R. v. Sultan Habib, Crim. Sass. 5-Pemba-67, 21/9/67, Kimicha Ag. C. J.

R. v. Sultan Habib, Crim. Sass. 5-Pemba-67, 21/9/67, Kimicha Ag. C. J.

The accused pleaded not guilt to a charge of murder c/s 180 of the Penal Decree, although he admitted having inflicted the wounds which caused the death of the deceased. He claimed that he had come upon the deceased stealing from his shamba; in the struggle which ensued, the accused was unharmed, but the deceased received several panga wounds, including one on the right leg and one on the left arm which were so serious that both these limbs had to be amputated during the deceased’s ultimately unsuccessful treatment. The accused claimed that the deceased had brought the panga and had tried to use it on the accused and that in struggling with him the accused had wrestled it away from the deceased and defended himself with it.

Held: (1) Responsibility for the use of force in defence of person or property is determined according to the principles of English law, according to s. 17 of the Penal Decree. “(T)he party whose person or property is attacked is not obliged to retreat, as in other cases of self-defence, but may even pursue the assailant until he finds himself or his property out of danger. But he must not strike blows except in self-defence.” (Archbold, Criminal Pleading, Evidence and Practice, 30^th edition.) The amount of resistance may be no more than is reasonable considering the surrounding circumstances. (Kenny, Outline of Criminal Law, 18^th edition, p. 138.)  The accused had no right to strike anyone unless he was attacked first, and even then only with such force as was reasonably necessary to repel the attack.

            (2) Although the proposition seems dubious, the Court gives the accused the benefit of the doubt in proceeding on accused. If the force used by the accused to repel the attack was reasonable in the circumstances, he is entitled to a full acquittal; but if excessive, he is guilty of manslaughter. In view of the extensive and serious wounds received by the deceased, and the fact that the accused received by the deceased, and the fact that the accused received no injuries at all, the force used by the accused was clearly excessive and beyond what was reasonable in the circumstances. The accused convicted of manslaughter.