20040323 TZCA Tanga 2

w... "' ( .· j , . _j <I,,' IN THE COURT OF APPEAL OF TANZANIA ATTANGA (CORAM: LUBUVA, l.A., NSEKELA, J.A. And KAJI, l.A.) CRIMINAL APPEAL NO. 30 OF 2001 BETWEIEN . ST 1. HARUNA MOHAMED ................................ 1 . APPELLANT 2. MATHEW LWALI ................................. 2ND APPELLANT AND THE REPUBLIC .....................••................... RESPONDENT (Appeal from conviction and sentence of the · · High Court at Tanga) · (Mkw':'wa, J.) dated the 23 rd day of October, 2000 in · Criminal Sessions Case No. 28 of 1993 JUDGMENT OF THE COURT LUBUVA, l.A.: . In this appeal, the appellants, Haruna Mohamed. and Mathew Lwali, are appealing against the decision ·of the High Court . (Mkwawa, J.) sitting at Tanga. ' They were charged with and convicted of the offence of murder contrary to section 196 of the. Penal Code. l l I 1 . 2 . !. At the trial, the prosecution \case was that on or about •I ·I I 8/10/1990, at Gofu area within the, Municipality of Tanga; the- . . . ~ . appellants murdered the ·deceased, ; Michael Hassan and Hamisi Mrisho. During the night of the incident, the deceased.were. on duty at their place of employment, Hamudi ~arage, as watch.men. Bandits· . stormed in and killed them. ·During the ·raid, an assortment of spare parts of- plants and vehicles, . and- bash- money, the i:,roperty of . . I . . . . . . I, I . . . Mahmoudi Saad Ally (PW10) were stdlen. The matter was reported to the police . who set in motion the inv~stigation . ,. - of th~ ·matter. ' ; It is apparent from the facts tha~· in the course of investigation, · . . . . :. a trail of drops of blood was traced frpm Hamudi Garage to a small ·. 1 . . ' . . house at. Mwamboni, within the Muriicipality of Tanga which was occupied by an old lady Saumu Ruwa, the grand mother of ~.c.truna Mohamed; the first appellant.· It is Jdrther apparent _that from the I • • house of Saumu Ruwa, a number of rnotor spares alleged to·· have. been stolen from . the garage of PW10 were· recovered. · The investigation further r~vealed thatSaurtlu· Ruwa told the investigators · . J . I I ! • ( . 3 (PWS; PW9) that the stolen items had been brought there by the first appellant, Haruna Mohamed. As a result of the information by Saumu Ruwa and the subsequent investigation, the appellants were arrested and charged with the murder of the deceased. At the trial, both appellants denied involvement in: the murder- of the deceased. In his defence, the first _appellant claimed that he - had been framed-up. He said in the morning of the· day-· of the · incident, while on the way to his place of Work, he met the second appellant, a long standing companion ,and play mate. According to him, the second appellant -had sustained a cut wound on the cheeck_ which, he was told by the second appellant had been inflicted during a scuffle with other youths. The first appellant further Claimed that he accompanied the second appellant to various dispensaries .and _ pharmaceutical shops in the Municipality of Tanga for treatment and purchase of medicine and cotton wool. Thereafter, he went his way for work· while the second appellant proceeded to his home. On the same day, namely, 8/10/1990, in the -afternoon, he was arrested while playing the ·game of .draft. I .. -· t !i 4 ,: As regards the .second - appellant, lfMathew Lwali, . the version -of · . i his defence is by and large similar to that of the first appella_nt As I; mentioned by the first appellant, he ~dmits · that ·he-_ sustained · an . •I . . I injury on his cheeck when he was attacked by a group of youths. . . . t . . . . . . . i· . . .· · He also accepts to have gone the rournds with the first appellant -in I -. ' . . . _·· I ·_ . . . search for .treatment in the - Municipality . I .of Tanga. -He also . admits . :1· that when he was arrested; he- -was putting- ori-.a~--lady's~gown-~ .because he was entertaining his young ibrothers and sisters. · . . ! . i I . I . i. ,. I : . . . . i. . .. . . .. The learned• trial judge was satisfied J that though·. the evidence l in the case was wholly circumstantial) it irresistibly established the guilt of the appellant and_ that it was: incapable of any explanation or reasonable hypothesis. The. defence· pf t~e appellants was rejected l and they were duly convictedas charged. _· i, I -1 Before us in this appeal, the: first and -second ·ap.pellants, were ~i . . . !i represented by- Mr. Sangawe and N'lr. Mramba ,assisted by Mr.