19950228 TZCA Tabora

TI~ Hill HIGH COl.111~ OF. Tl1.HZANIA , . ,. j_ T ·T1V'.BORll.'. APPELLATE. JUii,tSDIC~ION (Tabora Registry) (HC) CRH1Ilt~L APPE.\L NO. 2 OF 1993 · OF TI{C DISTRICT COURT OF SHINYA.NGA DISTRICT A·I! SHINYRHGA rRIGTIJil.1 c~1.SE , NO.· 458/92 J • L. HKl{(JlvEi'J , Esq. 1 RESIDENT J:I'.[[\_ GIS TR,\ TE •••••••• • • • ••••••••••• • •• • • .t1.PPELL..'I.NT to~iginal Prosecutor) Versus SALtr:m SZL~S?-LN • ~ .......... Q ••••••• RESPONDENT (Original Accused) J U l) I1 E N T The I' .P .P,. in this appeal clid appeal against tho acquittal of one Salumu s/ o S eloman who was accused with the offence of threatening Violence c/s 89 (2) (a) of tho Penal Codo 9 Cap.16. The particulars of the offence read as follows~- "Tbat i3alum s/o Solemani charged on ·5th day of C-cto"ber, 1992 at about 20k3t { hrs. at Mwamashele village within tho :District artd Region of Shinyanga, with intGnt to injure or kill, did threaten with a shot- gun oar No.29212 ono Ziada Hamn.di for the purpose of shooting her, in such a manner likoly to cause tho . ■ reach of peace. ,., Mr. i'1warapoma appeared for the Republic putting forward tho grounds of their appe2.L First and foremost was the error appearing on the heading of tho decision of tho District Court iL Criminal Case No:;458/92 that it ought to ho.ve been written a rulL.--ig and not judgment. I should dea.l with this second ground right now, that this e 1:5Uld have been inadvertent that the headL.--ig of the said decision is written a judgment instead of ruling and I am. sure tho trial learnot• ·resident magistrate is aw2.r2 -Jf that hence· on page 2 of his decision I s tYJ)od copy 4th paragraph it is written~- 2 uu~on close of the prosecution ceso,· ca~~t court paused toast itself whether, based on ouch evidence there is any Prima.facie case established against the accusedo .!Ience the ruli:1g .. 11 Tho errcr app0aring as heading of the decision did not certainly occasion failure of justice because it did not by itself.affect the contents i!1 the decision. :1his is curable u1.1d.er section 388 of the CPA '1985 a:;.1.,i the trial ,~0...,1.rl w:o:.s -:,ntitled to Dmend the error under section 344 cp,:, ·19a5 .. Arguing on the 1st gr'.'.lund. of appeal l'-:r. rTwampoma said the trial • resident magistrate erred .Ln ;10-t belioving the evii.ence of Pvl .1 · PW .2 PW.3 and PW. 4 who testified that they saw the respondent at their home arriving with his r:::otor-vehiclo w:.th fuJ.l lights on. That he found them outside the hcuse, o.buGed ~hem and threatnod them with his gun. That ho failed to cross-examine t:!:lem which inplies that he was admiting wha. t was so.id abou..t him .• He submitted that the i;rial magistrate dirnegarded such prosecution evidence and went on to rule out .for r..o case to answer, when in fact the respondent ought to have been called upon to put ur his defence. About cround· No.3 he said thr.i.t the trial nagistrate was wrong to hold that identification of the gun was not done bocauso in the circu- mstances of the case identification of tho gun uc.:::: in.11;nt2Tial, morecver, W.5 had already id.entifiod it at the l)olic0 station. That what was important is what transpired at tho scone of crino. Concern.ing r;round i'Jo.4 he submitted that the trial resident Magi- strated erred in rely:L.1g on contradictions found in t'.:ie evidence of J?W. 4 because they were rainor, and. that hewn.snot at the crime, therefore, his contradictionG would not go into the root '.Jf the case. He concluded his submissions saying that the trial resident bagi- strate disbelieved tho evidence of prosecution without good resons and that the case to a11Swer for the respondent was existing. He prayed this court to order for continuation of the case from where it ended by another competent magistrate. Nr. i'IJahuma (advocate) for the respondont (SalUI:J.u s/o Selemani) suppor- ted the ruling of the trial court because the charge was not established neithex- was a prima facie case made o.ut .fnr his client to reply. 