paschal ntamije and others vs republic 1986 tzca 70 29 november 1986

hi CJ T hlANIA GO :?J. K % ifYALALI, C. J. , ifcLJQ, J.A.1, and 111:1 ITSAt J. A . a r iK T lT .:!, . 0, L N O. 21 OF 1 , 0 : 1. Pa-GCllX IIT^iU^ | 3# JUXvElT^C ) ' tlZlCl th id .............................................................. ; . ' .................. r s g p o i o e i t t (Appeal from the conviction of the Kijh Court of Tansania at K w a m a ) (ZC.103C0, J. ) elated tiis 19th d;a/y of March, 1386 in Criminal sessions Case Mo. 123 of 1985 _.....L* _..j. _ JU P a cr ;,:T O P ______ llru.ZJ-A rJ L 9 «J,A. ! These three appellants were each sentenced to suffer death, consequent upon their conviction for the nurder of Jia313LlU3 or R^_JlSTaIJSLAU3 NTiJKIJE, a half brother of the first appellant PaGCAL NTiClIJE., Before us they are appealing- against that decision by horosso, J. and they are rep-resented by Mr. Satabalwa, learn vd counsel, Mr, ITdolezi, learned Ce:hor 3t :.te At tor aey, supported the convictions on behalf oi the Respondent Republic. On Christmas Day 1935 the deceased w ,,s at his hone at Kumlarabo Village in Ilgara District. He zr'.s drinuing- beer and ~ri ;ii hiirr arere, auenp otaers, his two wiv e s , P. ■.3 3-iLaC.i; and ■. 7,4 NATH.-iLIA , as well .s ..s two dau liters, P.V7,5 G-i-SiTEr.OCA and another, M' klA, who did not testify. According to the evidence of while they were thus drinhinp there r.rrived at their homestead the three appellants who asked for some beer. Cne of them, the third appellant, asked the deceased to ,~'o outside. The deceased did, whereupon the three appellants set upon hin and assaulted hin with fists and stacks. The assault was fairly prolonged and at one stags the second accuced stabbed the girl Maria near trie right eye, and P.hr.3 too vac assaulted. ?.h. 3 prev ..rica fcod sonsvhat s At first she said she actual-ly also aaw the sa:A.e :.3Cond accused stubbing the dscoasod, but in answer to the second assessor, slie oi-ned that she bad not seen tbs stabbing. At tbat stage they were alre .dy hiding themselves and she only thought it must be the second accused who stabbed the deceased as the second accused was carrying a knife. h.h . 4 ’s testimony is much in the s ae vein as f.h.3'3 and she adds that sha was herself hit with a stick by the third appellant s The second accused st abbed Ilaria, but when the Deceased was stabbed she and the others ware already hiding themselves, so she did ast actually see tha deceased being stabbed. C-enerosa's evidence was basically similar, except she said that at that tin; the sun was sinking, unlike the other two who put the time at aroand 3 p.m. In defence all the throe a pell ants denied the charge and each furnished the trial court vita an alibi - a similar of albeit being in the company of the other two, but also in t aat of other people - including witnesses who c ^jae tc giveevidence - carousing and drinking with then from one place to another as it was Christmas Day, D.l/.l FlhlihCU HT-illJP, a half brother of both the deceased and the first appellant, said that he and other people ware with the appellants up to 3 p.ra* D.7.2 D0MI1TIC UTAZIJP, the first appellant's full brother testified to being with the appellants up to 7*30 p.m. after D.h.I had left them at 5 P.m. D.-.r*3 hJLY IGTblc pjl.: _,Ii'ICIT, a nephew of the deceased, told the count that ne v..s in the company of the appellants "until evening t_ae". The learned trial judge was satisfied that the appellant1s guilt had been established. Neither assessor was so impressed. .Mr, Ilatabal' a complained that the alibi, s ould have raised doubt as io the appeli n t 's guilt. He -also bnitted t.iat tuere ■•/ere come curious fe;t .res in trie ;r.rocecuticn case. The laclias do not seer, to ..ave made an i mmediate report to ar/ona, it. was incredible that t!s.ey cjulcl' have hidden in a banana grove, a -.aere fifty paces fror: the scene, throughout the night, without feeling reassured after seeing r e L jives d neighbours converging upon the scene. Learned Counsel ..Iso found it nrysterious as to '■./ho moved the dead body before people arrived at the deceased's homestead. Mr, IIatabal ra also complained, though without much articulation, that the loarned trial jud^e relied on the testimony of P,~.r,7 ThCI-h.G iJTh'.ITJg; who was a hostile witness. Lastly Mr. Katahalwa ached the court to consider that the appellants had been drinking so that, if they did hill the deceased, there was no indication thit they did so with rialice aforethought. "jJe have clocely looked at th = evidence to see if Mr, Katabalwa's complaints are justified. Regarding the old nan whose evidence the learned trial judge relied on as buttressing that of P.¥.3, P .Z’J.h and ?, T,5 about the appellants bping at the* scene, and .as confirming the alleged assault on the deceased, at least by the third appellant, we have our reservations. True P.'r'/',7 was not properly handled by the prosecuting attorney as well as by the learned trial judge, hut in the end he really ought to have been treat -..-d as a host Lie witness. Thi learned trial judge did not make a specific ruling on the prosecution to treat the witness as hostile, but the answers the witness gave in exarinataon in c _ief just before the application and the fact that the court admitted his statement to the. police left one in no doubt that the witness was hostile. The effect of this should have been to ignore all that the witness said in c ~urt and in IDxhibit P2,, as being completely worthless. WSithout P ,¥, 7 *s evidence we are thus left wi tn only txie evidence of thrse laiias, posed ag .ir-st a solid alibi. Along with, that »/9 hava to look at the witnesses * failure to disclose to people, until the following morning, who the deceased's assailants were, and the not—so~c cnvincing re- son given for the appellants not being taken to task and arrested if taey 'rere indeed inplic ;.t■:i at the scene the following day. ¥e would hesitate to go us far as the second gentlemen assessor went, that the deceased* s own fa mily might be involved in the hilling, but we share :h;. assessors' fears that the appellants* guilt was not established beyond reasonable doubt. There are features which make one feel that not the whole truth really cane out. For example, the- mystery remains why the one apparently independent witness, P,¥, 6, says ?,¥, 5 tola him that they had spent the night at the house of one JOCJhH 'quite a distance from the deceased' and not in the banana plantation close by, as asserted by P . 7.3, P.¥.4 and P.¥.5. We are unable to uphold the co:.:./:.ctions, ¥e thus allow the appeal, quash the convictions, and set aside the sentences. If the appellants are not other rise lawfully in custody they should forthwith be released. 'J oD a i'.. 29th day of ibve. » .'■ ■>o<G, > ,o\ •A -- (u xo a xrus c jv*'-v/y ox vicinal, W DE^'T ;t .•