POOR draft of charges and identification of culprits has saved four suspected robbers from remaining behind bars for 30 years for invading a bar in Morogoro Region and robbing several items at gun point, including mobile phones from customers.
This follows the decision by the Court of Appeal to allow the appeal lodged by four appellants, David Kitanita, Said Kimwamu, Masanda Senso and Julius Matama, alias Mzee Mzima, to fault findings of both trial court and the High Court regarding the robbery incidence. Justices Mbarouk Mbarouk, Rehema Mkuye and Jacobs Mwambegele allowed one ground of appeal advanced by the appellants to the effect that the High Court judge erred to sustain conviction of the appellant and sentence imposed on them out of defective charge.
They observed from the particulars of the offence in two counts against the appellant that they do not show or disclose the person against whom the firearm shooting was directed in order to facilitate possession and retention of the stolen property. "This obviously contravened the provisions of section 132 of the CPA (Criminal Procedure Act) which require the charge or information to contain among other things, particulars which are necessary to give the accused reasonable information regarding the nature of the offence," the justices said.
They noted that the evidence shows that it was fired in the air but there is no doubt that the firing was aimed at threatening someone in order to obtain and retain the property to be stolen. Failure to mention the names of those threatened was against the law, rendering the proceedings to be defective.
The justices pointed out that ordinarily, where the court finds the proceedings to be defective would order a retrial, However, they said, in the case in hand, there was no proper identification of the robbers by the witnesses, given the fact that the robbery incidence occurred at night. They agreed with the submissions by the appellants and that of the prosecution, who had supported the appeal, that the evidence of identification was not water tight.
The owner of the bar where the robbery took place, the justices said, could not explain the conditions which would facilitate clear identification. "Given all the circumstances, we allow the appeal; quash all the proceedings of the trial court and the High Court. We also quash the conviction and set aside the sentence. We then order that the appellants be released from prison immediately unless held for some other lawful reasons," they declared.
The appellants were charged with two counts. In the first count, it was alleged that on August 23, 2007 at about 20.30 hours at Nanenane area within the municipality, district and region of Morogoro they stole one golden ring and cash 500,000/- all valued at 650,000/-, property of Robbery John.
Immediately before the theft, the prosecution had alleged, the bandits threatened by using a firearm in order to obtain and retain the said properties. In the second count, the appellants allegedly stole cash 400,000/- Kwacha 500,000 Zambian currency and two mobile phones, property of Mohamed Ally