· 1 l. 5 Mdamu, learned advocates, respectively. For the respondent Republic, Mr. J. Mulokozi, learned Senior State Attorney appeared. Mr. Mramba for the second appellant, filed an eleven:..point memorandum of appeal which, with due respect, does not comply with the provisions of rule 65 (2) of the Court Rules, 1979. The grounds are either repetitive of the same points not setting forth concisely and-distinctly the grounds-of complaint-without argument or narrative. However, the sum total of these grounds is to the effect that the trial judge erred in holding that the circumstantial evidence I in this case was sufficient to lead to an irresistible inference that pointed to the guilt of the accused, the second appellant. On the other hand, Mr. Sangawe for the first appellant, raised six grounds of complaint in the memorandum of appeal. ,,,. These ~· .. . grounds pertain to the . various aspects of circumstantial evidence which the trial judge considered in convicting the first appellant. It is our view that the essence of these grounds is the same as that of the second appellant, namely that. there was no sufficient (' 6 circumstantial evidence on which to found the conviction against the. _first appellant. Essentially, as the central point of complaint raised in the grounds of appeal by Mr. Sangawe and Mr: Mramba learned counsel for both the appellants, touch on the same aspects~ w·e think it -is .; expedient to deal with them together. It was strongly contended by Mr. -Sangawe for the first appellant which was also firmly supported · by Mr. Mramba, learned_ counsel for the second appellant that there was no basis for the learned trial judge to hold that the circumstantial evidence irresistibly ·1ed to the inference· that the appellants and no other person killed the deceased. In the first .place, it was urged that the finding by the learned . judge that the prosecution case against the appellants was th9J the --- stolen goods from the garage of PW10 were found in the house of the old lady, Saumu Riwa was erroneous. This, the learned advocates· elaborated was erroneous because there was no admissible evidence to prove this finding·. Counsel further contended I 7. • ·1 • that the investigating officers A. S.P. Athuniani Mkomwa (PWS) and A.S.P. Ally Ba.kari (PW9) testified to the effect that Saumu Ruwa told· them that the first appellant, Han.ma _Mohamed, her grandson, · had . brought the suspected goods to her house.· As Saumu Ruwa -had died and therefore she· could not testify,' in Court at· the trial, the . · finding regarding the goods wa_s based on .hearsay evidence, both . Mr. Sar:igawe and Mr. Mramba urged. inthe absenceOf the evidence on this point by Saumu Ruwa orher statement·being tendered atthe trial under section 348 of the Evidence Act, 1967, cou·nsel ·urged that the first appellant was not linked ~ith the alleged stolen· goods at the garage. In turn the advocates further submitted, the second appellant who was· linked. with the, offence by reason of his I companionship with the first appellant 'WOUid not be linked with the· ·offence either. Furthermore, Mr. Sangawe_and Mr.· Mramba were also in.unison. · · in this submission. That even if .there ·.was admissible evidence that . the first appellant had brought. the· spares to the house of Saumu· · .. ' 8 Ruwa, still the case against the appellants was . not free from difficulty. As found by the learned trial judge, the trail of blood from the scene of crime, to. the house· of. Saumu Ruwa, counsel also. · submitted, does not advance the case against the appellants any further. According_ to the advocates, with regard to the blood in the trail, it is not shown whether it was the blood -of the-deceased, _or _the blood of the .second appellant who was alleged to have sustained a fresh wound on the head, or any other person. · In the circumstance, counsel insisted, it was unsafe in a criminal charge to find the trail of blood as reliable circumstantial evidence on which to - found the conviction agai~st the appellants. Counsel vehemently criticized the trial judge in his finding that the principles laid down in PROTAS JOHN KATONGOLE AND ANOTHER v REPUBLIC (1992) .,,. ., TLR 51 were applicable to the instant case. Both Mr. Sangawe