20160913 TZCA Dar es Salaam

IN THE COURT OF APPEAL Of TANZANIA AT.DAR ES SALAAM (CORA.M:LUANDA, leA., MlASIRI, l.A. And KArJAGE, .l.A.) CRIMINAL APPEAL N0.358 OF 2013 DIRECTOR OF PUBLIC PROSECUTIONS ................................... ., .. APPELLANT VERSUS 1,ACP ABDALLAH ZOMBE I l 2. SP CHRISTOPHER BAGENI / 3. ASP AHMED MAKELE 4. WP 4593 PC lANE ANDREW 5, D. 1406 CPL EMMANUELMABULA .................. RESPONDENTS 6, D. 8289 PC MICHAEL SHONZA 7, D. 2300 D/CPL ABINETH SARO 8, D 4656 D/CPL RAJABU HAMISI BAKARI 9, D 1367 D/CPL FESTUS PHILIP GWABISABI (Appeal from the judgment of the High Court of Tanzania at .Dar es Salaam.) (Massati, J.K) dated the 17th day of August, 2009 in Criminal Sessions case no. 26 of 2006 a ■ a ■■■■ a ■ a••••••i:: JUDGMENT OF THE COURT 29 th Apr:il,& 16 t11 September, 2016 LUANDA, J.A.: Initially ACP Abdallah Zombe, SP Chiristopher Bageni, ASP Ahmed Makele, PC Noel Leonard, WP 4593 Jane Andrew, CPL Nyangelera M9ris, CPL Emmanuel Mabula, CPL Felix Sandy Cedrick, PC Michael Shonza, CPL Abeneth Saro,- -De Rashid Lema,CPL Rajabu Bakari and CPL Festus 1 .. - . ".' -:. ~ _.;1.• ,. '";.:-~~-:-,;; --~~-~-.:.-~~ ..•: .:· ..: ... ·:~-,:-·,_:../~~;:.~4.. .,. Gwabisabi were jointly and together charged with four counts of murder. It was alleged In the charge sheet that on 14/1/2006 .at Pande forest, ~·<· Kinohdonl District, Dar Es Salaam Region the above named unlawfully killed t Ephraim Sabinus Chigumbi, Sabinus Chigumbi, Juma Ndugu and Mathias Lunkombe. The accused persons pleaded not guilty to the charge and the case went for trial after the conduct of a preliminary hearing. _., However, at the close of the prosecution case, the prosecution had summoned 37 witnesses, the High Court found out that the three accused persons namely PC Noel Leonard, CPL Nyangelera Moris and CPL Felix Sandy Cedrick had no case to answer .. They were accordingly acquitted. Unfortunately, DC Rashid Lema expired before he could give his defence case. His case was marked as having abated. The nine accused persons remained till at the end of the trial. And at the end of the trial, all nine were acquitted. Aggrieved by the finding of the trial High Court, the Director of Public Prosecutions (the DPP) has come to this Court on appeal. The DPP has raised four grounds in the memorandum pf appeal . which read as follows: 2 ............. ---·-···· ·- ····-·· ... - - - - - - - - - - - - • - - - - • • • •..... • - •.... •-----••......_.. __ ,_U••••-•-~••••V•,,-•-••"""-•••-.. . .. --- . ••C-•------•-~ .. - .. __ . -- ----- . - -- -- .... - . - -· ••• ••·••• • ·••••--•-•••••---• -~---.. .••••-•. .•-.. --------~--------------·--·-· ~--------·--··---------------------- - . 4-·-.,.;:~---- ....~~ .... --.~- -- . . ·---·--- ···-- ~·.. ·;;·::.:...;-,-;--~- .,.····:~---";-:,:. ......... -.-"- ----.i.-•···-- .. ----·-,-·-··-- ... _ ._.,,..· ..:;·-·~--~-=-.. .- .•,,. .\..:.~--~~~~:~----~.:-. ~ . .. ,~,J;.~~--,... ,,,.?-:-:/.~1"-:._~:::--.·:;__.r·' ... .·...,.}J.:_.,_:~ ... ... -:{:.:.l•,_ ,. . -~t. ~,.. "' .,.~· ·"· ·. :: ~ :·' _.. . :;:, :.-~~=-~-'.,""·".'.'.:~_•- -~J::-"_....-:~·.·. ·.!··-:;_. 't~ ,: :_·i.._;;- r.~:" . .· -~, .. .-.,·."".·'---,:.·,,•.·. ... ,Ii. _·_.,.-__•..·-.. '" ·' _-~. .._ -:-~..-.,-.~--'-·'.:,-..•· -- --.-~-·.-.-· ·'_--...••-_..•_· •"--~ ..·....,:_:'.·-.,--··~.·._.--.· - ... ~. .i..___ -::_.-.~_.• ~ . · -~ --·~_,,-:. ·:. 1. That, the· learned trial judge misconceived the application of the principle of parties to the offence; hence he failed to apply It against . the 1st, 2nd , 3rd and 8th respondents. 2. That, the learned· trial judge erred in law and fact in not finding that ) Exh. P16 and Exh. P22 are confessions with probative value· against their makers as well as the co-accused namely the 1st, 2nd, 3rd and 8th respondents. 3. That the learned trial judge erred in law and fact in finding that since the actual shooter of the deceased was not charged with the . respondents, they (respondents) could not be found guilty of accessory after the fact to murder.· 4. That, the learned tria·1 judge erred in law and fact in finding that the . offence of accessory after the fact to murder being a minor but not cognate with •murder, cannot be substituted for murder as an alternative verdict against the respondents. In this appeal Mr. Timon Vitalis and Ms .. Lucy Diganyeck learned Principal State Attorney and State Attorney respectively appeared for the appellant/OPP; Whereas Mr. Richard Rweyongeza advocated for the· 1st 3 . . ... ...•. ···-····-·~·-···.::...;:...-····· .. ----······.:.:. ......... u••:i:,., ....,v-· -~·- .. :.:·.~,-_ ........:-~· .....: .... ,.··.. :·..,.... ~··--··--•· ... ··· .. ··• ......- .. ......., ..... ~ .· ....... ,-~M•k•""-•"•••--'"-· ··-•-k--. a.•• •'i-: • • • • :.: h J; ...... : :•~ •. • • --~ -__ :: :_ ...c,·. -_;,,,-:; ..... ·.-s-:"" ...:~_. ,. _; _; ..:!"f;ii·,.{_._;.;..;. ,.: ~:·::}6~~: -:~/di''P,{!,2-:;¾!:t{,~:::>~:~~..;;;t,,:~i.~t';~;-~~s/~~tf(i;:_-!.'.::•;•;J,,~ ~ rd represented the 2nd respondent (SP Christopher Bagen!), 3 respondent t (ASP Ahmed Makele)~ 4th respondent (WP4593 PC Jane Andrew) S " respondent (CPL Emmanuel Mabula) 6th respondent (PC Michael Shonza) and ih respondent . (CPL Abineth Saro). Mr. Denis Msafiri learned th advocate appeared for the 8th respondent (D/CPL Hamis Bakari) and 9 respondent (D/CPL Festus Gwabisabi). When the appeal was called on for hearing on 29/4/2016, Mr. Vitalis th prayed to withdraw the appeal against the 4h, 5th, 6th , ih and 9 respondents, under Rule 4 (2) (a} of the Court of Appeal Rules 2009 which nd rd th we granted .. So, we remained with the. 1st, 2 , 3 and 8 respondents. We shall retain their positions save the 8th whom we shall refer him from now on wards as the 4th respondent. The material prosecution ev1dence as we have gathered from the record can be summarized as follows. The three deceased persons out of four namely, Ephraim Sabinus Chigumbi, Sabinus Chigumbi and Mathias Lunkombe were genuine gemstones dealers. They were doing their activities in Mahenge, Morogoro Region. They were not alone in that . activity, they hgd s_om_e friends. or relatives i.n that business. Among the - - · · · ···········--·--········· ·······-······. ···-····-·--·--· -----··----··--•····-···. ···--··· ·······--·-····-•-· .............. . 4 - - · - - - - - - · •········ ... -. ····-· -···-·----······-··········· ..... . -·······-····· ·----- relatives or friends were Protace. Lunkombe (PW3) Mathias Ngunyaml (PW1) and Venance WIiiiam Mchaml (PW 4). On 7/1/2006 the two deceased person namely Ephraim Chigurnbi and . Sabinus Chigumblt along with Protace Lunkombe (PW3) travelled from lllahenge to Arusha via Dar Es Salaam in a motor vehicle tl1e property of Sabinus Chigumbi driven by Emmanuel Ekonga (PW17). Mathias lunkombe was· all along in Dar es Salaam. He had joined the team in Dar es Salaam. The purpose of the safari was to sell gemstones and send their paughters to school. In Arusha they had managed to sell some gemstones and were paid money in cash of which some amount was deposited in the Bank. They also dropped their daughters to their respective school.· They stayed in Arusha till on 12/1/2006 when they decided to return to Dar es Salaam to find other buyers of the gemstones. In Dar Es Salaam they also managed to sell their gemstones. On 13/1/2006 PW17 took the motor vehicle to a garage at Ilala Bungoni for repairs. The repairs could not finish on that day. The three deceased persons hired a taxi cab driven by Juma Ndugu (the fourth 5 ---·--------::----:--------------------·--------,-------- i deceased) whose taxi was frequently used while In 'Dar es salaam so as to enable them move easily from place to place, On 14/1/2006 Ngonyani (PW1) while in Mahenge communicated with Sabinus as to the date when they would return to Mahenge. The late Sabinus told him that they had decided to return the following day, It was the evidence of PW1 that on hearing that, he requested Sablnus to visit his family at Sinza, Kinondoni District before they left for Mahenge ahd asked him to · give money to his wife one Elizabeth Shayo (PW2). Sabi nus obliged. Indeed Sabinus in the company of Ephraim, Chigumbi and Mathias Lunkombe went to Sinza. They used the taxi cab driven by J uma Ndugu. The four induding the driver arrived at the residence of PWl and met his wife one Elizabeth Shayo (PW2). Sabinus gave PW2 money Tsh, 30,000/= But when they prepared to leave the place, a vehicle make Toyota Stout arrived with five police officers. Two of them were armed. Sabinus and his colleagues were arrested, their bag which contained money was seized and a pistol of Sabinus which was lawfully acquiredand possessed was also taken. The two eye witnesses who testified namely PW2 and Mjata Kayamba (PW6) told the trial· High Court that they did not . . .. . .. . . . kD.<?'« .Y.YJ1~I~ tJ1.~ __f9JJL. de.c::~9~ed R~f$QD$ ..wesg, Jake11. , lt,Js_h.owev.er not 6 .. ----------··-·--··••··--· ·-··-·-·-··-·-·······-·····-· ···--~----·--·-···--·-·---··-··-·-···-·•·--· ··········-· -·--· irrelevant at this juncture to mention that around that time a robbery had been committed along Sam Nujoma Road (henceforth Sam Nwjoma Robbery). Police were making a follow up to effect the arrest of the culprits. The four deceased persons appeared to have been the suspect of that robbery. We shall revert to this incident at a later stage in this judgment. Suffice to say that the four deceased persons were arrested in connection with the Sam Nujoma robbery. The news of their arrest circulated to their relatives and friends. Efforts were made to trace their whereabouts but in vain. Eventually the four deceased persons were found '·' at Muhimbili hospital already dead. It was the evidence of Mihami (PW4) that he saw bullets wound on each of the four deceased persons on the back of their necks and bruises on their bodies. Dr. Martin Mbonde (PV\/19) who c9nducted postmortem confirmed that version that the four deceased persons each had a bullet wound on their back side of their necks. According to PW19 the cause of death was gunshot injuries. The trial High Courtwas satisfied that th~. four deceased persons were brutally killed. by gun shots and that whoever had done it, he d-id so -with m-alice · aforethought. 