SAMWELI SAMWELI NYOMAHE

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA IN THE SUB-REGISTRY OF MUSOMA AT TARIM E CRIMINAL SESSION CASE NO 80 OF 2023 REPUBLIC VERSUS SAMWEL S/O SAMWEL NYOMAHE JUDGMENT OF THE COURT 16/10/2024 & 07/11/2024 Kafanabo, J.: The accused herein, Samwel Samwel ©Nyomahe (hereinafter referred to as 'Samwel' or the 'accused') has been indicted before this court for two counts of murder contrary to section 196 of the Penal Code, Cap. 16 R.E. 2022. The particulars of the offence indicate that the accused on the 21st Day of May 2022 at Nyangoto-Mjini Kati Area, within the Tarime District in the Mara Region, murdered two persons namely Daud Alphaksad Magaiwa and Mwita Chacha Sibora. The information was read over to the accused who pleaded not guilty to both counts of murder. Since the accused pleaded not guilty to the information and charges contained therein, the matter proceeded to full trial. At the hearing, the Republic was represented by Messrs. Davis Julius Katesigwa, Obeid Kasambala, and Titus Aron (learned State Attorneys), and the accused was i represented by Mr. Dominic Jeremiah Chacha and Ms. Mary Samson (learned Advocates). A brief background of the matter, based on the facts as presented by the prosecution, is that the gloomy incident occurred on the 21st day of May 2022, during the night hours at Mjini Kati area, in Nyangoto Village within the Tarime District, in the Mara Region. On the fateful date and place, it is alleged that the accused and Mwita Chacha Sibora were at MG Bar, owned by Chacha Mang'era Wambura, sitting at same table drinking beer. After some time, a misunderstanding arose between them over a sexual relationship with a bar attendant named Angel Sebastian. The owner of the said bar settled the said misunderstanding and the duo continued taking the liquor. It was further alleged that after a short time, the accused and Mwita Chacha Sibora started quarreling again, this time the owner of the bar requested the accused to leave the bar. However, the Accused went outside the bar and fired two bullets in the air, and another person identified as Daud Alphaksad Magaiwa was, at the time, nearby the accused outside the bar. He, then, asked the Accused "Tata unatakaje?". The accused responded by shooting a bullet on Daud Alphaksad Magaiwa's head who died on the spot. At the same moment another person, Mwita Chacha Sibora, with whom the accused was drinking liquor earlier, had already moved outside the bar and upon witnessing what the accused did to Daud Alphaksad Magaiwa, he started running away. However, the accused shot him thrice in the back and the said Mwita Chacha Sibora died instantly. After the incident, the accused surrendered himself at Nyamongo Police Station where he was arrested and 2 searched and the pistol he had in his possession was seized. On the 22nd day of May 2022, a medical examination of two bodies of the deceased was conducted and the cause of their death was declared to be " Cardiac arrest due to severe bleeding following multiple soft tissue injury." In a bid to prove the case against the accused, the prosecution called nine witnesses to the stand. The said witnesses were PW1 H.5270 CpI Ally Athumani Hemedi, PW2 F.9046 CpI Christopher, PW3 PF.22532, A/Inspector Loning'o Sindiyo Lembutel, PW4 E.6509 D'Sgt Wilson, PW5 Dr. Diana Mruga Gachuma, PW6 Paulo Francis Msaroche, PW7 ASP Paulo Methuselah Mgema, PW8 F.5564 D'Sgt Hussein, PW9-J993 PC Kondo. The said testimonies were supported by exhibit Pl-a pistol, make of Beretta and model Gardone VT, with Serial Number PX355777, caliber 9mm, black in colour, exhibit P2- one live ammunition caliber 9mm, exhibit P3 -two spent cartridge cases caliber 9mm, exhibit P4 -five spent cartridge cases caliber 9mm, exhibit P5-certificate of seizure dated 21/05/2022, exhibit P6- Certificate of seizure dated 21/05/2022, exhibit P7-a sketch map of the crime scene, exhibit P8- ballistic examination report, exhibit-P9 the chain of custody document dated 22/05/2022. The prosecution case was unbolted by the testimony of H.5270 CpI Ally Athumani Hemedi, who testified as PW1. He testified that he is the custodian of exhibits at Nyamwaga Police station, and on 22/05/2022, when he was at Nyamwaga Police station, he received for safe keeping exhibit Pl-a pistol make of Beretta and model Gardone VT, with Serial Number PX355777, caliber 9mm, black in colour, three live ammunition caliber 9mm (which later 3 turned to be exhibits P2 and P3), exhibit P4 - five spent cartridge cases caliber 9mm, empty bullets magazine, and a user manual of a firearm from PF22532 A/Inspector Loning'o Sindiyo Lembutel. The said exhibits were related to the case file No. NYW/IR/1198/2022. The case was regarding a suspect called Samuel Samuel Nyomahe. After the exhibits were handed over to him, he kept them in a store of exhibits and entered the same in the exhibit register number 13/2022. PW1 further testified that on 10/07/2022 when he was at Nyamwaga Police Station, D'CpI Hussein who was the investigator of the case went to take some of the exhibits related to case file No. NYW/IR/1198/2022 and sent them to the ballistic expert in Dar es Salaam. PW1 handed over to him a pistol, make- BERETA with serial number PX355777, attached with one magazine with three live ammunition and five spent cartridge cases. It was further testified that on 17/07/2022 D'CpI Hussein returned a pistol make Bereta with serial number PX355777, one magazine, five spent cartridge cases, one live ammunition in the khaki envelope, and two spent cartridge cases in the khaki envelop. The said D'CpI Hussein explained to PW1 that the two spent cartridge cases, and one live ammunition constitute the three live ammunitions he took from him. The experts used the two live ammunitions for testing and examination and one live ammunition remained out of three sent to them for examination. PW1 tendered the said items as exhibits in Court. It followed that a pistol, make of Beretta and model Gardone VT, with serial number PX355777, caliber 9mm, black colour, was admitted as exhibit Pl (hereinafter referred to as 'the pistol'), one live ammunition caliber 9mm was 4 admitted as exhibit P2, two spent cartridge cases caliber 9mm were admitted as exhibit P3 collectively, five spent cartridge cases caliber 9mm were admitted as exhibit P4 collectively. The witness also testified that he did not know who used the firearm to commit the crime and that he did not tender the document/book proving the owner of the pistol. He also admitted that he did not tender the exhibit register and the chain of custody document showing the movement of the exhibits. PW1 also made it clear that in the statement he gave to the police he did not explain that D'CpI Hussein handed over to him envelopes with used cartridge cases and one live ammunition, but he explained in general. The statement of PW1, H5270 PC Ally, dated 25/05/2022 given to the police was admitted as exhibit 'DI'. PW2 was F9046 CpI Christopher who testified that on 21/05/2022 he was at Nyamongo Police Station as CRO In-charge. Then at 9:20 p.m. Samwel Samwel Nyomahe (hereinafter the 'accused') went to report that his in-law was attacked at MG bar. He was in possession of a pistol which he used to fire several bullets up in the air in order to solve a misunderstanding that ensued at the bar and save his in-law. He unleashed a pistol and handed it over to PW2 saying that he was the owner of the same, and PW2 seized the pistol. Upon checking the pistol, it had one live ammunition in the chamber and two others in the magazine, which made a total of three live ammunitions. The pistol was black, with serial number PX355777. s Then PW2 testified that he filled a seizure certificate that was witnessed by J993PC Kondo. After filling the seizure certificate, he handed over the pistol to the OCS who was A/Inspector Loning'o who had just arrived at the police station. PW2 identified the pistol, exhibit Pl, and tendered a certificate of seizure of the said pistol with serial number PX355777 dated 21/05/2022 which was admitted as exhibit P5. It was further testified that the said OCS informed PW2 that they were looking for the accused because he was suspected of killing two persons. Then the accused was arrested and put in police custody. Moreover, PW2 positively identified the accused as a person who handed over the pistol to him. In cross-examination, PW2 testified that ownership of a firearm