NA TZCA Dar es Salaam

IN THE COURT OF APPt.AL v}· 'l'ANZAN.LA AT ZANZIBAR CRIMINAL APPEAL NO. 82 OF 1988 M8AR0UK SA!D SULTAN~ •• o o·o o • o • • • APPE~l.iANl' Versus S.M.z. •••oaoaa•o••••••••••••• RESPOND~NT (Appeal from the Cmviction and Sel'ltEt1'\Ce · of the High Court of Zanzibar at Zanzibar) (A. Ramadhani, C.J.) in ~rimi~al Ses~iE...:'1§...£f.l.§!e No. 82 of t986 JUDGMSNT OF THE COURT .,; .,lld l"e app~ll••i and the appellant's son were charged with ~he murder of norned MOhamed Aii Mbarouk, who was the grandson of the appellant. the appe1l.&t\-•s eon was acquitted by the High Court of Zanzilta11 aut the a?J>••tant wa• CQftVieted as charged, and he is appealing agai••• his J,~ appe2,.lant•• son and his wife were divorced, and the wJ.fe did not 8• . .uld •Ot maRage ~ 100k after the two children of the ma,riage; a ,iiil,e ~y named M;hamed Ali Mbarouk and his sister. The wife h~ught <\he iwQ fild»en baek to the appellant's son for the latte.r ;o took after / 'and JT1td,11iaifl ihem. The child Mohamed was about 6 mo,nths Old and was sickly. Ii was estul.ished by the·prosecution and not challenged hy the appel~ani's eQuftsel, Mr. Lakha, that the appellant at so~e stage took pose~esion Of the ehild MOhamedo. The appellant alleged that he had taken i}le &11\d MQhamed to Chake Chake hospital and left him in ea,e there. How+1 no uaee Qr the child Mohamed was found. It was the p~secution •ase \hat li"•e the child MOhamed has disappeared, it was the appellant w)lf had &nu.<lered the .child MOhamed,. and the .appellant was S() eharged • ••••• /2 9 . Mro Hamidi Mahamoudi, StatE'. Attc.,_:.-,·,uy ~ ;,,,r:,0 nppeared -for the prosecution, relied on the fact that the child ;V]c-:-: rn"~<.: was ·; df;·: seen alive with the 0 appellanto The app<-l.1.a.:1t. _:-3.:, 1 ····,,d !:·;·_ ,t ~'? 0 '·,3,j trie child with him and that he had taken the chiJ.d to Chakc -:··-, :::k,: :-:osp:i.1:3J. a:-:d left him there. , The,ite was also some prosecuH.on ,,,·,ridwic -, wrd.ch lnd:Lcated that the appallant eould have perhaps J.<:?ft the chilc'l a·::: r·:1<:0,mi h0sp!.taL, When asked to do ,o, the appellant couJ.d n·::>t p.i:.·or.:t,,.~e the childo ThG prosecution has maintained that since the ch:iJ.0 :'•10h.:::rr,ed has tc :::.l J. 1.ntents and purposes dS.sappeared, the appeL.c1nt must nctve rnurdere,J. t.11~ said child and disposed Of his body. It wili be notE;d. th3t:· th,:,; prose(:u~.ior1 (;3..'-'e iNas br:1sed entirely on c1,t:'Cumstantial evidenceo •ro convict o,· circ... i.unstantiai. e·ddence a Court must be satisfied that thE circumstanct,s I istabJ.ished point irresitibly and inevitably to the gui:!.t of the P'--~rt:rJn_ac.::Jsec: of the crime to the e~l,usion · of any other per _;or; or any ir.:1oc:.2rrL exp:J.anation. / The first C.t11~.:~tal that the child Mohamed was not and had not been c1t Ch. 1ke (hake t )~ 1_.)H:nl ,~her12 the appellant maintained he had deposited him. To p;:·:.•ve th,j:: ·the pro3ecut:i.0n .:-:elied on the evidence of an investigating roJ.j_1;~ Officc:,r ~ r;,-.J~: 9 who on i:;,is issue stated in Court as fo11owsi "I went tP Chak.e C.Jiake h'Jsp:i.t2~. and I found he That was the only e\/id~.mc2 reli<':!d. or; b:r the prosecution and the learned Chief Jus~ice to establish that the child was no~ sent to or was not at Chake_ Chake hospitalo PW2 had stated 11 :: found he was r.ot there". some person must have given PW2 that infornationo We have no idea who that person could beo The person might hav~· been a sweeper or a messenger or a clerk or a nurse; and that person possjbly might not ~av2 knowledge 0f all admissions to o.i:- discharges fr.om tr,e hospital. We cFJain have no idea what sort of enquiries were made l,y PW2o That si.'