19921007 TZHC Dar es Salaam

\_;~~J' - C...";; - TH.!!, h,:,.i:'LBLlC ., ••.. ,. " " ••• " •••••••••••••• o •• o Pi~OS1CUTOR v~irsus iiAJviI::, l( ~LA'I'l n ~ • o o o o o o e a o o o o c- o o o o o c o o o o o ♦ ii.CCUSi;D J U l., G 1•" ~ N T BAHi-iTl, J: The accused in th.;,.s ca.so stc:.nds charged with the offence or- murder contrary to Section -19G cf the Penal CoJe •. It is alleged that on or about 7th July, 1907 in Dar es Salaam region,. the accused murder-et one !>.dam I·.f..:·z~:. 'l'he accused pleaded not guilty to the charge. The f0lluwinc m""tters uE::t.'e not in dispute at the preliminaJtY hei;;i.1·ing. (l).Ae,_.... ni .rL.,za is dec•.d. ~e died on 7th July, 1987., <il The body of th~ said htlam Haza was examined by a doctor and a P,ost Mortem :repo:-:t :rio.ue. (3) ·1'h3 cause of death were gunehot wounds as per.po::;t mortem examination report. Two witnesses ~ave evidence f~r the Prosecution •. PW82 said in his evic,ence th,.t the (.0c·;"'scc\, the accused,. Charles Juma Dhahabu, Wilsvn .'.:lt0I,1.b.en an-:,... ,ichdl'il were all working for a Japanese ~iplomat ly the nRae ~f t~~A~RI YObHINO. The deceased worked as & hL usc:oc,y while the accu~cd and J:<icha.r<.l were militia. men. Charles Jumi:J. . -hahi:lbu. ia PW .2 :i.n these p.roc.e.w,a.ings, _and he was working as & hot:sebcy too. Wils,m and Hichi.:,rc1 \v'ere gaJ'dnor. • . ,tt.,:.. The house where all 'hcse ~-13,:;)le ,H.:.:..~ked was no •.92 N2°_c-;_1;1i Cresoent. The deceased., i,ilson anc:_ F'., .2 1:1ere living at house no •. 92·.. PW .a. discovered th&.t hfo .':,,000/= \;as ;nissing.. 'I'his W/:.lS on 7th July, 1987 at 6.00 p.L P .. ~ .:.::l::,J'. ,•lilsun his roommate about the los·s of the mc,ney. ,,ilso; s""'i-:. -~l:::,c. he did not see anyone steal i.t. PW.2 askt::d. c;.lso the l ~cusec'. c:.'.)L 'L',t the missing money. 'I'h& accused, who was buar~in~ at th~ i:te :~ the touse, said that he did not eee anyone en-;,.er th: rc.,.::-m of b:.2 wi·cn·2ss. V!hen the deceased Adam Hoza c&1,1e tu t 1 hc1..,r:::e ;_1;:,..92 i1iadai Greso'i&Ilt, he summoned all the emple:yees i.: crd3r -~,:; c:.iccuss the theft of the shs.13,000/::- • .They all went into ··.he rc~i,·. cf ..:t, .. 2o fhe accused had his gun~: No one admitt3d ti-.kir.g :\'h_::: r,1..:ne;f &nu. so-it 111a.s. decided tv search - 30 - ev-_eryune.. NGthing Wi::J.S j .;,UM~ &fter the search excerit shs. 17,000/c which \·Jas of ,,ilsono ·..c_..:;;1:. -C!Je &ccuoed said th~.-l: ev,:ryone should go to the Police Stc:J.ticn. Sut PWo2 did not see any need.· Yet the accused insisted t;_·.::.t every.one shvuld gc, to the Police Stetioa, and he :;_:mt everyone un . . . er arrest. 'l'hen the decectsecl went into his :room and he came back ·-,i th a b&g saying; 11 Y ou lw.ve. stolen very little money.. You shr::-ulJ. have st0len thip muney which is more." That bag h"'d not lesE.- than 0hs o 150,000/=~ The accused then cocked his g'un and s:-1.id thc.t no cne shuulc. leave as everyone was under arrest ti11 morning.. But P~J.2 replied thc1.t there wa-.. no need for that bec!:l.use it is his money wl:,ich h&d been stolen,. The deceased went t~ his room an~ he called ~~.2 to join him. The deceased told }./.2 to call the accused. The accµsed s~id that he would come,, 'l'hen Pli .. 