is proved by the ownership book, and that fingerprint analysis is relevant in proving that a particular person has used a particular firearm. It is important to take fingerprints in order to prove that a certain person has used a firearm and the fingerprints of the person who used the firearm will be seen. He testified that he handed over the pistol to A/Inspector Loning'o in writing and that he signed the chain of custody document handing over the firearm to A/Inspector Loning'o on 21/05/2022. He also testified that upon seizure of the firearm, he did not enter the same in the exhibits register book which was contrary to the PGO, but he used a chain of custody document and handed over the pistol to the OCS. PW3 was PF.22532 A/Inspector Loning'o Sindiyo Lembutel, who was the OCS of Nyamongo Police Station in Nyamwaga Police District. He testified that on 21/05/2022 around 09:00 p.m. when he was with other police 6 officers namely, D'Sgt Wilson, D'CpI Festo, D'Sgt Simon, and CpI Gastorn, patrolling the Nyamongo area, at Mjini Kati, he was called by the Chairman of the Mjini Kati Hamlet, by the name of Paulo Msaroche and was informed that there was an incident at the MG Bar where gunshots have been heard. Thereafter, he informed other police officers who were at the rear of the car and who also heard gunshots. Then whilst heading to the crime scene, along the way, they met people running towards them shouting and talking that there was a murder incident at MG bar, and people had been shot. Upon arrival at the crime scene, they surrounded the area and found the bodies of two persons lying dead on the ground. And since there was enough light they noted that one body had a wound on the head, the other body had three wounds on the back, and blood had splashed on the ground. Shortly, another police car with the Officer Commanding Criminal Investigation Department (OCCID) of Nyamwaga Police District arrived and took the bodies of the deceased to the Hospital. Thereafter, the OCCID gave PW3 instructions, and in the course of implementing the said instructions he inspected the crime scene and obtained five spent cartridge cases (which will also be referred to as used bullet cases/shells). He filled out the seizure certificate, which was signed by witnesses who were E.6509 D'Sgt Wilson and the Chairman of Mjini Kati Hamlet, Paulo Msaroche. The said certificate of seizure was admitted by this court as exhibit P6. PW3 also testified that, after collecting the five used bullet cases/shells he headed to Nyamongo Police Station, and upon arrival, he found CpI Christopher with another person called Samuel Samuel Nyomahe. Upon inquiry, CpI Christopher informed him that Mr. Nyomahe went to the police 7 with a pistol which CpI Christopher had seized. Then PW3 ordered that Samuel Nyomahe should be remanded given the incident which he had just inspected at the MG bar. Thereafter, he was handed over a firearm by CpI Christopher through an ordinary register (handover book) because the Nyamongo Police Post is a sub-police station and does not have a chain of custody document. PW3 then called Nyamwaga Police Station requesting the IR number of the case and was given case number NYW/IR/1198/2022. A/Inspector Loning'o also testified that the firearm that was handed over to him was a pistol, make Bereta with serial number PX355777 black, which he placed in an envelope and labelled NYW/IR/1198/2022, and kept in the safe of the OCS. Since he was the OCS, he was holding the keys to the safe and thus was certain of its security and safety, and it was so kept ready to be dispatched to Nyamwaga Police Station the following day because there was no custodian of exhibits at Nyamongo Police Station. In the said safe PW3 also kept the five used bullet cases/shells in the same envelope as the pistol. Then on 22/05/2022 the pistol and the five used bullet shells/cases were submitted to Nyamwaga Police Station and the exhibits keeper, PC Ally, received the same and entered the same in the exhibit register No. 13/2022. The exhibits were also labelled with the case file number, that is NYW/IR/1198/2022. The same were handed over to the exhibits keeper by filling a chain of custody document which PW3 signed. PW3 also positively identified the pistol, the five used bullet shells, and the accused as the person he found at Nyamongo Police Station. He also testified that at the incident, people mentioned Samuel and others mentioned Samuel Nyomahe as the person who shot the two persons whose 8 bodies they found lying on the ground at the crime scene, but he did not remember the names of persons who mentioned Samuel or Samuel Nyomahe. Moreover, PW3 testified that on the 22nd day of May 2022, a search was conducted at the house of the accused whereas an empty magazine of Pistol, ammunitions, bullet cartridges, and a pistol ownership book were recovered and seized. On the 12th day of July 2022, the pistol, three live ammunitions, and five spent cartridges recovered from the crime scene were sent to a Ballistic Laboratory at the Forensic Bureau in Dar es Salaam for examination and identification. A report revealed that five spent Cartridges caliber 9mm found at the crime scene were fired from the pistol. When cross-examined by the defense counsel PW3 testified that he did not know from which firearm the used bullet shells/cases he picked from the crime scene came. He also testified the handover between him and CpI Christopher was done in writing but he admitted that he did not tender the document proving the same. He also testified that the PGO requires that the movement of an exhibit should be documented. He also made it clear that in the chain of custody, it is not indicated that the pistol came from CpI Christopher to PW3. It was also the testimony of PW3 that, indeed, one of the exhibits he handed over to the exhibit keeper was the book of ownership of the pistol/firearm. The book indicated that the pistol is owned by another person who is not the accused, that is not Samuel Samuel Nyomahe, but the said book of ownership had a serial number of the pistol which was seized from 9 the accused. PW3 also explained the importance of fingerprints in the use of firearms being that it shows that the firearm came from a particular person after the incident, and in the absence of fingerprints it is very difficult to tell who used the firearm in an incident. PW3 also testified that the five used cartridges he stored in the safe were not labelled separately as required by the PGO and the same were labelled at Nyamwaga Police Station. He also testified that he knew the accused well as a good law-abiding citizen and he did not have any information on him regarding his criminal record. In order to prove that the police officers reached the crime scene and drew a sketch map of the same the prosecution called PW4 who was E6509 D'/Sgt Wilson. He testified that on 21/05/2022 when at Mjini Kati Area in Nyamongo and when in the patrol car with the OCS A'Inspector Loning'o and other police officers they heard gunshots and the OCS told them that he was informed there was an incident at MG bar. Upon arrival at the MG bar, they found a lot of people, and with the help of the electric lights of the MG bar, they saw two persons lying on the ground covered in blood all over their bodies. The said witness heard people saying that Samuel had killed but he did not remember the names of persons who said so, but they did not find Samuel at the crime scene. The two dead bodies were of Mwita and Daudi which were taken to hospital by the car of OCCID Nyamwaga who found them at the crime scene. It was further testified that with the help of the Chairman of the Hamlet of Mjini Kati, Paulo Musoroche, and the MG bar electric lights which enabled 10 them to see properly, they inspected the crime scene and found five used bullet shells/cases. The said used bullet shells were seized and the OCS filled the certificate of seizure which PW4 and the Chairman of the hamlet signed and left the area and continued with the previous work they started earlier that evening. A certificate of seizure and the used bullet shells/cases (exhibit P6 and P4) were properly identified by the witness). It was also testified by PW4 that on 22/05/2022 they went back to the crime scene to draw a sketch map which could not be drawn on 21/05/2022 because it was already night. The map was drawn with the help of the Hamlet chairman Mr. Msaroche. The map was