IN THE COURT OF APPEAL OF
AT DAR ES SALAAM
(CORAM: MSOFFE,
J. A., KAJI, J.A., AND RUTAKANGWA, J. A.)
CRIMINAL APPEAL NO. 16 OF 2006
ALLY
CHANDE @ ALLY AND ANOTHER…………….APPELLANTS
VERSUS
THE
REPUBLIC ………………………………………..RESPONDENT
(Appeal
from the conviction of the High
Court
of Tanzania at Mtwara)
(S.
B. Lukelewa, J.)
Dated the 12th day of
December, 2005
in
Criminal
Sessions Case No. 17 of 2004
JUDGMENT OF THE COURT
27th August, 2007 & 14th
September, 2007
In the High Court of Tanzania, at
Mtwara, in Criminal Sessions Case No. 17 of 2004, Ally Chande Ally and
Maximillian Bernard Makapa@Mkapama @ Digodigo, who are the first and second
appellants respectively, were charged with and convicted of the offence of
murder contrary to section 196 of the Penal Code, Cap.16. They were each sentenced
to death.
According to the evidence of PW1 Fatu
Mfaume Kitenge, PW2 Hamisi Ahamadi Mnalale and PW3 Hassani Hamisi Nakolya, it
is apparent that the night of 30/ 6/ 2001 at around 8pm, was not a happy one to
them.
While PW1 was selling some commodities
in the shop of her patrilineal uncle (baba mdogo) she was invaded by a group of
four bandits. They were all strangers. She claimed to have identified two, the
1st appellant and Saidi Bakari Mawazo who was the 4th
accused at the trial but was acquitted. She could not identify the other two
because one of them had hidden himself behind a coconut tree and the other was
perched on a bar of the shop. The 1st appellant was armed with a
firearm. He got hold of her from behind. The 4th accused who was
armed with a panga got hold of her from infront. The 4th accused
snatched 40,000= from a table drawer amidst PW1’s protest. The whole operation
took about 10 minutes. PW1 claimed to have identified the 1st
appellant and the 4th accused through the light from three lantern
lamps. PW3 Hassani Hamisi Nakolya who had gone to that shop at the material
time to buy some cigarettes claimed to have identified also the 1st
appellant and the 4th accused. He said he struggled with the 1st
appellant over the gun and later gave up after realizing that no help was
forthcoming. PW3 claimed further that, when he went to the shop he was
accompanied by the deceased Mohamed Rashid Pamalula who was some 100 meters
behind. Suddenly he heard a gun shot from the 1st appellant’s gun
which hit the deceased who died a few hours later that day. Like PW1, PW3
claimed to have identified them through light from lantern lamps. According to
him the struggle took about a half of an hour.
PW2 Hamisi Ahamadi Mnalale who was
selling some commodities in his shop, just about 100 metres from where PW1 was,
heard the gunshot. This was followed by two bandits who burst into his shop. He
claimed to have identified them to be the 1st and 2nd appellants,
and that he identified them through light from three lantern lamps. He said the
1st appellant was armed with a gun and the 2nd appellant
was holding a panga. The 2nd appellant drew a drawer and took therefrom
40,000=.PW2 heard about the death of the deceased after returning from Lindi
Police Station. He did not witness the shooting nor did he see the body of the
deceased.
The 1st appellant denied any
involvement in the commission of the offence charged, and raised a defence of
alibi that, at the material time, he was at Masasi at Mohamed Bilindo’s home.
At
the time of defence Mohamed Bilindo had died. But his wife DW5 Anna % Kornel
supported the 1st appellant’s alibi.
The 2nd appellant claimed to
have been at his father’s home at Kiwalala
Village
After evaluating the evidence the
learned trial judge, Lukelelwa J, was of the view that the prosecution had
proved the guilt of the appellants beyond all reasonable doubts on the
following grounds:-
First,
that the 1st appellant was properly identified at the scene of crime
by PW1, PW2 and PW3 through light from lantern lamps.
Second,
that the 2nd appellant was identified at the scene by PW2 through
the same source of light.
Third,
that, the 1st appellant was identified by PW1 and PW2 at the
identification parade as well.
Fourth,
that the 2nd appellant was also identified by PW2 at the
identification parade.
Fifth,
that the cautioned statement made by the 1st appellant amounted to
confession and that, in that statement, the 1st appellant had
admitted voluntarily participation in committing the offence charged.