2 heard a gunshot from outside. Another gunshot w&3 heQrd &L~ & bullet hit a table. Yet a· third gunshot Wc-.S heard ant the deceased was thrvwn up and he fell down. 1'he a;cused 11.rs.s 2·~anc,j_ng in the middle of the door•" way with his gun. ~hen the accuse~ ~ent behin~ the door to check the cone.ti tj.on of tha c:ieceased. }>\;J .2 jumped on the accused and grabbed the gun say:i.n~-, tc., the accused "H~rnis, you are killilft us, what wrong have we done to yuu?n 'l'he accused :cci_)lied, "I am confuseu, you should reg:_,:..-c y,_,u:cself as e;o.:.c: ,.:ts de<",d. 11 PW •. ?- went on struis6li:1g with the a.ogw,ecl. so aG t0 tc-Jce tl1e gun from him. he ai1 not succeec1. and so he pushed the accused who fell on the clece;..:.sed &nd he ti·,en escaped. Pi..J.2 :..'an up to Oysterbay Pc.lice ~tc-.tiun where he reported the inciL1.ent. He slept at the Poli::e btcl·ti,.n ,.,1.i1c~ next day he was tnken to the scene of crime. ~e found a lot of blood in the room uf the deceased but the L1e bag vii th the money was missing._ PW•.?- explained that their employer had given each one of them a lot of money befori he was to le2ve for J-pan as his term of stay had comet~ an end. PJ.2 also said that he ~ad no previous quarrel w:.th the accu~ed and that he jumped on the accused after tbI'efe shots had be.~n fired. He '.oonc:J.uc1ed that it was after seeeing the mc:ney e;f the dee eased that the accused shot him. PW a 1 Inspector J-!.,likana l!iasija .s~d tha~ he was stationed at Oyst..erb~y Poli•~ bt~tion in the office of the OC. CID in 19a7. On 7th July, 1987 he wc:..s told of the attack made to He •,1e11t to tb.e ~n~ . ,,. oi crime with the per.s ,m who ha 6. rer;o1·t ..:d ·cha incid8Dt. He found 2 employees at that touse who report~i tu him that there was a misunder- standins becµuse money b.~lon 6 ing to the deceased h,::.d been lost and the deceased wanted to search the others. The accused got angry and shot the dece ... s<~d. He we.s told that the accused was HAhl& KILATU but that h•.:; w~,s not at the scene. PWol discovered an SA.ti. ne&r the gate of the h-,uGe. He found seven rounds of ammunitions ::.n the gun and 0ne bulJ.et was in the chamber of the gun. lie also saw Dlc ,·. in the servants quarte1~s and some clothes on the floo~. he picked 3 spent cartridges. PW~l produced the Si-,.t( gun ;.nd tt.e r ...;un1:.s of aminunitic,ns and th~ 3 spent cartridges in CJurt (exhibits P.2, P3 and P.4 respeetive1y). He ci.lso p:20,.;ut,ed the ;;:;ketch ~lan which he ma<le. He visited Muhimbili hcs:pitcJ.l w..1ere he fo1_;r, ·. the dead body of the deceased with 2 injuries~ PL o 1 rearrested tho accused after h;~ was brought from unive1 ity PoJ.ice .Stz..tie,n. In his defe,:icE. tho accu.:.,~:G. sc:,id cm oath thFJ.t he \vas working as a guard at Kinoi.doni at the huuse of a JaJJ ..,:...ese diplomat. He went to work on 7b1 July, 1987 2t 5 J.Jem• reaching the place of work at 5.55 }Jom., He isot the bl·:.1: at the police st-c--tiun Oysterbay at .5.30 p.m. and h~ walked tu th~ place of work 2-t 5.55 p.m. Charles Juma l,haha;:iu (Pw .. 2) caine t0 the gate.P\J.2 c;ot in the compound. hfter aaking the accu.sed a few quest~ons PW.2 left againP. He came back with keys from the dece~sed. PW.2 asked the accused whethe:-· anycne hE,-::. entered his room. '.L'he accused_ said no. PW.2 infcrmed the accu 2d that his money had been stolen.. H\lo2 was living \·d.th '.,ilson and the deceas.ed. PW.2 went after these 2, but it w~s PW.2 who eame back fir~t. The deceased came tc tht. house uhich the accused was guarding at around 8 porn. H, .. 