signed by both PW4 and the said Hamlet chairman and was admitted as exhibit P7. He also testified that he did not know the cause of death of the deceased. The witness also made it clear that when they responded to the incident on 21/05/2022 there were many people, but they did not interview any person at the crime scene. PW5 was Diana Mruga Gachuma, a medical doctor who examined the bodies of the deceased on 22/05/2022 as a medical doctor on duty. The bodies were identified by the relatives of the deceased as those of Daudi Alphaxad and Mwita Chacha. She testified that the body of Daudi Alphaxad had a wound on the head which was the entry wound with an irregular shape and on the left upper lip of the mouth which was the exit wound. The wound was evident that a blunt object entered and exited at high speed. The death of the deceased was caused by massive loss of blood caused by the wounds she discovered during examination. It was further testified that the body of Mwita Chacha had three wounds on the back, that is on the right of the back, centre, and on the left li which were entry wounds. There were also three wounds on the chest. On the left of the chest, centre of the chest, and right of the chest, all of which were exit wounds, and wounds on the back were entry wounds. His wounds were caused by a blunt object which entered through the back and exited through the chest at high speed. She concluded that cause of death of the deceased was caused by massive loss of blood. PW6 was Paulo Francis Msaroche, a Chairman of Mjini Kati hamlet, Nyamongo, Tarime District. He testified that on 21/05/2022 he was at home and was called by one person called John who informed him that persons at MG bar had been shot. As a leader, he called police officers and informed them about the incident and then he headed to the area of the incident where he found a lot of people including the police officers led by the OCS. He saw the bodies of two persons whose names were Daudi Alphaxad Bukima and Mwita Chacha Sibora. The police officers took the bodies and put them in the car. Thereafter, they went around the crime scene and collected five used bullet shells/cases. He did not know why the incident happened and he did not know who shot the deceased whom he knew well before their demise. He also testified that on 22/05/2022 at 7.00 am a police officer called Wilson went to his home and requested him to accompany him to the crime scene which he did. The said police officer drew a sketch map of the crime scene which was near the MG bar, and he was just guiding the police officer on the neighborhood of the area of the incident. Then after the said police officer had drawn the map, he signed the same. The witness also identified exhibits P4 and P6 positively. 12 The further testimony of PW6 was that he was not at the area of the incident when the gunshots were fired, he was at home. Also after arrival at the area of the incident, he did not know who caused the deaths of the deceased persons. The map was drawn the next day on 22/05/2022 after the bodies had been removed on 21/05/2022. In proving that the used bullet shells/cases found at the scene of the crime were fired from the pistol, the prosecution called PW7, ASP Paulo Methuselah Mgema, a ballistic expert, working at the Forensic Bureau Laboratory, at the Department of Ballistic and Explosives in Dar es Salaam (hereinafter the 'laboratory'). PW7 testified that on 12/07/2022 he received from F.5564 D'CpI Hussien of RCO's office Tarime-Rorya a letter together with exhibits of a firearm. The letter was about a murder case file No. NYW/IR/1198/2022 involving one pistol, make Bereta, three live ammunitions, and five used bullet shells/cases. Thereafter he received the exhibits which were in the envelope and the envelope was marked NYW/IR/1198/2022. He received the exhibits, registered and labelled them in the laboratory with reference number FB/BALL/LAB/106/2022. He labelled the pistol Berretta as KI and wrote the serial number of the pistol as PX355777. Then he also indicated the registration number of the laboratory that is FB/BALL/LAB/106/2022 and indicated the case number which was NYW/IR/1198/2022. Then he lebelled the three live ammunitions as K2, K3, and K4 and also indicated the registration number of the laboratory that is FB/BALL/LAB/106/2022, and the case number which was 13 NYW/IR/1198/2022. He also labelled the five used bullet shells/cases as QI, Q2, Q3, Q4, and Q5; and indicated the registration number of the laboratory that is FB/BALL/LAB/106/2022, and labelled the same with a case number which was NYW/IR/1198/2022. The testimony of PW7 was quite lengthy, eloquent, and professional as captured in the proceedings. To avoid making this judgment unnecessarily long it is sufficing to summarize that he proceeded with the examination of the exhibits as per the relevant rules and directives. And according to the letter of the RCO Tarime-Rorya, he was required to examine and to know if the pistol, (K-l) and the bullets (K-2 to K-4) were fine and working and if the five spent cartridges (Q1-Q5) were detonated/extracted by pistol K-l. He testified that in his investigation he discovered that the pistol and the live ammunitions were in order and working, and the five used bullet shells/cases were extracted from pistol Berreta with serial number PX355777. PW7 further testified that that the examination was done by using FSM (Forensic Solution Microscope) or Comparison Microscope whose quality was proper 100%. This is because the calibration and service of the FSM are done every six months by experts. He completed the investigation on 14/07/2022 and prepared a report of the examination. On 14/07/2022 he handed over all the exhibits to F5564 D'CpI Hussein so that he could take back the exhibits to the RCO Tarime-Rorya for other steps of investigation. The handover of the exhibits was done through a chain of custody. PW7 identified all the exhibits and the examination report from the laboratory on exhibits relating to NYW/IR/1198/2022 dated 14/07/2022 14 prepared by ASP Paul Methuselah Mgema with Lab. No. FB/BALL/LAB/106/2022 was admitted by this Court as exhibit 'P8'. He also testified that in his report it is not indicated who used the firearm on the day of the incident and he did not know who used the firearm on the day of the incident. Another witness for the prosecution was F5564 D/Sgt Hussein who testified as PW8. He testified that on 21/05/2022 when he was at Nyamwaga Police Station, he was given instructions by the OCCID (ASP Chacha) who instructed him to interview the accused who was in police custody at Nyamwaga Police Station. The accused was Samuel Samuel Nyomahe who was a suspect of murder. The accused denied being involved in the murder incident. He said that he fired bullets in the air at the bar called MG and he surrendered the pistol at the Nyamongo Police Station. He said the purpose of firing bullets was to save his in-law and he was owning the pistol legally. On 22/05/2022 PW8 was given a file of a murder case with No. NYW/IR/1198/2022 to proceed with investigation. PW8 further testified that in the said case the suspect was Samuel Samuel Nyomahe and the victims were Daudi Alphaxad Magaiwa and Chacha Mwita Sibora. The statement of witnesses Mgaya Mirumbe and Chacha Mang'era indicated that they witnessed the incident when occurred and they mentioned Samuel Samuel Nyomahe as the culprit or the person who committed the murder. PW8 also testified that the bodies of Daudi Alphaxad Magaiwa and Chacha Mwita Sibora were examined at Sirari Health Centre by Dr. Diana and he attended the examination. The body of Daudi Alphaxad Magaiwa had a wound on the back of the head and the left-hand side of the 15 face between the mouth and the nose caused by the blunt object. The body of Chacha Mwita Sibora was examined and he witnessed three wounds on the back caused by a blunt object. The blunt object entered through the back and exited through the chest Thereafter, the bodies of the deceased were handed over to the relatives for burial purposes. On 10/07/2022 PW8 received exhibits from CpI. Ally, the exhibit keeper. He received a pistol together with its magazine, three live ammunitions, and five used bullet shells/cases marked NYW/IR/1198/2022. The purpose of taking them from the exhibit keeper was to take them to the ballistic expert in Dar es Salaam for examination. He signed on the chain of custody and received the exhibits. Then he took them to the laboratory in Dar es Salaam where he was received by the ballistic expert ASP Mgema, the exhibits were properly received and examined. On 14/07/2022 he returned to ASP Mgema who handed over to him the relevant exhibits and the report after due examination. Then he travelled back to Nyamwaga Police Station where he handed over the exhibits to the exhibits keeper, CpI. Ally. The handover of the exhibits was done by using a chain of custody document which all persons involved signed. He testified that according to the investigation the firearm used to commit the crime was the pistol because the five used cartridges matched with the pistol and the pistol was surrendered by the accused after surrendering the same to the police. The witness also positively identified exhibits Pl, P2, P3, and P4 and tendered a chain of custody document which was admitted as exhibit P9. 