AT DAR ES SALAAM

CRIMINAL APPEAL NO. 33 OF 2008(Originating from Criminal Case No. 1of 2007 in the Resident Magistrate Court

of Dar es Salaam at Kisutu before Hon. S.D. Msuya, RM)

1. MOHAMED MFAUME2. PATRICK FRANCIS3. RAJABU MOHAMED

Date of last order - 26/11/2008Date of Judgment - 29/12/2008

JUDGMENT

Shangwa, J.

The Appellants Mohamed Mfaume, Patrick Francis and

Rajabu Mohamed hereinafter to be referred to as 1st, 2nd and

3rd Appellants respectively were jointly charged in the Court

of the Resident Magistrate at Kisutu as 2nd ,6th and 1st

accused persons respectively.

2

The offences with which they were charged are as

follows:-

On the first count, they were charged with conspiracy

to commit an offence cis 384 of the Penal Code.

On the second count, they were charged with store

breaking and stealing clss 296 and 265 of the Penal code.

The particulars of the offences with which they were

charged on the two counts are as follows:-

That on 28th day of December, 2006 at about 2.43

hours at Narung'ombe Street Iiaia District, they did conspire

to commit an offence namely theft, and that on the same

date at about 2.45 hours at the same place, they did break

and enter into a store of Moshi Salum and stole from therein

700 dozens of underwear's valued at shs.21,000,000/= the

property of the said Moshi Salum.

3

Before the trial court, the Appellants were on both

counts jointly and together charged with four other persons.

These are Selemani Seif Zuberi; (3rd accused), Rajabu

Abdallah (4th accused), Abdallah Hamisi (5th accused) and

Fabian Mchome (7th accused) The 3rd accused was

convicted and sentenced but he has not appealed. The 4th,

5th and 7th accused were acquitted.

Having been dissatisfied with both conviction and

sentence on both counts, the Appellants decided to appeal

to this court. Their appeal is based on five grounds. The

1st, 2nd and 3rd grounds of appeal can be reduced to one

ground only which may read as follows: That the trial

Resident Magistrate erred in law and fact for convicting them

without evidence to prove the offences charged against

them beyond reasonable doubt. The 4th and 5th grounds of

appeal can as well be reduced to one ground only which

may read as follows: That the trial Resident Magistrate

4

erred in law and fact for convicting them on poor

identification parade evidence.

Before this court, the Appellants submitted that they

never committed the offences charged against them.

Replying to their submission, the learned State Attorney Miss

Mlaki submitted that as a whole, the Appellants were

convicted on insufficient evidence. She said that the 3rd

Appellant was wrongly convicted on the evidence of P.W.S a

police officer who never saw any of the Appellants at the

time of committing the alleged offences. In fact, she did not

support conviction which was imposed by the trial court on

the Appellants.

The main issue in this appeal is whether or not there

was sufficient evidence on record to prove the offences

charged against the Appellants beyond reasonable doubt.

The learned trial Resident Magistrate Mr. S.D. Msuya

was of the view that the prosecution did prove its case

5

against the Appellants beyond reasonable doubt. His view is

expressed at page 5 paragraph 2 of his typed judgment

where he made the following observation and I quote:-

nCourt: I have gone through the

evidence adduced by both parties, and

the court is in the view that the

prosecution has proved the case beyond

reasonable doubt, to the 1st accused, ;!7d

accused, .Jd accused and (/h accused

person. The other accused are hereby

acquitted forthwith."

The above quoted observation was made by the

learned trial Resident Magistrate immediately after recording

the summary of the testimonies made by P.W.l, P.W.2,

P.W.3, P.W.4, P.W.5, D.W.l, D.W.2, D.W.3, D.W.4 and

D.W.5. The record shows that after making the above

quoted observation, there was no finding of gUilty and no

6

conviction was entered or recorded. Thereafter, the Public

Prosecutor is recorded to have informed the trial court that

the Appellants had no previous record of conviction and

prayed for "strong punishment'~ The Appellants then

prayed for leniency and the learned trial Resident Magistrate

ordered for their prison sentence of 4 years each on each

count. I wish to comment here that in this case the trial

Resident Magistrate erred in law for not recording his finding

of guilty and entering a conviction on record.

Apart from the fact that the learned trial Resident

Magistrate erred in law for not making a finding of guilty and

entering a conviction against the Appellants on both counts

before he sentenced them, there is another glaring error of

law which is apparent on the face of his judgment and which

goes to the root of the record. This error is that he did not

at all evaluate the evidence on record. He simply made a

sweeping statement that lithe prosecution has proved the

7

case beyond reasonable doubt" Had he evaluated the

evidence on record, he would have found that the

prosecution did not prove the case beyond reasonable

doubt.

Let me now analyse the testimonies of the five

prosecution witnesses in order to resolve the main issue as

to whether or not there was evidence on record to prove the

case against the accused persons beyond reasonable doubt.

