Criminal Appeal No 598 of 2021 Paulo Malale v Republic

IN THE COURT OF APPEAL OF TANZANIA AT SUMBAWANGA fCORAM: KEREFU, J.A.. KIHWELO. 3.A. And MDEMU. J.A/> CRIMINAL APPEAL NO. 598 OF 2021 PAULO M ALALE....................... ............. ................... ...... APPELLANT VERSUS THE REPUBLIC......... ........... ..... ..................................... RESPONDENT (Appeal from the decision of the High Court of Tanzania at Sumbawanga) fMkeha, j.!) dated the 22nd day of September, 2021 in DC. Criminal Appeal No. 61 of 2020 JUDGMENT OF THE COURT 30:h October & 4th November, 2024 KIHWELO, 3.A.: What precipitated this appeal, is the judgment of the High Court of Tanzania at Sumbawanga (Mkeha, J.) in DC. Criminal Appeal No. 61 of 2020 affirming the decision of the District Court of Mlele at Mlele which found Paulo Malale, the appellant herein, guilty of unlawful possession of prohibited plant and was sentenced to thirty (30) years imprisonment. The offence was laid under section 11 (1) (d) of the Drug Control and Enforcement Act, No. 5 of 2015. The particulars of the offence were that, on 1st September, 2019 at Mabambasi Village, within Mlele District in Katavi Region, the appellant was found in unlawful possession of 407 rolls of prohibited plant namely, Cannabis Sativa commonly known as "Bangi" weighing 7 kilograms. The appellant denied the charge, whereupon the prosecution featured seven witnesses and a host of documentary and physical exhibits as we shall describe later in the course of this judgment. In a nutshell, the case for the prosecution was that, on 1st September, 2019, police officer No. J, 1219 Police Constable Edward (PW1) from Usevya Police Post, together with Assistant Inspector Mkingira (PW2) who at the time was the Officer in Charge at Usevya Police Station (OCS), No. H. 9896 Police Constable Saidi and Detective Corporal James while on routine patrol they received information that the appellant was in possession of cannabis sativa "bangi". Acting on that information they heeded to the house of the appellant at Chamalendi Village, Mabambasi Ward where they found the appellant seated at his residence under the tree. It was said that the appellant was found with a plastic bag and was in the course of wrapping small amounts of cannabis sativa (bangi) into small pieces. Immediately, the appellant was arrested and one of the police officers was ordered by PW2 to go after the Village Executive Officer. Shortly thereafter, that police officer came back with Filbert Bazilio @ Msaga (PW3) arid upon explaining to him the reason they were there, search of the appellant's house ensued, apparently to recover and seize the suspected hidden cannabis sativa. At the scene, they found 407 rolls of cannabis sativa and approximately one bucket of unwrapped cannabis sativa (exhibit PI). PW2 prepared a seizure certificate (exhibit P2) which was signed by the appellant, PW2 himself and PW3 an independent witness. Soon after, the appellant was taken to the police station where he was booked with registration No. KBN/IR/270/2019. Later on, PW2 handed over the cannabis sativa to No. WP 11430 Police Constable Lilian (PW5) who received them through a chain of custody form (exhibit P3) and stored them until on 3rd September, 2019 when she handed over exhibit PI to PW1 through the chain of custody form and PW1 took exhibit PI and sent to Inyonga Police Station where he handed over to No. F. 4003 Corporal Nyamlola (PW6) through the usual chain of custody form. PW6 stored exhibit PI in the exhibit room. Furthermore, PW6 testified that on 20th March, 2020 he handed over samples of the cannabis sativa to Inspector Kombo (PW4) who was taking them to the Government Chemist for scientific analysis. Later, on 25th April, 2020 PW4 returned the samples which were taken to the Government Chemist. The last witness, namely, No. G. 5443 Detective Constable Marwa (PW7) on 12th March, 2020, was assigned to prepare the samples of the cannabis sativa to be taken to the Government Chemist. Apart from that, he prepared the letter addressed to the Government Chemist and handed over the same to PW4 who was taking the samples to the Government Chemist. It was thus, the testimony of PW7 that on 25th April, 2020 he received the result from the Government Chemist which confirmed that, indeed the samples were of narcotic drugs. PW7 produced in evidence letters which he wrote to the Government Chemist and the two were admitted in evidence and marked collectively as exhibit P4. He also tendered the letter from the Government Chemist which revealed the results which was admitted in evidence and marked exhibit P5. The