16 It was also testified by PW8 that he did not take fingerprints of the accused, but PGO 229 and 230 require the investigator to take fingerprints of the accused in a case like this, depending on the circumstances. When the incident happened the pistol was handed over to A/Inspector Loning'o but in the chain of custody document, there is nowhere indicated that CpI. Christopher handed over a pistol to A/Inspector Loning'o. He also testified that he did not find the accused with the pistol and did not see him firing bullets, and that he did not interview any witness that connected the accused with the murder case. It was his further testimony that the only thing that may prove ownership of a firearm is a book of ownership (licence). One book of ownership cannot belong to more than one person and the owner of the pistol was Samuel Samuel Nyomahe. The last witness of the prosecution was J993 PC Kondo who testified as PW9. He testified that on 21/05/2022 at night he was on duty at Nyamongo Police Station, with his supervisor/in-charge CpI. Christopher. One person by the name of Samuel Samuel Nyomahe went to the police station whilst holding a pistol and informed them that at the MG bar at Mjini Kati, there was a person who had been killed by gunshots but did not mention the name. Thereafter, Samuel Samuel Nyomahe handed over the pistol to CpI. Christopher who inspected it and found the same with three bullets. Thereafter, Samuel Samuel Nyomahe said that the pistol had a total of fifteen bullets. After handing over the pistol Samuel Samuel Nyomahe stepped back and wanted to leave, but before he left F9046 CpI. Christopher disallowed him from leaving and put him under custody. Thereafter, F9046 CpI. Christopher called the OCS by then A/Insp. Loning'o and informed him 17 of what transpired. Then the OCS came to the police station, he found F9046 CpI. Christopher, myself, and Samuel Samuel Nyomahe. After the arrival of the OCS, F9046 CpI. Christopher handed over the Pistol to A/Inspector Loning'o through the occurrence book. Before the arrival of A/Ins. Loning'o, F9046 CpI. Christopher filled out a certificate of seizure, which PW9 witnessed. PW9 positively identified the pistol (exhibit Pl) and the certificate of seizure (exhibit P 6). In cross-examination, the witness also testified that when the pistol was handed over to CpI. Christopher, he could not know the number of the pistol and other particulars and he could not hold the pistol because of the handover process and regulations he was told the number of the pistol by CpI. Christopher. After the testimony of PW9, the prosecution closed their case and the accused was found with a prima facie case to answer, and thus was invited to enter his defence in terms of sections 293 and 294 of the Criminal Procedure Act, Cap. 20 R.E. 2022. The accused chose to enter his defence by testifying himself under oath as DW1 and without tendering any exhibit. The accused testified that on 21/05/2022 he was at the bar called MG at Mjini Kati hamlet, in Mjini Kati Village, Nyamongo in the Tarime District. The surroundings of MG bar were that there were places to sit inside and outside the bar. On that day he was sitting alone inside the bar drinking beer. There were other people in other tables whom he did not know except for the owner of the bar whose name 18 was Chacha Mang'era who was at the counter of the bar, and the barmaid by the name of Angel. The further testimony of the accused was that in the course of drinking beer, he heard a noise from outside the bar, and shortly thereafter the barmaids entered the bar from outside shouting that there were wrangles outside. The accused went outside the bar and found wrangles, and people fighting, he saw his in-law Mwita Chacha Sibora with his face covered in blood, and he attempted to disentangle the wrangle but failed. The fight involved his in-law Mwita Chacha Sibora and four other persons who were holding weapons like clubs and machetes, but he did not recognize the other four persons. The said four persons went towards him with machetes, and he tried to go back into the bar in order to save himself. But the door of the bar had been closed, so he ran to the Nyamongo Police station which was not far from the MG bar. Upon arrival at the Police station found one police officer by the name of Christopher who was outside and he requested assistance to save his in-law Mwita Chacha Sibora at the MG bar. Then the police officer reached for his phone and moved away for like five steps and made a call, then he told him to wait for some time, they both waited outside. Then after ten minutes or so, a car with other police officers arrived with the OCS of Nyamongo Police Station, he knew the OCS by the name of Masai or Loning'o. The OCS was told by CpI. Christopher that the accused needed help because his in-law has been attacked at MG Bar, Mjini Kati. Then OCS entered the police station and later ordered that the accused should not 19 leave without giving reasons. Then another police car came, then they tied his hands with a rope and took him to Nyamwaga Police Station. Upon arrival at Nyamwaga Police Station, he was remanded. Then another police officer took him to another room in which his caution statement was taken. Before his statement was taken, he was told by a police officer whose name was Hussein that he was responsible for the murder of Daud Alphaksad Magaiwa and Mwita Chacha Sibora in Nyamongo, which the accused denied. The accused denied recognizing exhibit Pl, a pistol and testified that he never owned a firearm/pistol before, did not know to whom that pistol belonged, and did not hand over a pistol or any firearm to CpI. Christopher as he was not in possession of any firearm. The accused also denied knowing anything about Daud Alphaksad Magaiwa. The accused also testified that the evidence adduced against him by the prosecution witnesses was not true because, on the date of the incident, he did not see any of them. The accused also testified that he did not know anything about the search that was allegedly conducted at his home, because he was not involved in the said search, and the items allegedly seized therefrom have never been his. He testified that the allegations against him were untrue because what was explained here in court was not true and prayed that the court be pleased to acquit him. After the testimony of DW1, the defence closed their case. Therefore, since both parties had closed their cases, the court allowed the learned counsels for the parties to file written submissions in support of their respective cases which both parties duly filed and the relevant submissions 20 shall be considered in the course of this judgment, and, where necessary be referred to, specifically. Therefore, in the light of the evidence above, and as depicted in the proceedings, and taking into account the submissions by the parties, this court is called upon to determine whether the Republic has proved her case that the accused is responsible for the duo murder Daud Alphaksad Magaiwa and Mwita Chacha Sibora (hereinafter the deceased) beyond a reasonable doubt. In answering this major issue before the court, this court is guided by the provisions of section 196 of the Penal Code Cap. 16 R.E. 2022 which reads: M/7K person who, with malice aforethought, causes the death of another person by an unlawful act or omission is guilty of murder' In light of the above section, and in order to prove that a person is guilty of murder it must be proved that the death of a person