Shaban Halili v Republic

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA IN THE SUB-REGISTRY OF MANYARA AT BABATI CRIMINAL APPEAL NO. 11360 OF 2024 (Originating from Criminal Case No. 181 of2022 of Babati District Court at Babati) SHABANI HALILI.............................................................................. APPELLANT VERSUS THE REPUBLIC............................................................................RESPONDENT JUDGMENT l$h June and 1st August, 2024 MIRINDO, J.: On 22 November, 2022, police officers at a police checkpoint in Minjingu, Babati District within Manyara Region, inspected a passenger vehicle known as Ngasere High Class with registration number T 619 DZQ. At the bus boot they suspected a brown-coloured bag that was emitting smell. The bag contained a label indicating that its owner was on a passenger seat number 24. Shabani Halili who appeared to be sitting on seat number 24 was called out and identified as the owner of the bag which later happened to contain 10.60 kilograms of Catha edu/is (khat) commonly known as "Mirungi". He was charged before Babati District Court with, and convicted of, trafficking in narcotic drugs contrary to section 15A (1) and (2) (c) of the Drugs and Control Enforcement Act [Cap 95 RE 1 2019] as amended by the Written Laws (Miscellaneous Amendments) Act (No 5) Act No 9 of 2021. He was sentenced to twenty years imprisonment. After obtaining leave of this Court to appeal out of time, Shabani Halili has lodged five grounds of appeal. At the hearing of the appeal, he was represented by Mr Joseph Masanja, learned advocate, while Ms Rose Kayumbo, learned state Attorney, represented the Respondent Republic. The major complaint in this appeal is that the appellant's conviction is against the weight of evidence. In the first, second, and fourth grounds of appeal Mr Masanja, learned advocate complained that the charge was not proved beyond reasonable doubt. The trial court did not properly evaluate the evidence. The learned State Attorney, Ms Kayumbo, strongly opposed the complaint that the charge was not proved beyond reasonable doubt. She elaborately argued that the appellant was rightly arrested in Ngasere High Class while travelling from Moshi to Dodoma while on seat number 24 with a bag placed on the bus boot which was identified with a seat label. In dealing with these grounds of appeal, it is imperative to review the evidence adduced before Babati District Court. The prosecution case rests primarily on direct evidence of its second and third witnesses and to some extent its fourth witness. The learned State Attorney contended that these witnesses were reliable and the trial court had no reason to doubt their evidence. She 2 argued that the legal position restated in Goodluck Kyando v R [2006] 367 is that every witness is entitled to credence unless there is some reason to disbelieve the witness. The prosecution case is that the appellant who was travelling from Moshi to Dodoma was trafficking Mirungi in a bag placed in a bus boot. The narcotic drugs were discovered from a bag in Ngasere High Class boot and the bag had a label for passenger seat number 24. The appellant who was inside the bus, sitting on seat number 24, was called out and asked about the bag. The second and third prosecution witnesses, E.4441 Sgt Elias and A/ Insp Karata testified respectively that the appellant admitted the bag belonged to him. The appellant admitted boarding Ngasere High Class passenger bus but denied that he had a bag at the boot. Did the prosecution prove the appellant's trafficking in "Mirungi" in connection with the bag found at the boot of the passenger bus? The prosecution account rests on two sets of facts. First, a bag found at the boot of the Ngasere High Class carried a label for seat number 24. The appellant was sitting at seat number 24 at the time when the bus was being searched. During the preliminary hearing, the appellant successfully objected to the admissibility of the bus ticket. At the trial the appellant specifically opposed the admissibility of the bus ticket because it was not an electronic one. The 3 prosecution response was that the "manual" bus ticket belonged to Ngasere High Class and the objection had no merit. The trial Senior Resident Magistrate overruled this objection and admitted the bus ticket. The appellant repeated the objection in his defence when he stated that the police took from him an electronic version of the bus ticket but produced in court a manual bus ticket. The trial magistrate dismissed this complaint on account of the appellant's cautioned statement that was admitted during the preliminary hearing. I will return to address the admissibility of the cautioned statement later in this judgment. Leaving aside the appellant's cautioned statement, it is clear to me that the appellant complaint deserves some merit. The third prosecution witness, Assistant Inspector of Police Karata, testified that the appellant