IN THE HIGH COURT OF TANZANIA 
AT DAR ES SALAAM 
(DISTRICT REGISTRY) 
CRIMINAL APPEAL NO. 120 OF 2004 
(From Criminal Case No. 82 of 2004, RM'S Court of Kibaha)
P.W. Bampikya, RM
YAHAYA ABDALLAH @ DUNDA 	APPELLANT
VERSUS

REPUBLIC	 RESPONDENT

JUDGMENT

SHANGWA, J.

From the above mentioned facts, it can clearly be seen that the Appellant was arrested and charged with both offences on suspicion that he is a robber. There is no evidence on the trial court's record to show that before his arrest he had been involved in any robbery incident. In fact, there is no evidence to prove that the Pistol which was picked by P.W.2 from the car he was driving was his. Due to the fact that he had three passengers who had hired his car and who run away from his car when P.W.2 blew a whistle, no one can say for sure that the said Pistol - exhibit P.l belonged to him and not to his passengers. Unfortunately, the said passengers died in Police Custody due to severe beatings which they received from the mob at the time of their arrest.

There is no evidence as well on the trial court's record to prove that the Appellant did conspire with anybody to commit the offence of armed robbery. Shaban Hamisi @ White with whom he was particularly charged to have committed this offence was acquitted on grounds of no case to answer. In fact, none of the three prosecution witnesses namely P.W.I D. 2411 DC. John, P.W.2 C.7108 Sgt. Issa and P.W.3 Nassoro Abdalla gave any clear and direct evidence to prove that the Appellant did conspire with Shaban Hamisi @ White or any other person to commit the offence of armed robbery. I hold that the testimony of No. E.8954 Detective Sergeant Revocatus who was called by the trial Magistrate as a court witness was wrongly relied upon in convicting him of that offence.

In his typed judgment at page 3 below, the trial Magistrate observed as follows and I quote:

In Criminal matters, this maxim cannot be applied to assist the prosecution to discharge its burden of proving the charge beyond reasonable doubt where the facts are such that had the accused not admitted the charge he could not have criminally been found responsible.

In general, it appears to me that the Appellant was wrongly convicted on both counts due to the trial Magistrate's failure to evaluate the evidence on record which is totally insufficient to base a conviction. For this reason, I hereby reverse his decision and quash the Appellant's conviction on both counts and set aside the sentence which
was imposed on him on each count and order that he should immediately be released from prison unless otherwise he is lawfully held on any other charge.

		A. Shangwa
		JUDGE 
		16.9.2005

			A. Shangwa

			JUDGE

16.9.2005.