19880311 TZHC Dodoma4

IN THE COURT OF APPEAL OR TANZANIA AT DODOMA (coRAr MAXAJ.AO, And OA.) CRIMINAL APPEAL NO. 71 OF 1987 SAIDI ALLY @ IDIJI PACHA .0 .0 0 0 0 APPELLA1\1T VERSUS THE REPUBLIC. 0 0 0 0 0 0 0 0 • RSPONDENT (Appeal from the conviction of the High Court of Tanzania at Kondoa) (Bahati, J.) dated. the 4th day of April, 1987 in. Criminal Sessions Case No. 27 of 1986 JUDGrNT OF THE COURT MAKAME 9 J.A. In 'this appeal Mr. Nhezi, learned advocate for the appellant SAIDI ALLY @ IDDI PAdHA, has advanced one ground of appeal against the decision of the High Court, Bahati, J., sitting at Kondoa, in which the appellant was sentc-nced to suffer death following his conviction for the murder of a person called HALIMA d/o MOHAIDI. He has submitted that his client was not sufficiently identified as being the culprit. On behalf of the Republic Mr. Chaila, learned Senior State Attorney, supported the conviction. The main witnesses for the Prosecution were P.1-1.1 ATHtJMANI SAIDI NDAKWI whose wife was the one who got killed and his father, P.w.2 SDI NDAKWI. Both witnes.3es told the court of trial that they saw and. identified the eppella.nt with the .aid of torch light, P.W,1 testified to being awakened from slee:o by the' no.iae of a huge stone crashing against his door and. breaking it. He got up and. took a torch rind a stick with . . him. •n the torch ••0 0 0•• - 2 - light he saw the appellant who waa armed with a gun, and P.W.1 hid himself behind a wall. There was a hail of bullets into the bed room and when that subdued the witness unsuccessfully chased the assailant. P.W,lts father was by now also outside and P.W.1 heard the appellant bonirnand P.W.2 to sit down, which P.W.2 did.. There was then another volley of bullets and one of the shots. caug ht P.W.Ys wife, the deceased, who had by now come out of the house carrying a child. The deceased died later on the way to the hospital The appellant managed to escape. P.W.2 gave the time of the incident as 11 p.m. He heard the door being broken and this was followed by the loud report of a gun. There was then a lull and he went out during the interlude, between the first hail of bullets and the second one. He too had •a torch with him and when he shone it he saw the appellant whom he chased. The appellant resumed the shooting and' ordered P.W,2 to sit down lest P,W,2 got killed, itcr the appellant had left P.W,2 discovered that the deceased and her child. had both got injured, Mr. Mbezi submttted that the, identification by these two witnesses was not sufficiently reliable0 He first dealt with P.w.1. He said P,W 0 1 s unreliable becuse whereas to the Polioe he had. said the appellant was with one Salum Juna, in court he said he meant he merell suspected the appellant was in the conJpany of Salum Juma, (obviously because he believed Saaum Juno and the appellant were fiends and companions in other crimes, and had often visited P,W.l's homestead. together). Ifir. Mbezi submitted that this type of witns could just as well have merely surmised, that the appellant was the killer. He fu:ther' submitted that on his readinr of the evidence, it is doubtfll whether p.w.1 and P,W.2 were at any stage together ant. it would appear that p,w.2 did not really hai'e any torch. . . .. . . * N -3- Mr. Mbezi also sought to cast doubt on the testirony of P,W,2. Apart from suggesting that P,W.2 did not have a torch Mr. Mbezi suggested that P.W,2 could. not have clearly seen the appellant who had., by P,W,2 1 s own account "a black jacket which he had put up to his head" 0 Mr. Mbezi lastly surnitted that it was wrong for the trial court to reject the appellant's Arusha alibi. In his VieW it did raise a reasonable doubt, supported, as it ias, by the appellant's mother. / Mr. Chaila submitted that, there was enough good opportunity for the witnesses to identify the appellant during the period the appellant poured out as many as sçventeen 'cartridges, punctued by the appellant's encounter with P O W.2 0 Both witnesses identified the appellant and P,W01 candidly owned in court that he had merely assumed that Salum Juma was with the appellant. What is iropQrtant is that PW.1 's identification of the appellant was corroborated by the evidence of P,W,2. As for the alibi, Mr. Chaila submitted that it was so wide and, loose that it raised no doubt at all. The appellant should have called somebody from Arusha to support his story. The crucial issue is whether the a;pellant was sufficiently identified. We are satisfied that it is true both P.J.1 and his father lmew the appellant before al...: were larwith:-hr.. respectfully agree with the learned trial judge like all his three assessors, was satisfied that the appellant had been correctly identified. We find it credible the testimony of p.w.1 that he saw the appellant in the torch light and we are satisf ed that it is true that • p.W.2 saw the appellant who ordered. iiro to sit clown. Mr. Mbezi has managed to nibble at minor matt"rs, jncluding th: precise sequence of events, but we think these do not detract from • • 0 00 0 0 /4 -4- 7 the overall effect of the evidence of the two men. We are satisfied that the appellant was correctly identified as being the person engaged in an orgy of shooting during which the dece.scd got killed. We respectfully agree with the trial court that the appellant's alibi failed to raise doubt and we share the view that it is not without significance that at Arusha the appellant tried to escape from custody once he learnt that he was wonted at Kondoa in connection with a killing. On his own account he got severe panga cuts before he was recaptured. The appeal has no merit and we accordingly dismiss it. IATED at DODOMAthis 11th day of March, 1988. L M. HAKAME JUSTICE OF_APPEAL R. H. KISANGA JUSTICE OF APPEJ\L - A. N. A. OMPfl JUSTICE OF APPEAL I certify that this is a true copy of the original. (, II, MSOFFE) SENIOR DEPUTY IUXISTFL\R.