athumani shaibu vs republic 1987 tzca 67 3 july 1987

HI THE COURT OF APPEAL OP TANZANIA AT D'R ES SAL\AH CORAI-ls NYALALI, C . J . , HAAAI1E, J . A . AND KIS^NGA, J .A CPIuIITAL APPEAL NO. 13 OF 1986 ATHUMANI SHAIBU « a • o APPELLANT and THE REPUBLIC . . o • RESPONDENT (Appeal from the conviction o f the High Court o f Tanzania at Dar es Salaam (Mtenga, J . ) dated the 14th Febru-.ry, 1986 in Criminal Sessions Case N o . 7 o f 1980 NYALALI, C. J , s Tanzania at Dar es Salaam fo r the o /fe n c e o f murder contrary to se c tio n 196 o f the Penal Code and was sentenced to s u ffe r death by hanging. He was aggrieved by the con viction and sentence hence thin appeal to th is c o u rt. M iss. M ja s ir i, learned cconsel appeared, fo r the appellant vhereas Mr, S h io, learned S ta te Attorney appeared fo r respondent/Republic. From the proceedings both at the t r ia l and in th is cou rt, the fo llo w in g primary and second-ry fa c ts -nre not in dispute between the p a r tie s . Early at night on the l j t h November, 1978 the appellant v is it e d Raha Leo Bar near Chang'ombe p o lic e S t^ti^n in the c it y o f Dar es Salaam. He v s a frequent customer at Raha Leo Bar and v s popularly known by the nickname o f 'Ojuku' apparently because o f the be-rd which he sp otted . While the ap p ell'ait w?s at the b ar, a commotion occurred and in the course o f th is commotion, one Shamte Moh^-med, a customer who had come tc the bar w s k i l l e d . I t i s not disputed that there m 3 s u ffic ie n t e le c t r ic lig h t at the scene at the m aterial tim e. The a s s a illa n t s o f deceased managed to escape a ft e r being chased by some o f the customers and others including one S aid i Jongo, (P .W .6) a brother in -lav/ o f the a p p e lV n t. Thereafter,, on inform ation received , the P o lice came to the scene and took the dece-sed to the H ospital where subsquently a postmortem examination was performed on 1 5 /1 1 /1 9 7 8 . Several weeks la t e r , that i s on the 3 /1 2 /1 9 7 8 the appellant w- s arrested and was la t e r taken before a J u stice o f the Peace to v''om he m-’ dc an exculpatory e x t r a -ju d ic ia l statem ent. Prom the same proceedings in the ?Iigh Court and in t b is cou rt, the fo llo v in g primary and secondary fa c ts appear to be in dispute between the p a r tie s . It i s the prosecution c-ase th ?t the vi"'le\>t commotion occurred when a gang o f robbers armed with stones and a k n ife invaded Raha Leo Bar and attempted to rob the money which was the proceeds o f s - l e fo r the day. The attempt occurred when the bar-manager, namely Amiri Rashid (P .W .3) was about to ^et outsid e the b?x with the money, It i s part o f the prosecution c a se, th at the robbery attempt w” s fru stra ted by the intervention o f bar customers, including the deceased. Furthermore the prosecution contends th~t the appellan t wrg one o f th ese,rob b ers. The defence case on the other h-nd, i s that the v io le n t commotion was occassioned by a fig h t between customers and employees o f the bar, and that the appellant s u c c e s s fu lly intervened to put a stop to that f ig h t . Soon a f t e r h is departure, the fig h t resumed and the appellant was not concerned in any way with what happened afterw ards. The f i r s t important issue fo r consideration and d ecision in th is case i s whether the commotion which occurred at Raha Leo Bar was a fig h t between the employees o f that bar and i t s customers or whether i t w^s a robbery attem pt. This point does not appear to have been s p e c i f i c a l ly considered by the t r i a l c o u rt. The eye w itnesses to the alleged robbery attempt are Bakari Omar Makuka ( P .V /.l), Amir Raslii. (r.U.3\ H iss. Haraisa Sadala (P .V /.4 ), I lis s , P i l i Bakari (P .W ,9)» M iss, liwajuma Athuraani (P.VJ.IO) as w ell as Hami s Mohamed (P .W .8 )* I t i s s ig n ific a n t that a-nons; these s ix eye w itn esses, the suggestion o f a fig h t in volving employees o f the bar and some sustomers was put h a lf-h e a r te d ly only to one prosecution w itness, that i s P .W .8, Ve have asked o u rse lv e s, whether the dofonce would not have c le a r ly and firm ly ra ise d t h is point under cross-exam ination o f these s ix prosecution w itn esse s, i f r e a lly i t was tru e , aa are s a t is f i e