N

:~• . , , .. ,.,,,~, .• ••tt;:1<-· ·. :•it;;~KI'' J)~· ~~-\\--u~~'1 IN TH:C HIGH COURT OF TANZANIA AT 12.A.1\lt?~ J}.A.LA!J1 1 CRIMINAL SESSION CS. NOo 52 OF 1984 REPUBLIC VERSUS MOHAMED MRISHO "-'J I- . • ~. _. • ._ "-••' • • I • • • • ~ •. --.:., J U ]) G E M E N T '--""·· ...... ., .... .4-,l.L-~-"-·"•·-~ ................ MAINA J. .......... ,.__...,_<L ~ - ... _ -=:.J ~ --.J The accused, Mohamed Mrisho, stands charged with murder contrary to section 196 of the Penal Code. It is alleged by the prosecution ' that on or about the first day of December·, 1978 at Buguruni. area ih , the City bf Dar es Salaam, the accused murdered one Dotto Mussa. The accused has denied the charge. In ah attempt to prove that Dotto Mussa ±s dead, the prosecution tendered, under section 291 of the' Criminal Procedure Act, the post- mortem examination report. The doctor who ·examined the dead body was not available as it is said he is out of the Country. Nn identifying witness :. testified as to the identification of the dead body. None of the p secution witnesses knew the deceased apart from the fact that the deceased was a dumb person. From the postmortem examination report, there is no doubt that a person by the name of Dako Mussa is dead. The dead body was identified to the doctor by two persons named in the report and it was'in the presence of a Police Officer, also·named in the report. It would have been much better for identification purposes if any one of the persons who identified the dead body,gave evidenc?~ But, in my ;Vie~,having accepted the postimortem examination.report, I have no doubt that Dako Mussa is dead. The cause of death, as given in the doctor's report, is severe internal haemorrhage following a bullet wounds from the back. I h9ld therefore that JJako Musa is dead and that he died from a bullet wound. I have now to consider who caused the death of the deased. Two ei11i,1loyees of the Tanzania Breweries Limited (TBL) gave evidence on the circumstances leading to, and after, the alleged shooting of the deceased. PWI Ally Omari said that he was a driver employed by the TB~.~ He was in fact a driver and salesman. On I September 1978 at about 10am he was selling beer at Buguruni area in Dar es Salaam. He was with his assistants. After he had sold the beer and was preparing to leave the area, he was approached by two men whom he did not kno.y,,. The men had pistols. They forcibly entered Ally's lorry and ordered him to remain seated in the driver's cabin. One of the men drove the vehicle. Ally sat between the two men. Incidentally, Ally did not know of the shooting. The vehicle proceeded to Sharif Shamba area and six killo- metres from Buguruni, the lorry stopped. The two men when Ally did not recognize,. got out of the vehicle and ran away carrying money which was in a.cash box. They also carried their pistols. Ally Omari chased them. He could not arrest anyone. • • 0 0 /2 •.... - 2 ..... He went to the plo.ce wher0 the vehicle v1r:.s ubo.nc2oned a.nu he found the vehicle v/1ich he drove to the Polic:e Gtcttion; I:sir:kzi. There he wc.s. inforue<l tlu,_t one ~erson hnd been arrested emu v:c.s ct Il::.12 Police 3 tc.tion. J,lly Or."1;,ri <lid not go to Ilnln Police Stntion to see the person hho ht:1d been nrrested • .'