has been caused by an unlawful act or omission with malice aforethought. It is also the salutary principle of law and practice that the prosecution in criminal trials has to establish and prove the allegations beyond a reasonable doubt as required by law, whose duty never shifts to the accused. Section 3(2)(a) of the Evidence Act, Cap. 6 R. E. 2019 is relevant; also see the cases of Six Ilanga @ Msaka vs Republic (Criminal Appeal No. 484 of 2020) [2024] TZCA 95 (23 February 2024), and John Dickson @ Ngongole vs Republic (Criminal Appeal No. 477 of 2021) [2024] TZCA 144 (29 February 2024). It is inevitable that in order to prove the aforementioned, the answers to the following questions are vital; one, whether the said Daud Alphaksad 21 Magaiwa and Mwita Chacha Sibora are dead, if that is answered in the affirmative, the next question would be how they died, that is, whether their deaths were a result of a natural or unnatural cause, if the deaths were due to unnatural causes then who caused the deaths of Daud Alphaksad Magaiwa and Mwita Chacha Sibora, and whether the causation was a result of a lawful or unlawful act or omission. The last question would be whether the causation was with malice aforethought. In the case of Abel Orua @ Matiku & Others vs Republic (Criminal Appeal No. 441 of 2020) [2024] TZCA 78 (21 February 2024), it was held that: "It is a settled position of the law that in proving the offence of murder under section 196 of the Penal Code, it must be established that the death of a human being occurred, that the death was unnatural and was caused by an unlawful act or omission, that it was the accused person who did the unlawful act or omission leading to the death of the deceased and finally that the death was caused with malice aforethought. " Now, before embarking on answering the above questions, it is important to point out that in the written submissions of the defence counsels, they protested and asked the Court not to consider the testimony of PW5 and PW6 because they were not listed as witnesses during the committal proceedings. The court, after closer scrutiny of the names of the said witnesses as listed during the committal proceedings and their names as they identified themselves during the trial, is of the view that the difference in names is minor which does not make the said witnesses different from the one testified in Court. Moreover, the defence did not raise 22 the matter during the trial which would have enabled this court to make an informed decision by hearing both parties. Therefore, this court will consider the evidence of PW5 and PW6 in the course of this judgment. It follows that in answering the first question, that is whether the deceased are, indeed, dead this court recalls the testimonies of PW3- PF.22532 A/Inspector Loning'o Sindiyo Lembutel, E.6509 D'Sgt Wilson, PW6- Paulo Francis Msaroche, all these witnesses went to the crime scene and found that two persons were lying dead on the ground after being allegedly shot. The two persons lying dead were recognized by PW6, Paulo Francis Msaroche, who was the Chairman of the Mjini Kati Hamlet where the incident occurred as Daud Alphaksad Magaiwa and Mwita Chacha Sibora. The testimonies of PW3, PW4, and PW6 were corroborated by the testimony of Diana Mruga Gachuma, a medical doctor, who examined the bodies of the deceased and she testified that the bodies of the deceased were identified by the relatives as that of Daud Alphaksad Magaiwa and Mwita Chacha Sibora. The evidence of PW8 F5564 D/DGT Hussein was also the same in that the deceased were identified by their relatives as Daud Alphaksad Magaiwa and Mwita Chacha Sibora. He also testified that after the postmortem examination was conducted, the bodies of Daud Alphaksad Magaiwa and Mwita Chacha Sibora were handed over to the relatives of the deceased for burial purposes. It is noted that counsel for the defense submitted that since the postmortem reports were not admitted as exhibits, then there is no proof of the deaths of the deceased. However, this court, with respect declines to 23 agree with the submissions by the defense counsel. As rightly submitted by the Republic, even in the absence of postmortem/autopsy reports cause of death can be proved by other factors. In the present case, the above evidence on record undoubtedly indicates that the deceased, Daud Alphaksad Magaiwa and Mwita Chacha Sibora, indeed died. This is in line with the Court of Appeal decision in Herman Faida vs Republic (Criminal Appeal 479 of 2019) [2021] TZCA 405 (24 August 2021). The next question to determine is how did the deceased die? This is in respect of establishing whether the deaths of the deceased were natural or unnatural. In answering this question, again, the testimonies of PW3 PF22532, A/Inspector Loning'o Sindiyo Lembutel, E6509D/SGT Wilson, and PW6 Paulo Francis Msaroche are very relevant. All these witnesses went to the crime scene and found that two persons were lying dead on the ground. PW3 testified that since there was sufficient light which enabled them to see, one body of the deceased had a wound on the head, and the other body had three wounds on the back and the blood splashed on the ground. Also, PW4 testified that with the help of the light of the MG bar electric lights, they saw two bodies lying on the ground whilst covered in blood. The said fact was also confirmed by PW6, Paulo Francis Msaroche who was the Chairman of the Mjini Kati Hamlet and who identified the deceased as Daud Alphaksad Magaiwa and Mwita Chacha Sibora. The testimonies of PW3, PW4, and PW6 were also confirmed by the testimony of Diana Mruga Gachuma, a medical doctor, who examined the bodies of the deceased and she testified that the bodies of the deceased identified by the relatives as that of Daud Alphaksad Magaiwa had the wound 24 on the head and the left upper lip. The wound on the head was the entry wound with an irregular shape, and on the mouth, it was an exit wound. It was also testified that the body of Mwita Chacha Sibora had three wounds on the back which were entry wounds, and three wounds on the chest which were exit wounds. His clothes were soaked in blood and his wounds were also caused by a blunt object which entered through the back and exited through the chest at high speed. The evidence of PW8 - F.5564 D'Sgt Hussein who was present during the postmortem examination also reiterated the nature of the wounds suffered by the deceased as seen on their bodies during the postmortem examination conducted by PW5 and that the deceased were identified by their relatives as Daud Alphaksad Magaiwa and Mwita Chacha Sibora. It follows that in light of the above testimonies, even though no postmortem report was admitted in evidence, it is clear that the deceased succumbed to death because of the damage created by the wounds suffered on their bodies and the inevitable massive loss of blood. This leads this court to conclude that the deceased suffered unnatural deaths. See the case of Herman Faida v. Republic (supra). Having concluded that the deceased suffered unnatural deaths, this court now is required to answer the question of who caused the deaths of the deceased, that is who inflicted the wounds on the bodies of the deceased that eventually caused their deaths? That is a mammoth task and question to answer given the evidence on record as will be analyzed herein below. At this juncture, it is important to state that the prosecution's case against the accused rests on the fact that 'the accused by using a pistol, tendered and admitted as exhibit Pl, shot 25 dead the deceased at the MG bar, Mjini Kati in Nyamongo within the Tarime District'. It is also important to set out clearly that, in this case, the prosecution did not call any eye witness to testify in court, all material witnesses of the prosecution went to the crime scene after the alleged duet murder were committed. As rightly submitted by the prosecution, it is the position of the Court of Appeal that not every killing should be eye-witnessed otherwise many homicide cases would be unresolved. See the case of Mathias Bundala v Republic, Criminal Appeal No. 62 of 2004, (unreported). Again, as rightly submitted by the prosecution, in the absence of the eye witness to the killings of the deceased, in the present case the prosecution's case is based on circumstantial evidence. It follows that in order for the accused to be convicted based on circumstantial evidence, it