19871210 TZHC Zanzibar

4A IN THE, COURT OF APPEAL OF TANZANIA AT ZANZIBAR (COi: CRIMINAL APPE(L NO. 98 OF 1987 SAIDP-'LBAROUKNASSOR.. 60000 ..,..O..00 ........APPELLINT / VERSUS S.M.Z. ...... 000 • • ••••••000 6 . 060 • 0• 0• 0 0 00 • is RIEPONDENT V - (Appeal from the conviction of the lUgh Court of Zanzibar (Ramadhan, C.J.dated the 7th dy of J'larch, 1987) in Criminal Sessions Case No. 16 of 1984 JtJDGEMENT OF THE COURT The appellant SAID NBELROUK NASSOR was tried in the High Court, Zanzibsr, and found Guilty of Murder. It ws found established that he had unlawfully killed his trd wife MVJANAGANI BINT ;HAI'l&DI HAMID, by stranling her with a length of cloth. He was duly sentenced to suffer V I death1 It was common ground during the trial that for some days iedaely before the deceased was fouxd dead atthe.1vum the appellant was living in, a house belonging to a brother of R1.4 HAMAD }C[iANIS SHOKA, the deceased had been staying away from the matrimonial home 1 It was also commonly agred that on the fateful day the deceased came home accompanied by some people and asked from the appellant for both some eartuds in the possession of the appellant, and for diyorce. Thereafter the two sides part company: The appellant told the High Court that all the visitors, inc1ding the deceased, eventually left, at some stage or other, and the appellant remained at home with only fl.4. After breking the Moslem fast the appellant went away fox a ramble, leaving at home only P1.4. Later, he says at around 11 p.m., he passed by the house of 1'4.3,Sgt. MUSSA ALLI where he found both P1,3 and JM.54. PW,3 told him that he, Fv!,3, had been told by PI.4 that he, the appellant, had killed his wife. He denied. -¼ S •- -2— It was the Prosecution!s case tht the deceased returned to the house after she had left and that she was killed there by the appellant who then ixred her dead body in a pit in the backyard and securely covered it. It was from that pit that the Police exhumed her dead body. According to the Post Mortem &amnination report the deceased died because of strangulation as a result of her neck being tightly tied with a piece of cloth, at least three turnings. Before us Mr. Lipiki, learned advoc9te, who also defended the appellant at the trial, appeared for the appellant. On behalf of Serikali ya Mapinduzi Zanzib.r Mr4 Hamidi, lerrned Stte Attorney, resisted the appeal. Mr. Lipiki noGd three grounds - that the evidence was contradictory and unreliable, that the circumstantial evidence on record did not necessarily and exclusively load to the guilt of the appellant, and finally th.t the learned Chief Justice erred in dismissing the appellant's alibi which needed only raise a doubtg the appell2nt did not have to prove that it was true. Mr4 Lipiki is right that the trial court heavily relied on the evidence of three Prosecution witnesses - PW.3 Sgt. MUSSA ALLI, Pt.4 HANAD KHAMIS SHOKA and fl1 .7 MOM01ED SAID ABOTJD. P4.4 told of how he left both the appellant and the deceased at home after he had taken his futar. The appellant had told him to remove himself from the scene so that the appellant and his wife, the dece-'sed, might converse 4 When he returned he was told by the appellant that he had not finished with hip, wife so the appellant had to go out again. When he returned the seoond time he heard some suspicious digging in the backyard. PW.4 went to fetch fl.3 and the appellant told them that he had chased away the deceased. All the three of them then, PW.4, Pv1.3, and the appellant, went to the house of PW,3. There the appellant and PJ.3 conferred in private after. which P14.3 told PW.4 that the appellant said that he had killed his wife. PW.3's version is different from fl1.4's and Mr. Lipiki makes the point th.t the learned Chief Justice should not at all have placed reliance on the Li 4. • /3 -3- testimony of P1.4. According to PW.3, after he had leftthe scene earlier on in the late afternoon, which he did after the dece- sed had left saying that she was going to catch up with her companions, fl4 arrived at P 14.3 1 s place at past midnight, between 1 and 3 a.m., panting and holding his shoes in his hand Before F.4 had collected himself and reported anything, the appellant also arrived and when he was told by NO how W.4 had arrived there the appellant said he was apprehensive, fl,3 entreated the appellant to go home but the appellant refused and said he was afraid to do so. During the course of the conversation which follo-ed, when the appellant was profusely sweating and iqould not let-his eyes meet those of P14.3, the appellant mentioned that he had gone after the deceased and persuaded her to go back home to fetch her ear studs. The learned Chief Justice carefully considered the evidence of PJ.4. He was satisfied tht PW.4 had not been wholly forthcoming and that he was holding back some information • We are respectfully of the same view and for our part, we would he slow to rely on P4,4 where he is not supported by other evidence s We propose to look at the PW.4's testimony with that in mind and see where it is suvported. The assertion by P.4 that the deceased was at home (after the other people had left) is supported by the appellant himself as it were according to his own report to P.3. At some stage P1,4 heard some digging in the backyard, which is where the Police a few hours later found a fresh mound .i beneath which the body of the deceased was found s PW.4 is also supported by both PvJ.3 and the appellant himself that the appellant was at the house of PJ.3 very late that night. Among the things found on the deceased's dead body was an ear stud, only one, similar to another one ?vJ.7 found on the coach in the passage in the houe The deceased was on a coach in the house according to PW.4 and P4.7 told the court that the appellant told him that he and the deceased had a struggle on a coach after which the ppellnt did not remember what happened until he found himself in the latrine of R4.3. These are circumstances we take into account. We take into account also the assertion by NO that the appellnt wanted to kill PI.4 for otherwise he, .. 1/4 -4- the appe1lnt sid he would get into trouble, and the fact tht when he was told that his wife was dead the appellrnt did not do what one would have expected Li!m to do in te circumstances - rush home and find out what had happened. Instead he insisted on sleeping in P 111 3's bedroomi There was also the evidence of fl.8 MOHANED CHUM, •a CCM Banch Chairman who said the deceased had reported therappellant's threats that he would do to her something which she would never forget, if she persisted in staying away Mr. Lipiki also canvassed the idea that the decesed could have been killed 3nd buried by someone else. The possibility is not only remote but also fanciful in our view. We respectfully agree with Mr. Hamid that it was the appellent who had the opportunity to do that - a stranger would have feared that he could surprised in the act. Nr, Lipiki has stated the law correctly that the appellr'nt needed only raise a doubt with his alibi: he did not have to prove it. In the light of the foregoing we are satisfied that the appellant's o.libi did not doubt and that the appellant was correctly convicted. His appeal has no tnerij and is accordingly dismissedo Dated at Zanzibar this 10th day of December 1987. J'r L.M. MAXANE JUSTICE 01iPPEAL R. H. KISANGA JUSTICE OF APPEAL A. N. A. OMAR.. JUSTICE OF APPEAL I certify that this is a true copy of the original. (J. H. MSSFFE) SENIOR DEPUTY REGISTRAR