Sixth,
that the defence of alibi raised by the appellant without notice as required by
section 194 (4) of the Criminal Procedure Act, 1985, had no merit in view of
the evidence by PW1, PW2 and PW3 that they were seen at the scene of Crime.
Last
but not least, that the Post Mortem Examination Report showing the cause of
death to be due to acute blood loss- Anemia
(Hemorrhagic
shock) was admitted in the preliminary hearing as an undisputed fact.
Consequently the appellants were convicted as charged and sentenced as stated
above.
The appellants were aggrieved by the
conviction and sentence; hence this appeal.
At the hearing of the appeal the
appellants, who were present in person, were advocated for by Mr. Marando,
learned counsel from the firm of Marando, Mnyele & Co. advocates, who had
preferred five grounds of appeal as hereunder:-
1. That
the learned trial judge erred in fact and in law in convicting the appellant of
the murder of one Mohamed Rashid @ Pamalula, when there was no sufficient proof
to that effect.
2. That
the learned trial judge erred in law in admitting and relying on the 1st
accused’s (1st appellant) cautioned statement, without considering
and giving weight to the accused’s statement to the Justice of the Peace;
3. That
the learned trial judge erred in fact and in law in failing to identify the
numerous and fatal doubts and contradictions in the prosecution case, and
resolving the said doubts and contradictions in the appellant’s favour.
4. That
the learned trial judge erred in fact and in law in rejecting the alibi raised
by the appellants while there was ample evidence in support of the same.
5. That
the learned trial judge erred in fact in failing to consider the oral evidence
and the postmortem report which revealed that the deceased was killed by an angry
crowd, thus creating very strong doubt on the possibility that he was killed by the appellants by one
gunshot.
In
his oral submission the learned counsel elaborated on these grounds at length.
Ms Neema Mwanda, learned State Attorney,
who represented the respondent Republic at the hearing of the appeal, at first,
opposed the appeal very forcefully. She gave her reasons why she was of the
view that the prosecution had proved the guilt of the appellants beyond all
colours of doubt. But on reflection, she supported the appeal mainly on the
grounds raised and argued by the appellant’s advocate, and some questions asked
by the Court for clarification. She was of the view that the case was poorly
investigated and equally poorly prosecuted at the trial.
We have given the most earnest
consideration to counsel’s rival arguments, and in the end we have the
followings to say. As demonstrated above, the grounds upon which the appellant’s
conviction was founded were: The oral evidence of PW1, PW2 and PW3 in respect
of identification of the appellants at the scene of crime, the 1st
appellant’s cautioned statement exh P4, and the post mortem examination report
exh P1. We will start with the last
point, the post mortem examination report exh P1. According to the record, this
report was tendered as exhibit during preliminary hearing. But the manner in
which it was tendered, left a lot to be desired. The record shows that, during
preliminary hearing conducted in compliance with Section 192 of the Criminal
Procedure Act, 1985, (the Act) the learned State Attorney who read the facts of
the case, Mr. Luena, Stated as follows:-
“I
pray to tender the post mortem report.”
Then
Mr. Mlanzi, learned counsel who was representing the appellants replied:-
“No
objection”
Thereafter it was admitted and marked as exh P1.
Then the
appellants were asked which facts they admitted to be correct. They admitted
only their names. But strangely, when the court prepared a memorandum of
matters agreed in terms of Section 192 (3) of the Act, it included the post
mortem report to be one of the matters agreed by the accused/ appellants. It
was then recorded that the memorandum of matters not in dispute had been read
over and explained to the accused. We think, this was wrong. First, the accused/ appellants had
expressly stated that they admitted only their names. Secondly, a no objection answer by a defence counsel does not
necessarily mean an admission by the accused. Thirdly, there is nothing in the record suggesting that the
contents of the post mortem examination report were explained to the appellants
in a language they understood. All these were against the spirit of Section 192
(3) of the Act, read together with Rules 4 and 6 of the Accelerated Trial and
Disposal of Cases Rules, 1988.
Section 192 (3) provides:-
“At
the conclusion of a preliminary hearing held under this section, the court
shall prepare a memorandum of the matters agreed and the memorandum shall be
read over and explained to the accused in a language that he understands,
signed by the accused and his advocate (if any) and by the public prosecutor,
and then filed.”
