19861030 TZHC Mtwara

IN THE HIGH COURT OF TANZANIA AT MTWARA .. r:i-Gl-i COuRT CRHlINAL APPEAL NOo 63 OF 1985 Origincl Crimin~l CQSe Nci.27 of 1984 of the. District tourt·of s6ngea District ~t 3ongea B~fore F.A. Eu~sziu, Esq., R2s. Magistrate Versus TEE REPUBLIC 000000000000000000 R£.SPOND£UT J U D G M E N T RUBAi•lA, Jo ABDALLAH DAUDI was convicted of a.tson c/s 319.(a) of the Penal Code and sentenced to si~ ye~~s imprisonment. He hus appealed to this court 2gainst,both the conviction and sentence. The evid0nce on record has clearly established that the·house•o"f one Mohc:med Ally was on the night 10th February, 1984 set?¥irco The prosecution submitted that the person that had sef on fire ~his house was the appellant, a s~bmission that the trial magistrate ~pheld. After very closely. examining the record of the proceedings, I find myself u~able to accept the submission of the prosecution thereby npholding ,the findings of the ,.-- . trial court; the evidence for the prosecution is full of inconsistencies an~ contradictions. Let me detail these. TWO prosecution witnesses testified to having identified the uppellant as the person who had set on fire the house of one Mohamed Allyo These are- Saidi Salum (PW2) iilld Fatu Ngauja (Plrv4). The two are neighbours of the victim of the offence, Mohamed Ally (PWl). The versions of these two people .vary in details. According to Saidi Salum (PW2}, the appellant had knockec1 on the door of Mohamed Ally (PW1) more than three times, c,:lling "him, presumably by name in vain. This was . . the activity th2.t had awc\ken him and from the safety of his house 9 · saw the appellant search in his pockets, produce a match box ,which he lighted to put the house on fire~ The nppell~nt had further told PW1 nod~ ~tin anger thqt PW1 was going to see him for having beaten his (appellant's children)o Fatu Ngo.ujc (P\rJ4) on the other hc:ind testified to huving identifiuf the appellnnt by first voice and later sight. She h:.d h-.;c.:.·J h:' ,.. knock ( prGsunk,bly ~he door) anq call the compl~i~~nt (rW1). She then sud~enly saw the appellant run ,~wc.y frorn U1e hous2 o:: PWl. PWI I s house was at this time on fire. AS there was enough light outsidE~, s~e saw him through h~r glass ·windows. Sh0 woke_ up her husb,:md ( PW3). Once the versions of Saidi Sulum · (P.W2J :and Fatu· Ngauje ,{PW4) ·are exa111ined closely, one sees· contradict.:..ons in them. True they b6th testify to the knocking.of ~resumably the doqr of PWl by somebody the~_maintain was the appellant but only Fatu Ngauje (PW4) talks of the type of address used i.e. 11 shemeji, shem8ji". The calling uppears civil enough and going by what Saidi Salum (PW2) had ~tated the appellant later tol_d PWl~ ioe., "You will see as y_ou have beaten my young ones 11 , I ·question the account: the call c:ould not have been thnt civil; a vulgur one I imagine w~1ld have been used to fit the occasion~ Butt.his is not the important thing, despite being night time and therefore quiet, only Fatu Ngaujc (PW4) and Saidi Salum (PW2) seem to have been awakened by the calling and knocking at PWl's house. Even PvJl whose door was being knocked loudly enough no doubt to have awakened others some distance away Was not awakened by this and in the case of Fatu Ngauje (PW4), not even her husband (PW3) who had been sleeping at the time besides-her wa~ not awakenedo Did what these witnesses (PW2 and PW4) testify to really happen? I ask ~his question seriously appreciating thet bodily senses effectiveness is not the same to till people, others have sharper ones, because the subsequent events do not _bear out the_ir testimony. First was_ it realy possible that only the two (PW2 an~ PW4) in the whole neighbourhood were awakened by.the antics of the appellant. secondly during cross-,-examination of Fatu Ngauje (PW4) by the appellant, she (PW4) had maintained that she r . - 3 - • • had ·seen the 6ppellant "lighting Cl match box .and setting the hm.is,:; on· f:L.:·.::~" . md th:1t