7 . ----·--··-----·----··-· ·---------'----------- --·---------·-----·= . •'•"·. - ... ,.. •• -::.::. •• - - . :•• ~ • • • - - • •• • - ••••Lo••'•• .. • ••---••• .. ••••-••'••!- .. .:.. •• _:____ :__, :.. .... ,,:_:_.__ .....:.,. _ _;_.:._-:.:,_....:~----•-- .......',_...:....~•--- • •••-..:...••-••,...:. ~:...,_ ,_:..__ __ .... _,d.,~-- ••---•:-••--So• • • •• ,.. ,.. • .. , •·•• • _,,..,,_, •••~ •• ·••• • • ---- -- -- ------· - ~ ---- - - - ... - --·- ··-- ·------------:,,, ---- ·---··'··-· .·· ·_ ------------·· -- . -··-- . ..... ,.. - . :a;,:..·_·.>:;.:·.<.-:::, . '. . .~ ,:.:~~->- , .,, .::.; . ~;,..>.r:..1:f ~-.-'':i,- :, ·: :.\.,,. ::.:-: ., .... :,:,:.·;~<:,'G:~;t.~:~:i•-t:t~.:1~:.-.~1~. :,..i:::,•i;;:(;,; As to where the shooting took place, the trial court found out thal It was at Pande Forest within Klnondonl District. The trlal court also found out that the one who actually shot the four deceased persons was CPL Saad. who is at large to date. The trial Court absolved the 2nd , 3 rd and 4th respondents from criminal responsibility, though they were present at the place and time of shooting because in the absence of CPL Saad, the · perpetrator, it is difficult to establish common intention, the trial court found out. As to the 1st respondent, the trial court also absolved him from criminal responsibility because of lack of evidence though there is a strong suspicion against him in that the 1st respondent might have been aware of the circumstance in which the deceased persons met their deaths. In his defence, the 1st respondent, who was at the material time a Regional Crimes Officer (RCO) cum Ag Regional Police Commander (Ag RPC) of Dar Es Salaam denied to have caused the death of the four deceased persons. He said he did not know them prior .and· after thfiir • . demise. He, however, did not deny to have visited Urafiki Police Station o·n · 14/1/-2-006 te give direction as· to· what should be done. to· a· portion of 8 - - . - ------·---- -·---- ··--·---·---··---·--·---·-·-·------· ------------·----- . ~ .. ·:.: .. :. ·-;.. -: ~:-.. ·_ .. ,.~::...~". ~~: _____ _ . .. ... -. ~ .,.. ..,.. .,. •{,. -r . " . ~ - - •• •• ...... •# - ,"3--.· • • . money whlc~ went missing after recovery from the bandits who allegedly committed the robbery along Sam Nujoma road. He ordered the OCD (Officer Commanding District) one SSP Mentage to make good the ·1oss. The directive was complied with. The money was returned the. followl1ig day. He also said while at Urafiki Police Station he was briefed about the Sam Nujoma robbery incident. and was told that the bandits were shot dead following an exchange of gun fire between them and the police personnel. Later the IGP (Inspector General of Police) formed a task force to probe into the surrounding circumstances in which the four deceased persons met their deaths. · And ·then the Presidential Inquiry Commission led by Hon. Mussa; J (as. he then was) was also formed. He denied to have ordered any person to kill the four deceased persons. · The 2 nd respondent who was the OCCID Kinondoni District also denied to have ever had a hand in the deaths of the· four deceased persons. He said on the 4/1/2006 when he came back from his building site at Pugu, he was briefed about the Sam Nujuma robbery. As the victims were around, he .interviewed them. The victims namely the driver · and salesman narrated to him the story. They told him they were robbed Tsb. S,.:aon,DDO/_::. .,aLgur1-.po.int. . When. t.f::le.y--haci--f-in1sheEl--he ··was· ·sttmmoned·· · 9 --•-~--•-····. ---~ ---··-··. · - - - · - · · - · - - - - · - · - - - - - ' . - , . - . ·-,-----:-- ---,~.=--v--c:-.,- . .......-'. -·-:.-~-·--:·--·•···. ---- . ------ ::,. ----· - .. • -•~--.,:·~_(."' .... · ,;-.a ..... --~•-1- . -~_-"'_;_··,._ ~- "1-"•.t-, -.:,... • •-~,-•',.: > -~• .-, • • ;, • • ,:.-;; -.. ~ ,_.. : ...-:·-:.-·. ~--:~-~.-~:~-: ~..:_ .. , ..,--c--:;:_--._.,.,,;· ..:\":....,..... ~--•.: -~--... ·~t~,.. ~;,t . .,:.~i:·t,.~-:~~'#; ..~.:.:1'.. .-i~~i\ 115~,:_,..:·· - ·.'·.;,.) .. ~ ·... •:_ "?_ by the OCD and ordered to go to Urafiki Police Station to collect the exhibit - money Tsh. S,000,000/= and a pistol.· Ha>wever, the money was sHort landed, he refused to ·collect. It was at that juncture where tlie OCD alerted tl1e 1st respondent, who arrived immediately. The 1st respondent ordered the missing amount to be1 made good. Then the 2nd respondent attended other incidents. It was after his return. around 11.00pm he was informed by the OCD that the bandits who had engaged in a shootout with the police at the Postal fence Sinza Palestina were dead. TS..s to wno snowea-111111 theplace wh~re-thB exchange-of-gun-shots---- took place, he said it was the CID in charge of Chuo Kikuu Dar Es Salaam D/CPL Nyangelera and Sgt. James. nd The 2 respondent agreed to have taken the task. force formed by the IGP (Mgawe Team) to the sceneof crime. He denied everything said by.· th the late D/C Lema (11 accused person) D/CPL Bakari (the 4th respondent) and Sgt Kajela (PWlS). The evidence of the late D/C Lema implicating the respondent is contained in Exh.- P22 ~ the Extra Judicial Statement nd 2 taken by Omary Mohamed. (PW35) a Justice of. P·eace; whereas the 4th respondent gave oral evidence as well as his cautioned Statement·Exh; ·pr6 ·· 10 - - - · · - .- .- - - · · - - - - ----·-···········-···---·-- . . 0'---------- . . ':\ .-. .. _.. ··-·----·. -·· . ·-···· .... ·--- ..... ----. ---------- ·..,.·.• . - ,, ....... ·. . . ~~~- ..·. ~<, \~.-~- : :~i-.--.~--. -~~---- .::;.~;;._:::~~- ~~ :,.:-. ·." ·- •·. _•;".? -= ;~ :~.:~\-~... -: ~-~· _; .. -. -~~-- . -. ' in which he Implicated the 2nd respondent · In short the 2nd respondent deniedto have been neither at Sam. Nujoma robbery Incident nor at Pa-n·de forest. The 3rd ·respondent also denied to have. killed the four deceased persons. He however informed the trial cowt that o"n the material day around evening hours he received news about the Sam Nujoma robbery through a radio call and was ordered to make a follow up. As they suspected the robbers might have had taken paths towards Mwenge or Sjnza, he took a car with two uniformed police officers. When proceeding · he happened to see CID officers namely CPL Abeneth Saro (10 th accused person) and D/C WP Jane (5 th accused person). He took these two and dropped those uniformed police officers. When proceeding they came across a group of people. One uniformed police officer stopped them and informed them about the arrest of the culprits who had money Tsh. 5million and a pistol. He ordered the suspects to be taken to Chuo Kikuu police station for further interview. He returned back to his working station at Urafiki. 11 - -- ----. -------- ----- ...... -·····- ------------- ·------------·------ - - - - - ·-- -··-··--· -- ----·- -- -- _ .. _ . ·-·-·•--•·· -·· ·-· ---·--·· ..... . . •. ~ - ,-..- ..... . . ... ·-r,,,_-·,'1,, : .; • • ,. ... . . ~- • - ....... -~--~~l:1.;. .... ~- :· . ..r"' - :, .. - ;,..;·?·....... - .•>.·~_:;,;_L, _· ··~ _ .~-:~:·- •.:. '7·., •• -~·:...:..,. .....:" ..·• ·; - • _::_.. :· ;. ~ _,. ,.. ~ _, ·. .-~,: ~ ':i:,t :/,:... -~~-...~".- _ -;,_-::~·~~~;~-~-... 'a;~- .. ;_:~.:~:%-:._.,~;~:. ~ ., : -2:·L ~~-•.:~.~-..:.--,, i· .::, ., . Later, however, he was ordered to retrieve a bag from a charge room ·whose contents he did not know. When opened, tne bag had money-aha a pistol. But the 2nd respondent, refused to take the exhibits saying that' he was not sent to collect that less amount. He said nothing about the Pande . forest incident. On the other hand the 4th respondent gave a detailed explanation of the incident but exculpated himself. His story runs as follows:- On the material day around morning hours he reported for duty to patrol In Kinondoni, Mwananyam·ala and Mikocheni. He was with CPL Saad, D/C Lema (deceased) D/C Frank and another one whom he could not remember. When in the evening he wanted to report about the patrol to the 2nd · respondent, he was ordered to follow him and visit the scene of crime of Sam Nujoma robbery. The 4th respondent said he had no news of that incident before. On arrival they found a lorry parked in the middle of the road with four ~eople. The 2nd respondent queried them -as to what had befallen them. The four explained how they were robbed by four people . -Who were in a saloon car. The bandits used a pistol -and-· an amount of 12 . -·-···...... -- .. --- - .....- ·-·. -~------ . -- .. ., .. ·-· -·- ... . -· ... .. . . .... -----.~-- -· ·------·- -- -·-··-···-···. ' -~.. .:. . .. ,:", _:..,;:,_,. ·..:,.~·i-;:-:::.:.~..1~ :-➔ ·.- .. ,, TshS,000,000/= was stolen .from the victim of Sam Nujoma robberyi The 2nd respondent then talked on a cell phone. I-le could not hecw to ·Whom he was talking and what they wereta·lklng. As the 2nd respondent was l~lklng, Chuo Kikuu Police patrol car appeared. It had police officers with four·· persons. Later two saloon motor vehicles dark blue and white arrived.· The four persons did not disembark from the pickup .. The 3rd respondent explained to the 2nd respondent that four persons were arrested with a pistol and Tsh. 5,000,000/= at Sinza. The 2nd respondent went aside and talked on his cell phone. A few minutes later, a defender pick up arrived with four police officers. The 2 nd respondent then ordered the four suspects to disembark from a pickup and boarded on to the defender. The order was complied with. The 4th respondent did not remember the number of police who boarded the defender. The Chuo Kikuu driver was ordered to drive his car to Urafiki Police Station. The dark blue saloon car was also ordered to follow suit, it would appear, said the 4th respondent. . Then the defender was followed by a white saloon car left. The 4th respondent said they waited for the 2 nd respondent who was busy talking on his cell phone . nd . A~E=r. pQmg .f§.W JJJ.L!J.~t~=~' . .tbJ~ .. 2. re_s,p.ondeoL.bo.ar..ded_,a ___ station.-W~9GA-- ~- 13 . . . - .. -~ .. . . . . ·- . . ·-- . ....:·: .. : .--::-'..-·... :·. : . ___ ,:.;..... _________ _. ____ ______~-..--- .. ..___ , •' , ,__ _ _._..,_ _, - - - - · · - · - · - - - - - - - - - · - · - . - - - - - - - - ~ - - - · ·--·-- ..