19871008 TZHC Dar es Salaam

.5 41. a: -4 IN THE COURT OF APPEAL OF TANZANIA AT TANGA AM OMiR 1,1FALILA SAnd_ic ) CRIMINAL APPEAL NO. 58 OF 1907 ZAIFA B.AKARI @ SHEMWETA...... APPELLANT VERSUS THE REPUBLIC. . . . . RESPONDENT . . 9 . . . (Appeal from the conviction of the High Court of Tanzania at Tanga) (Shungu, P.R.M., &t. Jurisdiction) dated. the 6th day of May, 1987 in Criminal Sessions Case No. 10 of 1984.. JUDG1NT OF THE COURT IANO A. The appellant Zaifa Bakari a.lis Shemweta was convicted of the der of one Waziri Bakari by the High Court Sitting at Tanga. In the event he was sentenced, to death. He has appealed against the conviction and the sentence and Mr. Waskar learned advocate, has appoared for him. The incident that gave rise to this case took place at a pombe shop called Namboleo in 'the Usagara area of the Tanga Municipality on 22/4/ 8 2 between 10 and 11 p.m. Waziri Bakari was stabbed in the chest outside the pombe shop. It was a heavy blow and his vital organs like the heart was fatally wounded.. He died in due course from what the doctor termed. haemothorax. The degree of violsnce used against the deceased showe-d a clear intentio 5n on the part of his assailant to termi.nate his life. On principle therefore the killing was murder, All this was not in dispute. The case against the appellant as presented by the Republic at t:o trial turned, upon three allegations. First, that an hour or so before the stabbing the appellant appeared at the ponfce shop and sted. an untoward. scene. Secondly, that . immediately after the stabbing the appellant was seen chasing the deceased wielding a ioife 6 Thirdly, that the deceased was heard to say that he had been staLbd by the appellant. At the trial the appellant denied all these allegations but the learned Principal Resident Magistrate who presided over the trici dismissed his denials, as did the two assessors who sat with him. Though no witness came forward to say that he witnessed the assault the court inferred from the circumstances that the deceased died at the band of the appellnt. . . . . . .72. -2- It is no 1oner in dispute that the appellant entered the poei'oe shop and creatd an ugJ.r scene. He was apparently in drink He pamLe from some of the patrons. He was persuacted to leave the pombe shop but he reappeared. half an hour later wearing a 1ife around. his waist. He was more excited and literally sporting for a fight. He ordered the patrons to leave the place and some did Sc He kicked the door of one of the apartments very hard. His aunt was sumrnoned and she cams and admonished. him and had him leave the place. The trial court found this account to be true- and as indicated above the appellant is not challenging that finding. As stated, the deceased was stabbed. . outside the pornbe shop obout an hour later. According to P,W.3 Juma Rashidi Chuma. one of the pombe soJ.ers, the place was ljt and there were more than ten people around. P.W.3 was the principal witness for the prosecution.lie was the witness who clajed in his testimony that he had, seen the appellant ôhasing the deceased. This is what he said. "I saw Waziri coming toward.s me. As he approached I saw him holding his chest. When I asked him why he was holding his breast, he said. he had been stabbed by Zaifa. On looking behind Waziri I saw Zaifa holding a lmife... The High Court accepted and acted. upon this piece of evidence and rejected. the appellent's contention that he was not present at the scene at that particular moment 4 The appeal comes to this Court on only two grounds. One, that the evidence in respect of the id.entification of the appellant was weak. The other around, is that the court erred. in reject. the alternative defence of d.runimess. As regards the first of those two grounds, which was pressed uno:i this Court quite strgly indeed, the submisions made by Mr. Nranba also whoLadvocated for the appellant at the trial have been repeated here by in support of the appeal. We respectfully feel that th ere are merits in that ground. As we have seen, the trial court believed, the testimony of P.1.3 Jwna as to whet transpired inymediatelSr after the assault, As Mr. Kavuto has properly pointed out, that was not quite how P.W.3 had related, the incident to the police five years back 4 He had then merely stated that he saw the appellant fleeing from the porahe shop holding a inilfe. lie had not said. that he saw the appellant chasing the deceased. 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