zoa hassani another vs republic 1986 tzca 84 12 october 1986

IIJ •fill'] COUbT Cb APPEAL Ob TAT3AIJI ;.qi yyrr.; ( C 0 B , u - k 0 ; u , b . ^ CRIKIML APPEAL NO. 44 OP 1986 1. ZOA HA3SANI $ ’ 'v ; LA. V; 2. a l l i n^.;an.:)i 5 * ■ * * VERSUS Tin P3PUI3LIC, . (b.ppca 1 fror. th<? conviction o f the High Court o f i'rm onio at 'Oz-r.-z'-.; (iii.yyc, J .) dated tixj 10th day of Ifcrch , 1906 Criminal bessions Case bo„ 11 o f 1584 op -t l .: c.'PPT OMAR. J .A .; The two appellants were charged with arsd conric;-.:-d o f murder o f one Katakwa U oel @ Monbtac. are n;.-- : :gw-.-lin , P.W. 1 fiobert bo el the brother o f the deceased stated that he was at Usagara V illa g e -heza area on the night o f 11th September, 1982 at 11 p.m. e t c h in g tra d itio n a l dances wher, he saw his brother Katekwa and one Abdaliah stru gglin g over a n ib :. ..re was a pressure lamp burning. Then there came the jiirs t appellant Zoa and second appellant -bily who intervened and c l] bnd to get at the k n ife . In the course o f the- struggle the knife cat boa cn the fin g e r , deceased succeeded, to got poa^eF'iion oi the knife bent i t and cut i t to pieces and threw i t away. Zoa then shouted ".hat he had been cut and u.. . ev.ld not accept that and he must k i l l . boa approached A lly b-n: second appellant and sa id , "A lly g iv e rac- a knife if n lly was oa-an nb:in; a .br.ife from his lo in and. gave i t to boa. Then Soa was heard se ing " I an looking fo r my eneicy, I must k i l l him” . The deceased who was standing aside could not have heard what boa said and he was suddenly struck on the chest. The impact o f the stabbing rxdc- a noise as i f the :■a ceased had been h it with a f i s t , P.v/,1 e:cplaineb. The same night deceased was taken to h ospital and P.bV'; never saw him a liv e again. P.W.2 Esau Aman stated that on 11th September, 1982 at 2 p.m. w hile asleep in his house at Churbbageni he heard a ka . ck a'1' his door and. saw the f i r s t appellant and one A b d a lls t h e y entered his house and he noticed, they were panting and Zoa had a cut wound on his palm and on the shoulder, J-nalla had no injury p- r]J , ahoy told him that "they had gone to ChirAc to avoid being followed by trouble makers. The fo llo w in g aay he went to work and never saw Zoa a,5ain t i l l in the court room two years la t e r . The f i r s t appellant Zoa in his deforce -finied to have stabbed the deceased. He said he l e f t immediately a f t : r he was cut during the stru ggle fo r a kn ife when he intervened in a f i ht to separate Abdalla and the deceased. 'Zoa sc-id he went and rested, in the hou.se o f Abdalla t i l l the fo llow in g rooming when he l e f t fo r hone, on the way he net Abdalla and. the la t t e r sc! vised him against go in ; to his home and so they decided, to go to the house of T . V . 2 fteau at C’au.-ibocGni where they spent a day, and on the fo llow in g day on Sunday he went ashore to buy fis h and he was arrested, and charged with th is siurder. Zoa. :'enied stabbing deceased he denied taking a fe iife fro;;: - illy , the second appellant. A lly the second appellant in his defence seid ho was n^ver at the tra d itio n a l dances at TJsagara on the m aterial evening., and could not hove given his kn ife to Zoa5 he denied ever carrying a knife when he wont walking. The learned xJ .ec: --eunsel Mr. Mramba argued that P.W. 1 was the brother o f the deceased; he would therefore have an in te rest to serve. Further the noise at the place made i t u n lik ely that P.Y/.l could, have threat heard the J which he said was uttered by Zoa end even very u n lik ely that he Zoa could be seen by p.\ '.l asking fo r a k i i f e ,'ro.. the second appellant A lly . This aspect o f the natter has been adequately dealt with by the learned t r i a l judge and we' see no reason to •' isagree with him. The defencc o ' the appellants does not re lee any doubt on the truthfulness o f the prosecution story, In : cc tie. eenduct o f Zoa bespeaks o f c u lp a b ility ■ in going ir the eer-jor eerie - o f the morning to the house o f a frien d at deee /oageni to sleep -L". o .dor to keep away from trouble makers . Or what Zoa himself .ea 1’■ ee. c ..bdalla told him not to go to iris home end that he should go eJ..; enhere to remain fo r a while and so Zoa chose the house o f W V-- •!-. ■* go and hide. As we have pointed out, that aspect o f c r e d iL ilit y o f witnesses had been s a t is fa c t o r ily dealt with by the learned, t r i a l judge and we have no reason to d i f f e r . 17c r.ovordingly find tl ■t .^o and A lly had. been adequately* id e n tifie d V> have jo in tly committed this offen ce. \ve accordingly uphold conviction against both appellants and dismiss th e ir appeal, DATED at TAIiG: th is 12th day o f October, I f ' " ' . L si. :1FALIIA M j . J r e - " r i c E pi? a a a a a L D, P. mPIC-MIO Ag. JUSTICE 01? APiELL I c e r t ify trict th is is a true eery o f ini. or: ^ in a l. {r - .-/-I/YTTiTTLri \ "EMIOR KgPuv-1!