.a t.ement by PW2, evsn if admissible, would have carried vEry little w~ig~~~ •o•o•/3 hOttpital i:-2 stify as t-.:::1 whet.her the child t Mghamed had b8e:1 adrni tted to ti",G Chake Chai<:e h<:;:3p::..tai. 3!\d if so, when, [ and whether the said cni1d waD st::.11 ~:!~-ere, c.i1'.:i if ::;_ct:, noto If the t_ ·•1hy said child had r:ever ;::;ee,1 adrni tt'3d th·,~p,, evidence to '·'·: i5 t effect should J have been giveno Unless that was done there was no ~nus on th~ appellant to offer any explanation as to the whereabouts of the cl-::~}:.'.., The appellant had given a reasonable explanation; he ~.,intained that he i; ,,,j deposited the said child at Chake Chake ~Ospital. I! was for t~e prasec~tion to adduee evidence~ to ccntr·ac: .. ct tc1c1,: :u· ·U;e apr.:ic ll3nt:' ::- alh:qntion was 0 -) 1unt:rue. The prosecu1·.ion h,,d not. disc:-.2-:::-ge<'.'. that b•;rcle:10 '?he appellant I Another crucial point to consia~: in this ca2s is what~er it has been conclusi.vtzly proved t:hat UL~ ch:LLc was clea5., N') d2:-,ci b<.•dy was The evidence add,_;c_.:'"'d at th.<:~ tr:1.al. ~rnggested that the FiCther, after the divorce, returm·,! the two y:.,ung ch:·:,ld1:·en to the l'L.isband, the co-accused Of the appellant; as the me.trio: cc-uJ.d not or would not 1,.;ok after or maintain them~ 'I'r)e appe11ant was seer'. by mri:.iy witnesses taking away the child Mohamed 8ster;,sib-ly ·v:, a hor,p:1.ti,J. ·:.:o t,2 .::2..>'F:,J for. As we hav.~ pointed ..-\ out no evidence, that is ~o say,!~ aamissible evidence had been adduced to show that the child J\\)l1am~?r.:°t -.._,_ ;1·•L c\dr·i:f..tted ~:o Cha}<:,-' Chake hospitalo I I. Similarly no ev:Ld"'•nc:c· h,,cl ·:::.:::c:1 2°:ddlv:ed tu ·.;·)'•.•i ,,.;•,i: -...,·..:,:·: tlie child Mohamed had been t~ken out a± the child have been have been kidn~ppc~? T~ese were possibiliti~~ ~hich should have bean excluded by the prosecution if it: 1r,en, t.o <,s~, i'Jbl:i.sh th~t the child, since he has disappeared, m'.J.st have d:Led, ;.,n tl--iis c,H,e, mu.n:::,.ered. TO establish the child Mohamed's death in this Cc,;E- it was J.t:e:umbent or: the prosecution ooooo/4 4 should have carried out investi9ations among the neighbours and co-villagers and relatives of the appellanto If the prosel'.' 1.1ti.on after the necessary and detailed searches and c:nquid. is could establish that such possibilities could be safely excluded, then the Court could perhaps be in a position to infer from the circumstances that the child Mohamed had d!edo In this connection we would refer to a letter (Exhibit B attha trial) whi~h_ was Obtained from the appellant's co-accused by PW1 In11pector Omar. The iette1°: was alleged tcJ have been wr:i.tt-:~n by one Mohamed Muhene Hemad who testifiee:l as £lW8 1 and who catego.dcaly c.enied having W.!'itten Exhibit B. The tetter was allegediy thrown down by a passenger trave1lirig in a bus,, and was picked up by a persori who did not testify and ,"'1flo allegedly hand~d ove• that letter to the appellant; s co,--accused I who together with the appe1l,ant, was the addreseeo The reI,::.:vant part of . the letter reads: . -- ) "The purpose of th:l ::; letter is to info.