19910517 TZHC Dar es Salaam

\ '~t~ ... .,.J·; ,; 'i'.· -~<~;,J~_~}1,;.~_)a,bz•,i9~~~:"• ' ORIGnr.:.1 JURISDICTION CRDHN_j,L SBSsrm; C.1:.S£ NO. REPUBLIC VERSUS,. iiW:lAlSED MWICHli.NDE •••••• ACCUSED _RUJ!11:LQ.__ , /-· At the close of the case for the prosecution Mr. Msei'erau, the learned oow.nsel f~r the ~ccused submitted that the prJsecution have not established ll.·"prima facie case". This suniliissi;m has been lilad.e under section 293 (1) of the Criwinal Procedure hct as ~wended by ~ct No. 13 of 1900. Before I rulJ on the que~tion whether the accused person has a case to ~, answer on the offence of murder with which he has been charged in this case -I find it pertin,mt to give a brief resur.rn of the Si:llient facts. It has been alleged by the prosecution that on or ab~~tthe 29 J~ly, 1905 that ~he . -~ accused murjereJ. :me WAZIRI s/o R1\S1HDI. It is couh.iOn grJund that one W/.ZIRJ s/o RlSHIDI is in fact deaQ. The case for the prosecution on th±s point depends solely on the evidence vf P\H S.1~LIM ALI and PVi3 Mii.RY NJ AU • .Briefly, the evidence of t~ese witnesses is to the effect th~t 0n the relevant date the deceased and. -:'WI were awong persons whJ had ass•H.ioled in the hvuse of PW3, at Keko S~iani within Temeke Jistrict. It has D~en established by ?WI ani PW3 that ·:;he former and the deceased were in the gr·:>Up of m-.sic entertainers whJ r10re invited by PW3 on i)ay.:ient. ThJ sai:l. group g,athered in the house of PW3 wh~ operates a palm wine business Jo~conly known ae "tembo''• It is in evidence that one MlRY JOHN, now deceased 5 was also in the group of the music entertainers. It was deposed by PWI and FW3 that in the course of singing to the tune :,f the gu:i,. tor which was ;1l aYed '-:Jy EWI a haa ted, deb8!te all.sued. between the deceased an:i the accused who i•'~isted. that MARY JOHN should , gi Te hiw ool:lpan.~ back hofile. It is in evidence that Mi1RY JOHU d.asiste1 and . preferred to be in the cowpany of the 1eceaseJ, iW,1 and the singing group. It was further esta0lishe1 in evidence that t~e accused nickna~ei MAKANZ~, atlperently agi t 8 ted. by lil1~RY JOH...~ 1S refusal to acc-, ..i1Jany hi □ back home left ?W.3 1 s resident - cu~-pombe-club. Sh0rtly later th8 decease~ also left the place presuraabl;r to atten::: t-o a call of nature. It was then when the decease:i wash 3 a.~: 1crying out f-or helJ. It is ~-·• the testirJony of PWI that he \ was one aoong t;,,Jse who haJ rushe1 to the scene :rn re.sponse of the alarm raised by the doceased. The latter was f0und lying pr''.ldtrate· bleeding from a stab wo'und and ·rirtually ren:iere.:J. helpless and speach less. The de•eased was rushed to the h~s~ital where he subsequently iiei. . .• /2--- /:t~~iW@?i!f~~~;;1-''~.,.;,;•1 ''",',:,\:;.1•:;· -~1;;:.,~~'.,1"~-f,:1.,~~,.~·•,; •' ,., •';, ~ ,•.''"",'ii•ir~.:.~•~~'-/\,;~. , . !. ·. J. . Accordinj tJ t11e ~o:;ical ~viien.ec t th~ jeQo-ased di.i4 !r?::(~ ~iP ' . t=;~. . ,, ·., penet~ating wo~nd. The cause of death was haehlorrhegio shock due to .~ ,. .. I deep penet!ating wound on the chest~ The deceased had further· fractured his third ~ib an1 had suitainei a 3 cm long wound on the upper lobe of the left lung. It is the case fJr the prosecution that it is the accused who killed the deceased. Mr. Mselemu, the learned counsel fJr the accused, ;. has argued that a case has not been mad.e out against the accus~:~ ,~:; sufficiently enough: tJ require hiul b mcJ.ke his Jefencie. The q~stion :;~ ;is that I au now required to consider and decid~ whether Jr not a prima facie case has been oade