·-·--···-·--··-·· --·-------·--··· ···------ · - - - ' - ' - - - - ....... _._. . . . . --•· ---···---.- , pajero In which the 4th respondent had boarded and left. The 4th respondent said he could not hear further lnstructlo'ns Issued to their driver but their car took Morogoro Road. On the way they refueled. They then went to Mbezi Luis Police post. The 2nd respondent ' disembarked. Shortly he came back with a uniformed policeman who also boarded their car. At some stage when the 2nd respondent went out of the car and talked on his phon~, the 4th respondent asked the policeman they had picked as to where th~y were going to. He was told Makabe, the place he did not know. And what they were going to do, the policeman said he did not know.· Later the j()urney resumed. They drove to a bush area. Then the 2 nd respondent ordered the driver to stop. The driver stopped. nd The 2 respondent, CPL Saad and D/C Rashd Lema disembarked. The 2nd respondent handed over a radio call to him. The 4 th respondent, Frank and Mbezi Luis policeman did not disembark. As he was listening to radio messages he heard gun shots. Th~n he came out of the car. On coming out he weAt-Gleser aREl--he saw CPL Saad shooting one of the person from the defender. The others had already been shot dead and were lying on the ground. The four dead bodies were ordered to be sent to Muhimbili ' -· ~ ' ... ' nd hospital. The order was made by • : -;._--:::.='...--i~~-.- ·.:~ the 2 ·,.,.:·,•::.::.,. ,.-,.·~-~·-..:.· ·::-_:::.-.:.• •.•.--: ·.:::.-;:.. ·• ·•· .',. -;.-<.;-::~-···.•··•·. :·•.o: ••• .- ~···· • ..::.. ·:-:~ resnondent. • ;..•.:.·.~~=..--::;;:.;.=--:.,;_""::::c·-· ·-, :.. - · 14 ·-······ -· ···-·-. --··--···•• .. _ .-•- .... ·--·--··· ··-· .. · ············-····-·-··--··· ... · - · · · · - · - · - · - - - - - - - - - - - - - - - - - - - ~ - - - - - - - - - · · - - · - - - · - · · - - · -- ,, Two days after that Incident the 2nd respondent ordered the· 4th respondent to accompany CPL Saad and D/C Rashid Lema to go and fire some bullets because he needf=d the empty cartridges. H'is two colleagues were armed with SMG (Sub macl1lne Gun) each and wer,t to Bunju. CPL Saad fired those six -bullets Whereas D/C Rashid Lema fired three bullets; Since on return CPL Saad and D/C Rashid Lema could not get the · 2nd respondent, the two handed ·over the nine spent cartridges for onward · transmission to the 2nd respondent. The 4th respondent said he handed ()Ver the spent cartridges to the 2nd respondent. He however did not know nd v~hy the 2 respondent needed the spent cattridges. Be that as it may, that was the defence case. Mr. Vitalis filed a \Nritten submission in support of the grounds of appeal raised. He highlighted what is contained in the written submission which is to this effect. GROUNDN0.1 In ground number 1, the Appellant is complaining that the trial Judge misconceived the principle of aiding, abetting and common intention; as a result he . . . ·~-····---·•.. -.--- ..-··-·-··--·-~----.. ·---···----- ·-··-•-- . . -·-.-·,--.·· .-- ... - . ·- .. . . . .. . . 15 -------·-------· . ----· .. : ~- ..·.....:-<. ,;· ·: ..:1/'. -'"'l·.• . "-. ':~-,-: _:>~- ,:-,, . /·· =: _:.:.' it -~ ":-:: '.'. ~:~· >''\.;~,;,,:· :-.i~_.' ;:;~.~~<,.· .... ,< :, · ·' :_:.: :~'_ ·i~/~~~t~>->:_--~ .. t :/,;'.-~~--~ incorrectly applied them against the 1n~ Z,d1 :frl end !11' respondents. Honourable Justices of Appeal. The 2'1d1 .Yd, and gt1 respondents aided and abetted the killings of the deceased in two ways; (a) by taking part in taking the deceased 'to Pande Forest where the victims were mercilessly executed. The act of taking the deceased to Pande Forest. aided or· enabled the killings of the deceased without fear of being detected The respondents had power and duty to take the deceased to the nearest police station but they did not do so. Doing an act or omission to do. an actfor thepurpose of enabling or aiding the con1mission of an offence makes one a party to the offence (see Section 22 (1) (b) of the Penal Code). (b) By failing to prevent the execution of the deceased while they hil.d the statutory duty and power to protect · the lives of the victims. Passivity or omission to prevent the commission of an offence makes one party to the offence if; (i) the omission or failure to prevent the . . . offence was intended to enable or aid its commission (see· Section 22(1) (b) of the Penal Code; (ii) the accu~ed was present at the seen~ wh.gn the offence was ... " ..mmmitt-e-4..ar-ui -his-.pFeseAC-e·-was-··VOltiAt-ar-yf{-iii)-t-he-ltiw· · · · · 16 . -·-········· - -- .. . . .. - -- -· .........•..... ·--·""" ...·-·-·-····---•-'--·•---------- -- ·-··-----·-···-··..· - · - - " - · - - . or circumstances 'of the cr/n1e !(11posed a duty on the· accused to Intervene or at least to express his dissent or dissociate himself from what was being done or was about' to be donei (Iv) the accused had the power to ·prevent the con11nlssion of· the offence and (v) the passivity or .acquiescence 1111as such that it could reasonably be irJterpreted by the perpetrator as an · approval or encouragement to commit an offence. The three respondents being police officers had the duty and power to prevent the killings of the four deceased. According to Exh. · P2 and P4/ the three respondents were· arn1ed with gµns. on the date of incident. They had power to protect the deceased.· Seven bullets were fired to kill the deceased (see .Exh. P3). Therefore the respondents had the opportunity of hearing the gun shots and could intervene to save some of the victims. In the circumstances of this case the perpetrator (s) could only interpret the respondents' acquiescence as approval to kill the deceased. There was enough circumstantial evidence from which an· inference· of aiding and abetting could be inferred that the three respondents were parties to the murders of the deceased in terms of section 22(1) (b) and(c) of ··the Penal Code/ Cap 16. 17 ·-·---------------- ---··---.··--------·-- · · - · - - - - - - - - - - - - . , , . . - (Ii) Common Intention Honourable Justice of Appeal, Since the trial Judge was satisfied with the evidence that the 2'1d/ Yd and !111 respondents took part In arresting the deceasec;l taking the deceased to Pande Fores~ · and were present during the execution and witnessed the killings/ the conviction against them ought to .have been automatic. Common intention is usually inferred from circumstantial evidence. Common intention may give rise to criminal liability in two distinct situations (i) where the parties have common .unlawful purpose to comn1it a particular crime which purpose is carried into effect or; (ii) where one of the parties in carrying out their common purpose commits another crime and that other crime was a probable consequence of the prosecution of the unlawful purpose. Instead of conveying the deceased to a nearest po/Ice station/ the respondents took them to Pande Forest. At . no time they dissociated themselves from the perpetrators. fhey-kept silent after ihe execution. They had power to save the victims but none of them attempted to do so. They took back the dead bodies to ·- ······---····--·· ·the.... Q_fY-•..... Ibjs ...w.as.__eno11gb ....e.vidence_fr..om-W/:Jic/:J..-t-h& 18 ······----············--------------------------------- _, ____.: __..:...:...=. . . _ _ _ _ _ _ _ _~·-- ....____·__ - - ·,. --- - ---·--· - ___ •.... ...::.._·· --··· . -----. -----·•·· -- ·-~·---· -----------·-... . . ---·---- ····- .. ....·-·-·-......... ----- -~ -. - ... ·····-·-·-··-··---· · - - - - - - - - - - - ,# • •• -:t··-,,:.t ·"' ,.- "' .-. - ~- ...,_ : /,a.~ ... -_ • • Inference of common Intention could have been clrtJwn against the :?d1 ·jd and 1111 respondents, that they shared the same unlawful purpose to kl/I the deceased, The ___ ,; common unlawful ·purpose to kl/I the deceased n1/ght have been developed after arresting the victin1s who ·were suspected to .be robbers. ·It is not necessary that there was a· pre plan to kill them before the arrest. Common intention to kl/I the suspects (deceased) could have been developed after arresting the deceased. This was a good case of common intention. (2) The effect of the absence of the actual offender (s). . -. . .. . Honourable Justices of Appeal . .. Sections 22(1) (b) (c) and (d) 23 puts perpetrators of the crime and those who. aid; abe0 counsel or procure perpetrators to · commit the . offence or share the common unlawful purpose to commit an offence on the same legal footing. For the purpose of determining criminal liability all are equally liable. There is no distinction between their degree or level ofparticipation. Liability for the offence under Sections 22(1), (b), (c) and (d) and 23 of the Penal Cocje is not dependent on the conviction of the actual perpetrator (s). _Anybody_ covered under ....... : those -·· --- ·-.. provisions ·--. - . is.. a --·principal .. -- . -- . offender . . . iaJ~$f?lJ9.t.h.<~- .o_f -th.J$ . · .role or . l~vel . of participatiea.. 19 -- ·-·· :... ,'-···--·-· . - .. :.... : .•---~-......: .· -·~~:.:. .~ . . ,. . . .~·. ..•... - . :.--' ., ;; .,~,.~ ....--·;.. .:........ . ,. " ·.,.,: ,~. ,_ - . . : ......~ . . - -1·: ~· -~ : ~- -.. . ··--·-- .. - - - ~ - . . . : _ _ __ _ . . . : . . _ _ - ' - - . : . . _ _ , . . - - - - - c - - · · . -·----------- - . . .,.~ .._: ;._,;:.. .:. .. ~:.. ·.:r. ":.. :·.: _-:.~ . :..- :.,;.... .... ~ • /.·. -~ . :/;~:= : ~ ~-. ~>·~r:-~-; ~*· , . . . :: ~-:- . . ;r.,........ ••• --: ..~.:_. .:_. :_ :·; '.':·-•";::»-: =":~ ~ <t --)/; ;~ \: r --?~- -: tt . Therefore a conviction of one prlnclpa/ offender cannot be subJ?ct to .the conviction of another. this :f5':·/!iecause It Is the evidence (facts) that determlne . t/t/e·/la/Jfllty and not the conviction ·of the actual perpetrator. What has to be proved is that an offence was con1n1/tted and the accused aided or abetted or procured j or counseled the commission of that offence or that he shared the san1e unlawful mission with the perpetrator though he did not actually commit the offence. Once that is proved the accused may be convicted without necessarily convicting the actua!Dffender. In this case conviction of the· three respondents could not have been vitiated· by the absence of the actual perpetrator(s) in court. If the Parliament intended to subject the liability of the offenders covered by Sections 22(1) (bJr (c) and (d) and 23 to the conviction of the actual perpetrator (s)r it would have said so by using terms !Ike ''Subject to section 22(1) (a)'~ Sections 22 and 23 are plain and require no any scope of interpretation. GROUND NO. 2 Honourable Justice of Appeal In his judgment the Trial Judge found the Exh. P15, P16 ...an.d.P-2-2 .are ceRfessions ·but· he 'refrained himself f,om .20 ------- ._,_, ___ _ .... _. _______________ • $ O :• .