3 He cited the case of R.V. Selema.11 Musa (1973) LRT n.47 which laid dovm the instances in wh'ich a subnission of no case to answer can only be upheld. That is~- 1. Where there has been no ovia.enco to prove an essential element in the alleged offence. 2, When the evidence adduced by the prosecution has been so discredited as a result of cross-examination. 3. When the evidence adduced by the prosecution is so manife- stly unreliable that no reason2ble tribunal could safely convict on it. He submitted that the trial magistrate found that the evidence of prosecution was raanifestly unworthy of credit that no reasonable tribunal· could safely convict on it. That he was also entitled to :~ hold as he did in view of the contradictions i'li thin prosecution wit- nesses. He cited an example of what PW /t - FW .4 heard from the respondent about the alleged offence:- PW,. 1 said: "Kumanina zenu mnaingia ndani kufanya nini leo ni siku yenu ya kufa. 11 pW .2 said: 1 1:tumanyoko zenu nyie mbwa mnaingia ndani kufanya nini? Hpaka niue mtu leo ninokodisha majambazi waje kuwaua kWe:iu-.➔ na kwa Rarid". FW.3 saidg 11 Kumar:1ayo ze:r.u ubwa nyinyi." Fv{; 4 saidg 11 1Cu..:-:2ar.1,-2yo zenu r:;bwa nyieJ" He went on to submit that such words as W~3 and PW .. 4 said, had no threats i::.1 thonselves and that had tho respondent gone to the comp- lainan.ts as alleged, their words should have sounded the same, as such the trial magistrate was enti:hlecl to conclude_ as he did because he is the Ol'lG who saw t1::e wi tnossos, and that this being the first appellate court tho evide:;:i.ce can he reviewed. That according to the e;harge shoot one person Zaida Hamad (PW .1) ·was thu one threatened but the evidence of PW .1 :. PW .4 shows that all of them wore threatened as such the charge sheet is at variance with the evidence adduced. FW .4 sa.id that the house frow where the respondent stood and uttered the said words was about 4 apac,es away, but Hi -7 said he stood about 35 :pacos away. If that is so, then the evidence of PW.4 who is the neigh1::cmr of the house fron where the words were uttered should be believed. 4 About the.insue of identificatio'n 9 he submitted that if the lights of the motor-vehicle were flashed against the first four witnesses so closely at 4 ·,paces distance 9 then they could not have seen him pointing a gun at them. They could n0t tell how they were able to see the respondent holcling a gu.11. in the circur:1stances of the lights being flashed on their faces,, Th~t it is beyond comprehension h'OW the witnesses remai.'1.ed where they were if he o-vor :pointed a gun at them; they should have ran away. Ey tho fact that they re□aine~ where they were~ scans that they took it as a joke. He also pointed '111.t that tho witnosses said that after the respo- .i ndent had threatened :them 9 he went to sleep outsicle his brothers house. ?W. 7 \·ll:!.O was Galled by lJVi. 4 said that when he responde:··_-~; to the call he found thG respondent sleeping outside as there wa::i electric light 9 but he did not see a gun there. He concluded his submission for the 1st ground that in view of contradictions prevaili:.~g in the prosecution ease, no Prima facie case was estCt.blished against the respondent resulting in requiring his •.;:; defence. In tho 3rd grou.i.~d he submitted that if the respondent threatened to shoot the cor.~1,lainant, the words uttered wore irrelevant to prove the chnrge of tl'.i.reaten:L"'.lg to kill, beca.uso prosecution was supposed to prove the act of threci.tening to kill tl1ai; is why iden-cification of the gun was relevant ar:d should J1ave been :provedo That failuro to identify tho g'\.ti.1 ·:.12·,J<'i by the respondent entitled tho trial magistrate to hold th::i.t the p:r.i1:1r.. fr.i.c5.e case was not osta'blishecl because identi- fication of the gun ,,ras ossrnc.tia.l e:l,,,:rnnt in tho alleged offence. He cited tr..o CQS8 0f E,.7~ Selr;na:1 j',1usa (supra). Ee added that t):,_;-" ':ritnosses ho.d t0 stato what moans enabled them to identify t~1e gu:1 and that the de;;scriptions should have been nade be$ore it was shown to then, but tho record dnes not show that such procedure was followedo About the 4th grolU1d 5 :Mr. :Mahuma submitted that it is truo that pW.8 was not