totality of the prosecution witnesses was that the appellant was guilty of being found in possession of cannabis sativa. In defence, the appellant reiterated his complete disassociation from the prosecution accusation. He did not quite refute about being arrested by the police on 1st September, 2019 but what he categorically denied is being found in unlawful possession of the said illegal drugs. He emphatically testified that, the police fabricated the case against him by planting the cannabis sativa in his compound and forced him to confess that the drugs belong to him something he did not accept. During the entire period the appellant was handcuffed and the independent witness, PW3 was brought in after the drugs had already been planted. In his further testimony, the appellant said that PW2 demanded bribe at some point but he did not heed to his demands. At the conclusion of the case, the trial court was impressed by the prosecution evidence, and in the end, it was satisfied that the appellant committed the offence and found him guilty as charged. In consequence, the trial court convicted and sentenced him as hinted earlier. The appellant's attempt to appeal to the High Court hit a dead end, as the High Court dismissed the appeal for being devoid of merit. Still believing that justice was not served by the two courts below, the appellant has come to this Court on a second appeal. The appellant's dissatisfaction with the decision of the first appellate court is expressed in a memorandum of appeal comprising of five grounds which can be crystalized as follows; One, the learned Judge erred to dismiss the appeal while the prosecution did not prove its case to the required standard. Two, the learned Judge erred to dismiss the appeal s while there was no independent witness who testified. Three, the learned Judge erred to dismiss the appeal believing exhibit P5 while there was no witness from the Government Chemist who gave expert opinion. Four, the learned Judge erred in law and fact to dismiss the appeal without considering that the defence evidence was not considered, and Five, the learned Judge erred to dismiss the appeal without considering that PW1, PW2, PW4, PW5, PW6 and PW7 were all police officers. During the hearing of the appeal, the appellant was fending for himself, unrepresented, whereas the respondent Republic had the services of Mr. Deusdedit Rwegira, learned Senior State Attorney. The appellant fully adopted the grounds of appeal obtained in the memorandum of appeal lodged on 1st June, 2022 but he deferred its elaboration to a later stage, if need be, and implored on us to permit the respondent Republic to submit first. On his part, Mr. Rwegira supported the appeal from the outset and his basis of the support was that the prosecution did not prove the case beyond reasonable doubt. Expounding further, Mr. Rwegira submitted that, the drugs were seized on 1st September, 2019 and up to 23rd July, 2020 when exhibit PI was admitted in court it had gone through several hands hence the chain of custody was broken. Elaborating further, Mr. Rwegira contended that PW1 and PW2 seized the drugs and handed over to PW5, who on 3rd September, 2019 she handed over to PW1 so that he could take to Inyonga Police Station and actually handed over to PW6. Mr. Rwegira argued further that, on 12th March, 2020 PW7 took samples of the drugs but unfortunately there is no record of who handed over exhibit PI so that he could take samples. Mr. Rwegira went on to submit further that, the samples were then handed over to PW6 who handed to PW4 so that he could take to the Government Chemist for analysis. It was Mr. Rwegira's contention that, it was unfortunate that, when PW7 came to testify, did not say how did he get the samples and from whom? Mr. Rwegira was of the view that, this piece of the puzzle remains unresolved to date. In his further submission, Mr. Rwegira was of the view that, PW6 in his testimony particularly page 39 of the record of appeal, did not explain whether the samples that were taken to the Government Chemist for analysis were taken from exhibit PI. He was thus, of the view that, there was no connection between what was seized and the samples that went for analysis. Expounding further the loopholes in the prosecution case, Mr. Rwegira contended that, exhibit P5 was tendered by PW7 the investigator, instead of the expert who conducted the analysis of the samples. He further argued that, PW7 did not make any foundation as to why exhibit P5 was tendered by him and not the expert who conducted the analysis. He took the view that, this was a serious anomaly bearing in mind that