2 e...1d the decec:sed were in their rooms until ll p,.m. when P\.1 .2 w:::nt to the accusE:d to ask hiiJ to go with him to their room. ..'he accu.s&d went to the ro 1 ,m where the deceased w2s an~ the deceased tuld him about the loss of the ae.cused. . money and the decisi0n to se~i•ch everyone including the J."he accusa'd agree;.. · ') be searched o.ut 11othing was found on him. V;ilson WclS e.lsc, sea.rc:1ed but again nothing -we.s found~ Then the de4P.,,sed said thctt no money had beeh lost .. But PW.2 protested t) the accused saying that the deceased kn~w. about the money.. J?vJ.,2 saici th&t all .s.hould go to the Polu.e 1;;,.tation.., But the accu,:c:ed Sb.id. that b..e :;0u.ld not leave 32 - as he was the only arma l :._) .:.:B.::,n on guc,rdo J.1 he~1 tho d.eceased insi~ted that everybc~y s0 t~ the 1-'0lice 0tctticao ~ut now l'w.2 J.iu not want to g, t,J ·cLe ~-L)lice ,.,;tc-tion becc•.use he said th&t the theft was an LnsiC.e jc,'.j in th::.t the m,·n8y :,£ the ti1e deceased which wa: on tho ·::ied wc.s not ,stolen. 1~s the accuse(. was gcing b&c.: to tJ.l'o 6 2-·~G, after it w.:=::.s r,,[;':,'.·eed not to wake up their bosi , he fc:.t so1ae ne snE,tch his sun~ It was ~~.2 who snatche l the gun. ~he accused ~r~jje~ the gun in an efrJ:;.~t to keei it .. :::O,·n2 .Sc:,;:.·.,, " .. hy &re ~"-'U efending this thief? 'l'he ac,;u1::,ed ~,, ,. :.J· ·,J .ec, the b&r:C'el portion while }'Vv., 2. hel0. the lcwex pee rt c:.f the ,un.. F1v .2 W.J.S t:.~;y:i.n,.;, to shoot at the dece~sad wh ,~ he was cal in~ 2 tbief. IW.2 m&naged to free the gun from the LTi? of t~e accu1::,ed anC uow the deceased t~ied to br~b it jut in v-in and the dece~sed cried 'out.. 1.lle accm:;<;d r.;~n,,sec: v•• ::,~l,n vUt c-.nd ;-et c~ :_i:i:'t from Felice uf:i:icei·s o He :.l :..~ C:.. u s-acur:L t~, 1::,uctrc1 1:..l ti.10u 6 h >0 ,•'c.s ~-•-·ins other .:,utic:.s t,nd that on 7th July~ J987 f~.2 was tc su~~~ ¼ith the accused. The accused. aumitced that he cue, :.10t cJ.1;c.lJ.enge PvJ~2 wh2n he said that he ·,1as c; h<)'.;.Seboyn ._,_:he ,.CCU:3.::d a.lso saic'. tl1,.i; j_Ji;,Jo2 sh·ot as the /3.CCUS:.:~. v•f,[' hulu.in,c -::;: , i)E'.;:::eJ. 01' the gun. ,,;.:1 the which hu~ Po~,~e~en anti ha t~l- the ~c~icewen about the person who hat tdken his LUn &nC uas thre~tening to shoot at a person. L>Ut these. pclic;.::men diC. n0t c',. 0 ,,;nything and they tnokt him to the University 2olice btation. 'i.'he views of the 6 entll;i,1::-,n &ssessors were th,.'.t the acoused was guilty as charged. "i:h0y uere s&tisfied with tl:1e truth ci of.the evi~eLce of ~w.2. ~~~ first assessor que~: ied why the accused went to 1Jniversity _.-..:;J.ice ,.,,t,·.tion instee.c1 ,;i' Cysterbay 1-'olice btation a.Dl fount t::.e svi~.once of the accu,se:c1 c.oubttul. 'l'he second gentleman asse1;.,.-; _;,· L.il'3d to see why tJ1.,3 accused did not go tu uysterbay ~clice 0t..:c'cion - a mere 15 minutes walk - if his st< ry was t;,~ue. In this c~se th2 oral avi.sace ccnsists of the word of PW .2. agc,inst t ':i.°'t of the c.ccu,30 c'.• Jut there is ci:ccum,;;;tQ1.:otia.l eviuence as ue].l. '.L'here ::..:: -~~ .. G i ct ·c~...;t the c,ccusec1 had the guno There is also the :act ti1& t the accused c~icl not go to Oystex·bay Police 0t.:.ttior.. 'l'he accused has given an explanation as to why he did not go to the Police ;:,t.