is a trite law that circumstantial evidence must lead to the irresistible conclusion that the accused is the one who committed the offence. In chewing the cud, it is important to reflect on the principles enunciated by various Court of Appeal decisions on relying on circumstantial evidence. In the case of Mathias Bundala vs Republic (Criminal Appeal 62 of 2004) [2007] TZCA 16 (16 March 2007) the Court of Appeal held that: As was aptly observed in TAPER V. R. [1952] A. C. 480, circumstantial evidence should not be considered as a chain and each piece of evidence as a link in the chain, for if one link breaks the chain would fall. Rather as shown on page 489: 26 "... it is more like the case of a rope comprised of several cords. One strand of the cord might be insufficient to sustain the weight but these stranded together may be quite of sufficient strength. Thus it may be in circumstantial evidence - there may be a combination of circumstances, no one of which would raise a reasonable conviction or more than a mere suspicion but the three taken together may create a conclusion of guilt with as much certainty as human affair can require or admit of", per Pollock, C.B. in R. V. EXALL (1886), cited with approval in THOMAS V. R. [1972] N.Z.L.R. 34.' In short, a case depending conclusively on circumstantial evidence, the court must before deciding on a conviction, find that the inculpatory facts are incompatible with the innocence of the accused and incapable of explanation upon any other reasonable hypothesis than that ofguilty. Moreover, in the case of Leonard Bundala Malulanya @ Rena Ngasa vs Republic (Criminal Appeal No.313 of 2022) [2023] TZCA 17345 (19 June 2023) the Court of Appeal quoting its earlier decision in Jimmy Runangaza v. Republic, Criminal Appeal No. 159B of 2017 (unreported) held that: "In order for the circumstantial evidence to sustain a con viction, it must point irresistibly to the accused's guilt. (See Simon Musoke v. Republic, [1958] EA 715). Sarkar on Evidence, 15th Ed. 2003 Report Vol. 1 page 63 also emphasized that on cases which 27 rely on circumstantial evidence, such evidence must satisfy the following three tests which are: 1) the circumstances from which an inference ofguilty is sought to be drawn, must be cogently and firmly established; 2) those circumstances should be of a definite tendency unerringly pointing towards the guilt of the accused; and 3) the circumstances taken cumulatively, should form a chain so, complete that there is no escape from the conclusion that within all human probability, the crime was committed by the accused and no one else. Also see the cases of Ally Bakari v. The Republic (1992) TLR 10; Hassan Fadhili v. Republic [1994] TLR 89; Shabani Mpuzu @ Elisha Mpunzu v. Republic, Criminal Appeal No. 12 of 2002; and Mark Kasimiri v. Republic, Criminal Appeal No. 39 of 2017 (both unreported). Guided by the above authorities and principles enshrined therein, this court will consider the evidence on record to find out whether the Republic has proved that the accused unlawfully caused the death of the deceased. That is to say, whether the accused caused the deaths of the deceased by an unlawful act or omission beyond reasonable doubt. The first key testimonies to consider in an attempt to solve the entanglement are the testimony of PW2- F.9046 CpI. Christopher and the testimony of PW9 J993 PC Kondo. Both of these witnesses testified that the accused went to the Nyamongo Police station and surrendered a pistol whilst reporting that his in-law was under attack at the MG bar and thus needed help. They testified that the pistol, exhibit Pl, was surrendered by the 28 accused and seized on 21/05/2022 by PW2 and a certificate of seizure in that respect was filled out. The said witnesses also testified that the said pistol was then handed over to PW3 by PW2. However, the two witnesses differed on the way the said Pistol was handed over to PW3. PW2, the police officer who seized the pistol, was adamant that he handed over the pistol to PW3 by using a chain of custody document that he and PW3 signed. However, examining the chain of custody document dated 22/05/2022 and admitted by this court as exhibit P9, there is nowhere indicated that PW3 received a pistol from PW2, instead, it indicates that PW3 took the Pistol and other items as indicated thereon from Samuel Samuel Nyomahe. The question is where is the chain of custody document that PW2 and PW3 signed when the pistol was being handed over from PW2 to PW3? This question is not answered by the evidence on record. Moreover, PW9 another police officer who was allegedly present at the police station testified that the handover of the firearm was done by using the occurrence book and not a chain of custody document. As if that was not enough, another divergence came from PW3 who was allegedly handed over a pistol by PW2. He testified that the handover of a pistol was not done by using the chain of custody document, but was done through an ordinary workbook/register which he did not name. It follows that neither the said ordinary book/register, nor the occurrence book was tendered for admission in court in order to prove that the same pistol that was allegedly surrendered by the accused was passed on to PW3 as required by law. The inconsistencies of these key prosecution witnesses create doubt on the movement of an extremely crucial exhibit that was allegedly used to 29 fire the bullets that, supposedly, killed the deceased. The defense argues that there was no proper chain of custody as regards the pistol, but the prosecution argues that the chain of custody was proper as it was well explained by the witnesses. The position as regards the chain of custody of exhibits is in the first place provided in the PGO under PGO 229. Paragraph 16 of PGO 229 provides that: Whenever an exhibit is passed from the custody of one officer to that of another, the officer who hands over the exhibit shall record in the presence of the latter officer the name, rank and number of the officer to whom he hands over the exhibit and the date and time of the handing over on the back of the Exhibit Label. In addition to the above requirement of the PGO, the Court of Appeal has, on several occasions, restated the importance of maintaining a proper chain of custody. For instance, in the case of Wallenstein Alvares Santillan vs Republic (Criminal Appeal 68 of 2019) [2022] TZCA 516 (22 August 2022) held that: "It is settled that the chain of custody must be clearly indicated to establish that the exhibits were not tampered with (see Abuhi Omar Abdallah and Three Others v. The Republic, Criminal Appeal No. 28 of 2010 (unreported). It is also settled that it is important to have the chronological documentation and/ or paper trail showing the seizure, custody, control, transfer, analysis and disposition of evidence to guarantee that the said evidence relates to the alleged crime [see 30 Paulo Nladuka and 4 Others v. The Republic, Criminal Appeal No. 110 of2007 (unreported)]." Moreover, in Wallenstein Alvares Santillan vs Republic (supra) the Court held that: "Indeed, in Chukwudi Denis Okechukwu and Three Others v. The Republic, Criminal Appeal No. 507 of 2015 (unreported), the Court stated that the rationale for satisfactorily establishing a chain of custody from the time of the seizure of the exhibit to the time it is tendered in court at the trial as an exhibit include: - "One, to ensure the integrity of the chain of custody to eliminate the possibility of the exhibit being tampered with. Two, to establish that, the alleged evidence is in fact related to the alleged crime in which it is being tendered, rather than for instance having been planted fraudulently to make someone guilty." Likewise, this court, as argued by the prosecution is aware that the chain of custody can also be established by way of oral evidence. See the case of Sano Sadiki & Another vs Republic (Criminal Appeal No.623 of 2021) [2023] TZCA 17476 (9 August 2023). However, this court is also alive to the well-established position regarding the need for a documented or intact (unbroken) chain of custody on items that can easily change hands as held in the cases of Issa Hassan Uki v. Republic, Criminal Appeal No. 129 of 2017 (unreported) Kadiria Said Kimaro v. Republic, Criminal Appeal No. 301 of 2017. 