--,.J.•_ • ~ •• • " .. , • .• O - • • • : \J. • • ... Ao ... • ,. ... • ; . '. ir' ~: ' ~ - - --· • ·- ·7• -· - •• ._j ' .. • • . • • -~: -_ --·:- -.. ,. ~ ..,. • • ~,..'":_~,·;(•-- ♦ •":J:;•~ ,;~• ~ t~~r::;:;.\~•~ ~: •_,_--:~ ./ ~7' •.'">-•-:.:~•: •• 'J:_'°:•-':~: ~~~.--~-'.:~: ~ , ! - ~ • - · ; : • : ;,rs;•:••-~J'-'~.. ::,-, • ~;,':; ~· ~;:..._~;,•._~~~.... :.;.;;.l•,.,~~-~. f~ ·=•r• f.:r<~:•.~._"'• ••":.; '. •:,~~~ji~!! ~"r:;~~,.•~ 1-:...:,:-::~,,~!;.i~ · using then? against other respondents other .than their makers for two reasons: rO that they arie exculpatory/ (II) that Exh. P:t.S and P22 are worthless bec_aufe their • • ••• '. .. t n1aket;. D/C Lema died before he gave evidence so his death reduced the probative . value of the said confessions from substantive to n1ere/y corroborative . .. evidence; (iii) Exh. P1~ 16 and P22 c1re in1p/ied confessions which are types of confession which cannot be used against a co-accused; (iv) Exh. P15. P16 and P22 are confessions of a co-accused which requ/re . . . corroboration (see pa_qe 1296, 1297, 1400, 1461 -1462, 136.'i -13663, 1472; 1486 - 1487). We agree .with the trial judge that Section 3(1} (a), (b), (c) and (d) of the Evidence Act creates two types of confessions namely direct (express) confession and indirect (implied) confession (see page 1294-1295 of the record of appeal). . For a statement or a conduct to constitute a confession, the maker must inculpate himself. If a statement cannot justify a conviction against its maker, it is not a confession.. There is. no exculpatory confession In. Jaw. A statement cannot be a confession but exculpatory. Since Exh. P16 and P22 inculpates their makers, they. are confessions and can be used against the co . .accused ·. . 21 _ : _ _ _ _ _ - - - - - - - - - - - - ~ · - . ·"······-· ··----· . ··-··-········•· -·-··· ·······--·~·-- .... ,.,· ... · .......· ·· ....•...... .. ~-·--·----·· ·-·-·- . ···-· .. . . . · ---------'---------····---------· mentioned therein· namely 1st, Z'd and Yo respondents. In the said exhibits, the makers made statements· that make them parties to the offence In terms of sections 22(1) (b) and'(c/and:23 of the Penal Code, Cap 16. A staten1ent that makes one a party to. the offence by virtue of sections 22(1) fb) (c) and or (d) and 23 of the Penal Code is an in1plied confession. There is no law that excludes the application of imp/led . . . . . or indirect confession against a co-accused. Once the accused· directly -ot · indirectly implicates himself, his statement becomes a confession against himself and it .' . - can be used against- a co-accused. It is true that Exh P16 and P22 are confessions of the co-accused that require corroboration for them to be used to convict other accused But they can corroborate circumstantial or other pieces of evidence like lies of Z,d respondent; recent possession, by the third respondenc of the deceased bag which ·tonta!fJed money;· being the last person to be with the deceased and failure to give a reasonable explanation as to how the :z7d and Y~respondents p.arted_wjfh the deceased after l/:Je arrest and the evidence of the Efh respondent who testified as DWB. 22 --- ,. ___ -----•·------ ·--·--···-· ........ _______ .,, "" . ~ - -- ·-·-. .. . .. _........................ ,------·-···- .. -- ----- ......... ..., ... • • ______ r •- • - • - .._________________ ,._ .............. ---------- ........... •• - • •- • In , Tanzania confession of , a co-accused Is n1ere corroborative ·evidence whether the n1aker dies or . . suNlves until the case Is concluded (see S. 33(2) of th.e Evidence Act. There is enough c!rcun1stantlal evidence fron1 which the trial judge drew a conclusion that the 2"d and .J"d respondents went to Pande Forest and were present when the victin1s were kl/led and witnessed the execution. Such circumstantial evidence is corroborated by Exh. P16 and P22.against the Z'd and .Ydrespondents, The trial judge fol(nd the :!'~ respondent to be a liar (see .. . page 1443-1444 of the_ record of appeal), It is now settled that lies of the accused may cor[oborate, Conduct of the accused .may also offer corroboration Court found that the :!'d respondent cheated Mgawe 1ask Force and Kipenka Commission (see page 1448 of the record). 1nis conduct was a corroborative evidence. .GROUND NO. 3 & 4 ' Honourable Justice of Appeal At page 145~ 1500 - 1504 of the record, the trial judge was of the view that the 1st respondent who was charged with murder could not be convicted of accessory after· the fact to murder contrary to sections 213 and 287 of the Penal Code for two reasons: (i) the actual perpetrators were not_ charged and convicted of 23 murder. (II) accessory after the fact to murder Is n1lnor but not cognate to murder therefore It cannot be substituted for murder unless the · 1st respondent was charged with it. (!) The Actual Perpetrator not charged or convicted. Accessoty after the fact -_to murder is an independent offence. It is not a degree or level ofparticipation in committing murder. · ·The conviction of accessoty after the fact to · murder cannot · be dependent on the conviction or presence of the murderer in· court. · The guilt or innocence· of the accused is determined by the evidence/ not by the absencer presence or conviction of the perpetrator. The classification of accessories was . abolished to avoid unjustified acquittal on the ground that the principal or perpetrator is not convicted. 1ne offence of accessory after the. fact to murder was retained in the Penal Code as· qn independent offence; not as a degree of participation in committing murder. (ii) · Accessoty after the fact to murder is minor but not cognate to murder. Honourable Justices of Appealr A person may be convicted of minor offence under the . . aUthdfity of sect76n 300 (2l of"lhe· Cdm/iial/5rocedure · 24 - . . . ,. . . . - . - . - ..- ' . ·-- -·-----,.___ . .. ····------·-·--·-· Act even If It Is not cognate to the offenae charged. Jt Is subsection _(1)-· of. section 300. which requ!reS. the substitute offence· to be both minor and qognatei not . ' subsection (2). · The Parliament coµ/d not enact two subsections which deal with th.? same .thing. ·· The two subsections are different . . ·One deals with cognate and minor offence whereas the other deals · with minor but not cognate offence. This Court has several ·times substituted convictions ofrninor offences which are not cognate to the offences charged . ,.,. , Charge of mL{rc(er cannot. contain a count of accessory , : ., after the fact to murder. Therefore the Republic could not charge th_e . 1st . respondent with the offence of accessory after the fact to murder contrary to section to sections 213 and 387 of the Penal Code as an alternative count or substantive count. Exh. P16 and P22 the evidence of DWB, DW9-plus his conduct summarized by the trial Judge at page 222 to 223 of the record is enough to find the 1st respondent guilty otaccessory after the fact to murder. 25 --------------. . ----- - - - - - - = - - - - - - - - - - - - - - - - ~ · -,.~----·····---·---·---····· - ~ ·--·---···-· ......... ··· . .... ~.-~. ·----- ... -.-· ·..... ···--~ - _.... ~ --------'------------ .. --- ----- .,.. -------- .. -···· ------- -- . ,-----.,-,----:-:=--:-:---'.""":-:-- Responding, Mr. Rweyongeza for the 1~ respondent In the first place submitted thatthe appeal Is devoid of merit In re'spect of the 1st respondent. As to whether the 1st respondent could have been convicted with accessory after the fact to murder, · Mr. Rweyongeza said the ingredients of the offence as provided under S. 387(1) of the Penal Code, Cap 16 RE.2002 were far from being met., He went to say to this effect that in order for an offence of accessory after the fact to murder to stick, ·1t must be established:..one; the accused intended to assist or receive a person who to his knowledge is guilty of an offence. Two, he did so· in order to enable him escape. In our case, he said, no such evidence was tendered. In absence· of such evidence the . 1st respondent cannot be convicted with accessory after the fact to murder.· As to his presence at Urafiki Police Station, Mr. Rweyongeza said, the st 1 respondent responded to the call made by the OCD- Urafiki Police Station. He gave a satisfactory explanation. So, he went on, no inference of guilt could be drawn from therein. He however admitted that the 1st respondent was negligent in not going to the scene of crime of armed robbery at Sam Nujoma Road. That alone is not enough to ground 26 ... -·-------·---- . __________ _:_ ___-,:--_-~---:-------:----~---;:------·--·--· .--·- ·-·· r .- --··-·--·-··· - - - -------- . _,___ - - - - ----------·--------· - - - - · - - - - - - ..., .. _:.":-., . . -.~ •- :-,_ • .::'"-: ;, '(' l • •,,.. ·.• ._.. •: . . . . . , • ; , I ·:. ·.,. ,,.:..· _ ...- ..... -conviction either to the offence of murder or accessory after the fact to . ·murder.· On the other hand Mr. Magafu' also started by saying the appeal /'·· · against the 2nd and 3rd respondents has no merit. He started with the 3rd · respondent. To him the evidence tending to impllcate the 3rd respondent is · that of him having abetted or aided. · But according to the evidence available, the . 3rd respondent did not go to Pande Forest. This is in accordance with the oral evidence of DW8 (the 4th respondent) along with ·Exh. P16 afld Exh. it P22. Mr. Magafu picked an issue in regard to the .. .. tendering of Exh. P22 which he said was admitted in absence of the maker, ' ~ ' . ' the late Lema. We wish to pose here and point out that the said Exh. P22 • was admitted on 23.9.2008 when the late Lema was aiive and was present in court. The late Lema according .to the record of appeal, expired on 13.4.2009 (See Pg 908). So it is clear that what has been said by. Mr. ,Nagafu is not correct. Back to our case, Mr. Magafu submitted that the learned trial judge was wrong ·when he found that the 3rd respondent was at Pande Forest. · He admi~~Cl. th§_~-~d r§~p_qndent to have been at Sinz?