(CORAM:
MROSO, J.A., NSEKELA, J.A., And MSOFFE, J.A.)
CRIMINAL APPEAL NO. 1
84 OF 2005THE DIRECTOR OF PUBLIC PROSECUTIONS…………. APPELLANT
(Appeal from the Judgment of the High Court
of Tanzania at Vuga)
(
Mbarouk, J.) dated the 12th day of May, 2005in
Criminal Appeal No. 19 of 2004 ------------- JUDGMENT OF THE COURT13 & 17 November 2006 NSEKELA, J.A.:
In the Court of the Regional Magistrate at Vuga, Zanzibar, the respondent Shiraz Mohamed Sharif @ Jamal Masoud Ali, was charged with the offence of possession of dangerous drugs contrary to sections 25 and 32 (1) of the Dangerous Drugs Act 1986, Act No. 6 of 1986 as amended by Act No. 6 of 1991. He was convicted and sentenced to twenty (20) years imprisonment. He successfully appealed to the High Court, Zanzibar (Mbarouk, J.) on the ground that the prosecution had not proved its case beyond all reasonable doubt. The appellant, the Director of Public Prosecutions, was aggrieved by this decision, hence this appeal to the Court.
At the hearing of the appeal, the appellant was represented by Mr. Shaaban Ramadhani Abdallah assisted by Miss Raya Mselem, learned State Attorneys. The respondent was absent but the hearing of the appeal proceeded in terms of Rule 73 (6) of the Court of Appeal Rules, 1979, since the respondent was served with notice of the hearing date by substituted service by publication in Nipashe Newspaper as ordered by the Court on the 2.12.2002. The appellant Director of Public Prosecutions preferred four grounds of appeal
That the Hon. Judge erred in law on acquitting the appellant (sic) and disregarding the evidence of the eye witnesses;
That the Hon. Judge erred in law on acquitting the appellant (sic) basing his decision on the number of witnesses instead of the strength of their evidence and their credibility;
That the Hon. Judge erred in law on acquitting the appellant (sic) without giving any consideration to the voluntary statement of the accused (sic);
That the Hon. Judge erred by deciding that the prosecution failed to prove the case against the accused (sic) beyond any reasonable doubt and so acquitting the respondent.”
Mr. Shaaban Ramadhani Abdallah argued the first two grounds of appeal together while the third and fourth grounds were each argued separately.
In the first two grounds of appeal, the appellant’s complaint mainly revolved around the testimony of PW4 Z. 1842 D/Sgt. Mbarouk; PW5 C. 8573 Cpl. Khamis and PW6 D. 300 Cpl. Hamza Haji. The complaint by the learned
We propose to start with the first, second and fourth grounds of appeal. Essentially, they cover the same ground of complaint. The learned State Attorney had challenged the learned judge’s evaluation of the evidence that led to casting doubts on the cogency of the prosecution evidence. The learned judge lamented the absence of independent witnesses, and in particular one
The sequence of events from the time the respondent was in the hands of PW4; PW5 and PW6 to the time PW7 was given a packet containing the tablets/capsules of allegedly dangerous drugs needs close scrutiny. PW4 testified that he witnessed the respondent at various times during the night of 7.5.2002 excrete thirty (30) tablets/capsules. On the morning of 8.5.2002, he handed over the respondent
How did the trial magistrate deal with this issue. With respect, we can do no better than quote part of his judgment. He stated as follows –
It would appear that the learned trial magistrate was looking for what he called “clear evidence” of tampering with the tablets/capsules. The trial magistrate on the evidence as he saw it, entertained doubts that there was a possibility of tampering with the tablets/capsules. There was no evidence that police procedures in their internal regulations were followed. This is a serious matter. The trial magistrate did not discuss the fact that these same witnesses did not account for the whereabouts of the tablets/capsules from the 8.5.2002 to the 13.5.2002 when they were handed over to PW7. These are not by any stretch of imagination “minor irregularities”. Compliance with internal police procedures was essential to ensure that the movement of the tablets was monitored to exclude the possibility of tampering of the evidence to the detriment of the respondent. We would like to stress the fact that we do not question the credibility of the witnesses up to the time they witnessed the respondent excreting the tablets/capsules from his bowels. What we are saying is that the whereabouts of the tablets/capsules was not accounted for for about five days and no explanation has been forthcoming from the prosecution witnesses. This is certainly not a minor irregularity as the learned trial magistrate would make us believe. With respect, like the learned judge on first appeal, for the reasons explained above, we entertain doubts that the prosecution proved its case to the required standard in criminal cases. The benefit of doubt must go to the respondent.
In the result and for the above reasons, we dismiss the appeal in its entirety. It is accordingly ordered.
DATED at ZANZIBAR this 17
I certify that this is a true copy of the original.
THE DIRECTOR OF PUBLIC PROSECUTIONS……………….. APPELLANT
SHIRAZI MOHAMED SHARIF…………………………………. RESPONDENT
of Tanzania at Vuga)
(Mbarouk, J.) dated the 12th day of May, 2005in
Criminal Appeal No. 19 of 2004The Director of Public Prosecutions ……………………… Prosecutor
Shirazi Mohamed Sharif ………………………………………… Accused
In Court this 17
th day of November, 2006Before: The Honourable Mr. Justice J.A. Mroso, Justice of Appeal
The Honourable Mr. Justice H.R. Nsekela, Justice of Appeal
And The Honourable Mr. Justice J.H. Msoffe, Justice of Appeal
THIS APPEAL coming for hearing on 13th November, 2006 in the presence of the appellant AND UPON HEARING Mr. Shaaban Ramadhani Abdallah assisted by Miss Raya Mselem, State Attorney for the Appellant the Director of Public Prosecutions and in the absence of the Respondent Shirazi Mohamed Sharif, when it was ordered that the appeal do stand for judgment;
AND UPON the same coming for judgment this day:-
IT IS ORDERED that the appeal be and is hereby dismissed in its entirety.
GIVEN under my hand and the Seal of the Court this 17th day of November, 2006.
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