showed them his bus ticket with seat number. The second prosecution witness, Sgt Elias, testified that the appellant was in seat number 24 and they took his bus ticket which was "written 30". This number was unclear to him. He tendered it in court. I have examined the bus ticket tendered in court. It states the seat number 24, the bus fare as 300 Tshs from Moshi to a destination that is unintelligible from the bus ticket. Nowhere is there number 30. At first, I thought this to be a typing error but the handwritten version is to the same effect with an ellipsis. I declined to arrive at that conclusion as the witness himself stated that the 30 (or 300?) was 4 unclear to him. It may be that the bus fare of 300 Tshs was too little an amount but this was a witness who was in possession of the bus ticket at the time he testified which he eventually tendered in court. On this account, I am of the view that the second prosecution witness was referring to something else notwithstanding that the amount of bus fare sounded incredible. The fact that the suspected bag carrying Mirungi had a seat label number 24 attached to it and the appellant was sitting on that seat inside the bus raises grave suspicion of the appellant's possession and trafficking of Mirungi. Yet the fundamental rule of criminal evidence is that the prosecution carries the burden to prove the commission of the offence beyond reasonable doubt and suspicion, however strong cannot displace proof. See Abdala bin Wendo v R (1953) 20 EACA 166 at 170. As reiterated by the Supreme Court of India in Sujit Biswas v State of Assam AIR 2013 SC 3817 at para 6: Suspicion, however grave it may be, cannot take the place of proof, and there is a large difference between something that ' may be' proved, and something that 'will be proved'. In a criminal trial, suspicion no matter how strong, cannot and must not be permitted to take place of proof. This is for the reason that the mental distance between 'may be' and 'must be' is quite large, and divides vague conjectures from sure conclusions. In a criminal case, the court has a duty to ensure that mere conjectures or suspicion do not take the place of legal proof. The large distance between ' may be' true and ' must be' true, must be covered by way of clear, cogent and unimpeachable evidence produced by the prosecution, before an accused is condemned as a convict, and the basic and golden rule must be applied. In such cases, while 5 keeping in mind the distance between 'may be' true and 'must be' true, the court must maintain the vital distance between mere conjectures and sure conclusions to be arrived at, on the touchstone of dispassionate judicial scrutiny, based upon a complete and comprehensive appreciation of all features of the case, as well as the quality and credibility of the evidence brought on record. The court must ensure, that miscarriage of justice is avoided, and if the facts and circumstances of a case so demand, then the benefit of doubt must be given to the accused, keeping in mind that a reasonable doubt is not an imaginary, trivial or a merely probable doubt, but a fair doubt that is based upon reason and common sense. In Gasper Mtinda v R, Criminal Appeal 17 of 1991, the prosecution evidence established two possibilities. One, the deceased on the night in which she was sleeping with her accused husband when her dead body was found hanging in the kitchen, a few paces from the main house. So, the accused hanged the deceased body after murdering her in an attempt to camouflage his crime or the deceased committed suicide. Two, the deceased was bulky and the accused could not hang her dead body by himself. He was convicted of murder. The Court of Appeal quashed the murder having being satisfied that there were two view on the prosecution evidence, one pointing to the guilt of the accused and the other to his innocence: This was a difficult case given the evidence tendered before the trial Court. The only evidence before the Court as to what happened before the deceased's death is appellant's defence. Doctor's evidence was given six years after post-mortem examination of the deceased's body. It has been argued by the defence that medical examination was no thorough as floatation test of the deceased's lungs was not done to determine whether or not the deceased 6 died from hanging. We tend to agree with the learned defence Counsel that the failure to carry such test left a lacuna in the prosecution case. Despite the suspicious conduct of the accused, the Court of Appeal held that he was entitled to benefit of doubt: There was, we agree, a lot of suspicion against the appellant as person who killed the deceased, but, as the learned trial judge will no doubt agree with us on reflection, suspicion no matter however grave cannot be the basis of a conviction in a criminal charge. Another application of the principle is to be seen in Shaban Mpunzu alais Elisha Mpunzu v R, Criminal Appeal 12 of 2002. The facts