}._ Jn a.ny case he said there.ls no eviaerfce-to corroborah:! Exh. Pl6.- .. ··-· -··-·------·- -- -·--·-···----- . , · Turning. to the 2nd respondent, Mr. Magafu did not deny the 2nd respondent to ·have been at the Pande Forest. He however said mere. presence does not amount to abetting or ·aiding. He went on to say without the actual perpetrator who had a gun, it cannot be said the 2nd respondent abetted or aided'. The acquittal of the 2nd respondent was. proper, he concluded. · Mr. Msafrri for the 4th respondent also started by saying that the appeal against his client is without merit. He submitted that the appeal is based on the confusion on the applicability of SS.22 and. 23 of the Penal Code. He went on to say that as no offence had been previously planned it . ~- . '. -·- .. was not possible to enter conviction basing on common · intention as . provided under S. 23 of th12 Penal Code. As to aiding and abetting, he sc,':l _ it is ~rue the 4th respondentwas present at Pande Forest. But that by itself · is not enough for the Court to ground a conviction. This is because the 4th respondent was not the driver; he did not know where they were going; he . was not in the car which carried the deceased persons. There is no evidence of aiding or abetting, he concluded. In . -a. brief . .. -- rejoinder Mr. Vitalis reiterated his . position . -- - ------- - ··-. ···- .·.-·--·--···- . ·• ··- . :·- ------·--·--.--···· . . ·-- ..... - -- ----- - .. ---· ---·- -- .. .· -~- ":- ~:•--~· --·: ·- -~. -. ..... .. . :-- - .. . . .......... ;. ~ . . ~ ~ . ....... .,. ·.. •<"--,·._.:1~: ~ ~ ~ ... ~- -~. -.. ~:.J·~~~ ~ . . ~.;~:....i:_· .,. . ·.. _,.,.~ . -- . . . ~~ . ~,:_,~; -~~,.->.r:~;~-,.-:..~1.; '~._......:": .--~~";~,:;-i~ .. ~:-~::ic.. ~\.:.: . ~.:\·]~~""-:;;·~~~ -:,.!V'\_.:~~- .. ·•"c. ::..~ •• .- Before we go Into the merits or otherwise of the appeal, we wish to point out-at this juncture that this being a first appeal, this Court Is entitled to re~evaluate and re~appralse the evidence, to determine whether or not the trial High Court had erred In Its approach to evalu~ting the evidence or' · had acted. on a wrong principle. and to come to ·•its own conclusion (See Jaffari Mfaume Kawawa VR (1981) TLR 149; ·Salum Mhando V R [-1993] TLR 170). Further, the burden of ·proof in criminal cases, to prove the case beyond doubt, always remains with the prosecution. In this case it is not in dispute, as correctly found out by the High Court that Ephraim Sabinus Chigumbi, Sabinus Chigumbi, Mathias ' Lunkombe and Juma Ndugu are dead. Further, the deceased persons were k➔lled by gun shots. · According to· Dr. Mbonde (PW19) who conducted postmortem examination and prepared reports he said all had bullets wound on the back of their necks. He made the following observation:- (i). Ephraim Chigumbi (Ex~ P3A) - 3 bruises on the face and on the ·right hand caused by a blu.nt object. 29 -------.,-------,--------,'"---- ·---~--------·- -·-·--·----·-·-··--··-··•···--···--- ---·-···•·-·-···-'···'-·~·-" ··-··---· ·-··----· •• .. ,....,.,::~•.:~•-:·,~~-•~-••-"--.:.__ ... ~,--._--•~-••- ....,.,,.....,.._._r __ _. _ ~•• -~• • -·· .. - -- . ... . . . -···· - .•. ... -__.......... ~ "' •.._,_.,_ ............ ,.,, ......... .,,.•.• • ~ .. , • "•• ·••:.:' ••-•• . , -••• .,.. ,~ ....-··- ·-- ......... ... .. ., ' ' , ·There was a bullet entry wound from the back neck to the font a fortirior. ·The bullet came out through the mouth causlng a wound of about 8 ems. (ii). Sabinus Chigumbi (ExhP3 B) - He had 2 bullet wounds and bruises ·. - The gun bullet wounds one penetrated the neck at the back and came out at the lower mandible (jaw) leaving a cavity of 6 cm & 4 cm ~ - Another bullet wound was, on the left hand entering from behind and emerged in front heaving a cavity of 6 cm x 6cm. The bullet also fractured. the skull and neNes. (iii). Juma Ndungu (Exh. P3'C) - He had 1•injury It was a bullet injury penetrating from the back of the neck 1cm wide and come out in 30 ... .. '------- ......----- -·--·- ---------------·----·--·------· -·---···--·.. . ...... ·--··---··---- - - - - - - - - - · - - - - - - - - · -------·----·-·-···-··-·· - _.·-···~. • -.-~' •· •• "'f ••• : : . - - - - - ~ - - - - - •_____ _ -:~ -·- ... _______ ""'~7-·------· . : .,.. - \. .. ' -· '. - ~,,; . ,....~ .. , ... ~.. .. . . . .. . . ._-.,,. · • '- r ••• ... ,•• 1' .;. - - .-. . . .~ ... . . ... front of the face leaving a cavtty of 6cm ,&· 6 cm. It.fractured the·-lowe~ part of the skull and the vertebra and the spiral cord. (iV). Mathias Lunkombe (Exh. P3D)· - The body had 3 bullet injuries one penetrated from the right side of the lower jaw (mandible). - ·The other two bullets were shot at the back of · the neck. - Both mandibles (Jaws) were broken -and the brains affected. - His nerves were also damaged. In view of the nature of wounds infli~ed, _like the trial .. High Court we are satisfied that the four deceased persons were brutally killed. Furthermore, we also agree with the finding of the trial High Court that whoever had done it, he did it with intention to cause their deaths. ____ .. But _the_ trial Hjg_h _Court_ as earlier.____said a.b_s_olv_ed .al.Ltbe.. respondents . from""crim"in"al "respo"nsffiTHty; he.nee thisappeat So the question is whethet. --·-·- .. ------ -----------------~ ----~ ________· __ .11___________________ ·_.... J1 -·---------·- ------------- . , ,-- ~ . • ·- • . a. --~ .., , ~ ; _·_ - • ·,. • .____ • • • •· • • , •• ----··---·--·- •• ·--. • • • --- ______ • ~-·------· ·, "J.,..· • ___ -.,.--;:-_• _____ ••• •• •· • . ·".··.·~ .. *• ... _ _ _ __ :~-. -.---- ·., '. __ . -· & • -----~---- .. - - - - • ' . - - - - · - · · - .. · - ~ - - - -··. --· ... ••• - - '~-.,;-~~ ; . T .. .; · -.- ': ·. · ·,.-:::<'> •~ •. ,_ ':';_:., · -A.•: Y· .,..:. :__,;·--. .: ;,7,_,;_;;-<~ -~'~>>~•t;ij :::~~-:,,-~.-\.:~:i•.,:. j or not the finding of the trlal court was correct. We prefer to start with the second ground. Exh. P16 Is a Cautioned Statement of D/Cpl Rajabu (the 4th respondent;. whereas Exh. P.15 cautioned statement and IExh. P22 Extra Judicial Statement are of D/C Lema (the 11 th accused person who died · before the trial was concluded) .. As regards to these statements the learned trial judge said. •~ .. I have formed the opinion that the statements Exh. P 15, P16, P22, taken together with other provedfacts, are confessions within S.3(1) (a) (b) and (d) of the Evidence Act but so long as they ~ are exculpatotYr they ~nnot be taken into consideration against the other accuseds under S. 33(1) of the Evidence Act. Besides Exh. P15 and P22, is now worthless, because after his (Jlh accused) death, the. statements' value were reduced from · substantive to corroborative evidence only and since they are exculpatory in nature, they cann(!t be considered against other accusec/s. I must also note that unlike ExbP22 which taken together with other incriminating facts such as the accuseds role in helping in the · ·· ···loading-··of -the corpses/ and the ·two ·empty ...cartridges ptckeil·tfciirfi/ie··scene ·rii:efTitFi)i- j. 32 . -- -- - ____ .._____ . -- ----- . . . . . . ······-·· ......... -·-· . ····· ..•···- ...... "·"·-···. · · · · · - - - - - - - · - - - - - - - - -..-·-"···-··"·"-""- ... ..... .. · - - - ~ - - - - ' - " - - ~ - - · -- - - - - - - - . -· .a - . --·· confession to murder ExtJ. ·P16 Is onlvconfesslon to the other minor offences and not to m.urdet 11 . . ' i" .. It would appear from· above that t~e learned trial judge contradicted himself as to what constitutes a confession. What Is a confession? According to The Oxford Advanced learnerts Dictionary, 4th Edition the word has been defined thus:- 'say or admit, often formally that one has done wrong/ committed a crime'~ lhe Black law Dictionary, Eight Edition ~efines confession thus:- "Is acknowledgment in express words by the accused in a criminal case of the truth of the n1ain fact charged or of some essential part of it'~ Sor in this context a confession is a voluntary admission of guilt to an offence. In Anyangu and Others V R (1968) EA. 239 the then Court of Appeal·for East Africa Observed:- ':4 statement is not a confession ·unless it is sufficient ·by itse!Ftojustify the co11victfon of the person making it of the offence with which he is tried': 33 - - •.! ____ .:_~-- ___: __ -·-- - _.,._ -· .• ----··;.i::.. ..:----;:~-;_.__ :· -~~- -.---=.: :~. . ·-_ -·- : - __ :_ --~; __ ,·:~ ~-.. . -; .... •:: -.~:. ·.; ·-·,:·-··-~--,. . . ..... - . --· • d,• .... ...._ ; •• ~-- -· • .:_: ·7 .. ~ ..., - -. ,...... ?. ~. . . :- . -~ j_ __.: /~~. ··~:.; --·~--~;~-~- ·. . . ~:.-, :~ ;·_ "t In our case, the makers of the statements did not at atl admit to have committed the offences. Rather, they had exculpated themselves from the offences they were ·charged with. · It Is no wonder that even Omary Abdallah (PW35) a Justice of Peace who took the Extra Judicial Statement of D/C Lema when he was cross-examined by Mr. Magafu whether D/C Lema had confessed, he said:- ''Nowhere is· there an admission to the offence of which he was charged I expected him to admit that much'✓• We are• nqt prepared to go along with the learned trial judge who opined thaCthe;s,tatements ·ar~ confessions falling under S. 3(1) (d) of the Evidence Act in that they contained affirmative declaration in which incriminating facts are admitted. The statements do not show the makers to have incriminated th~mselves. · We are of the settled view that the statement fall short of C:Onfession, as such S. 33 (1) of the Evidence Act cannot come into play. The section reads:- "33(1) When two or more persons are being tried jointly for the same offence or for different offences arising out of the same transaction/ and a· confession of the offence . 34 ... --------- ······-·- - - - · - - - - - - · · - - - · - - - - ~ - - --------------- -·· ··- .. - --- ·, ' - . ~ ·,.;.