In her submission, Miss C. Maganga, learned State Attorney, did not support the conviction
against the appellants. First, she said the identification of the appellants was crucial for the determination of the case, all the
more so as the incident took place at night. From the evidence, the State Attorney further submitted that PW1 and PW5 said they identified
the appellants by aid of light. However, as the type of light was not indicated, it was unsafe to uphold the conviction against the
appellants. Second, because PW1 and PW5 had not known the appellants before the incident, it was doubtful that their evidence on
the identification of the appellants at the time of incident was reliable. The evidence was such that the possibility of mistaken
identity could not be ruled out, the State Attorney urged. The Court was referred to its decision in Musa Omari v. The Republic, Criminal Appeal No. 83 of 2000. As said before, she urged the Court to allow the appeal.
The robbery incident having taken place at night, at about 2.00 a.m. we agree with
Miss Maganga, learned State Attorney, that it was absolutely necessary for the trial court to satisfy itself that the evidence on
identification was watertight. First, in order to establish the identification of the appellants, it is imperative to show the source
of light which enabled the witnesses to see and identify the appellants. On this, the evidence of Ruth Mwagamba (PW1) and Ruth Mapinga
(PW4) is relevant. While PW1 states that she identified the appellants, she does not however show what type of light it was that
enabled her to identify the appellants. In her own words she said:
I identified them after the leader put on the lights.
Similarly, PW4 when cross examined also said:
When a group of people came, there were some light so I saw you c..
When cross examined, PW5 said the light was on.
From this extract, it is clear that these witnesses do not show what type of light
it was that enabled them to identify the appellant at that time of the night. Without establishing the type and source of the light,
it is difficult to assess the intensity of the light in order for the court to satisfy itself whether the appellants could, in the
circumstances, be identified satisfactorily.
Where the incident takes place at night and the witnesses do not specify the type
of light which enables them to identify the bandits, this Court had the occasion to observe that it is not enough for the witnesses
to say there was light. The description of the light is material in order to determine whether or not the conditions for proper identification
were favourable. The Court held this view in the case of Musa Omari v. Republic, (supra).
In Waziri Amani v. Republic, (1980) TLR 250, the Court also underscored the need for the trial court to satisfy itself first that the evidence on the identification
of the accused is watertight. The Court inter alia held:
------ evidence of visual identification is of the weakest kind and most unreliable; no court should act on evidence of visual identification
unless all possibilities of mistaken identity are eliminated and the court is satisfied that the evidence is absolutely watertight.
In the instant case, where the light was not specified, it is, doubtful that the
evidence on the identification of the appellant can be said to be watertight. In our view, the circumstances were such that it can
hardly be said that all possibilities of mistaken identity of the appellants were eliminated. So, the submission by the learned State
Attorney that the case against the appellants had not been proved beyond reasonable doubt was well founded.
There is yet another disquieting feature in this case. Dealing with the appeal, the
Principal Resident Magistrate (Ext. Jurisdiction) allowed the appeal in respect of the 7th appellant on first appeal because in his view PW4 and PW5 contradicted each other in their evidence regarding the light. It is curious
that the magistrate used the contradiction in the evidence of PW4 and PW5 to allow the appeal and quash the conviction against the
7th appellant on first appeal but used the same evidence to uphold the conviction against the appellants. This, to say the least, amounts
to double standard. If indeed there was contradiction in the evidence of PW4 and PW5 regarding the light which was the basis for
the identification of the appellants, the same standard should have applied to all the accused persons including the appellants.
As happened in this case, it raises doubt on the reliability of such evidence. Such doubt, in criminal matters should have been resolved
in favour of the appellants as well.
Finally, we wish to observe on one aspect which in our view, is a misdirection on
the part of the Principal Resident Magistrate (Ext. Jurisdiction) regarding trial within a trial. From the record, it is apparent
that the first appellant in the first appeal whose appeal was allowed and is not subject of this appeal, raised the issue that he
was tortured by the police. Addressing this matter, the Principal Resident Magistrate among other things, observed:
The trial magistrate was supposed to conduct a trial within a trial the moment the accused before her had made the claims (sic) of
being beaten up by the police -----
There can be no doubt that this was a misdirection on the part of the magistrate
regarding the applicable procedure in holding a trial within a trial. It is common knowledge that trial within a trial is conducted
in trials before the High Court and not in the District Court.
For the foregoing reasons, we are in agreement with Miss Maganga, learned State Attorney,
that the conviction against the appellants could not be sustained on the evidence.
Accordingly, we allow the appeal, quash conviction and set aside the sentence. The
appellants are to be set free forthwith unless otherwise lawfully held.
DATED at DAR ES SALAAM this 1st day of March, 2005.