and Mr. Mramba strongly maintained that Katongole's case (supra) is distinguishable from the present case .. i I ( ' \ iI 9 j ., Mr~ Mlokozi, learned Senior State Attorney, for therespondent - I. Republic, was quick to respond to these;': submissions. He _- firmly . ,, maintained that the learned trial judge correctly made a finding that · the circumstantial evidence was such as' to lead to the conclusion that the appellants killed the deceased.,: First, he sai,d. it was not . . .. ' . . . . . . • •• I • • ·• • . . disputed that the first and second appellants were together in the . I I morning after the night of the murder in~ident. He also said that it . · is not denied-that the-second-appellant had a fresh cut wound on his· . I head and that a·trail of blood was traced from the scene of murder· ' ;1 to the house of Saumu Ruwa, where thc;i spare parts stolen from the scene of murder were found .. · As the :appellants had gone about • , . . . I: .• I various dispensaries looking for treatment avoiding· the . usual ·. . . . . government hospitals, ML Mulokozi · $ubmitted that· the second. · . .. .! ' ·1 _appellant sustained. .thec.injury at the sce~e crim.e. · 0 Secondly, Mr. Mulokozi said thati the· spare parts stolen from· ' . •. the scene of crime were found in the house of Saumu Ruwa where · -the trail of blood ended.· In the. absence.of any claim by any. other •· I person over the spare parts, it should:be taken that the items had· j . I. 10 been identified as those stolen from the garage of Hamudi Saad Ally I (PW10). Taken in context, Mr. Mulokozi stressed that, having regard to the whole circumstantial evidence, the; finding by the trial judge that the appellants were sufficiently proved to be linked with the murder of the deceased, cannot be faulted. The judge believed in the truthfulness of the prosecution witnesses. As held by the trial I judge, Mr. Mulokozi emphatically subm,itted that the case of - KATONG0LE-(supra) was on all fours with_ the instant case. I As the learned trial judge held, t~is case is wholly based on i circumstantial evidence. It is common ~nowledge that in order for j the Court to sustain a conviction againstI an accused person on . the basis of circumstantial evidence, such evjdence should be such as to •I lead . to the irresistible . inference or-conclusion . I that the accused and no other person is guilty of the offence. In the instant cas~, .we I - ·. -pause to ask whether the circumstantial .~vidence adduced at the trial I was such as to lead to the irresistible inference that the appellants I . . killed the deceased at the garage of P\fv'.10. In order to come to this 11 conclusion, the issue is whether the appellants were linked with the . alleged_ crime. : . ' . . . . From the record, circumstantially, one of the factors which the learned trial judge considered was the fact that some of the motor - vehicle spares stolen from the_. garage, the scene of crime, were found in the house of Sau mu Ruwa, th~ grand mother ·of the first appellant. However, as submitted by· MrtSarigawe- suppo·rted by Mr. Mramba, Saumu Ruwa was· the one who told PWS an_d p_Wg_· that the. spares had been brought to her house by the first appellant, her grandson~ We are with respect, in agreement with Mr. Sangawe · . and Mr. Mramba, learned advocates, that as Saumu Ruwa, who is · now dead, did not give evidence at th~ trial or that her.· statement -was nottendered in terms of section 34B of the Evidence Act, 1967, 0 . . . . . . the evidence incrim·inating the. first appellant with the spa·r~s at ' . - -- Saumu Ruwa's house is• nothing but hearsay. It should_ not have been admitted as evidence. . 'I ..I I ,, 12 ,-1 • With this piece· of evidence excludeq -_ from the proceedings, it ' . . · follows as the day follows_ the night_ th~t _there is · no more link · between the killing of the deceased at :the garage· and the first 1 • . . . \I . . • . ., appellant.· Likewise,- it also follow~ that the second appellant, would - • I • . not be linked with the murder of the q:eceased at the gara·ge of !, 1 • ':1 PW10. This is so because circumstantia'Uy, the learned trial :judge ' . • I .found that the second appellant was link~d with the offence because of the long standing companionship betwyen the first -ana the ·second~ - -· appellants. Taken in context, as urged by Mr. Mulokozi, still we are· _- . . '1 . . . . - · unable- to see how the long standin9 relationship between the I . . _-appellants in normal _social· life .