- .:..· ..... . . . ~ ·- \ ·f . • . . .•.· . . ,: .... : . ...,:.:.~ :,,1,. -~- ... or offences charged made· by one of those persons a~ctlng himself and some other of those persons ls prove(l the court ma,y .take that confession Into consideration against that other person 1~ [En1phasls supplied) The statement of D/C Lema and the 4th respondent should not have been acted upori in incriminating the other accused persons. With due respect to Mr. Vitalis the mere fact that the 4th respondent along with D/C Lema made statements, that alone does not necessarily make them parties to the offence committed in the absence of any incriminating evidence. We wish to reiterate the position once again that in order to establish whether the statement is a confession or otherwise, the test always is that it must in the first place indicate to have incriminated the maker with the offence charged as well. In the absence of an incriminating factor, it falls short of a confession; it is something else.· Next we are going to discuss grounds 3 and 4 tc;>gether. However, before we go to these grounds, we wish to point o.ut that apart from the ' evidence of the statements discussed supra, the prosecution also r~IJed.:_Qn ··-·. . ·-- .. ----····--····--·· -··· -------· --····'" -- -·-·:--·---·-··--·-······ --·---·- ·-····. .35 --·- - -- . - ·-...... .· - .... -. - ., .... ······-··--·---·------ . . - - - . ------- - . ; -~ . :. -..... -~ - :~ .. - . . . . -· - ••• ·--- 2'- - - .: :-,•-;··__.:.......:-:::----·-- ,_ --, . . .. another set of evidence, namely, oral evidence of the 4•th respondent and some tit bits of circumstantial evidence. Th~" 4th rclspona~~t gave his defence on oath. He explained in details the circumstances under whlcl, the four deceased persons were executed. And he mentioned Cpl Saad who is still at large as the one wl<10 shot the deceased to death In the presence of some of his colleague? police officers. We shall give details of the· surrounding circumstances of the death of the four deceased persons when we will discuss ground number one. Suffice to say that the 4th respondent mentioned his colleagues police officers to be involved in the saga. The learned trial judge was satisfied that the 4th respondent was telling nothing but the truth and that his evidence 1s that of an accomplice. We too, having carefully read the record, are at one with the finding of the trial judge that the 4th respondent on the whole was telling the truth. But we wish to clarify as to whether the evidence of a co-accused tendered in a defence can be acted upon to convict another accused person. We pose that question because the evidence of· a person who is alleged to have been associated with an accused person in the commission of any offence, otherwise known as accomplice, and who is not charged, normally .is.· .. -----~·-·- ·· ··- .·-·····-·-·-·--. . - ·- 36 ---· ---- - .... .,... - .. --- ....... . .... ' .... -------·-·· · - - - - - - - - - · - - · · · · - - - - - · · · · - - · - - • - - - " ' • · · ....... ,., ... ' •..•., ---· .........•-•-"•"·-------------- > · - - - - · · - - - - - - - - · - - - - - - - - - - - - - - - · - - - · . ""· .. . which has the burden to prove its case beyond any doubt. The question now is what ls the status of evidence of a co-accused tendeted In defence implicating other accused person. In Bushiri Amiri VR [1992] TLR 65 the High Court of Tanzania was faced with a similar problem. In that case Mroso, J (as he then was) cited two previous decisions of the High Court. In Omari J. Kibanik~ & Others V_R, Criminal Appeal No. 224 (1975 DSM Registry), the High Court through Biron, J. said:- "Where at a trial an accused opts to give evidence on · oath and in such evidence he incriminates a fellow · accusec;lr such evidence is admissible against the othe~ though it cannot be treated otherwise than as evidence of an accompiice and therefore requiring corroboration in practice though not in law vide S. 142 of the 11 Evidence Act 1967. In Ibrahim Daniel Shayo V R Criminal Appeal No. 10 of 1990 (DSM. registry) Mapigano, J observed:- "Where an accused person gives evidence on oath in a . ~-· ... . ·joint•:.trial-irr-r~li@tiAg another accused {even,·tf' not a--··· · ···· 37 ---- - - - - ' - - - - - - - - - - - - - -----------··---·-·-····---"---·-''····-'--=-·-··-·····--···-···-~- ..._·...·. : . . -· ··- --··· ·-- -·---- ~- ---···-·:'.=. : .:·· ....... ~- ·- ·______ ..... ~ ....:,.- .......... ,~----~- ....- ---~ -· ..,.:_..-.. =· . ,.... -' .;._ ~-., .... . -. --- -- .. - ---- . -------·· .. -~ .,: .. -- ~- --- • ··- 71'4 ... -_. ~ - :. ~- . • -· .. .. .. ·----- .-: ;.~·•,_ ., __ - .;.. . ' ...:. ~ ,._ . . • ,t- - . - <t -~- -,, ·. .-:,~ ". -·· _.-._{,,7.:;_:i :_- ( . ~~_./' ,:c,_;~t.\,·,.:..i~:,~>.:~~ _~:~_,;.~~t~Jt ,t,~j~--iSt-iiii· ;i.~:~: :~ ' .. confession) whether or not he Implicates h/mse/~ It may be used against that other accuse~ because that evidence is on the same. footing as that of any other ·witness/ though as a matter of prudence It must be approached with caution." We fully subscribed and find as correct the observation made by the High Court that the evidence of a co-accused given on oath and on the defence implicating· other accused should be treated as evidence of an .---~ accomplice.Such evidence, owing to its inherent danger, requires corroboration as a· matter of a well established practice but not in law as provided under S. 142 of the Evidence Act, Cap. 6 RE 2002 which reads. · 142. An accomplice shall be a competent witness against an accused person; and conviction isnot illegal merely. because it proceeds upon the uncorroborated testimony of an accomplice. . In this case, the learned trial High Court judge was satisfied that the th 4 respondent gave a true account as to what had taken place at Pande .f<?r~~t, yv~.ich resulted to the death of the four de(:eased persons. As said 38 , _. '· . . earlier on the learned trial Judge did not find any evidence to connect the accused persons with either murder or accessory after the fact to murder. The prosecution side invited the trial judge to find them guilty of accessory after the fact to murder maintaining that the offence of accessory after the fact to murder is minor to murder. The learned judge said, we reproduce:- ".. .although being an accessory after the fact is minoft it· is not cognate to the offence of murder and so cannot be substituted as an alternative verdict unless he was charged with that offence. " In any case, the trial judge did not find any evidence on record, and correctly so. This is because for an offence of accessory after tre fact to any offence to stick under S. 387 (1) of the Penal Code (the Code) as rightly pointed out by Mr. Rweyongeza, it must be shown that the accused person to have assisted or received a person who is to his knowledge guilty of an offence with a view to enabling him escapepunishment. The section reads:- 387(1) A per:son who receives or. assists another who is to his knowledge guilty of an offence in order enable him escape punishment an accessory ·after the fact of the · ···offence; ·,~- ·-· ::, ;., In this case there Is no evidence to that effect. Mr. Vltalls was maintaining that. the finding of the trial judge was wrong. He submitted that it is subsection (1) of section 300 of the CPAwhlch requires tl"le substituted offence to be both minor and cognate; not subsection (2). With due respect to Mr. Vitalis, we areunable to agree with him. In actual fact he mixed up the two subsections. ·.. S. 300 of the CPA provides as follows: 300 - (1) When a person is charged with an offence consisting ·of several particulars, a combination of some . only of which constitutes a complete minor offence, and such combination is proved but the remaining particulars are not proved, he may be convicted of the minor offence although he was not charged with it (2)When a person is charged with an offence and facts are proved which reduce it to a minor offence/ he may be convicted of the minot offence although he was not charged with it. 40 .. -··- ---- -- ·--- . ------- --··-"·------~---------------- --- -·· ··- ··-----·- -- -- .. ···········---- -· - ·.:: _.. - . _,_ we· start with the subsection (2) reproduced supra; ihls subsection . has similar \Yordlng with the s; 181(2) of the then Crlrnlnal Procedure Code, Cap. 20 (the CPC). _ In Miswahili Mulugala V R, (1977) LRT No.· 25 the appellant was dissatisfied with the finding and sentence of the trial District Court which . convicted him with robbery. He appealed to the High Court of Tanzania challenging the same. The Judge set aside the conviction of robbery because the evidence was wanting but substituted thereof with common assault basing on subsection 2 of S. 181 of the CPC. In his judgments the learned judge said, we quote:- 11 Although the subsection is seemingly general I think it has to be strictly construed. the test in my view should be whether the minor offence is accomm_odated in. or cognate to the major offence before conviction can be entered for such minor offence. The word "cognate" is defined in the .1966 Impression of Chambers' Twentieth Century Dictionary 11 to mean of the same family,, kind or ature: related or allied." And according to P.G. Osborn's Concise Law Dictionary,, 1962 Iinpressioo,, in Roman law the word ----- -'·-------·· · --~-ucognate,/£c·.:.meant '·'p-ersuns'connectea--'vVJtn each -other - -- -- · __: · 0 41 .......-.. . . - ... · ··.-···: ·- .··- ··:··•·-·:··-:--·:·: ::· ..... . ~ ·- _· . ---·--·~---·· -- - ... -- ----·---·- .... · .... -- .·-•·········-··---·-···----·--"-· ··- ····-··· ... -· . by blood. 11 On this understanding, then✓ • If 'B, per-son Is charged with but acquitted of at.tempt:f#cl ml!,rcjer f)nd evidence reveals that he used an unlicensed firearm, · he cannot be convicted of unlawful possession _of a firearm under the Arms and Amn1unition Ordinance, The two offences are_ not cognate as they are 11 products of different ancestors. We fully subscribe to that finding that in order for the two offences to be cognate in terms of S. 300 (2) of the CPA, the minor offence must come from the same root with the major offence. In our case, we have seen the two i.e. murder and accessory after _ the fact to murder are different; they are not cognate: As such S.300 (2) of the CPA cannot be eng9g~d. · As regards S.300(1) of the CPA, the wording is quite· different from that of S. 300 (2) of the CPA. It cannot therefore be construed to mean one and the same thing as contended by Mr. Rweyongeza. We entirely agree with Mr. Vitalis that the _two subsections cover two different $ituations. However, despite the wording of subsection 1 of section 300 of 42 - - - - - - - ' - - - - - - - - - .