at t:t.o sceno of crime but that he was the 1st police officer to receive tne report and investigator of the case. He was of the yiew that there was no offence of threateDing with violence but abusive language., That the trial magistrate was doubting as to why the police case file was ta.ken fron Negezi Police pos·I:; to Shinyanga before investigations were completedo 5 ThO.t the evidenefl of Pd. 8 contradict'-\d other pro~t'teution evidence which wao already contradictory and not that he was the only one contradict- ing prosecution 07idence. That the trial nagistrate saw the witnesses in the dock 9 as such he is the best judge as to their credibility that is why he "believed. 2W ~8 was telling the truth. Ho concluded. ~1is subii1issions praying for the disnissal of this appeal.~ In reply~ 1-I:r~ ::·,Iwanpona i::isisted on ._.__ that tho prosecution evide- nce provGd. essc-ntia.l elc;::ants il.,.-,i,::'c;:-J.1:o:~·c· _ offcnco and that the case cited by Ivir. Eahur:rn. was therefore irrele:vant nnd that tho uttered words were not re;levant as fc..x as contra.dictions are concerned. That the r0cord did not show that the trial magistrate conmented on the demeanour of witnosses as such it cannot be said that they were reliable or not~ That ti:1e re:GJ::i.rJ: made by th,) trial magistrate was going beyond what was brought to hin bec~use it was ~he duty of police to opt to handle the case ai; tho regicnal revel according to the seriousness of the case. That it was wr,;nc.; fo:r- him to spoculate;·; on tho police bu.:'.J.:iness because by so doing h·J 1·,:J.S going into the shoes of police. In l:.ear.:Lng t}::.if.J a11peal I have discovered that there are four main 1. Whetl:.cr t::;.G:r'(a. wr,r0 L".l.jurious contradictions to prosecution 2. Whether t~1erc was pi-01;r:,:!..' :identification of a gun used. 3 • \vhd:'.:lcr crod.ibility of wi tnossos was rightly tasted by the trial rosic.unt r.:agistrateo 4. '\'lhethG~c Crir:1i!1al Procedure pE:rw.its the prosecution to forego ,articulars set out in a charg-o sheet. In the first iss·c1e 1 wb.at e.re these contradictions? Hr. Mahu.raa pointed out tho evidence of F.'101, PW.2 9 PW,.3 and PW.4 that en.ch of , these witnesses told the court her own words and the evidence of P\'l .3 and IW ,4 had no thr1=iats in themselves. If the charge is about threa- tening they arc ncre words of abuse. E-.ren the words of PW. 2 show that the appellant was not ready to kill thm2; but that there was a gang hired by him to kill then 1 i., e~ 11 ni;:1ekodisha CTajambazi waj e kuwaua ' k:if!9nu na kwa Raridu ,_, This sontoncEJ Joos not reflect that the appellant was by the tine h& was· sayb1g s~ch word in a position to shoot, if he was why did he a add such other words of hiring a gang? Is it because ho was :·_ot &'bb to kill them hie ct nu.nc.;? 0 If yes, who.t is the essence of the :GJD.terial threat to kill? If no 9 wb.y say that he" was holding a...~d pointing a gun at them? 6 Hy view on this issue is that the contradictions were ma.terial and did in fact contritute to the decision ~rrived at by the trial resi- de::1t r:ia.gistrn.te. In the second issue 9 I .agree with i-lr. i•:ahUDa that the identifica- tion of a gi:m was questionable as far as tho explanation as to how the witnesses identified it i.G conce:rnod. One cannot imagine e.. motor- vehiclo full lig-hts flashed in one's faco a.ncl a possibilii:;y of identi- fying a gun ii.eld at fom~ paces away in the sa::rn direction with the motor-vehicle. Again$ thG .h'!.ey,::;ifit. :8.tion sho-ctld have 1-:eor. done before the trial court by showing w.i tnesscs two ,:'.': three differGI1t gu.,.vis. It is on record that the appellant han a riflo and a short- 6'1.m~ That by i tsP-lf was enough to lea:n:i. l"~ow d~dficul t it nust :,ave "be1.;x: for th0.m to tell whether it was a shortgu.r.:. or :dflo. '.i::h& r<::cord dooB r_,;t toll us how police chose a shortgur1 to be the m:1e o..lJ.cged tc hrwo been held by the respondent. Identifying o. gun though not vital in suci1 circumstances 9 but there rmot be evidence to prove that the :ros:pondont was holdil'.lg a gun and not nere allegations pruvidnd snme0ne i:=:, known to possess a gun. The :pros0cuti0n witnesses to corro borato t:':le evidence of PW .1 to pW .4 aro J?V ,,5 In8p., Jo.