.nother v:r.i tness; P\'.'2 :.ny ;.:.::oj_)i v1r.s the c:ssistnnt to P\i':[ l,lly Or..::.cri, P'J2 ,·,11y I.Ik:opi snid thc:t nftcr sellinc beer o.t Th~(.;Ul"llni, he sc.w n person tvho wc.s dunb beinc injured.- The wi. tncss did not sec the c.ctuc.l shootinc but· he clr:ir:ioc1 thnt after the deceo_scu wcs hit, he sc.vv c. person hoidine n pistol which he pointed nt the w:i. tness, I".,2 .·,ny I.:kopi then so.w thc.t person cettinc into the TBL lorry where P:'il Ally_ Ooc.r:L _w2 s si ttinc;. Then another person c.lso Jot into the lorry ond drone it r.w,,.,_y,. The· w:i. tneso tolc1. the court thct the accused is the person who held the ~istol.· P'..'2 Llly I.J.rnpi u]. so clnioed tho.t the accused I a conpnnion who, drove the Tm:, 1onsy fron the scene wc.s n person ~vho vtas si ttine; i~. the court. Th-:-.t pcrs911 W:-:_S incidcntnlly present in the court in: connection with 1...nother co.se. He ho.cl nothinc to do with this co.se~ There wns nlso f::vidence by two Police Of£:icers, P',';".3 Cpl. Yoh.'1!1":!. o.nd 7·:5 Cpl. 11~:r~"l:i.nn. They nrrested the o.ccusec.1, Their evidence con be SULlDnrized together. They vrere on duty a.; ::;::i....:,:.::.. :.>.:.:.::.:.~ S·t, ~.i.un ·;;:~.:.~~ one per:so'h 11b.riecl -froto.s went there. o.nd snid thnt he hnd seen sor.1eone who wo.s o.med with n pistol was beine; cha sod by sor.ie people. The tv10 J?olice Officers went to the o.ren which is nec.r the Ilnln District Pffices o.nJ this founc.1 tho nccused' who wt,.s sur'rouri<led by l)eople. The accused ho.d o. pistol,· He w2_s diso.reerJ o.nd ni~rested. The o.ccused v10.s then sent to Ilo.ln Police Sto.tion.- Lnter irrfonJ.o.ticin wo.s received thnt n persbn hc.d been killed at Bucuruni nreo.. P\'/5 Cpl. i:Inrselic.n so.id tho.t he did not know whether the pistol ho.<l been used to fire o. bullet., There wo.s no bullet in the pistol. 1.nother witness ·wcJ.s Senior Superintendent Rr.:slud J;lly who wns o.t thc.t tiue the District C.I .D.Officer for Il:-:-,1.-:-, Disti"'fot. He so.id tho.t 011 1.-9,1978 he wo.s on duty o.t Msinbc.zi Police StG.tion whe1t the r.-,ccusec1 wc.s sent· to hio c.nc1 he reco:r.c1ec1 o. cautioned stntenent frol'.J. the o.ccused, In thc,t st2.tenent which wc.s tendered 2 s exhibit PI,- the C1ccused is o.11eGec1 to h['.Ve so.id tho.t he wo..s ct the scene of nurder but that his conpnnion one Selenc.ni Sc.idi hnd fired the bullet fror.:. his- pistol nncl that Selm.::o.ni forced the; accuseci' to eet into the lo1~ry· c.nu c;c,ve the pistol to the o.ccused. Icter 6fter Seleo2.ni Imel drive°J:'1 the vehicle c.nd o.bnndonec'. it-,. the Qccusecl & Seler.:nni r 8 n c.wo.y nnd later the QC'Clusecl WQS arrested with the •pistol. In his evidence, the accused {:;QVe o. conpletely different version froo whnt he is nlleced to hnve told the I'olice, Ile sc,ic-:. thnt he ho.cl boo.rded n KiGoeo- bound bus when lri:s ooney was stolen by n thief, 'I'he r0ccused nnd the suspected thief got: off the. bus when the accused beet Uj_) the thief • •·... /3 ~... 