THE Court of Appeal has confirmed both conviction and a 30-year jail term on businessman Maulid Bakari for taking part in robbery of Tanzanite minerals worth 45m/- at Kariakoo area in Dar es Salaam but acquitted Fikiri Pantaleo, allegedly linked in the incidence.
Justices Shaban Lila, Sivangilwa Mwangesi and Barkeh Sahel ruled against Bakari, alias Damu Mbaya, after dismissing the appeal he had lodged against the judgment of the High Court, but allowed the grounds of appeal Pantaleo had presented to fault the findings of the lower courts.
"We have no hesitation to hold that the evidence (by two prosecution witnesses) was strong, credible and reliable. Thus, (Bakari)'s conviction was properly anchored on the identification evidence," they ruled.
The witnesses are Peter William and Barnabas Joseph, who operate a jewellery shop at Kariakoo.
On the same reasoning, the justices found that the complaint that the prosecution side did not prove the case against Bakari beyond reasonable doubt is without basis.
During hearing of the appeal, among the complaints by Bakari was on failure by the witnesses to give his description to the police and different names given by PW1 and PW2 during the trial.
According to the justices, it is trite law that giving description of the assailant eliminates the possibility of a mistaken identity, but this is necessary in situations where the question of identification is in respect of a stranger.
In respect of the contradiction, they observed clearly from the submissions by Bakari that the same was simply related to the name and not on the person seen and identified, but PW1 and PW2 gave evidence on the person they saw and identified.
They pointed out that the issue of the name was not very material for as the evidence goes and the nature of the offence committed, there was no possibility of Bakari giving his real name that would make him easily traceable.
"In that view, the contradiction had no bearing with the very person identified. The discrepancy was, utmost, a slip of the tongue by PW1. The contradiction was, accordingly, minor, and not going to the root of the case," the justices said.
Regarding Pantaleo, they noted that both PW1 and PW2 did not disclose to the police his description after meeting with him on the fateful day for the first time.
The justices pointed out that Pantaleo was a stranger to them, and hence a need to give the description to the police before he was arrested.
"That would have dispelled the possibility of a mistaken identity. Failure to give description raises doubt on the identification evidence by PW1 and PW2. Such doubt is resolved in Pantaleo's favour," they said.
According to them, unlike both courts below, they were satisfied that the identification evidence against Pantaleo was not watertight and, therefore, it was unsafe to act on such evidence to found his conviction.
"For the foregoing reasons, the appeal against (Bakari) is devoid of merit and is hereby dismissed. Further, we find merit in (Panteleo)'s appeal and we allow it, quash the conviction and set aside the sentence meted by the trial court and sustained by the first appellate court," the justices declared.
They went further to order the release of Pantaleo from prison forthwith unless held for another lawful cause. It was alleged that on January 30, 2009 at Kunduchi Mtongani area in Kinondoni District, Bakari and Pantaleo stole tanzanite minerals valued at 45m/-, property of Barnabas Joseph.
Before and immediately after the theft, the duo allegedly used a pistol to threaten Mr Joseph in order to obtain the said property.
The two had pleaded not guilty to the charge. The trial ensued and at the end they were convicted as charged. Their appeal to the High Court was unsuccessful.
On December 3, 2008 while William was in his shop along Living Street at Kariakoo area together with Barnabas and a certain Edward, they were visited by three people, including a businessman in Zanzibar dealing with buying and selling vehicles imported from Dubai.
That man turned out to be Bakari. At his departure he promised to look for a lucrative market for tanzanite in Dubai and would press for a big order.
Sometime in mid-January, that man called and informed William that he had secured a big market and asked for preparation of 200 carats.
In return, on January 20, 2009 William made a call back to one Othman Edward, who had come with Bakari, informing him the order was ready for collection and the latter promised to visit the shop on January 27, 2009. He however turned up on January 28, 2009.
William showed Edward 173 tanzanite carats and agreed the price to be 45m/-. All the same, Othman Edward left promising to go back on January 30, 009 for payment. As promised, Bakari appeared and asked the minerals be verified at Summik Kunduchi area so that he can be issued with a certificate.
He welcomed the idea and, together with Barnabas, they left with the minerals to Summik aboard a Nissan saloon car being driven by Pantaleo.
However, after the verification exercise and while on the way coming back to the shop, the deal turned sour as minerals turned out to be victims of a robbery.