19870216 TZCA Dar es Salaam

IN THE COURT OF APPEAL OF TAl~Z,\NIA CORAM: MUSTAFA' J o,\o' 0MARI ALLY oouoo~oooooooooooooooo ;-.PPJ::LL/\.NT ,:,.ND THE REPUBLIC o o o •• o o o • •• o • o o o o , • 1(SSP0IJDENT (Appeal from the convictfon of :The'.digh court o~ Tanzania at Mtwara) (Msumi, J) • dated 9th April, 1982 in , .. C~iminal Sessi6ns Case No. 9t Of 1982 ril"TAFAz The appellant was convicted of murder and sentenced to death. He is appealing to this Court. The decea'?ed was a nei<JhbOur of the appellant. They had fallen out and were not on good· terms. PW1, a brother oft~~ deceased, heard a call .. to . from his younger brother named Ahmed, and rushed out/wh,~re the deceased was hoeing near his huto He saw the appellant had thrown down the deceased and as the deceased got up from the ground he saw the appellant stab the deceased, d~ 'in the chesto The ciuse c~ death was due to shock and haemorrhage as tt,e left ventr.~cle of the deceased' .s heart was cut .• ,~'-- There was evidence from a number of witnesses that the appellant was in the habit of carrying a knife on his waist and was so armed on the m~t~rial day. The deceased was n~ver seen carrying a knife on his person. ' The appellant had 2.llegEi :t:1at ,::arli.P.r 0!1 in thu morning of the fatal day the deceased had abused him, although the appell~nt tid not react to that insult. The appellant also all~g~d that lat~r in the lat~ afternoon thf' deceased, whose hut was ne2r t:1,:? ep;el\lant' s, h:3d also abused himo · The appellant had· peeped out from his .,_,j_ndow <'.r.d he2rd the abus~ of tht~ deceased. But nothing happened at. that ti:.:-· insulto eoooo/2 .. ,-;: 2 shortly thereafter, it appeared that the appellant ca~e out of his hut ard went over to whe:n: the deceas<:d VJFJS hO(~ingo P;:.J1, when called, went to where the deceased was earlier on h □ eing, and found the appellant had by then thrown down the decec3s,cd on the gro1-1n,.~o It was whrm the deceased got up that the appellant stabbed him to deatho We are satisfied that the appellant had unlawfully caused the death of tre deceasedo Mro Jadeja for thE! appeUant, in One of his girounds of appaal, has urged us to consider th•~ fail 1.1rr.: by th 0: prosecution to call a most material and important witness, on2 Ahmed, th,,, broth0cr of PW1, and who had shouted to PW1 to attend to the ~e~eased who was\ b~ing attacked by the appellanto It is quite clr~ar that ,,hmed had witnc-issed th,, initial stagr~s f the attack, and la b:r cal led on PW1 for h-2lpo .L,.-7,e The appellant had all along ,::llleged that he il:::·i c1Cted as a result Of _,... being provoked by +:':c:i ,;~ec•.=,s,,d' s v-:::roal·· abuses. When the appellant went up o the deceased at the material time, did the deceased abuse him and if so, what were the abusive words'? could those words, if utterec., constitute ' ' provocation'? Or dirt the appellant .attack the deceas~d immediately he went up to him and thf:n stabbed th<: df:Ceas(:do Who struck thP first blow in the .struggle, the deceased or the app~llant1 Akmad, whose addn°ss 1,ras kno .·:1, was cl,2arly th<: wi trn=oss most aware of 1 tJ-;e s~tuation, and could probably hGv1:~ b,stifi,,~d as to what actually happened fore the first blow was strucko But for inex~licable reasons, he was not Mr• Jadeja, in our view, rightly cvmplained that the appP-llant was thus pQasibly deprived of evidence that might havci assisted himo He suggested \ t~tJt _;he deceased might have abused the appel lirnt or c~ven had struck the first blow, and that Ahmad could hcwe gi Vf::n eviJencr, in fiivour of the eppeU,aai. ',' .. ' As at present there is no evidence adduced by the prosecution as to whet happaned before the first blow was struck, and that apparently such evj.C,en•e was available in thl: p,.•rson of i\hmad" Tt might well be that the evidenc~ of Ah~~d would br• totally unfavorable to the appellant, but we cannot rule ou~ the possibility th~t it might perhaps be of advantage to him~ .'/ !I 11 I 3 rn thP.~e c.ircumstanc<-;'.~, ·.-;e thihi<: i.t is Jnsafe: t~: rule out the possibi- . d . , 11 lity that the appellant might hav1::- k:dl:~ . ':IS 13. resrJ.\ Of some sort Of 11 1 1 · provoeation on t 1,·,e par_t o f '-· ,.., -'-h cE>.cea~<? • d• Tha t 1· s ,iJ us t • possi· bl e, as th e ,i[ .'I prosectitio~ r. - :: fc. .:.::.-~d to produce a most material witness, with out giving i/ i any rea~~n thereforo 1,_ II iJ ! ii ..f We realisP. that it is for the prosecuti?n to Icunduct its case in the . way it pre f ers, an d t o ca 11sue h witnesses _(j k i necessary. as i'. t th ins But h are, _I I/ '\ from the~ prosecution evidencP., it is clear tr1at i,hmad was the most cruciall · ; :I i.1 witness to the struggle between the appellant and I th•~ deceased and whQ · 11 . ' h e rn 1 evan t cou ld pro b a bl y h ave given.~ 8Vl . d e~ce ! ar,1JI t ~If wh O was th e aggressor and as to whether or not there was provocation. I !. Ii •' /. :1 Mr. Shio' for the r1.,:,pujlic agrees that the fc3ilur1-.? by the prosecution 11 ◄ tc call Ahmad was most unsatisfuctory. !I I ;1 1/ In the circumstanc2s w~• think it is un~afe to uphold a cOn1/lctio~for : I/ ,.1 1nurdero We substitute a convicti•- r, for manslaughtt~r,, and SP.t aside the I 11 !I sentence of death imposarl. I/ i " I i• I I ll I This is cle2rly a bad case and a deterrent sentence is called for. j i/ i: we sentence the appellant to ten years imprisonme"ntol ; jl .: ' 11 11 ,I i DATED at DAR ES SALAAM this 16th day of F1..:br.u3ry, :;_9870 I . ! '1 11 I I :1 !1 11 I' I 1, MUSTAF;, A. I II JUSTICE Op APPEhL I I Lo Mo MAK.:\J,% j JUST:CE OF APPEAL I ,I ' i,u M •.\. OMAR / ~UST~CE OF APPEAL I I ,\ . _I certify- that ,thi,s_ is a true copy of 'the I I DEP'··n ESG::-~'i'?. · ~ ~---·-.---·' -·---. 1! I ;j,,