31 In the present case, the item whose chain of custody is disputed is the pistol allegedly used in the commission of the duo murder in respect of which the police officers should have been more careful about. However, each of the three police officers that are PW2, PW3, and PW9 had his own story to tell on how a pistol came into possession of PW3. The pistol being an item that can easily change hands and easily tampered with, its movement from one person to another should have been properly documented. In the absence of proper documentation of the movement of the said pistol, as held in the case of Wallenstein Alvares Santillan vs Republic (supra), the possibility that the same was tampered with or that the same was fraudulently planted to make the accused look guilty was not eliminated by the prosecution because of the following: i. As alluded to herein above, there are inconsistencies in the prosecution witnesses on the handling of the said pistol, exhibit Pl, after it was allegedly handed over to PW2 and there is no documented proof that the was handed over from PW2 to PW3. ii. On record, there is no chain of custody document that PW2 testified to have signed when handing over the pistol to PW3. iii. The chain of custody document tendered and admitted as exhibit P9 shows that the said pistol was taken from Samuel Samuel Nyomahe and not CpI. Christopher who testified to have seized the same from the accused. iv. According to PW3 and PW9 the movement of the pistol from PW2 to PW3 was documented by using other books or registers which 32 PW2 disagrees. Additionally, none of those other books/registers was tendered in Court to prove the alleged handover. v. As testified by PW3, PW4, and PW6 there were five spent cartridges (used bullet shells/cases) found at the crime scene and admitted by this Court as exhibit P4 also enlisted in the chain of custody document. vi. It is also on record that PW3 and PW8 testified that the accused's premises were searched and fifteen other live ammunitions were found at and seized from the said premises, and the same were enlisted in the chain of custody document. However, no seizure certificate was tendered to prove the said fact even though the alleged seized items are reflected in the chain of custody document. The said fifteen live ammunitions were not labelled at all contrary to the PGO and the prefaced explanation provided by PW1 who testified that they were labelled, and thus not admitted when tendered in court. Moreover, based on the evidence on record, it is the detonation of the said live ammunitions by using a pistol that produces the spent cartridges. Given that there were unlabeled live ammunitions on the loose, and whose source was not proved to this court, the five spent cartridges, and a pistol whose initial movement was not documented as per the law, anything could have happened to the pistol, the live ammunitions, and the spent cartridges. 33 vii. Moreover, the chain of custody document is unreliable for not documenting the initial, but key movement of the pistol. The said chain of custody also contains items like fifteen live ammunitions, one magazine, and an ownership book (licence) all of which are said to have been in the possession of the accused. However, there is neither a search warrant nor a certificate of seizure to prove that a lawful search in terms of section 38 of the Criminal Procedure Act, Cap. 20 R.E. 2022, was conducted involving the owner of the premises and that the said were found in the accused's premises. The above gaps show that, in the present case, the prosecution went below the standard in proving that the material exhibits were not tampered with or fraudulently planted. Additionally, PW3 testified that the search was conducted at the accused premises and that one of the exhibits he handed over to the exhibit keeper, PW1, was the book of ownership of the pistol, legally speaking a firearm ownership licence. He testified that the book indicates that the pistol was owned by another person who is not the accused, but the said book of ownership had a serial number of the pistol which was seized and tendered in Court as exhibit Pl. On the downside of the prosecution case, neither the said book of ownership of the pistol was tendered in Court, nor the legal owner of the pistol was called to testify as a witness. This piece of testimony by PW3 creates serious doubt about who used the said pistol on the day of the incident. This means that it may be the owner of the pistol, the accused, or any other person. 34 The doubts were worsened by the fact that the accused denied any knowledge of or involvement with the pistol in question. It is further perplexing to note that PW3 testified that the accused premises were searched and the ownership book (licence) of the firearm (pistol), an empty magazine, and fifteen live ammunitions were seized from the accused's premises. However, no certificate of seizure was filled out to indicate that those items, especially the ownership book, which would have been the connecting link between the accused, the registered owner of the pistol, and the pistol itself were found in the accused's premises as alleged by PW3. The accused denied to have been involved in the said search and seizure. Therefore, as alluded to herein above, in the absence of the ownership book(licence) and the pistol's legal owner's testimony, the prosecution has failed to prove that the pistol was in the possession of the accused at the time of the incident, that is when the deceased were allegedly shot dead. The other key and determinant factor, in this case, is that no eyewitness saw the accused shoot the deceased. At this juncture, it is vital to state that it is not surprising that no eyewitness witnessed the deceased being shot dead. This is because the testimonies of the police officers who went to the crime scene immediately after the shootings had occurred speak it all. PW3 and PW4 testified that when they went to the crime scene they found a lot of people whilst the deceased were lying on the ground. At the crime scene, they heard people saying that Samuel had killed, but, perplexingly, they testified that they did not interview any person at the crime scene and they did not remember any person amongst those who were saying Samuel had killed. They testified that after the bodies of the 35 deceased were taken to the hospital, they looked for spent cartridges of the bullets and left the crime scene. This piece of testimony from PW3 and PW4 speaks volumes, simply put, it means that at the crime scene, there were eyewitnesses who could identify the person(s) that killed the deceased. The witnesses could be obtained from the crime scene and testify as to who committed the crime against the deceased. However, no efforts were made by the police officers to secure at least one eye witness at the crime scene. Moreover, PW8, the investigator of the case testified that the statement of witnesses Mgaya Mirumbe and Chacha Mang'era indicated that they witnessed the incident when occurred. However, there was no justification as to why the said witnesses were not called to testify in court. The court understands that a party is at liberty to choose witnesses and no specific number of witnesses is needed to prove a particular fact. Section 143 of the Evidence Act [Cap. 6 R.E.2019] provides that: "Subject to the provisions of any other written law, no particular number of witnesses shall in any case be required for the proof of any fact.' However, the liberty to pick and choose which witnesses to call is not without limitations. If the prosecution fails to call a key witness without justification this court is entitled to draw adverse inference against the prosecution case, or any other party as the case may be. Herein below are the Court of Appeal authorities augmenting this Court's position. 