Appeal Court acquits 2 convicted ‘robbers’

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THE Court of Appeal has acquitted two Dar es Salaam residents, Omary Ally and Said Ismail, who were jailed for 18 years for impersonating as employees of the Tanzania Electric Supply Company (Tanesco) and robbing from a customer 700,000/-.

Justices Sauda Mjasiri, Stella Mugasha and Shaban Lila ruled in favour of the two appellants after nullifying the judgments and proceedings of the High Court and trial court, quashing and setting aside their respective sentences imposed against them.

They discovered that the arraignment of the appellants before the trial court was not complete because no pleas were taken from them following amendment of the charge preferred by the prosecution. In the premises, according to the justices, “the appellants were not accorded a fair trial.” The justices observed that the conduct of a criminal trial is regulated by the Criminal Procedure Act (CPA).

After the charge sheet is admitted in the trial court and the accused summoned in order to answer the charge, section 288 (1) of the CPA comes into play. Such provision, they said, imposes mandatory requirement for the plea of the accused to be taken before proceeding with the trial of the case to enable such accused to be aware of the charges he is facing and for the purposes of preparing a defence case.

“Omission to comply with the stated fundamental requirement of the law makes the proceedings illegal and renders the trial a nullity,” the justices said, adding that whenever the charge is amended, in terms of section 234 (a) of the CPA, the trial court is duty bound to take new pleas on the amended charge.

They noted that the first charge was read over to the appellants on November 26, 2002 and pleas of not guilty were taken, but on the next day the charge was substituted after additional of fourth accused. Instead of reading over and explaining to all accused, it was read over to the fourth accused only.

Thereafter, the fourth accused died and the prosecution produced a new charge on January 20, 2003 comprising the three accused persons, including the appellants. The justices said that the record does not show if the respective charge was read over and explained to the appellants.

It was the prosecution’s case that on November 22, 2002 at 12.50 hours, the appellants and one Juma Rajabu impersonated themselves as Tanesco employees, entered into the premises of one Asha Ally and robbed from her one Deck, make Panasonic worth 156,000/- and cash money 700,000/-.

The prosecution had further told the court that immediately before such stealing the appellants threatened the victim with a pistol in order to obtain the said properties. The appellants denied the charge. After the full trial, the appellants were convicted, while Rajabu was convicted in absentia

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