no c 789 cpl njadika ahamad njandika vs republic 1987 tzca 54 4 july 1987

IN THE COURT OF APPEAL OP TANZANIA - - AT DAR ES SALAAM (COHAPhMm t e t l , C .J .s MfiKiiME. J.A. And igSANGA, J,A.) ■ CRIMINAL m m M j NO. 96 OF 1986 NO.C.789 CPL. NJADIKA AIIAMAD IJJilDIKA. „ . .'.APPELLANT' .. , VERSUS ... ,s ;, THE REPUBLIC. ........... .. RESPONDENT (.Appeal from the conviction.: and: sentence s of the High Court of Tanzania at Iringa) ,(Mrema,;PRlf) dated, the 7th day of Novembers, 1986 stv' i n - J Criminal’ Sessions Case No. 4 5 8of 1984 * JUDGEMENT OF TH£ COURT MAKAMBt J.A.s The appellant and the deceased were both members of the court 0 - - ; ,j. Armed Forces. Each one was a-corporal: the appellant in the Police Department, the deceased in the. Prisons Department. At the material,.'time- they were both working, in Mafinga District, Iringa Region. It is not controverted that on ft "T O fvi f‘ ‘ r-,- •> . wt, U v vV ■ .■ ■■ .-1 : :■ . . . , .■p.r 25th April, 1985 the appellant ..shot the deceased with a. Willed him.* ~For this the, appellant, got convicted pistol:arid ‘ by Ilrema,!~P.,R u M; , 'SSxtefftded Jurisdiction,', and. sentenced, to f ■ ■ -v-<v ^ ■; : '■-■■-■'j .5 . ,j. ^ suffer deattiv' He -is &p$ealing to this Court and is being advocated for by Mrs. Mulebya, learned Counsel. Mr. Shio, CS'leUR;'’ > ", learned*Stottr Attorney;- appeared for the respondent Republic and. resisted, the app;al, but at the end. ox the day he did mals© an important concession, ?.s will be mentioned later. The appellant, a married-:man, was having ara:.affair- '-ho with-a- wofiian. called .'SIKITU ICI0Hrr02I, P.W*5," a: d a r k " in thie Helrfafiii© ©ffi&® ;atf1-iafinga, They had k : been .going* on ,for, over two’ »yeaa:S‘ ::in the proceedings the appellant ,'r.i in^s «nd’ ■Hstrict, Icir. ... ■ . It :: ./2 . . V th-t on h:, C.Yc? T 2'.jth ...V:::.u ...... ■„ ., ; „ j ,■ 5 ± . 0; .-. ... , r •^fcwc'^'iviistod - ■ ^ a .r - V - : L ■■ ‘ ; .' ■ t’ bo'nvu:-.' xj.. ;.--j;■ -11^. ?«,. v .3 to ' . ; v: , \ . .' <' ;ru ffo r ..= * ’-“v ’ ■"Jo ■ .: or - t ■ '■-•'-.rt -. : : 5 b„ in-:' 2 refers to P,W,5 as his junior wife although P,V/,3 referred to herself as the appellant's concubine, On the material day, 25/4/83, the appellant was a l o n e at the rented house of P,W.2 w h e n the deceased quietly entered the premises and w e n t right into the b e d r o o m of P,W,^ where the appellant w as sitting; Sikitu had gone out to escort an aunt who had v i s i t e d her. The deceased turned tail when he saw the appel l a n t but the latter caught up w i t h the decensed at the m a i n door and asked him what he had been u p to. The deceased r e p l i e d that he was after his girl friend AIC-3LA, P.W.5, a lady w h o wa3 also renting a r o o m in the same house. The appellant asked Angela and her raan ZAHIR A L I ZOHOR who was not ca l l e d as a witness, to oome out to discuss the matter. Confronted w i t h s u c h an embarrassing situation the deceased was at the end of his wits. Apparently ^ohor appreciated the predicament in y h i c h the deceased found himself and w i s e l y asked Angela, to withdraw. Then ^ohor, himself a soldier, counse l l e d the dece a s e d and the appellant not to scandalize the A r m e d Fo r c e s by quarrelling over a woman. $ohor thereafter went back into Angela's room. According to Angela, about five minutes later, she heard, the loud report of a gun. In her enceinte a n d anaemic condition she blacked out, and w h e n she came round she was told by Zohor that the person they and the appellant had been with, was dead. The R e p u b l i c ' s case was that the appellant killed, the decea s e d with malice aforethought. The Republic managed to p ers u a d e all the three assessors and the learned trial magistrate that that was so. The trial court rejected the appellant's defence, ,/3* s 3 s w h i c h was essentially one ox self-defence. The appellant told. the court of trial that aJTter Zohor had gone b a c k into his room, after he had counselled, them, the appellant realized that the deceased, would have trouble w i t h the main door so lie d.ecid.ed to go w i t h him to the door and help the deceased get out. All of on sudden, the deceased, pounced ^ him, pressed and felled him to the g r o u n d * and throttled him. In the struggle the appellant managed to get hold of the pistol he had w i t h him a n d fired. The trial court was not positively impressed b y this v e r s i o n and spent considerable argument in explaining' why. The trial c o u r t s view was that if the appellant's story were true the appellant w o u l d have told £ohor and the landlord P.V/.4, who saw h i m immediately after the shootingf and also be w o u l d not have told Sikitu, when the latter returned, to the house, "Nenda n d a n i ukaone maajabu n i l i y o f a n y a " which, according to the trial court, denoted that the- appellant felt "he had accomplished what he desiro^f,** r^ he trial court was also satis f i e d that if the appellant’was really attacked a s he a ll e g e d and he thought his life was in imminent danger, he w o u l d have cried out, w h i c h he did not do. The court a-ccepted that the Justice of the Peace, P.W.6 did observe on the accused's body the injuries - P.V/.6 said, he saw, but the court felt that !,it may be questionable as to the occurence of the said, minor inju r i e s 1’ . Lastly the trial court expressed the v i e w that the appellant's