-:.n you about the demise of the infant child who was at (_J·,ab~ G1ake hospital since 21o 5o81 and I have J::,u.:.·.·iec,. him". Apparently the learned Chief ,Justice construed that letter Exhibit B as p.1fOViding evidence of ·the cl1ild Mohamed's deatho Needless to say that letter was completely wor.thJess as evidence; it has the characteristics of an aftQnymous lettero i The contents of that letter would be inadmissible as evidence a With respect, we thtnk ~:hat the learned Chief Justice erred in admitting that letter under Sec ti.or'. 32 ( 2) of the Z::1m:iba:- Evidence Decreea ,That sub-•secUon w,3s clea.:~ly ina!'.)p1icabJ.eo Indeed if th3.t letter Tcould be· evidence, :Lt:. wot,J.d :Lndicc1t"~ t.ha t the dppellant had deposi t-:!d ,:.-,· the ehild at Chake Chake ho::,;:;:i.taJ. 2.s h"' r;'i:i mci.r,tained 0 On the evidence adduced at tho, ::.r:.aJ_, ·,-,e 2re far from satisfied that it was established that the.- chLd Moh,::rned hes died, let alone had been rnu~d~redo We have dealt vith this appeal in accordance with the rules of evidence and procedure bas1c=d c·n the Evidenu, Jecree ano Criminal Procedure Pecree of Zanzibara The learned Chief Justice had occ~sion in this case to refer to Section 9 of the Presidential Decree No. 11 of 1969 which .reads: eooa•/5 -- 5 - ttThe Court shQll formulate its .own procedure and rules of evidence and should not be bound by any rule of pi-oeedur-e or evidence contained in any existing law". The learned Chlef Justice invoked section 9 above to su1'jeet the appellant to c.rose-,examination after the appellant had opted to remain silent and ,,o off-er no evidence. With respect we think tha\ the learned Chief .;fus~ce eL-~edo :rn the f!rst p].aee ''Court" in the said section 9 apparently refers to the l?eopt;e' e Courts established under the Pre~iden1:ial Dee.i,ee NOo 11 · Of -1969, i,ot to ihe High Courto -And seeondly aeetion 9 is an empowering sec:tion, authorising the "Court" \o t~i-,aulate its own rules of evidence and procedure in its '.scret;.;l.Ono However we understand that no ?'ules of evidence or procedure had eve• been fO?"mulated and as suc::h the provisions of Section 9 remained dormant and could not be invoked for any departure from the establishad rules of evidenee and procedureo If such new rules had been formulated then suqh new •ules would have been applicable to the High Court trial, assuming ,hat Seotion 9 could refer to the High courto In ou, view the prosecution had failed to establish a pPima facie ·case agaifl~1: ihe appellanto The appellant could not be c:onviet:ed of th0 rnurde,. Of the <:h11d Mohamed on the evidence adduced at the ti-ial. In the circums\anees we teel canst.rained 'to allow the appeal whieh we hereby doe We quash the co~vietion and set aside the sentence of death imposed, and _:der ~o.i \he appeJ.lant be set: at liberty forthwith unle1s o~herwise lawfully deta;!.r,edo DAm at ZANZIBAR this day of 19870 F. NYALALI 'CHIEF JUSTICE A. MUSTAFA JUS~ICE OF APPEAL ••o••/6 V I LoM• MAKAME JUSTICE OF APPEAL R.H. KISANG~ JUSTICE OF APPEA~ A. M.A. OMAR JUST.ICE OF APPEAI., ~ f"lifY. ~ ,Ws is a t.rue copy of the ori~qt. r