of this case are that one day the deceased and his son were working in the accused's tobacco shamba. The next day the body of the deceased was found lying along a path, a short distance away from the village houses. From where the body of the deceased was lying, trail of blood was traced to some point about twenty paces from the accused's house. Upon searching the accused's house, a pair of rubber shoes was retrieved hidden under the bed stained with blood. Shaban Mpunzu was arrested along with two other persons and with whom they were jointly charged with murder of the deceased. The Government Chemist's report indicated that the blood found on the rubber shoes was human blood. On the basis of this circumstantial evidence, Shaban Mpunzu was convicted of murder while the other co-accused were acquitted. On appeal, the Court of Appeal concluded that in the absence of the evidence showing the deceased's blood 7 group which could be related to the blood foind on the rubber shoes recovered from the accused's house, Shaban Mpunzu could not be linked with the death of the deceased. The Court of Appeal quashed the murder conviction, albeit the strong suspicion against the accused: Admittedly, having regard to the fact there was the trail of blood 20 paces from the appellant's house, the rubber shoes retrieved from the appellant's house hidden under the bed stained with blood, there was strong suspicion against the appellant. From where the trail of blood ended, it does not follow conclusively that it ended at or emanated from the house of the appellant. However, it is a settled principle of criminal justice that in a criminal charge, suspicion, however strong it may be, is not enough to ground a conviction. Such was, unfortunately the position in this case, the prosecution case still left room for doubts which have to be resolved in favour of the appellant. In the present case, without clear proof of the appellant's bus ticket, the grave suspicion itself, as amply demonstrated above, cannot supply a basis for inferring the appellant's possession of the suspected bag located in the boot of Ngasere High Class. In a situation where the type of the bus ticket seized from the accused person is doubtful, the prosecution witness who seized it is uncertain about its material particulars; and the bus conductor who could have clarified these doubts was not called for unsatisfactory reasons, there is a reasonable doubt on the prosecution account. The next question is: where was the bag searched and in whose presence? The second prosecution witness, E.4441 Sgt Elias testified that during the search 8 he was with the third prosecution witness, Assistant Inspector of Police, Karata. After searching inside the bus and found nothing, they returned to search the bus boot. The bag was opened and searched in the presence of the appellant, bus conductor, WP Paulina and Salimu Yusuf Mshana. The third prosecution witness, however, testified that the bag was taken to Minjingu Police Station, opened in the presence of Salim Yusuf Mshana. This witness categorically stated that the bus conductor was absent when the search took place because it was difficult to trace him. It is immediately clear that the appellant's bag was not searched at the checkpoint and the bus conductor was absent. It was searched at Minjingu Police Station. There is no evidence of the distance from the check point to Minjingu Police Station and how the bag was taken from the checkpoint to the Police Station. It is an open question that the bag may have been tampered with. No reason was furnished as to why the bag was not immediately opened and searched at the checkpoint in the presence of the bus conductor, a key witness. This finding is consistent with the appellant's account in defence that "The bus conductor and driver were not involved in this case." This Court is entitled to draw adverse inference against the prosecution where it fails to call a key witness, within reach on the principle that the prosecution deprived the court the opportunity to consider evidence favourable 9 to the accused. See Lubeleje Mavina and Another v R, Criminal Appeal 172 of 2006. An adverse inference was drawn against the prosecution in Kasema Sindano alais Mashuyi v R, Criminal Appeal 214 of 2006 on account of its omission to call village leaders to whom the rape incident was first reported: Although both PW1 and PW2 claimed that they reported the rape to the 10- cell leader and the Village Chairman, these two key witnesses did not testify. The prosecution, which had the duty to prove the charge beyond reasonable doubt, for undisclosed reasons, decided not to call them. An affirmative answer to the question that if they had been called, they would have belied PW1 and PW2 should not be ruled out in the circumstances. I am satisfied that this is a fit case to draw adverse inference against the prosecution for failing without sufficient cause to call the bus conductor who could have