I will analyse the evidence given by the five prosecution

witnesses and where necessary, I will interlink it in the

course of my analysis.

The evidence given by P.W.1 F.600 D/Sgt Jacob of Iiaia

Police Post is to the effect that on 28/12/2006 during the

night, he was at Msimabazi Police Station together with his

fellow policemen. He said, they got information that some

people at Narung'ombe Street, Kariakoo were in the process

of breaking a shop/store and that after getting the said

8

information, they rushed to the scene of crime and saw the

store which had been broken and arrested the 1st accused

(3rd appellant) who is said to have been found hiding under

the car with 160 dozens of underwears (exhibit P1) which

they seized.

On examining the testimony of P.W.1, it will be seen

that this witness did not tell the court the person who gave

them the information about the alleged incident and the part

of the store which is alleged to have been broken. He did

not even mention the type of a car under which the 3rd

Appellant was found hiding.

The testimony which was given by P.W.2 Moshi Salum

is to the effect that he owns the store at Mhonda Street

Kariakoo and that on 28/12/2006, he received a telephone

call from his brother who told him that he had been

informed by the police that his store has been broken and

that after getting that information, he went to report the

9

matter to the police station at Msimbazi and that when he

reached there, he was asked as to whether he was the

owner of the store which had been broken, and that he was

shown the underwears which he identified to be his

property, and that thereafter, he went with the police at his

store which he found damaged.

As it can be seen, the testimony of P.W.! and P.W.2

differs. Whereas P.W.! stated that the store which had

been broken is at Narung'ombe street, Kariakoo; P.W.2

stated that his store which was broken is at Mhonda Street.

He did not give details to show which part of the store was

broken. Also, he did not explain as to how he identified the

underwears which he was shown by the police at Msimbazi

police station to be his property.

The testimony of P.W.3 Deogratius Chua is to the effect

that he knows the 3rd Appellant, 2nd Appellant, 3rd accused

Seleman Seif Zuberi and 7th accused Fabian Mchome and

10

that on 28/12/2006 during the night while he was sleeping

his neighbour told him that there were some people whom

he suspected to be thieves taking underwears from the store

and that when he went there he saw the 1st accused (3rd

Appellant), 2nd accused (1st Appellant), 6th accused (2nd

Appellant) and 7th accused taking the underwears from the

store to another room and that he went to report the matter

to Msimbazi police station from where the police drove the

patrol car to the scene of crime and arrested the 3rd

Appellant who was hiding under the car and that the rest of

the suspects run away, and that, later when the

identification parade was conducted he managed to identify

the 3rd Appellant to be one of the thieves,

As it can also be seen from the testimony of P.W.3,

there is no where he mentions to have seen any broken part

of the store from where the underwears in issue are alleged

to have been stolen. Unlike P.W.1 & P.W.2, he did not even

11

mention that the store itself was broken. Also, he did not

mention the name of the neighbour who woke him up and

told him of the crime alleged on the 2nd count. In addition

to that, he did not mention how he was able to identify the

3rd Appellant, 1st Appellant and 2nd Appellant. The question

of how he was able to identify them is pertinent here

becausethe alleged incident took place during the night.

P.W.4 E. 4312 DC Steven testified that on 28/12/2006

at midnight while he was at Msimbazi Police Station, he got

information that a certain store was being broken into and

that after getting the said information, he left the police

station in a police car together with P.W.1 and went to the

scene of crime from where they arrested the 3rd Appellant

who was hiding under a parking car and the 2nd Appellant

who was guarding the stolen properties i.e. 160 dozens of

underwears and that their informer told them that the 2nd

12Appellant was given money in order to allow the thieves to

steal from the store he was employed to guard.

As it appears, P.W.4 does not mention that when he

went to the scene of crime together with his fellow

policeman, he saw any part of the store which was broken.

The last prosecution witness namely P.W.S Insp. Edhi

Martine Kyanga said in her testimony that she was

instructed by her boss to witness the identification parade

and that the 3rd Appellant and 1st Appellant were identified

to have participated in the commission of the offences

charged.

Again as it can be seen, P.W.S does not show how the

3rd and 1st Appellants were identified and who identified

them.

Upon analysis of the entire evidence on record, I find

that there is no scintilla of evidence to prove that the

Appellants did conspire to commit the offence of store

breaking as charged on the first count. I also find that there

Appellants did break the store belonging to P.W.2 Moshi

Salum which he said is at Mhonda Street, Kariakoo.

In the final analysis, I allow this appeal and order that

the Appellants together with their co-accused one Selemani

Seif Zuberi who was imprisoned but has not appealed should

be released from prison henceforth unless otherwise are

lawfully detained therein .•. '/1 R T ."",<'

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JUDGE29/12/2008

1)-

Delivered in open court this 29th day of December, 2008 in

the presence of the Appellants and Mr. Kabunga, State

Attorney for the Respondent.

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A. Shangwa

JUDGE29/12/2008