-- - ,.. . ' .- . . - ·,. . . . .. ~ . ~ - _' _.. .;:·--···--:-.!...-_.· ~- .... ·,."'.:. ·. ,• ... • ~,~,.".. •-•: ••:.,;;' ~• ~~• •,~.. •• -:_-w • ..... • < . . Dffence to the original charge, that should not be ,done at the detriment of the accused person. The accused person ·must always be afforded a fair trial in enabling him understand the nature of the intended substituted charge and must be shown to have defended himself on that "new Charge". In more or similar situation the High Court of Tanganyika in Elmi bin -Yusufu V Rex, T.L.R(R) 269 had the occasion to interpret S. 181(1) of the CPC which has identical wording with S. 300 (1) of the CPA. It said:~ 11 Though a magistrate [or Judge) has power under this section to convict the accused of a different •offence from what he was originally accused ot still this must be done only in cases where the accused is not in any way prejudiced by the conviction on the new charge. The accused person is entitled to know with certainty and accuracy the exact nature of the charge brought against him,, and unless he has this knowledge,, he must be· seriously prejudiced in his defence.,✓ We entirely agree and subscribe to that interpretation. We have already shown -.,..-·,····· ····.--·-:----. -·· ·---- that --. even if that course is corr~ct .Jh~re -- -· ---- -~·-:.7":····~----:--:--·---:--.:·- ·. -·.--:··~-- .. is. no evidence ~..... .. .. on. record to ground a conviction to the alternative count· of accessory after the fact to murder as suggested by Mr. Vltalls. We hold that the two grounds namely number 3 and 4 have no merits. We now move to the 1st ground. When acquitting the 2nd , 3 rd and 4th respondents, the learned trial judge said, we reproduce; •~t the beginning of this Judgment I started by declaring that the victims were brutally killed. This has remained so to date. The only question was, whether it was these accuseds who actually did so? After going through the evidence on recorc:l I have come to the conclusion that it is not so. There is no direct or circumstantial evidence to show that any of them killed the victims. The nearest evidence was that some of them i.e. the Z1d/ :f"d and the 1217 accused were present at the scene of the killings and witnessed them/ but they did not kill in person. The closest offences the Z1d and .J"d and i:!haccuseds could have been convicted ot; is for their role as aiders and abettors; but in the absence in cou{l of the actual perpetrators the case against them is not made up but remains that of strong suspicion/ which is not sufficient lo found a conviction. In. the absence · · · · · · · · - · · · · - - · - - - - - - - - - - - - - - - - ·----·-·-- ----~-- 44 ------ -· -----------------------·------.,-- ................ .-- ... -·- .., - . . .. ··•·· .. , ... ----- -~-----·· - .. ·-·-·-·- ····- ······· --------···...-· ... -·-··~-- ~-- .....~.,---·---. ------ - . --~............ .... ... . ... - - ... ,=--. ... -;. . :·-.. ; ·,,;.,.,.::·h ..~~ ....., . I I of the actual perpetrators lt Is dlfflcult to estab/lsh common Intention among the accusedpersons; 11 Mr. Vitalls attacked the finding of the learned trial Judge to be wrong. Having carefully read the record of appeal, the learned trial judge appeared to have misinterpreted ss.22 and 23 of the Code as correctly pointed out by Mr. Msafiri. S.22 enumerates persons who are principal offenders to an offence.The section does not say that the charge against an abettor or aider will not hold unless and until the actual perpetrator should first be charged. This is because those listed in S. 22 are principal· offenders _it matters not whether they are abettors or aiders or actual '. perpetrators.They will not be charged specifically as aidersor abettors . Their role in the commission of crime will come at the time of tendering evidence. This is what section 22 is all about. The section reads:- ''22(1) When an offence is committed, each of the following persons is deemed to have takenpart in committing the offence and to be guilty of the . ~ ...... \ . .. .... ... offence, and n1ay be charged with act1Ja/ly committing, namely.'- a) Every person who actually does the act or n1akes the on7ission which constitutes the offence; b) Every person who does or omits to do any act for the purpose of enabling or aiding another _: person to commit the offence/ c) Every person who aids or abets another person in committing the offence,- . d) Any person who counsels or procures any other person to commit the offence,. in wh/ch case he may be charged either with committing the offence or with counseling or procuring its commission. (2)A convictitJn of counseling or prdt:Vting the coitlrhissio/7 of an offence entails the same consequences in all respects as a conviction of --- committing . .... the offence. . _?o, _ -~he .trial judge -was not correct when he said _~- _pers~n cannot be -chaf'f}ecl ana· -cohvict-ed fofliis part-ierpation Hf a:·-crrme in-any-:C'.fftfi:eclasses 46 ... ·· ... .. . . ........ .........._.._.......... ......~---·-·· ............... ·······-· ·- .,. ·-·· '···- , .· -·-···•-· .. ' .. , ~ .,._ •• , . -, ,.__., •••"'''' ",,..,,.,.,,.,, ••••••••"~.,.._,-,~.-m.....,,_,_......,..~•"'"'~'"~ ...- - ~ - - - . . - - - -...- - ........--.-••------ ••--.••.-.-,,-,a••'•-•~•••••-- . in paragraphs (b) (c) and (d) of section 22(1), wltl1owt establlshlng that a . principal offender In a class (a) has committed that offenGe. -All persons enumerated in that section are principal offenders as su~h tl,·ey can be jointly or separatelycharged and convicted. On the other hand S. 23 of the code creates another scenario altogether vis - a - vis S. 22 of the code in that the parties to the crime must have first intended to commit an offence. But in the execution of that plan they committed another offence which was in the ordinary cause of events was a probable result, then in such situation the parties are taken to have a common intention. For example, A and B had decided to steal by force using a gun. In the process of stealing, A who had a gun killed C Interms of S, 23 of the Code, B is deemed to have common intention of killing C. The two sections therefore are quite distinct. We agree with Mr. Vitalis that the learned trial judge did not apply the principles of the parties to the offence properly. The question now is whether there is evidence to .connect the respondents with the charge. The learned trial Judge was satisfied, as indicated earl_ier on, that the - four deceased persons. were. klll~d. _l)y gun shots ;3t Pa.ode forest. Were the ·-·~-•---- ..... •,•-~"'I'•~-..-•.; •:.;:;-;.•:;:.-•. •,:•-••-•••••••-•-------•-••----••----•--•------H-U_O,HO•--•-•••-•--•--••rn••-----•-•••-••h•-• ........ ---•••o•NO •••-••• • ••• •' •• • - ·••••••• ... ; O 47 . ··-······ .• o.o·cc .. · .•.-,•••.•• _. ··-·· ·•• -. ·· · .. · ··-····· .•••• • · ··--···-·--"'--C-----'-'--·-·········-·········· ·· ··-· ·· · fl respondents, present at Pande forest? The learned trial Judge said, save for the 1st respondent, the 2nd , 3rd and 4th respondent were at Pande for.est, The learned trial Judge found the 4th respondent credible and reliable. But we have carefully gone through the evidence on record, the 4th respondent did not state to have seen the 3rd respondent at Pande Forest, though initially he was around at Sam Nujoma. This is because the· motor vehicle which carried the 2 nd and 4th respondent (pajero) was the last to leave from Sam Nujoma after the other motor vehicles had already left towards · undisclosed destination. The 4th respondent did not know where they had gone. - He even did not know where they were going. He being ajunior police officer to the 2nd respondent he was obeying the orders. And on the way they fueled and passed through Mbezi Laius Police Post where they picked one uniformed policeman.By then darkness had begun to set in. th Further at Mbezi Laius Police Post, the 4 respondent did not see other cars. When he was cross examined by Mr. Mwaipopo, learned Senior State Attorney as to whom he had seen at Pande Forest the 4th respondent said:- ---~ ··-··. ~--·-·-----. ·, - ·-·-·~· .. --. .. ·---~ . _, ____ ,,, - - ·•·r-.-.·• ,.,,_.,,,, ••·•.' - - - --·· - ·------------- -·-··-- - --- - · ... -·--·- - - - - · .... --· ······-- . :. ---·--··-···· .-----·-----·-·· ---·-··- ---· ...... . ---. - - .. . --- --· ··-- , ...... ' ""··-- ... i, Apart from SP Bagen!, myselft Rashid end Saa('1 I never saw ASP Make/le In the forest," [Emphasis ours] In his defence the 3rd respondent did not say anythfng about l,ls presence at Pande forest. In those circumstances, we think the benefit of doubt should have been resolved in favour of the 3rd respondent that he was not one of the police officers who went to Pande forest. Next is the 2nd respondent. · We agree with the finding of the trial learned judge that he was at the scene of crime at Pande Forest. · But the trial learned Judge cleared him from criminal responsibility. He said, we 'reproduce:- "In this case, ·I have found that the Z1d accused (the Z7d respondent) was in fact present at the scene of crime, and could but did not prevent the commission of the crime, but there is no evidence that he procured, commanded, aided or abetted, ·any of the other accused persons into committing the murders. According to the 12h accused (efh respondent). the killings were carried out by Cpl. Saad at the instance of the Z1d accused (Z'd respondent). This is certainly - .. - - - . -- heaisav and fias no valDe; The fact remain· that Cpl ·· ... . . . ---- .. ·- ····•'••·· ...... .. V - ,. ~ . - .. _ .·•.""'- .. • ..r·---..~. ·.···::"------····•-·· ., -.: -. • 4·.. • ·-~ .