the appellant in his defence alleged that the case against him was fabricated by the police who planted the drugs in order to implicate him and that the plastic bags that were taken from his house had traditional food. Mr. Rwegira also contended that, while exhibit PI was seized on 1st September, 2019 it took up to 20th March, 2020 when exhibit PI was taken to the Government Chemist for analysis and there was no explanation for that delay and this, in his view, casts doubts on the prosecution case. To fortify his submission, he cited to us the case of Omary Said @ Athuman v. Republic (Criminal Appeal No. 58 of 2022) [2022] TZCA 270 (13 May 2022; TanzLII). On our prompting, Mr. Rwegira admittedly pointed out that, there was variance between the charge and the evidence led at the trial. In particular, he referred to the fact that, whereas the charge and exhibit P2 indicate that the drugs weighed 7 kilograms, exhibit P4 indicates that the drugs were 300 grams only. In all, he urged us to allow the appeal. Having heard the submissions of the learned Senior State Attorney, the appellant had nothing useful to say in rejoinder, save for urging us to allow his appeal and set him free. In the light of the foregoing submissions, we are of the firm view that, this appeal can sufficiently be disposed of within the narrow circumference of ground one whose complaint is that the case for the prosecution was hot proved beyond reasonable doubt. That renders the rest of the grounds of appeal and arguments of no relevance. In an attempt to determine whether the case for the prosecution was proved to the hilt, we wish to stress at the very outset of our determination of the appeal that, it is a duty of the prosecution to prove the case and the standard of proof is beyond reasonable d o u b t This is a universal standard in criminal trials and the duty never shifts to the accused. The accused person has ho duty of establishing his innocence. There is, in this regard, a litany of authorities in this matter. See, for instance, Mohamed Said Mtula v. Republic [1995] T.L.R. 3, Woodmington v. DPP (1935) AC 462 and Magendo Paul & Another v. Republic [1993] T.LR. 219. The conviction of the appellant was to a large extent based upon the testimony of PW1, PW2 and PW3 as well as the testimony of PW7 and the five exhibits the prosecution tendered in court. To demonstrate what the trial Resident Magistrate held, we wish to let the record of appeal at page 83 paint a picture. He is recorded as saying; "'Let me resume on the analysis o f the evidence I had stated earlier, it is undoubted that PW1, PW2 and PW3 are the key witnesses who were present a t the scene also were engaged during the search, PW3 who is an independent witness, I/>.£0 o f the Chamaiendi village which is also known as Mabambasi village, did corroborate the testim ony o f PW1 and PW2, that they conducted search at the house o f the accused, whereas a certain amount o f 'bang" was retrieved," Furthermore, the learned trial Resident Magistrate at page 84 of the same record is recorded holding that; "As I noted earlier, the testim ony o f PW3 corroborates the testimony o f PW1 and PW2, PW3 being an independent witness who witnessed the search, his testimony was not in any way in contradiction to what was testified by PW1 and PW2, this reason persuades this court to believe the prosecution version. But not only the testim ony o f PW1, PW2 and PW3, again the seizure and chain o f custody o f exhibit P I also is another piece o f evidence which reveais that indeed 'bhang' was seized from accused and the same exchanged hands without the chain o f custody being broken to the point the exhibit P I was tendered and adm itted in court." Like the trial court, the first appellate court found it proven that the appellant was found in unlawful possession of prohibited plant 'bang' and PW3 the independent witness ensured that there was no any possibility of planting the illegal drugs by the police before search was conducted. With respect, we think that, there was misapprehension of evidence by the trial court and unfortunately the High Court fell into it, hook, line, and sinker as we shall explain shortly. We hasten to state at this point that, the appellant during his defence did not quite refute about being arrested by the police on the fateful day, However, he totally denied being found in unlawful possession of prohibited plant. He spiritedly argued that, the police fabricated the entire case against him by planting the cannabis satjva in his compound and forced him to confess that the drugs belonged to him. What is more, on the adduced evidence by the