In this appeal, the main issue is whether the conditions were favourable for a proper
identification of the appellants. Mrs. Mutaki, learned State Attorney for the respondent Republic, took the view that at the time
of the incident, the conditions were not favourable. For this reason, she did not support the conviction. First, she said as the
incident took place at night when it was dark, it was important to establish that the conditions were such that there was no possibility
of mistaken identity. n this case, the State Attorney went on in her submission, the evidence of PW1, PW2 and PW3 does not show how
these witnesses were able to identify the appellants. For instance, Mrs. Mutaki said, the intensity and illumination of the light
was not indicated and secondly, if, according to the evidence of some of these witnesses, the electric bulb was broken when the thieves
invaded the house of PW1, the scene of crime, it is not clear how the appellants were identified. That is, if the electric bulb,
the source of light was broken upon the entry of the thieves into the house, then the incident took place in darkness, the State
Attorney submitted. In that situation, she maintained that the possibility of mistaken identity of the appellants could not be ruled
out. As the evidence of visual identification was not watertight, it was unsafe to sustain the conviction, Mrs. Mutaki urged.
It is common ground that the identification of the appellants at the time of the
incident was primarily based on the visual identification of PW1, PW2 and PW3. These were the only witnesses who saw and identified
the appellants at the scene of crime. It is trite principle of law that evidence of visual identification is of the weakest kind
and most unreliable which should only be acted upon cautiously when the court is satisfied that the evidence is watertight and that
all possibilities of mistaken identity are eliminated. This principle was enunciated by this Court in Amani Waziri v R (1980) TLR 250.
In this case, it is undisputed that the house of Mpalange Shaibu (PW1) was invaded
by a gang of thieves at night time at about 2 a.m. when PW1, PW2 and PW3 were awoken from sleep. In such circumstances, as correctly
submitted by Mrs. Mutaki, learned State Attorney, the evidence of PW1, PW2 and PW3 has to be treated with great caution in order
to ensure that such evidence is watertight. From the evidence of PW1, it is apparent that soon after the thieves had invaded his
house, he managed to get out of the house. So, for sometime, the thieves were inside the house when PW1 was outside. In that situation,
it is not clear how he was able to identify the appellant from among the group of thieves. Furthermore, PW1 does not show the intensity
of the light from the electric light which enabled him (PW1) to identify the appellants. Likewise, in the case of PW2, the position
is not clear either. If, according to PW2, the electric bulb, the source of the light, was broken when the thieves forced their way
into the house, it would mean that the incident took place in darkness. In that light, it is doubtful that PW2 was in a position
to identify the appellants properly. Zuhura Mpalange (PW3), the daughter of PW1, also testified. She said that she knew the appellants
who lived in the same area at Vingunguti. On the day of incident at about 2.00 a.m. she was awoken from sleep in a room within the
house of PW1. Although she stated that she identified the appellants from what is described as security light, there is no clarification
on what kind of light it was that enabled her (PW3) to identify the appellants.
On such evidence, the incident having taken place at night, we are in agreement with
Mrs. Mutaki, learned State Attorney, that the evidence of visual identification of the appellants was not watertight. As this Court
observed in Waziri Amani (supra), the incident took place under such circumstances that from the evidence of visual identification it can hardly be said that
all possibilities of mistaken identity were eliminated. With such doubts unresolved, it would be unsafe to sustain the conviction.
In conclusion, we also wish to make brief observation on the following aspect. As
observed earlier, at the trial, in the judgment the trial magistrate made a specific finding that the other co-accused persons not
subject of this appeal together with the 1st Appellant, Hassani Saidi, were identified by the witnesses for the prosecution. However, no such finding was made in respect of the
second appellant, Semeni Ally. In the absence of specific finding by the trial court on the identification of the second appellant
the basis of the conviction against the second appellant (2nd accused at the trial) is questionable as well. Having taken the view of the matter along the line indicated above, we need not pursue
this aspect any further.
For the foregoing reasons, we allow the appeal, quash conviction and set aside the
sentence. The appellants are to be released forthwith unless otherwise lawfully held.
DATED at DAR ES SALAAM this 29th day of June, 2006.