36 In the case of Simon Edson @ Makundi vs Republic (Criminal Appeal 5 of 2017) [2020] TZCA 1730 (18 August 2020) the Court of Appeal held that: the above said doubts could have been cleared by an independent witness. In this case, the pump attendants who were present on that day were crucial witnesses. Any of them ought to have been called to corroborate the evidence of PW2, PW3, and PW4. Failure to call them adversely impacted on the prosecution case. In the present case, the members of the crowd allegedly mentioning the name of the person who shot the deceased were key witnesses to be called for purposes of corroborating the evidence of PW2, PW3, PW4 and PW8. However, none of the said members of the crowd were called to testify before this court. In the case of Aziz Abdallah v. R [1991] T.L.R 71, the Court held, inter alia, that: "The general and well-known rule is that the prosecutor is under a prima facie duty to call those witnesses who, from their connection with the transaction in question, are able to testify on material facts. Ifsuch witnesses are within reach but are not called without sufficient reason being shown the court may draw an inference adverse to the prosecution". Additionally, as alluded to herein above, the prosecution did not tender the ownership book (licence) of the pistol which was in their possession as testified by PW3 who, allegedly, seized the same from the accused's premises. This is also fortified by the testimony of PW1 who is the exhibit keeper and who received the pistol ownership licence from PW3 as clearly 37 stated in PWl's statement dated 25/05/2022 and admitted by this court as exhibit DI, and as testified by PW8, the investigator of the case. The pistol's ownership licence was a crucial piece of evidence that would have resolved the imbroglio of the pistol's ownership taking into account the fact that the accused was not arrested at the crime scene with a pistol, he denied owning the said pistol which was in line with the PW3's testimony that the firearm/pistol was legally owned by another person. However, adding salt to the wound was PW8's testimony that the pistol was legally owned by the accused. Again, if a piece of vital evidence is withheld without justification, an adverse inference may be drawn against the person who withholds it. In the case of Allan Duller vs Republic (Criminal Appeal 367 of 2019) [2021] TZCA 689 (23 November 2021) the Court of Appeal held that: ' The principle of adverse inference finds its basis on an assumption that the evidence which could be and is not, produced would, if produced, be unfavorable to the person who withholds it. The above position disfavours the prosecution's case on three aspects, one, the prosecution did not interview and/or call as a witness any member of the crowd who witnessed and/or knew who shot dead the deceased. Two, not calling the owner of the pistol as per the ownership licence, and three not tendering the pistol ownership licence. All of which would have been so crucial in determining who was the culprit of the duet murders. Besides, the testimony of PW7 ASP Paulo Methusellah Mgema, a ballistic expert, working at the Forensic Bureau Laboratory, at the 38 Department of Ballistic and Explosives in Dar es Salaam, was crucial and relevant in proving that the five used bullet shells found at the crime scene were extracted from the pistol in question after the live ammunitions were detonated from it. The said fact was very well proved by the said witness who was eloquent and professional and his testimony was supported by the Ballistic Examination Report which was admitted by this court as exhibit P8. However, the testimony of PW7 did not fill the gap in the prosecution case in proving who fired shots from the said pistol and/or that the bullets fired from the said pistol hit the deceased, as no one who testified in this court saw who fired the bullets from the said pistol. Moreover, the testimony of PW8, the investigator of the case was, as well, not helpful in proving who caused the deaths of the deceased, instead, it widened the gap further. This is because PW8's evidence was to the effect that he was the one who interviewed the accused, and the accused denied any involvement in the murder of the deceased. He also made it clear that he did not interview anyone who connected the accused with the murders of the deceased. Further, there is also no link between the five empty cartridges found at the crime scene and the murder of the deceased. That is to say, whether the five used bullet shells represent bullets that shot dead the deceased. It is also not proof that it is the accused who shot dead the deceased. This is taking into account the fact that there is no fingerprint analysis that was done to prove that the accused, not being the legal owner of a firearm, used the firearm immediately before the alleged surrender to and seizure by PW2. 39 In light of the evidence on record and as analysed hereinabove, this court finds the following: One, there is no eye witness on who shot dead the deceased at the MG bar, and even though police officers who rushed to the crime scene found a gathered crowd, allegedly, mentioning the name of the killer, but they did not interview anyone amongst the members of the crowd as admittedly testified by PW3 and PW4. Two, the pistol ownership licence though came into possession of the investigators/prosecution the same was not tendered in evidence to prove the lawful owner of the pistol allegedly used to commit the duet murder. Three the legal owner of the pistol allegedly used to commit the duo murder, although known to the investigators/prosecution, was not called to testify on how the accused got hold of the pistol, considering the total denial of the accused on knowledge and possession of the pistol. Four, there is no proof in terms of chain of custody, or the alleged occurrence book in which the alleged handover/movement of the pistol was recorded, in order to prove that the pistol allegedly seized from the accused by PW2 was the same as that handed over to the PW3 and which was latter examined by PW7 confirming that the used bullet shells found at the crime scene were fired/detonated from the pistol. Five the integrity of the chain of custody document admitted as exhibit P9 is seriously wanting for not documenting the initial movement of the pistol, and for incorporating items, such as the fifteen bullets, one magazine, and an ownership book/licence whose source is unknown because the search and seizure procedures were flouted. 40 Six, the eyewitnesses as per the testimony of PW8, namely Mgaya Mirumbe and Chacha Mang'era were not called as witnesses. The above stipulated matters create grave doubts on the following; first, who shot the deceased and, second, what firearm was used to shoot dead the deceased. It is a view of this court that the prosecution has failed to prove any of the two aspects in light of the analysis herein above. Given the above, it is also obvious that the circumstantial evidence that the prosecution sought to rely upon in proving the case against the accused is far below the threshold required by law. It is trite law that in order to secure a conviction against the accused, the circumstantial evidence on record must point irresistibly to the accused's guilt, and/or the Court must find that the inculpatory facts are incompatible with the innocence of the accused and incapable of explanation upon any other reasonable hypothesis than that of guilty of the accused. See the cases of Mathias Bundala vs Republic (supra), Leonard Bundala Malulanya @ Rena Ngasa vs Republic (supra), Jimmy Runangaza v. Republic (supra). In the final analysis, and in the light of the foregoing, this court finds that the Republic has failed to prove its case beyond a reasonable doubt on the information for murder against the accused. Under the circumstances, this court finds the accused not guilty of the offence of murder levelled against him by the Republic. Therefore, this court hereby acquits the accused, Samwel Samwel Nyomahe, of the offence of murder of Daud Alphaksad Magaiwa and Mwita Chacha Sibora. The court further sets the accused at liberty and, unless held 41 for any other lawful cause, orders his immediate release from the detention facility where he is currently held. It is so ordered. Dated ,s 7th day of November 2024. K. I. Kafanabo Judge The Judgment was delivered in the presence of Mr. Lusako Mwaiseke, learned State Attorney, and in the presence of Ms. Mary Samson and Dominic Chacha, learned Advocates for the accused and in the presence of the accused. 0 K. I. Kafanabo Judge 07/11/2024 FORFEITURE ORDER Exhibit Pl, A firearm (a pistol) make Beretta, model Gardone VT, with Serial Number PX355777, caliber 9mm, black in colour with a magazine attached thereto, exhibit P2- one live ammunition caliber 9mm, exhibit P3 - two spent cartridge cases caliber 9mm, exhibit P4 -five spent cartridge cases caliber 9mm, all admitted as exhibits in this court are hereby forfeited to the Government in accordance with the Firearms and Ammunitions Control Act, [Cap. 223 R.E. 2002]. p K. I. Kafanabo Judge 07/11/2024 42