clarified doubts in the prosecution case. The prosecution case is also supported by the testimony of Salimu Yusufu Mshana, its fourth witness. The second prosecution witness refers to this fourth witness as an independent witness. The fourth prosecution witness testified that: ..On 22/11/2022 at 9:00 AM I was at Minjingu Police Station for my personal problem. The Police told me to be a witness of search in the bag taken out from Ngassero High Class bus. An independent witness is not simply a different person from the investigators but one: ...who has no partisan attitude. He has no motivated axe to grind. He must act independently and depose in court, without interest for presenting the 10 truth of the occurrence (facts) witnessed literally. Independent, merely means independent of sources which are likely to be tainted.... See Rao, VK, SIR JOHN WOODROFFE & SYED AMIR ALI'S LAW OF EVIDENCE, Vol 1, 18th edn, (New Delhi: Lexis Nexis Butterworths, 2009, at page 593). The fourth witness had a "personal problem" at Minjingu Police Station whose nature was not explained. Was he a complainant, a suspect or a witness? To what extent was he an independent witness? These facts are unknown. Thus, the direct evidence is not free from difficulty and I disagree with Ms Kayumbo, learned State Attorney, that the direct evidence was credible. The learned State Attorney supported the appellant's conviction in connection with the cautioned statement he recorded on 22 November 2022 at Minjingu Police Station. She argued that the cautioned statement was admitted at the trial without objection. At this point, I would like to observe that the cautioned statement along with other three documents were admitted as exhibits during the preliminary hearing. As noted earlier, during the preliminary hearing the appellant objected to the admissibility of the bus ticket. The certificate of seizure, sample receipt of notification, chain of custody and cautioned statement were admitted without objection. 11 At the conclusion of counsel arguments, I posed two questions to them. The first question was: Were the documents properly received during the preliminary hearing? Mr Masanja, learned advocate, argued that these documents were not properly received because section 192 (4) of the Criminal Procedure Act [Cap 20 RE 2022] provides for "listing" and not "tendering" of documents. The public prosecutor was not a custodian of those documents and could not be a competent witness to produce them in court. He added that the documents were not read out contrary to the decision in Robinson Mwanjisi v R [2003] TLR 218. The learned State Attorney, Ms Kayumbo, argued that all the exhibits were properly admitted during the preliminary hearing. Although the documents were not read over and explained to the appellant, she argued that there is no legal requirement that documents admitted during preliminary hearing be read over in court. She pointed out that in Samson Bwire v R (Criminal Appeal No91 of 2018) [2022] TZCA 424 the Court of Appeal overruled the argument when it held that it is not a legal requirement that documents tendered during preliminary hearing be read over. The issue of admission of documents in preliminary hearing has been pronounced upon by the Court of Appeal in numerous decisions especially after 12 the two 1992 leading cases of MT 7479 SGT Benjamin Holela v R [1992] TLR 121 and Bahati s/o Masebu v R, Criminal Appeal 135 of 1991. Material evidence in MT 7479 SGT Benjamin Holela formed part of undisputed facts admitted during the preliminary hearing. As those facts were not read over and explained to the accused person at the preliminary hearing, the Court of Appeal ruled that this violated the provisions of section 192(3) of the Criminal Procedure Act. The Court held that something cannot be "duly proved" under section 192 (4) of the Criminal Procedure Act unless its facts including the contents of documents are read over and explained to the accused person [at page 124]: ... We are settled in our minds that the above emphasized provisions do not apply where ...[there] has been a failure to read and explain the contents of the memorandum to the accused. The necessity to read and explain the memorandum to the accused is highlighted by the provisions of rules 4 and 6 of the Accelerated Trial and Disposal of cases Rules, 1988 made under section 192 (6) and published under Government Notice No. 192 of July 1988. It is apparent that a statement by counsel or advocate for the accused to the effect that the matters raised are admitted is not sufficient under the law. It is the accused himself who must indicate what matters he or she admits. In cases where the matters comprise documents, the contents of the documents must be read and explained to the accused, in the event of a sketch plan or such like documents, the sketch plan must be explained and shown to the accused to ensure that he or she is in a position to give an informed response. At issue in Bahati s/o Masebu was the extra-judicial statement that was admitted without objection during the preliminary hearing and the statement 13 formed part of the memorandum of matters agreed. In dealing with this issue the Court of Appeal adverted to the provisions of Rules 4 and 6 of the Accelerated Trial and Disposal of Cases Rules, GN No 192 of 1988. "4. The person prosecuting shall, in every trial under these Rules, prepare, as clearly as possible, the facts of the case which shall be read to the accused and explained in the language he can understand. 