·would q~ of any evidential.· value in ., i the case after the important linking :evidence rega'rding:_ Saumu Ruwa is excluded. - There is yet. another aspect which, in our view _.. further .,... strengthens the submissions by.- Mr. -5angawe and· Mr. Mramba~ Granted that th.ere ·was proper and a'dmissible evidence that the !', II. spares we.re found at the house (of Saumu Ruwa, still the -circumstantial evidence · against the appellants ·would --not be _ j / . · 13 sufficient to link them with the death of the deceased.· We agree with M/5 Sangawe and Mr. Mramba learned advocates , that the evidence of Hamudi Saad Ally (PW10), the owner of the garage, the scene of crime, does not conclusively show that the items found in .the · house of Saumu Ruwa, were. those stolen from the garage. during the incident. His evidence, it seems to us is generalized in such terms as these items are mine etc. No specific marks or description ·was given -by PW10. This, we- think, -•wiil not do in a . . criminal charge. Mr. Mulokozi's submission that lack of claim over the spares by any other person is .testimony of •identification of the items, attractive though it may be, is untenable . So, again, on this score, we are not satisfied that there was cogent linking evidence which would implicate the appellants with the murder of the deceased. Thirdly, there is the question of the trail of blood. This, it is to be observed was another aspect of circumstantial evidence which. was relied on by the trial judge in convicting the appellants. As the learned State Attorney correctly conceded, the Government Chemist's 14 report on the blood was not admitted in evidence. Without establishing in evidence whether the blood trail was the blood of the second appellant who, according to PW4, had sustained a fresh cut wound on the head, or that of the deceased, or the other person who had disembarked from the taxi (PW7) together with the second appellant, the circumstantial evidence based on the blood is further · weakened. It would not lead to an irresistible conclusion that the appellants were linked-with the murder of the deceased. In these circumstances, we are settled in our minds that . KATONGOLE'S case (supra) is not applicable to this case as urged by the learned Senior State Attorney. In o~r view, it is distinguishable. In that case, it will be recalled, the two appellants were charged with the murder of two watchmen; the second ' appellant was found in his . house with a fresh cut wound; there was I a trail of blood _,,..from _, .. the scene of murder to the second appe,llant's house. · Unlike in KATONGOLE, in the instant case, the appellants were not found in the house where the blood trail ended; Jt was not their house either; the house belonged to Saumu Ruwa who did not give evidence. In 15 that situation, and as urged by M/5 Sangawe and Mr. Mramba, _learned advocates, KATONGOLE is. not on aU fours_ with this case~ The principle set out in that ·case cannot be applied to the instant case. All in all therefore; upon such con~ideration as shown above, . i we are increasingly satisfied that the circumstantial evidence in· this . I . . ·-- case··,as . a whole ' was ·such that it ·is· cloubtful . ' that it ·led -td-the- . . . ' . irresistible conclusion that the_ appellants and no other person, were ! . . . . . . " . . . the perpetrators of _the murder of the deoeased. Admittedly,-the·case against the appellants may well be. hi,ghly suspici_ous. · But in a criminal charge, suspicion alone; howeyer _strong it niay be, is not. ' ·' . enough to sustain a conviction, all the more_ so, .a serious charge of . . I murder. Had the learned trial· judge c6nsidered these aspects, w.e · . ~ . think he would have come to this conclu$ion. - I. ' For the foregoing reasons, we allow the appeal; quash the· ·i · conviction and set aside the sentence. ;:The ._ appellants are to be set • • I . free forth with unless otherwise lawfullyheld. . I ( i6 ' . rd DATED at TANGA this 23 day of March, 2004. D.Z. LUBUVA , JUSTICE OF APPEAL. H. R. NSEKEL.A : JUSTICE OF ·APPEAL . S.N. KAJI JUSTICE-OF APP-EAL ·.a ·1 I certify that this is a true copy of the original. .(s.A.~RA) SENIOR DEPUTY REGISTRAR