appellant which was also supported by the evidence of PW1 and PW.2, the appellant was apprehended and handcuffed long before PW3 the independent witness was involved, despite the fact that the police were acting on a prior information of the alleged crime. Speaking of the testimony of PW2, he told the trial court thus; "..accused was sitting at his house compound, accused was sitting under a tree at his house compound. Accused had in his possession plastic bag which had 'bang', aiso sm all amounts o f bhang wrapped in several roils. I seized the bhang, then I inform ed the accused that he was under arrest. Then I asked the accused to give me the cell number o f his Ham iet leader. We could not secure the Hamlet leader, nor his mobile number. Therefore, I ordered one police officer to find the V.E.O." Thus, given the circumstances surrounding the initial police conduct of arresting the appellant and seizing the bang prior to the arrival of the independent witness, PW3 and coupled with the appellant's allegation against the arresting officers that they fabricated the entire case and planted the illegal drugs in his compound, it is, deducible that the cumulative effect renders the prosecution case doubtful. We will next consider the argument that the chain of custody of exhibit PI was broken. We have painstakingly considered this argument in light of the evidence on record and we find considerable merit in Mr. Rwegira's submission. According to the evidence on record, in particular exhibits P2 and P3, PW2 seized exhibit PI and handed over to PW5 who kept it and on 3rd September, 2019 she handed over to PW1 so that he could take to Inyonga Police Station where he handed over to PW6, the exhibit keeper. On 20th March, 2020, PW6 handed over exhibit PI to PW4 who took it to the Government Chemist for analysis and returned to PW6 on 25th April, 2020, As rightly argued by Mr. Rwegira, PW7 testified that, on 12th March, 2020 he took samples of the drugs which were later taken to the Government Chemist for analysis. But surprisingly, and for an obscure cause, when PW7 came to testify he did not say how did he get the samples and from whom. Unfortunately, record of proceedings is silent on that aspect, and even exhibit P3 is conspicuously silent. What is more, on the adduced evidence, there was no explanation as to how did exhibit PI which was handed over to. PW4 on 25th April, 2020 get back to PW2 who tendered it in court on 23rd July, 2020. Furthermore, PW4 in his testimony did not say who specifically was handed over the envelopes at the Government Chemist and who handed back over to him. What is discernible in exhibit P4 is the name E. Sibala as a receiving person and Jackson Mwijage as the person who handed over the two envelopes to PW4. Surely, these and other pieces of the puzzle remain unanswered to date and we think, the vita! missing link cripples the prosecution case. The gaps in the chronological chain of custody, coupled with the fact that the suspected drugs were seized on 1st September, 2019, but it took more than 6 months to be transmitted to the Government Chemist for analysis on 20th March, 2020 and no plausible explanation was offered for the inordinate delay, raises reasonable doubt on the prosecution case, We took similar position in the case of Omary Said @ Athuman v. Republic (supra). More glaring weaknesses in the prosecution evidence is discernible in the variance between the charge and the evidence on record. While the charge indicates the weight of the drugs to be 1 kilograms, exhibit P4 curiously indicates that the appellant was found with illegal drugs weighing 300 grams. Indeed, the record of proceedings bears out that none of the prosecution witnesses cleared this infraction. We think, with respect, that, the learned Senior State Attorney was undeniably right that, the prosecution did not prove the case beyond reasonable doubt. In view of what we have endeavoured to demonstrate, it is our conclusion that the conviction of the appellant rested on weak and unreliable evidence. Accordingly, we allow the appeal, quash the conviction and set aside the sentence. We order the appellant's immediate release from prison unless held for other lawful cause. DATED at SUMBAWANGA this day of 1st November, 2024. R. J. KEREFU JUSTICE OF APPEAL P. F. KIHWELO JUSTICE OF APPEAL G. J. MDEMU JUSTICE OF APPEAL The Judgment delivered this 4th day of November, 2024 in the presence of the appellant appeared in person and Mr. John Mwesiga Kabengula, learned Senior State Attorney for the Respondent/Republic, is hereby certified as a true copy of the original. DEPUTY REGISTRAR COURT OF APPEAL