out, Mr. N.selerau in his subr..ission f-)r ''a no case t:> answer", in his usual vigorous and animated style, contended that there was nothing in evidence to show 0r pointed at the accused as the person who killed the decea~eci. In faot t.he onl.v circumi~a~ce agai~s) aira is that he was in PW.3's resi1ence-cum-pombe Qlub sJme mowents before the de£le-..d. i was assaalte& anl that he was indulged in a heated debate with one bJ,RY who decltr..ed b acc:rn1Jan.v him hoiiie but preferre:l the d.e«ceased I s Cvlllpany. There was no o:ther uaterial evidence against hi.w. Mr •.111sel8,WU further argue;i that the evid.ence ad.&uce1 faJ.ls f .Yr short of the standard required. Be thus urged this c.:mrt to inv::>ke the pr::>visi-,n 8 of section 293(1) 6f the CriQinal Procedure ~ct as ammende1 by Act No.13 of · 1980 an1 ~cquit the -~ccused, -In suvport Jf his proposition he referred me to the much celebrated case of the-defunct court of .a.p.i:)eal for .t;astern Africa - Ri~M1iNLAL T. BHATT VR. (19'57) 1.E.11.L.R. 332, MiM Chiwanga, the learned State li.ttor~.:.ey ;)fl ·rebuttal contended that the evidence of PWI and ?W3 was sufficient to require the accused to offer his defen:ce~ She further submitted that the accused must have been· c~nsu..ae~ with jealosy when :i-JARY JOHN :urned d.:-vm his req_uest to tiCCOJlJ?aflY hira ho1ue an~· vreferre .:1 tv rew,.in in the compa:n_y of PWI, the decease'd and the music entertaining gr.;u_p. In tke instant case there iS no direc~ evidence t~ •onnect the accused with,the uurier of.tha deceasad. ·Aa I ,have already shown in°the foreg0ne analysis the evidence against the accused·is·purely cir.cuusta- ntial an1 there are no other co - existing fAct6rs to·w~rrant this co•rt t::.i·draw an inference of the accuseJ 1 s guilt. The question that I haTe now to c~msider and deterr;iine·is whether ~rn:::,t after·hearing,the evidence in juppo~t of the charge I would now wish tti hear ~hat defen,e, if any, is offered by the accused. Can we realy say "tha t the evidence · available is sufficient· that I could .J:hcee.:i tJ c.:mvict if the accused elected not to·offer any defence? J~- ..; ' It is ar.iply clear fr')m the decis:J:r. :f I":.:'..:.:'._E:,_ .• l, '_:, .2:::.Tr (ai~pia) and ·seYeral other court decisions subsequen~ to the said case that a "primafacie" case must wean "one on which a reas~ile tri~unal properly ( directing its wind to tbs J.aw and the eYidence could ·c~hvict if no explainantion is offeN :l. by the de.:':encG," If the e~idence must be· such that the tribunal could convict if no evidence were offered by the fiefence then it is difficult to appreciate why it sh~uld not if no such evidence were offered and vice versa. This court and the ciourt of Appeal has stated time arid again that la mere scin~tilla of evidence _can never be enough; nor can any amo\;.nt of. worthless dis ere di ted evidence" (urid·er scoring is mine) Having carefully exaruined the testiwoney of PwI and PW3; as amply domonstra ted, I hope, in wy foregone analysis and upon c.msideration of the principles of law e 1 !',::,Hl out in the iiluch ci.llebratecl case of BHATT (sapra) I am clear ir:i my ui:1•: that the prosecution nas failed to establish a p::rima facie case, As tt.e ,provisions of section 293 (1) of the criminal procedure Act as ammended by 1.ct N-Jo 13 of 1980 are mandat'JrY I accordingly dismiss the case and acquit thr: accused as there i~ no evidenc~ to.~how that th~ accused as the person who ~illed the deceasedo The accused is to be released from \ custody forthwith ,~less he is otherwise lawfully ·helda I I