of appeal goes to the root of the case as the prosecution failed to prove its case beyond the reasonable doubt so, there is no need of going to discuss the rest grounds of appeal. According to the discussed reasons above I allow this appeal, I quash the conviction and set aside the sentence and order the appellants be released immediately from custody unless otherwise lawfully held. It is so ordered. DATED at SHINYANGA this 9th day of August, 2024. R.B. Massam JUDGE 9