Rule
4 Provides:-
“The
person prosecuting shall in every trial under those rules, Prepare, as clearly
as possible, the facts of the case which shall be read to the accused and
explained in a language he can understand.”
Rule
6 also provides:-
“When
the facts of the case are read and explained to the accused, the court shall
ask him to state which of those facts he admits and the trial magistrate or
judge shall record the same.”
The
importance of reading over and explaining the contents of the memorandum of
undisputed matters has been emphasized by the Court in numerous cases such as
the cases of MT. 7479 Sgt Benjamini Holela Versus Republic (1992) TLR
121, Efraim Lutambi Versus Republic
– Criminal Appeal No 30 of 1996 (at Mbeya) (unreported), Libert Hubert Versus Republic – Criminal Appeal No. 28 of 1999 (at
Mwanza) (unreported), just to mention a few.
In the instant case, since the
requirement of law was not complied with, subsection 4 of section 192 of the
Act cannot come into play. That subsection provides to the effect that facts
agreed in the memorandum shall be deemed to have been duly proved.
Therefore,
in order the contents of the post mortem examination report to acquire
evidential value; had to be proved by the Doctor who performed the autopsy. This
was not done in the instant case. We therefore discount the evidence pertaining
to the post mortem examination report. Exh P1.
With the post mortem examination report
expunged, what evidence is there to prove the death of the deceased? We could
go further and ask; what evidence is there to prove that the appellants
participated in the killing of the deceased? This brings us to the oral
evidence of Pw1, PW2, PW3 and the 1st appellant’s cautioned
statement.
We
start with the cautioned statement where the 1st appellant was
alleged to have confessed voluntarily to have participated in the killing of
the deceased, incriminating the 2nd appellant as well. The 1st
appellant retracted it alleging he did not do so voluntarily but through
torture. A trial within a trial was conducted and the learned trial judge
admitted it as evidence / exhibit and used it in convicting the appellants
although uncorroborated. It is an accepted principle of law that a conviction
on a retracted uncorroborated confession is competent if the court warns itself
of the danger of acting upon such a confession and is fully satisfied that such
confession cannot but be true. See for instance the case of Hatibu Gandhi & other versus Republic (1996) TLR 12. The learned trial judge held it to be true
basically on the ground that it was so detailed that it could only be made by a
person who had participated in the commission of the offence. We think this
remark by the learned judge must be considered with caution. We say so for the
following reasons:- The cautioned statement did not tally with the evidence of
PW1, PW2 and PW3 on some important aspects. Also it would appear it had escaped
the learned judge’s mind that, when that statement was made, by then the 1st
appellant had alleged terrible tortures while in police custody as a result his
ear was injured. Indeed even the Justice of the Peace remarked in the Extra
Judicial statement that the appellant’s ear was oozing some liquid. Also a
prolonged stay in police custody preceeding the confession raises some
concerns. Commenting on the issue of a prolonged stay in police custody
preceeding the confession, Sarkar on
Evidence, 15th Edition, Reprint 2001 at page 483 says:-
“Prolonged
police custody immediately preceeding the confession is sufficient, unless
properly explained, to stamp it as involuntary.”
In
the instant case, when PW8 Inspector Mika Nyange was asked by the then
appellant’s advocate Mr. Mlanzi during the trial within a trial why he kept the
1st appellant in police custody for so long before recording his
statement, he replied he did so because the 1st appellant was
assisting the police with investigation which enabled them to arrest the other
suspects. We think, in the circumstances of the case, this was not a sufficient
ground to justify the prolonged period of ten days in custody before recording
his cautioned statement. Also it would appear it had escaped the mind of the
learned judge that, on the very day when the cautioned statement was recorded,
the 1st appellant was later taken before the Justice of the Peace
where he totally denied participation in the commission of the offence. In
fact, what he said to the Justice of the Peace is almost the reverse of what is
contained in the cautioned statement. Had the learned trial judge carefully
considered all these, we are satisfied he would not have found the retracted,
uncorroborated cautioned statement to be nothing but true, and would not have
relied on it in convicting the appellants.
With the cautioned statement discarded,
what evidence is there to prove participation of the appellants in the
commission of the offence?
This brings us to the oral evidence of
PW1, PW2, and PW3.