d that the fa ilu r e by the defence t'o do 30 i s an indication that .th e ir line of defence is b a s e le s s . On the evidence o f P .W .1, P .tf.3 , P.W. 4 , P.W.O, P .W .9 and P..7 .1 0 we fin d 13 a f a c t th at the cosmo tio n -that happened a t Eaha Leo Bar was occassioned by an attempted robbery as sta te d by prosecution vri.tn.e3s©3. The second issu e fo r consideration and d ecision in th is case is whether the ap p ellan t it:. s one o f the robbers. This issu e was considered by the t r i a l court which resolved i t in the a ffir m a tiv e . The d ecision o f the t r i a l court was based on the evidence o f P .W .1, P.W.3» P.W.4> P .W .8 , P.W.S .nd P .W ,10, as w ell as the evidence c f P .W .5, the brother in law o f the a p p e lla n t, who i s one o f the persons who pursued the robbers as they ran away from the scene a f t e r fa-bally in ju rin g the deeea3ed. As already pointed out, i t i:3 undisputed that the scene m s lig h te d by e le c t r ic l i g h t and the ap p ellan t was very vel?. know.i a t rlaha Leo Bar. We are s a t i s f i e d that there cannot be any roon fo r mistaken id e n t it y . Moreover P. W. S, th at i s , the brother in law o f the ap p ellan t in d e n tifie d the ap p ellan t as P. W. 6 pursued the gang o f robbers in the noonlight o u tsid e . Taking in to acoount a l l th is evidence, we are s a t i s f i e d that no reasonable a p p ella te tribu n al can fam lt the fin d in g o f the t r i a l cou rt. We a lso fin d that the a p p ellan t was one o f the robbers. The next important issu e i s whether the deceased was k i ll e d by the robbers.. The t r i a l cou rt, Mtenga, J . found in the A ffirm a tiv e , I t is c le a r from the evidence o f I . W. 1 and P.7.T- that the deceased vw3 attacked as he and other custoners attempted the rescue o f P. W. 3 from the robbers. The a tta ck occured as the deceased teis e ffe c tin g the rescue by apprehending the a p p e lla n t. P.W. 1 say/ the ap p ellan t r e t a lia t e by k n ifin g deceased with a k n if e . The postmortem report made by the Doctor who conducted the postmortem examination shows that the deceased sustained a cut wound above and below the r ig h t o r b it . To that extent the evidence c f E.W.1 i s c o n siste n t with the report o f the Doctor. This in ju ry however i s not the cause/^lie death o f the deceased. There was another in ju ry found by the - Doetor i n f l i c t e d on the head. I t occassioned a compressed fra ctu re of the sk u ll and In tra c ra n ia l haemorrhage. These were the im e d ia t e cau3 es o f deceased's death. No one saw the pex-son who a c tu a lly in f l i c t e d th is head in ju r y . I t has been suggested, on the sid e o f appellan t in the course o f th is appeal that the head in ju ry could have been caused accid en taly by some o f the customers as they attempted to rescue P. Wo « We have considered th is p o s s i b i li t y but unde:: the circumstances o f th is case we are s a t i s f i e d that the head wound must have been i n f l i c t e d upon the deceased in the same way as the stab wound in :>.n attempt to stop him from apprehending the a p p e lla n t. In other words the head in ju ry was i n f l i c t e d by no other hut one o f the robbers„ We th erefore fin d that the deceased was k i ll e d by one c.f the robbers. oince we have already found that the a p p e lla n t' was one of the rcbfcers, then under the p r in c ip le o f common In ten tio n embodied under the p rovisions o f se c tio n 23 o f the Penal Code, the ap p ellan t must be taken to have k i l le d the deceased. Y/e now come to the f ilia l issu e 5 and th is i s whether there was m alice aforethought. Taking in to account the nature%and lo c a tio n o f the in ju ry i n f l i c t e d upon the deceased and the weapons ■ :with which the robbers wets a m e d , there can be no reasonable doubt that the robbers intended e ith e r to cause death or to i n f l i c t grievious b o d ily harm upon any person who may attempt to fru stra ted th e ir m ission. This means that the ap p ellan t was properly convicted as charged. We dism iss the appeal in i t s e n tir e ty . L . Me TilKAIIE JUS'TICE OP APPEA.L R . H. KI-S/iNGA. JUSTICE OP APPEAL c e r t i f y th at th is i s true copy o f the o r ig in a l. . \ >3 H* MSOFFE ^ISEPUTY REGI3ELU1