she::: hi c old· "the villagers th 3. t /'the:c r::ppe:l Lrnt wa{l the one v,;no :,::.id b.urnt tne house"· yet PW1, the c;ompl0in.:mt, up to the time of giv::.r:g his testimony never alluded to this. H-,::: kent "suspes;ting" the o.ppell.:::nta Even Joyce Nbawala ( l1WS) 1 u ten cell leader and hcighbour of th~ appellant to whom the co~plainunt and some oth~r people had gone to report about'the fire just after it h~d been put out stated that PWl had told her that he J-ud 11 suspected" the appell,mt as the person who had set fire to hi·s hou-.seo PW7, Athumani Ali, another ten cell leader was given the same information as that given to PW6. Why thc:n did PWl continue to hold "suspicions" that the appellant was the arsonist if he h~~d really been told by either Sc>;idi Snlum ( PW2) or Fatu Ngauje ,( PW4) that the appell.:mt had put on fire his (PWl's) house? The fact of the matter is thc1t h0 hnd not been told this fact_ by _the two witnesses and this because thej were not sure of the ~dentity of the culprit just like others hod b~en; their later statements were afterthoughts tailored to fit the apparent misunderstanding between PWl and the.: .. ppellanto 1'hat their statements were afterthoughts is understqndable: The eo_nditions for correct identification of the arsonj..st were unfavourc'.\ble it being night time •. The·court has to assume the naturnl ieeo that the night was dark as nobody had testified to there having been moonlight or any other form of lighting. It must be accepted in the circu·ms tances that it would not.really have been easy to see some distance away J.nd be certain of a person searching himsel,f for a match box· as testifi'ed to by PW2 and PW4. In the case of PW2, he hnd admitted that the appellant was to him a strarigcr 2nd he further did not state the posit~on of his house in relation to that of PWl. could he really have identified the- ~rsonist? I think not~ ... - 4 - The tri]l rn2gistr~te had not in his analysis disco·:~.,_- t' .c.: c_bove pointed wec).knesses. This was due to two m2in rc:!2 ons: h0~ · did not correllate the evj_clence - he had consider~ the cviGence of each witriess .separately.~ there WilS ~o ctte[~t to cross-check for ex~mple the evidenc~ of Fatu 1,1~1c,1-1·c (h,4) with that of h,!r husband P~l3 or witn th"lt of Saidi Sal m·(PW2) ~nd PW1 (the complainant) co look for possible con'radictions and inconsistencies in the evidence as a whole. Secondly th'e t.!:iial · magistrate was influt!nced by the weakn Sses of the appellant's defence. It was clearly full of lies but the duty to prove the case lay on the prosecution ncl that the appellant was in no duty to prove his innocenc. True the trial magistrate was obligat~d . I to evalu.:i.te defence case and reach findings. True also th6t the nce'case as already pointed out was full of lies but notwithstanding the triai magistrnte was~ duty take care not. to equate ties with guilt for there could ave been reasons other than guilt that had caused the-: to lie. One such reason;,could have be.en to exp oin awuy his uncivil .approach in not going to lend a hand~to PW1 when the house of PWl was on fire. For re sons outlined above, I find· it n.ot safe to uphold the convict·on. It is accordingly quashed. The sentence of six year/ is set a~ide. rt is order~d· that the appellant be set free at once un1ess he is otherwise lawfully held pn •Other ma-1::te s. Xn vie of the finding it is not neces~ary to consider the sentcncl. However for the future guidance of the tt1al magis rcte, I find it appropriate to briefly deal with the matter, .Arson is a serious offence and to those ·eonvictcid a it, deterrent. sentences ougl\t to be imposed. sut the sen ences have to conform with the law,. Tne six yec1rs that the tjj·io.l magistr~te had impos~d .was not legal as it had breached s.7(1) of the Criminal Procedure Code (then in operation)o The trinl agistrate could only impose up the f1ve years prison sen ence. '· \•."'··-:·,. . '· \, · Yahya Rub~ma · Judge 30.10.86