PW1
did not see the appellants shooting and killing the deceased. In fact she even
did not hear the alleged gunshot nor did she see the deceased. Likewise PW2 did
not witness the shooting, although he said he heard a gunshot in the direction
of PW1’s shop. Like PW1, PW2 also did not see the deceased although he said he
heard about the deceased’s death after returning from Lindi Police station. We
are therefore left with the evidence of PW3. But his evidence must be
considered with caution. We are aware that credibility of a witness is the
monopoly of the trial court, but this is only in so far as demeanor is concerned.
The credibility of a witness can also be determined in two other ways: One, when assessing the coherence of the testimony of that witness.
Two, when the testimony of that
witness is considered in relation with the evidence of other witnesses,
including that of the accused person, as was held by the Court in the case of Shabani Daudi versus Republic – Criminal
Appeal No. 28 of 2000 (unreported). In
the instant case PW3 said he went to PW1’s shop to buy some cigarettes whereby
the 1st appellant and the 4th accused invaded the shop.
He struggled with the 1st appellant over the gun for a considerable
time, a half of an hour to be exact, until when he realized there was nobody
coming to his aid whereby he released the gun. But PW1 did not talk of anything
of the sort and that the fracas she encountered lasted for just about ten
minutes. PW3 said the deceased died in his presence. He did not clarify which
deceased. It is in the record that in
the material night two people were allegedly killed in the same area. One was
called Toto Tundu, the son of PW5 Ismail Mkapali Chinola. It is therefore not clear which deceased died
in PW3’s presence. Toto Tundu was alleged to have been killed by the villagers
in pursuit of the bandits.
Also
PW3 said when he went to PW1’s shop, the deceased, Mohamed Rashid Pamalula was
walking behind about 100 metres away. When he heard a gunshot from the 1st
appellant he realized that the deceased who had followed him behind and had
taken position at a wooden bar had been shot at. We ask ourselves: If that was
the position, how was it that PW1 who was also in the same shop, did not see
the deceased being shot at, and did not hear even the gunshot? Mr. Marando took
the view that, the deceased was probably killed by the villagers mistaking him
for being a bandit, especially in view of the injuries he sustained as shown in
the post mortem examination report. Since we have discounted the evidence
pertaining to the post mortem examination report for the reasons we have
explained, we will not say anything more on its contents.
Lastly, we would like to remark in
passing that this case was poorly investigated as correctly observed by the
learned trial judge and the learned State Attorney before us. We would go
further and point out that, it was also poorly prosecuted at the trial. More
attention was focused on the armed robbery alleged to have occurred to PW1 and
PW2. Thus more attention was directed at the identification of the appellants
at the scene of the armed robbery rather than at the scene of murder. As a
result, even the only witness (PW3) who claimed to have witnessed the killing,
gave a confusing account of what actually happened. It was dangerous to rely on
his evidence alone in such a serious offence.
We have discounted the evidence
pertaining to the post mortem examination report for the reasons we have
explained. We have expressed our view on why we think the learned trial judge
should not have relied on the retracted uncorroborated cautioned statement of
the 1st appellant. We have also pointed out the dubious credibility
of PW3 when assessing the coherence of his testimony and when considering his
testimony in relation with the evidence of PW1 and PW2. PW3 was the only
witness who claimed to have witnessed the shooting of the deceased by the 1st
appellant. We have expressed our view on why we think the case was poorly
investigated and poorly prosecuted whereby more attention was directed to the
alleged armed robbery rather than to the murder of the deceased.
In the light of what we have stated above,
we are of the firm view that the prosecution evidence was not sufficient to
found conviction of murder on the appellants. In other words, the prosecution
did not prove the guilt of the appellants beyond all reasonable doubt.
As demonstrated above, the learned State
Attorney did not resist the appeal and, in our view, rightly so.
In the event, and for the reasons stated
above, we allow the appeal, quash the conviction and set aside the sentence.
The appellants are to be released from prison forthwith unless lawfully held.
DATED
at DAR ES SALAAM this 12th day of September, 2007.
J.H.
MSOFFE
JUSTICE APPEAL
S.N. KAJI
JUSTICE
APPEAL
E. M .K .RUTAKANGWA
JUSTICE
APPEAL
I
certify that this is a true copy of the
original.
I.P.KITUSI
DEPUTY
REGISTRAR
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