19871210 TZHC Zanzibar2

IN THE COURT OF APPEAL OF TANZANIA AT ZANZIBAR (çp14. CRIMINAL APPEAL NO. 126 of 1987 1. KHAMIS TAIB ABDULRAETYIAN •) ) . . . . . ...... . . , . A]?PELLA1STTS 2 KJ\,INA BT SU:'II Kt{ANIS ) VERSUS S.M.Z. ••••IQI•O$•Otø••O•t....O..... ... RESPONDENT (Appeal from the donviction of the High Court of Zanzib'r (Ramadhan C.J. dated the 29th d -'y of August, 1987) in Criminal Sessions Crse No. 6 of 1986 JUDG'flNT OF THE COURT The two appellnts were ch.rged joIntly in the High C 'urt of Zanzibar with the offence of mutder c/ '180 of Penal Debree Cap 13 of the Laws of Zanzib:'ir, It is alleged by the prosecution that on the evening of 1/8/87 at 8 p.m. at Nwembeladu the two appell'-nts murdered Abdaila Ithamisi AMelia1 The prosecution led evidence to show th' t on the material evening there were people like PW.1. P1.2 and PW,7 at a place in Mwembeiadu cilied Kajima where 'they usually assemble to chat and drink liquor, there happened to be a bottle of liquor owned by the decesed which was sold to P,1 and then "-' others wanted it and a decision was reached th't three would share it at agreed price. Whereupon, the first appel1nt appeared snd demanded . bottle of locel liquor from the deceased which was refused by him unless he paid. A while later the second appellent appeared and remonstrated with first appellant for having forgotten his promise of doing some chore for her and instead was talking to the deceased his fellow pausy. Three people gave different versions of what she said P47 said tht he heard first appo1lnt say this "You Khamis, you are not a man, from what I told you to do you have done nothing" PW,1 said he heard seoond appellant say "1 thought you had come to collect our bottle the fact is you Irnvo Oome to converse with your loved ones - you fool". /2 -3- othorwie of the second appellant, Kaima. Mr. Hamid contended that the situation should be construed in its tot.lity, the words uttered by the second appellant to the first appellant and iedi'toly thereafter the first appellant took out a 1aife and stabbed the dece.sed mercilessly shows tliit the words and action thr.t followed were interrelated. And judging by the back ground of the trio s she being the grandmother of the wife of the first and also she being at the seine time the mother of the wife of the deceased could she not have been in a position to counsel one husband to kill the other. So when Kaima wont to the drinking group shu openly castigated her grandson in law the first appellant for not bowing to her wishes simply because he was not a man enough to carry out such an undertaking and by way of ilan 8hot ond:to èuphaie hêt.,point sh.gyrted her hips and made her exit, This was according to Mra Hamid's argument enough for any man of appelL'nts standing in the family, to take, and so he did as a man must do. The learned C. J. was similarly inclined and so construed the words to mean incitement and so mentioned the case quoted by Mr. Hamid the St - te Attorney, DRAC.AKU slo AfiA & Another (1963) EA 363 in which it was held that, if there is no evidence of agreement formed by the appellants prior to the attack, it isufficient if an intention to act in concert can be inferred from their actions. In this regard past conduct of the second appellnt in wanting the police to punish deceased was given much attention and was considered as the motive behind the goading to attack. We respectfully disagree with this line of thought. To impute such intention to the second appellnt and to construe all her words and action as leading towards fulfilment of the desire for revenge to misconstnue the law on incitement. The words used must be cpable of only one meaning and that is of incitement to kill or cause. grievous bodily harm. Those words said by witnesses to have been uttered are in our considered view incapable of showing the mind of the second apellant as bent on incitement. They are on the other hand c.-.pable of innocent such as that of only wanting the first appellant to get a bottle of liquor back or of doing some innocent chore. 000 e/4 '-4- We therefore, find that there was no incitement and no counselling which could have c.used such a tragedy. If the first appellant had understood the situ-tion differently or he is slow in the uptke, he is entirely to b1ame We cannot drag second appelirnt along with him on the evidence aailable. Accordingly we find second appellnt not guilty as charged, allow her 10 . appeal and acquit her of the offence. She is/be, released forthwith unless otherwise lawfully hold. First appellant's appeal is dismissed and his conviction is upheld. Dated at Zanzibar this 10th dry of December, 1987. , JUSTICE OF A?PkL \\' ( S ):,.J. \''•. ,,,• / ' (S ..;, ( 1?' / \• \ - .5 /(,-./i R. H. KISNG' "N JUSTICE OF APP • - A.. N.. A. ONAR. J1J9CE OF APPEAL I oertifr that this is a true copy of the original. (. H. MS0WE) SENIOR DEPUTY REGISfllAR