6. When the facts of the case are read and explained to the accused, the Court shall ask him to state which of those facts he admits and the trial magistrate or judge shall read the same." From these Rules, the Court of Appeal deduced the following propositions: We desire to make four brief observations about these Rules. First, there can be hardly any doubt that they are couched in mandatory terms. Secondly, we consider that in that context "the facts of the case" include the materials contained in documents like extra-judicial statement, autopsy reports and sketch plans. Thirdly, it is thus essential that the materials in such documents be read and explained to the accused. And, lastly, it is the accused and not his advocate who should be asked to state the facts which he admits. The Court of Appeal did not stop there. It called upon judicial officers to adhere to this procedure: We are given to understand that there have been many cases in which the procedural requirements laid down in these Rules have not been complied with. We therefore wish to point out to the judges and magistrates below that there may be cases in which such non-compliance may result into quashing of convictions on appeal. 14 The Court of Appeal upheld the murder conviction on being satisfied that the High Court decision would have been the same in the absence of the extra- judicial statement. The Court of Appeal returned to this subject in the well-known case of Efraim Lutambi v R [2000] TLR 265. During the preliminary hearing the prosecution in this case tendered the post-mortem report, extra-judicial and cautioned statements which were admitted. The record was silent if the memorandum was read over to the accused in terms of section 192 (3). The Court of Appeal restated that when the memorandum of matters in dispute are read over, exhibits should be incorporated as part of the memorandum to be read over to the accused person [at 270]: ...[We] wish to observe that the provisions of section 192 of the Act are useful in the administration of criminal justice. They are intended by the legislature not only to reduce the costs of criminal trials in the country, but also to ensure that those trials are, without prejudice to the parties, there should occur no problems which this Court had to deal with in Holela's case or those we have to deal with in the instant case. Any exhibits, including cautioned and extra-judicial statements, which are not in dispute should have them referred to and given exhibit numbers in the Memorandum of Undisputed Matters. The contents be read over and explained to the accused (in a language he understands), and the fact that has been done should be reflected on the record. At the end the Court quashed the murder conviction and sentence imposed, and ordered retrial. 15 One of the principles emanating from the leading cases is that a document or any other thing "tendered", in contrast to being "listed", at a preliminary hearing is part of memorandum of matters agreed. In order for a document or real evidence to acquire the status of an agreed or uncontested fact and be deemed to be duly proved under section 192 (4), its contents must be read over and explained to the accused person in terms of section 192 (3) of the Criminal Procedure Act. The Court of Appeal has subsequently discounted from prosecution evidence documents "tendered" without objection at preliminary hearing as part of matters agreed once it is clear that their contents were not read over and explained to the accused person. A murder charge in Libert s/o Hubert v R, Criminal Appeal 28 of 1999 proceeded on three uncontested facts arrived at the preliminary hearing: (i) the deceased died a violent death; (ii) death was caused by stab wound on the chest leading to massive haemothorax and cardiac arrest; and (iii) the accused caused the death of the deceased. The post-mortem report was tendered without objection by the defence on the assumption the only issue was whether the accused intended to kill the deceased. Both counsel for the Republic and defence signed the memorandum. The accused signed as well. At the conclusion of the trial, the prosecution having produced two witnesses, the accused was convicted 16 of murder. The accused appealed to the Court of Appeal. He complained that the contents of the memorandum were not read over and explained to him before he signed. It was argued for the