<1chin Butemi who uaid, a'!'ld I quote·: ·11 1 too had yisited scene of crime us well as Neg·ezi F0lice nut post., There was no gun soen in possession of the accused w:C1Gn I wont there on the night this saga took plaee. :, PWo6 Easanjo. Jicholn. said about the rosponder::t in the following words: DI· did not s00 the accused with any g·un at the police station. We did not follow hin at tho house of his young brother as we were t0ld that the accused had a guno 11 P..v.7 Nabisi Jiln.la who was also sungusungu :m.an·with PW.5 saidi- 11s· inc e it was night• There was electric 1 igh t. From PW.1 to where the accusek was is abiut 15 paces away~ I could not seer. any gun.u The .evidence of these wi tnes-ses (PW o 5 ·- PW. 7) do not show that the respondent had a gun., The evidence of PW8 c.4193 PC Nemes s:;_·.;·::,4s that his. investigation shew that the rffence coramitted was not threatening,. 7 :Sven if the circUL1.stances could not have allowed to identify a gun as to how it looked, there should have bc0n evidence to corroborate the act allegecl, but other witnesses did not see the gu.,.>1 until it wa.s taken fron the respondent during the search. Can one ."''';_:-: :i:~>;:;~~~-;y tho.t the respondent had a gun at the alleged. :noment of the alleged quarrel? It was the duty of :prosecution 'bo· .clear this doubt, failure of \'ihich tho trial court was not bounc. to speculate and should not h have done so. In the third issue, as an appellate c,.ur~ I an bound by the trial .f" • i ......... <r court's ... L'1C,l._.b in regard to the credibility of witnesses. In the case of 1£1.ta ta. i·Tsangn, wale v. HE:nrz Mwanlina (1979 h.R.'.i:1. n. 3 ahd Hassan Mzee Mfa.1w1e 7.R_ i (1)81} TLi:"'\ 167, The courts held tho.t: If ., the findings of fact in t'.:1e court of first instance must be affirued by an appellate court unless the same were not arrived at reaso- no.bly or they c1;.nnot rationally be Su}_)ported." I have gon,3 through the record as an appellate court being in as good a position e.s the trial court, but the credibility tested by the trial resident nugistrate in my view, did. not leave a pag to stumble my reaso:1ing; I an firmly in conformity with hh1. ~he fourth issue is about the chG.rge and particulars set out in it. While revisiting the evidence of prosecution I discovered that J?-11.1 to PW~4 <1ll con.plained that they were threa.tened 9 but the evide- nce of PW.8 c.4193 :?C* He:oes s!1ows clearly that PW.1 was the actual person threatbned. Ee said this: ... 11 '_;:he conplain t was made by PW. 4 tho. t she was th:::.•eu-tened by the accused~ Lo.ter 9 as we were taking down statements Pd. 4 named P~·l, 1 as the actual person who was thrcaten0d, 11 The charge was drawn agai...'1.st the respondent that he intended to kill or inju~e Zio.Qa H1~adi. Surprisingly, even Ziada herself did not jn her testimony say that she was threatened, She·'.said they were insulted and threatened to be killed, As we have seen in the record, all the four wii.masses_said. they were threatened, but PW.8 says the threat wn.s intendecl for Pw .1 Ziada HamadL Which is which then? Prosecution should. ho.7e amended the charge to conform with the evide- nce to bo adduced, 8 As in t,!1e case _of Cbxis°l;o~)her Mti..lcila c::.nc!_ ot,he:;:-s V,;R; Crirni nal Appenl Noe 90/1292 (H.,C.Do Do11o) (Fnxep~rted), i-/: WC!G st:d,ed trot~ Ttin t.lle cbs:,nce of an a1:1end.r11•Jr_·~,. of the c.::i.3.rges t,lle p1·c:soc,:_·_tion is bound. ·by ihe particulc:!.rs it, set,s md, ·ho vrove~ 11 I liave c:U,ed th.is au·i,.:·.c:.i •l,y o:niy i,o conclude ·b~-. t f.he whole case was not well investigated o,j~- oven if rosponden·t, ~~ou.ld be called upon t,o defe11Cl h:i.iilself ~::: would no·~ in t.he circm1St,ances of 1,he case make out a proper defence and -/,:tl.s 1 ·hherefore 1 sums up t,he prosecution case unes·l;ablished crnoug> i,o J:Gqt.ri.:;:oe t.he respon(1.ent. is defence" 'J.1he trial court 1s fincling is hereby coi.1.fi:rr,1<::d and a}l.r?eal dismissed .. 28/2/4995