••••• : : - ..... _ ·-· ·~ /~ •• . ... •.~ ...... >. ...11.:" -~,r~·-·. . -?:: :_ ~._ ~: ..:·•~.::--.. ~.;:··..;.: :~;. ::. ••.: .• ~ \. ,!. _: : • -· ~-,,:~- . : :·~, - ~ . _;: ~ ~~-. ~:. 4: :: --·~. ·.~ ~ Saad Is not · among the accused · persons; The question of aiding/ abetting/ procuring or counseling cannot be considered In the absence of the alleged klllers'' But the big question is:- On whose order the four deceased were sent to Pande Forest? And what was the purpose of sending them there, a place where there were no house~ around? It is the evidence of the 4th respondent that at Sam Nujoma it was the 2nd respondent who ordered the four deceased to be taken in another motor vehicle make defender. It was that motor vehicle which carried the four deceased to Pande forest. According to the 4th respondent. at Pande forest the 2nd respondent, Cpl Saad and D/C Rashid disembarked from the motor vehicle make Pajero in which they were travelling and which parked about 15-20 meters behind the defender whereas the 4th respondent, the driver one Frank remained in the motor vehicle. The 2 rid respondent gave the 4th respondent a radio call. So, he was listening to it. While listening he heard gun shots. He did not know from which guns they were fired. He decided to come down and . • went closer. He saw Cpl Saad shooting one of the last four deceased per~ons whiJ~ :.t.b.~-- q~her_ had _already .. been. shot. dead .... The dead ppdies · 50 --······-··-····-·- . -·' . ' .. ~. ··--....~__. ........ ~-.. '"'. ~ , -- - ...... ,., ., - . .. - --- ··-- . ......... .., ~ - ·- -- . -- ----. ·-·- -·-··-- - . - . ·- ··- ----- ··: . __ .,. .. -.--· . . ~- .. - ;'; . . -.. . .:?·:O~ ,t-.; ,;•)::'.,:::,.~~-~• ~;,_"',e- 11. \ ,!-; . •\~ -•--~ - • . . <-,':~~,. ~.-t.~ ....~ :.. . ,,- .·•• .·~ . . . .,.":.•_;. .~ .. :~' .. •...~.~ •· ~ . .-,~,.. -~;-·~;, ,'l :~--.:~.:;:·"';. ~./•·_.:. • ( :;; -=t-• t -~~-•· :.;:' r.1!' '"•._;. .,._.., <"~'°--- ::.•.-- ·.' .,._ ---~• --~-~--.. The 2nd respondent ordered Sgt James that the dead bodies be sent · to Muhimbili Hospital. The 2nd respondent is a Senior Police officer In the f, Police force. He was a superintendent of Police and officer commanding of Criminal Investigation in Kinondonl District. He was the most senior police <Jfficer who went to Pande Forest. In actual fact going by the totallly of evidence on record he was the one who issued orders to the junior police officers. We are satisfied therefore that he was the one who ordered the four deceased persons to be taken to Pande forest. And indeed the four deceased persons were sent to Pande Forest, a place where there were no houses. around. The sending of the deceased there is not without .significance; it was to execute the ill planned mission without any hindrance. We are satisfied that the four deceased persons were killed in the presence and sanction of the 2nd respondent at Pande· Forest But that evidence came from the 4th respondent. If the evidence of the 4th · respondent requires corroboration, then the conduct of the 2~d respondent in concealing the truth of the incident affords. such· corroboration. Corroborative evidence may be circumstantial and may well come ·from the· words or conduct of the accused. -person (See Paschal Kitigwa V ·. R -(~l-9-9.4j -T.bR-e~1~F-ir,st,, ttle--zM,crespondent-olied techls"S~ntor··.pol-ice·.omcefs· 0 0 .. 51 . .. --· ....... -· ····--. -· ·-------·----- ------------·-· . --- . ·-·· -- ... ··-- .. . . ' . ··-· ........ ...... ,,.. ··:··, __-..,_,.-,,.,.· ---· .... ...- ......... . . . ··- . .... . .._.· ....................... ..... -'~---··-··•·· .. -- - . .... ,..... _, .... ··:·-·· ..... ................. , . -- -·· ,.,·• '. • - . . r-. - ··-- ;_.::: .,-•-•-•-··- ···--- . - . - - . - .• -~ ---~- ··---·---'- -·_ _ _ _ f_, -----·--·- ·---------··---·-··--· -·-· ----·...: .· . ,.·'·? ~· • . ,. •· including SACP Mkumbl (PW36) and ACP Ublslmball (PW,27) Inter alla; that the four deceased were killed in the exchange of gunshots at the Post Corporation wall Sinza. Indeed those who were close to the said wall, Inter alia, Kisa Mohamed (PW.20) a· watchman of a garage and Rashid Ally (PW 9) denied to have ever heard the exchange of gun shots nor heard any unusual incident to have occurred. He did not end there, he showed the place where the aUeged exchange of gun fire took place. Basing on that information, a sketch plan was drawn by S/Sgt Mwakajinga (Pw33). Last but not least the 2nd respondent purported to show the nine spent cartridges were fired at Post corporation wall Sinza while according to the 4th respondent they were fired at Bunju by Cpl Saad and D/C Rashid and handed over to the 2nd respondent at his direction. In view of the above, it is ~lear that the 2nd respondent was the architect so to speak of the whole incident by sending the four deceased persons to Pande Forest with a view to killing them and in actual fact they were eliminated. In terms of S. 22 (1). (b) of the Code aperson who enabled another person to kill another person and that other person is actually killed the person who facilitated the killing is guilty of ·unlawfully .··cat1sing----cfeath-of~that•e•persorT"nOtwithstanding--th-e--absence-ofi:he-·-attaal---·····-···· ··--· 52 ,_,.,, ..........,_ ....... ,._......... '"''"•-·--··--------·-" ....._. ·-· ,.,_ .. " .... ""' __ __ ., ,.,.,_. ----- - - - - - - - - - - - - - . • .. , . . .. .•. ,......,.. •••. r.,• .---- - •· ................ ~ ..... •... -- · - · - - . . ..... ............. _,..,. ~ • - - · -- - · · - . .. ••. - ••• --------·---- -·- ·- ........ :.,. . perpetrator. We do not buy the story of denial of the 2nd respondent which is intended to save his skin. As regards the 4th respondent, the only evidence remalrilng in the record, is that of the 4th respondent himself. The 4·th respondent all along did ·not dispute to. have been at Pande Forest. But he protested his innocence that he did· not take part in killing the four deceased persons.He said upon arrival at Pande Forest he was given a · radio call by the 2nd respondent. · He did not disembark from a motor vehicle pajero. But after· hearing gun shots he disembarked from the motor vehide to see what the .i . . . fuss was all about. He saw ohe of those four people in the defender being · 1 shot by Cpl Saad. The others had already been shot dead and were lying on the ground. He went on to say he could not do anything there and even after the shooting because the 2nd respondent who was his senior was around.He was a mere Detective corporal. According to him it is the responsibility of the 2nd respondent to take action eg. reporting etc. The question is whether the 4th respondent was a party in causing death of the four deceased persons. . . •-•••-••-••.,••-•..,•••••-•~--•-~-',~•,,h, •••• •• ••-, ••• -•--••.,•••'••••••~,...•~4' .... -.••r•,.,.V,..,-.:;..- •• •••--,•••~--•-;•• •••-• • .• .; u••-•••-•.: • ""•••-••••--••-••••••• •••-•••--•• • • •• •-•• •-••--. • 53 . .. --- ·-. ·- .. . .. . . . . -- - ...... -- -..,. ....----······ .... - ---- ---,-----··:·--·- ----- ... .. . . .. - . . .. -- .· .. . ~ ~ -·.- .-••.• --- f'J We have carefully considered the surrounding circumstances : as . explained above.· We are far from being persuaded that the 4th respo·r'ralent was a party to the killing. First, the evidence of the 4th respondent was not challenged at all. Second, he did not know the place they were going and the purpose of going there. It is no wonder he happened to have asked the policeman they picked at Mbezi Luis as to the place they were going. This is what he said:- " I asked the Mbezi Luis policeman,. as to where we were going. He said we were going to Makabe. I did not know .where it was. I asked him whether there were any arrests to be made. He said,. he did not know': In the circumstances, his mere presence at the scene, without more, is not enough to make him a party to the killings. In a more or less similar situation in Jackson Mwakatokai & two others VR (1990) TLR 17 this Court quoted with approval a statement from a decision of the defunct Eastern African Court of Appeal in RV. Komen that:- 54 .. .. . ••~---- ..••~-- ......,, ... _PN-•••• .... - ... ••••---••••... • ' " ••"•" •-- ••• ••• •--'- •• • ' ~ ..., . ,....,,., •• • • • • • - L < . ·- - .. -- . . ,,,_,,.._..,,..,,,_,¥, ..-.•.. •-•••• ~-•-••• ..-•¥----•••~•.--a~-••• .,,.h_., __ ~, ........ ~--•,_, ••••,•• • ••• - ~ • • •'-'• • • -••· • • •• •••' ---•-·-··--·------·····-···----··-·--------- .• . . 1- 11 Mere presence of the accused at a kllllngi he not having any objection thereto1 Is not enough to Justify his conviction for murder. 11 (See also Zuberi Rashid VR (1957) EA. 455; Daniiano Petro & Another V R, ( 1980) TLR 260) The answer to the question posed is in the negative. - Finally the 1st- · respondent. There is no evidence, direct or circumstantial, on record to connect htm with the charge of murder though there is a .strong suspicion hovering over his head. The investigation did not timely follow up the mobile phones conversation between the 1st · and 2nd respondents. According to SACP Mkumbi (PW 36) when they made a follow up after Rashid Lema (the deceased accused) had revealed the information, a period of six months which VODACOM and CELTEL retaihed the information, had already elapsed and so the information had been ernsed. _The evidence on the phone conversation was crucial in connecting the 1st respondent with the charge. There is none. 55 •• - -- • -- _ 0 4 ___ - - - - - - - - - - - - ----·-·-·· - ·--~- ----··-------- ---------- - -----------.~--------··-- ---- ------- - - • ' ~-· ~~ •' -~· -..;, :, ..::. ~ .. ?.. .. -·~ _: ... In sum the appeal against 1st, the 3rd and 4- th respondents, has no merits. The same. is dismissed. We allow the appeal against the 2nd respondent. We set aside the acquittal and substitute thereof with a conviction in respect of all four counts. We sentence him to suffer death by hanging in respect of the 1st count. Order accordingly. DATED at DAR ES SALAAM this13 th day of September, 2016. B.M. LUANDA JUSTICE OF APPEAL S. MJASIRI· JUSTICE OF APPEAL S.S. KAIJAGE JUSTICE OF APPEAL I certify that atrueWaL t~s J. R. KAHYOZA ~EGISTRA_(.l COURT OF APPEAL 56 . : ..