Republic that the accused's signature in the memorandum was an indication that he understood its content. The Court of Appeal held that this complaint had merit: There is no gain-saying that the provisions of section 192 (3) of the Criminal Procedure Act, 1985, read together with rules 4 and 6 of the Accelerated Trial and Disposal of Cases Rules, 1988 are mandatory. While it is common knowledge that the object behind these provisions was to expedite criminal proceedings, the rights of the accused at the trial were nonetheless to be safeguarded. We respectfully agree...that because the provisions of this section were not fully complied with, the evidence on post-mortem examination report which was admitted on the basis of the memorandum, cannot be deemed to have been duly proved in terms of sub-section 4 of section 192... As to the accused signature on the memoradum, the Court of Appeal held that it could not override the statutory conditions: Sub-rule [section] 4 provides to the effect that facts agreed in the memorandum shall be deemed to have been duly proved. In this ...[counsel] strenuously submitted that the appellant understood what was contained in the memorandum because he signed it. With respect, we agree that, generally, the signing of a document signifies that one signing it understands the content of the document. However, the issue in this case is the requirement of the law not being complied with. As it is not shown on record that the contents of the memorandum were read over and explained to the appellant, it may well be that it was not done. To resolve the doubt, we 17 discount the evidence pertaining to the post-mortem examination report (EXh .Pl) and the sketch plan (Exh. P3). This principle was applied in Athumani Ndagala alias Mikingamo v R (Criminal Appeal 63 of 2007) [2009] TZCA 30 where the prosecution tendered at the preliminary hearing a post-mortem examination report and sketch plan after the defence counsel stated she had no objection. Both documents formed part of the memorandum of undisputed matters although their contents were not read over and explained to the accused person. It was held that both documents were improperly admitted. Having disregard these documents, the Court considered the remaining evidence, quashed the murder conviction and substituted it for manslaughter. In Issa Bakari and Four Others v R, Criminal Appeal 121 of 2008, the Court of Appeal disregarded report of post-mortem examination and ballistic report admitted at a preliminary hearing partly because their contents were not read over and explained to the accused person. The importance of this procedural requirement is to promote fair trial, being one of the purposes of preliminary hearings : We are aware of the provisions of section 192 (1) of the Act. It is lucidly provided therein that, where an accused person pleads not guilty, the court shall hold a preliminary hearing "to consider such matters as are not in dispute between the parties and which will promote a fair and expeditious trial." It is clear, therefore, that a preliminary hearing was never meant to 18 extinguish an accused person's right to a fair and/or full hearing. It was meant to preserve it and promote it. This is the rationale behind the reasoning of this Court in MT 7479 SGT B. HOLELA (supra) earlier quoted. [Emphasis original] A corollary of the principle of agreed facts at preliminary hearing as embodying contents of documentary and real evidence read over and explained to the accused person is that disputed facts including contents of documentary and real evidence are irrelevant at preliminary hearings. This principle was alluded to in Jackson Daudi v R, Criminal Appeal 111 of 2002 when the Court of Appeal dismissed the complaint that the trial court erred in admitting at the trial a confession statement that was not listed as one of the pieces of evidence to be relied on by the prosecution: In the case under appeal the extra-judicial statement which contained the confession that was made before the justice of the peace could have been produced and listed as an exhibit at the preliminary hearing but since the appellant did not accept the confession as true, it was obvious the truth of the confession was a matter which the prosecution was to prove at the trial. It was legitimate, therefore, for the prosecution to produce Exhibit ’B1 during the trial and no prejudice to the appellant resulted from that procedure. Referring to the principle of uncontested facts in documentary evidence affirmed in Bahati s/o Masebu, the Court said: We observe that neither section 192 of the Criminal Procedure Act, 198... [5] nor Rules 4 and 6of G.N. No. 192 of 1988 or the observations of this Court in the case of Bahati Masebu supra require that documents containing evidence which is disputed by an accused person during a preliminary hearing 19 has to be produced and listed as an exhibit to be tendered at the trial. What this Court said Bahati Masebu