~.ti0n at Oysterbay .. 'l'he queztion to b.': c.rns·.;..:red. is wheth•.,r t;i;; c"cefence of the accused raises a ree.sor..Able c~oubt in the prosecution case. The gentlemen assessors ha•·e answered the question in the negative. Let us see whether the answer to the queation sho~ld be in the . negative or afiirmati~e. ihe story inthe defence case has come out only at the defen,e sta~e. It can be said to be an after~ thou~ht because at nc, time in the prosecut:~c;1 1 s- cc:.se \,.,ras there any claim by the acc1 sed th-.:.t it \·Ji.:lS hJ.2 who shot the deceased. The cross-examination did not sug~est to any of the Prosecution witner:::ses th&t it We,.3 hJn2 who shot the decel:-lsed. If the story 1 of the accused on w:'.1at he.p _enec1. were true the de:::ence cc'l,lnsel would not he.Ve failed to Jut it to 1-,1.2 that it was i--';102 who snatched the gun from th~ .ac~us~d &nd sjot the deceased. ~ven the claims by the accused t11a c he repo:cted thi:l.t someone ):,e,d snatched his gun hav have no truth i~them. In~scd the failure of the accu&ed to go to Uysterbay ~olice ~tcition to ir;e~:ort is a significant fact.. The accused gave an explanb.tion fo:;_~ the failure which the assessore rejectew. I, too, find no truth inthese claims wh:Lch have no ring o.f truth.. Ii" thb. t we.;;•e true th<::re would. h;-;(ve been reports· of thut n;;.~ture at the Police .:--it,:,tions where the accused went to. If it was ~W .. 2 who had shot the deceased, PWol woul~ have been told so when he visited the .scene of crime.. But J?\J.l told us that the employe.~s whom he found at the scene told him that it was the accug_d ~ho shot the deceased with !he gun •. There is also the further feet th~t ji,.2 went to Oysterbay ~o~.ice Station to report the inci~ent. Je may ignore the contents of the repor~ because P~.l did no; identify P~.2 as the person who h~d rdported at the Police 0tati1. n and ;,10re so because PW.2 himself said that someone from the Am( ;-ican :&-Dbass;,, hc:,d already reported the 0 commotion and th~t 1, wns left at the Police Statinn when the Police went to the s~ene of crimeo It is for tte above reasons t~~t I would answer the question which I posed above in the n~gative. I agree with the gentlemen doubt assessors that the 1~efence s·c o:cy d;)es not raise e. re$.sonab~ to the Presention _case,. There is certainly enough evidence to prove th"'-t it we.s the accused who shot the deceased and caused h1e death.. 'J.'he evil.ier,c-?in ciefence cannot reasonably be t;cue. I therefore finu thbt the accused caused the de~th of the deceasedo J,s for wc:.lice afor·sthought_, the wea:pon usec\ C::ocs show that the accuoec:. intended t<J ce.t:se &.t J_ec,st grievous b•:)(.i1y harm to the deceased" There is no C:,of,3nce which hc:..s be,:n cti._·va.11ced nor can 1 see any.. Iv,alice afc,retho:y.ght hes therefore been established .. I therefore, find the accu ed guilty as charged, since I am sati- sfied thi,lt t:."ie -::harge has been :proved beyond alJ. reasonable doubt 1 and I convict him ~c~ordinglyo 7th Gctober., lS,S,.~. ___ ......._ Nrs u"'-ma.: -..._. = h-- "e r. ot hing t '-' Si:...Y" Sentence: - ·.11La accused h::,s been convicted of ,1m:.:t!..:ir.. The ®lY p~nishment for this offence is de~th by hangingo I .,e~tence accused to suffer de,:tl1 by hcinging. J:,_. BAH.-1.'l'I J·u;_. (;: :C 7/10/1992