having a loaded pistol during the encou n t e r w i t h the deceased was not at all fortuitous and innocent. The learned trial magistrate opined rather, that "It w o u l d appear, in my opinion that there was no time for the a cc u s e d to entertain, v i e w s different from what was already . . . » •/4 - 4 - imprinted, in his m i n d and was prepared to revenge". Here the lea r n e d magistrate was suggesting that the appellant believed » that the decea s e d was enjoying S i k i t u 1s intimate favours so he had decided to revenge, Mrs, I'lulebya submitted, assiduously and w i t h great verve, that her client was provoked b y the d.eceased's b e h a v i o u r that evening^ He therefore assaulted the deceased under provocation. Mrs, Mulebya further submitted that the story that the appellant wa s suddenly attacked by the deceased should have b e e n believed. She said that the appellant's story found support in the testimony of the Justice of the Peace who observed a swelling on the back of the a p p e l l a n t s head, and some bruises. Mr, Shio made some effort to jupport the conviction for murder, but eventually as remarked earlier, he made a concessions He conceded t h a t Malice Aforethought had not b e e n proved b e y o n d r eason a b l e doubt, and so the appellant should have been given the ben e f i t of doubt* We are able to say from the outset that we cannot agree w i t h Mrs* Ilulebya on her submission regarding Provocation, iiven if the appellant believed that Sikitu was hopping to bed w i t h the deceased, and his belief was strengthened by the decaased*s entry into Sikitu*s bedroom, and. he was thus annoyed by the deceased’ s behaviour, legal provocation was not available to the a.ppellant to excuse his subsequent fatal assault on the deceased. We r e s p e ctifully agree with the trial court that even if there was provocation, and we say there was none, the a p p e l l a n t ’ s heat of passion would have spent itself out during the discussion w i t h Angela a n d Zohor and Z o h o r ’ s wise admonitory advice to his f e l l o w soldiexs. .... / 5 . R e g a r d i n g self-Defence, we are of the careful v i e w that Mrs, Mulebya.*s submission has merit. We do not feel that Self-Defence could safely be excluded in the circumstances. 'There was no w it n e s s t o what transpired, immediately before the shooting. W e do know, however, that Zohor talked sense to the appellant and the deceased and. he m u s t have felt it was safe to leave the two on their own and go b a c k to his room. The a p p e l l a n t ’ s account as to what happened thereafter is not. necessarily impossible* H e was civil enough to want to see the deceased through the main door. He said that the deceased suddenly pounced on him and made it impossible for the appellant to raise the a l a r m as the d e c e a s e d was throttling him. He said in his extra-judicial s t a t e m e n t that w h e n Zohor came out after the shooting Zohor asked him ''rabona. nimesikia mikwaruzo ya m i g u u :! - indicating that Zohor had heard a scuffle or some noise - and there was no e videnee to contradict this; Zohor was not called as a witness. The Justice of the Peace did observe some injuries which, in our view, were consistent w i t h the appellant*s story and w i t h respect, un l i k e the learned trial magistrate, we do not "fail to imagine or comprehend how the deceased could have started or initiated the alleged attack on the accused when the deceased k n e w that he was w r o n g to be at that place during those odd hours of the night". The learned trial magistrate also made reference to the a p p e l l a n t ’s possession of the pistol that evening, and drew an adverse inference* The appellant says that on the 25th April, the mater i a l day, he came b a c k from Iringa at about 6 p.m. and deci d e d that he -would, go to the Police station after going to Sikitu*s house. It is common ground that he was armed when he w e n t to I-tinga, and one gets the distinct impression that the c ustody a n d care of guns were so l a x that it is possible that it is true that even the previous day the appellant wa,s permitted to have the g u n over-night so that he might go to Iringa- again ea r l y the following day, this time for salaries. ^e cannot, in the c i r c u m s t a n c e s , say that the appellant went to Sikitu*s place d e l i berately armed so that he might shoot the deceased if the latter turned up. As we have indicated, in our v i e w self-Defence was avail able in th. circumstances. Having said that, however, we are satisfied, that the appellant went beyond the bounds of legitimate self-defence w h e n he used, a gun oa the d e c e a s e d who was completely unarmed. The appellant's mode of ret a l i a t i o n was grossly out of proportion. We take into account that he was supposed to be a keeper of law and order and he should have b e e n the last person to resort to such a d.eadly wea p o n in the circumstances. I n v i e w of the foregoing, we quash the conviction for mu r d e r and set aside the sentence imposed. We substitute a convictio n f o r Man s l a u g h t e r in the place of the conviction quashed, and. impose a sentence of ten years imprisonment, D A T E D at D A R E3 S A L A A M this 4 t h day of J u ly, 1987. F. L. NYALALI CHIEF JUS T I C E L.M. MAKAME JUS T I C E OF APPEAL R. II. XI3ANGA JUST I C E OF APPEAL I certify that this is a true copy of the original.