0 •• 3 I'eo:;_:>le went' there and the nccused rC\n o.w~.J. Jlolice o.rrived at the scene o.nd they cirrested the nccused who w;--,s then se1~t to the Police Stntion at Ile.la nml then ·to 1Isinbc.zi Police Sto.tion 1•b:~rc he w;:-.s c_sked to produce a GlJn and noney. He so.ic"i he h-:i.d none~ He v'r2.s beo.tcn up th:-'.t chy nnd on the followi.n3 dGY• J'. , stc.tewent wo_s later sent to hi,: o.nd he wns forcec1 to sic;n it. He sicned t e stc.tenent but he did not know whnt it conto.ined. He deniec1 tho.the connittecl the offence oho.reed. The accused C.id not wish to cc,11 n. witnes:3. The evidence by the lorry dri v0r, P1.I .:~11y 0-wc,ri is clenr- tho.t he did not i<lentify the nccused o.t the scene of. criue. 3iu.ilo.rly, Pr/2 li.lly flkopi who clnine<l he identified the ap;:,ellc.nt did not in fc-.ct identify h:i.rJ c.t o.11. I sc-,y so becc.use the witness lied to the aourt vl1en he pointed to o. person who \7c.s si ttinc; in the court o.nc1 who w;-,.s not in c.ny Vro.Y connected ~-ri th the cc.se o.nrJ sc,ic~ tho.t wns the person who n,:s w:i. th the ::i.ccused nt Bue,-uruni~ I I2.'.'.1.Y nlso observe here tho. t if the vri tness n~C.: ic1entifiGL1 the o.ccused, there would hcwe .:ieen nn identificc.tion po.rr::de, but no such p2.r.t1c1o wo.s conducted. Pi'.'I Llly Or.lc.ri so.id th:::it he chc.sed the o.ccused c.ftcr the lorry Ho.s abo.ndoned. But the witness could not nrrest the ::_)erson he hc:c~ 0een chi.sine. So it ccnnot be sc.i(1 thnt the c.,ccused wns the person whon .:clly On~:ri hnc1 been chasing. In feet, o.fter the ,lnf!UCe8ssful ch0 sine; of ti1c bo.nc1i tn, i,lly Onnri vvent to the scene where the lorry hnd been o.bo.ndoneu. He· urove the lorry to r.isinbnzi Police 0 t.~tion o.nd there he wo.s inforneJ of tho errest of the nccused. Lecin there wo.s no identificntion po.re.de nnd so it c 2 m1ot be S[).id thnt the o.ccused is ,the person whon J~lly Onnri ho.d been cru:-.sine. :.lly Ooo.ri did not even describe the person he had chc:sed or even the clothes tho.t person w.::s wenrinc. ;,fter the two Police Officers o.rrestecl the nccused, no-one· told then tho.t the o.ccused ho.d shot o.nyone vvl th the pistol. So, if the ncc:,tsed ho.d been arrested by the lorry driver o.nd the:'l hc.nclec.1 over to the Police ns i:t; is clo.itiecl in the co.utioned sto.tenent the ty;o E-olice Officers woulu ho.ve been infon1ed on the spot tho.t the o.ccused ho.d shot soneone o.t Ilue,uruni o.nd ro.n o.way fron the scene. But, the two Polif!e Officers sc..id thc.t they did not cet such report. They were only. infonied later nt the I'olice ;:;tc.tion tho.t soneone ho.d been ki.lled o.t Buguruni. Cnn it be said th2t tho o.ccusec.1 is the pe1·son vrho shot the dccec,sed'l Certo.inly no.t. The pistol which is allece(} to ·have been founc1 in the o.ccused 1 s possession w0 s not ten~ered ns en exhibit. Tho.t pistol wos not proved to hcwe been used to fire the bullet which killed the <lecensec1. It wo.s not sent to o. bc.llistic expert to establish tk-.t the bullet which killecl the deceo.se<.1 wo.s fired frou tho.t pistol. In the cL·curwtcnces, it is difficult to conclude tho.t . n pistol wns found iri: the possession of the o.ccused o.nd tho.t the dece~_sed vYc..s killed by o bullet fired fror.i the ;_:iistol.