was that "materials contained in documents (our underscoring), not necessarily the documents themselves, are also to be "explained" to the accused (our underscoring again). It is the non-compliance with such requirements that this Court said "may result into quashing of convictions or appeals." It suffices to say that the principle of uncontested facts in documentary evidence and real evidence confined to cases where their contents have been read over and explained to the accused person is well-established. Many more cases could be cited in its support: for instance, Emmanuel Stephano v R (Criminal Appeal 413 of 2018) [2021] TZCA 101; R v Francis Lijenga (Criminal Revision 3 of 2019) [2019] TZCA 296; R v Abdallah Salum alias Haji (Criminal Revision 4 of 2019) [2019] TZCA 297; Mwita Kigumbe Mwita and Another v R (Criminal Appeal No 63 of 2015) [2016] TZCA 276; Mussa Hassan Barie and Another v R (Criminal Appeal 292 of 2011) [2012] TZCA 230; Said Ally Majeje and Three Others v R, Criminal Appeal 342 of 2008; Gallus Faustine Stanslaus Wasiwasi and another v R, Criminal Appeal 231 of 2007; Mathew Stephen alias Lawrence v R (Criminal Appeal 19 of 2007) [2007] TZCA 11; Mnyameza Franswa v R, Criminal Appeal 56 of 2006; John Kasanza and Another v R, Criminal Appeal 22 of 2001. Whenever the contents of a document admitted during the preliminary hearing were not read over and explained to the accused person, the document cannot be accorded the status of an agreed or uncontested matter. Facts 20 contained in that document must be proved in the trial unless they remain undisputed in the course of trial: see Ghati Mwita v Republic (Criminal Appeal 240 of 2011) [2013] TZCA 170 or are not prejudicial to the accused person: see Dotto Ngassav R, Criminal Appeal No 6 of 2002. It is clear that in Samson Bwire v R, the Court of Appeal dismissed the complaint that the post-mortem examination report which was admitted without objection from defence counsel at the preliminary hearing should be disregarded because it was not read over to the accused person. The case is distinguishable from the present case because it was not disputed in that case that the deceased died of unnatural death. In the instant appeal there is dispute about the appellant's possession of the bag containing Mirungi. It would be prejudicial to the appellant to consider his unread cautioned statement at the preliminary hearing given that the appellant's bus seat and the appellant's possession of the bag were contested matters during the trial. In Ally Chande alias Ally and Another v R, Criminal Appeal 16 of 2006, at a preliminary hearing two accused persons charged of murder admitted only their names but stated that they had no objection to the admissibility of the post-mortem examination report. On appeal to the Court of Appeal it was held that a no- objection answer to the admission of a post­ mortem examination report whose contents have not been read over and 21 explained to the accused persons in the language they understood in terms of section 192 (3) has no evidential value under section 192 (4) unless the post­ mortem examination report is formally tendered at the trial. In the instant case neither the memorandum of undisputed matters nor contents of documents admitted was read over and explained to the appellant. It is unclear how the trial court concluded that the appellant admitted two set of facts, namely, his personal particulars and his arrest by police officers while the facts were read over and explained to him. In any case,the appellant never admitted making a cautioned statement because itscontents were not read over and explained to him. The accused person was not asked whether he admitted its contents. For these reasons, the cautioned statement admitted at the preliminary heairing is of no evidential value. The cautioned statement should have been formally proved. After discarding the cautioned statement there is no evidence to support the charge of trafficking in Mirungi. As the above analysis sufficiently disposes of the instant appeal, it is unnecessary to consider the remaing grounds of appeal. Nor is it necessary to address the second question I posed to the parties on the legality of the sentence imposed by the trial court. In the final analysis, the decision of Babati District Court cannot be allowed to stand. Accordingly, this appeal is allowed. The conviction is quashed and the sentence of twenty years imprisonment imposed on the appellant is hereby set 22 aside. It is ordered that the appelllant, Shabani Halili, be released from prison forthwith unless he is otherwise lawfully withheld. DATED at BABATI this 26th day of July, 2024 COURT: Judgment delivered in chambers this 1st day of August, 2024, in the presence of the appellant in person, his counsel, Mr Joseph Masanja and in the presence of Mr Johnson Ndibalema, State Attorney for the respondent. William Makori (RMA) present. Right of appeal explained. F.M. MIRINDO JUDGE 23