director of public prosecutions vs rashid othman ramadhan others 2017 tzhc 2199 16 march 2017

IN THE HIGH COURT FOR ZANZIBAR HOLDEN AT VUGA CRIMINAL CASE NO.6 OF 2015 DIRECTOR OF PUBLIC PROSECUTIONS .(PROSECUTOR) VERSUS 1. RASHID OTHMAN RAMADHAN 2. OMAR JUM A ALI 3. ABDALLA KHATIBU MKETO 4. RAMADHAN HASSAN SHAABAN (ACCUSED) 5. HAFIDH RAMADHAN ALI 6. SAMUEL EM M ANUEL MBAGA JUDGMENT . BEFORE: HON ABDUL-HAKIM A ISSA. J . The accuseds in this case, Rashid Othman Ramadhan, Om ar Juma Ali, Abdalla Khatib Mketo, Ramadhan Hassan Shaaban, Hafidh Ramadhan Ally and Samuel Emm anuel Mbaga were charged with the offence of attempt unlawfully to cause death contrary to section 210 (a) and in the alternative were charged with the offence of causing grievous harm contrary to section 225, both of the Penal Act No. 6 of 2004 of the Laws of Zanzibar. It was alleged that the accuseds on 16th January 2015 at or about 2.00 am at Mbuyuni Nungwi in the Northern "A" District attempted unlawfully to cause the death of Michael Kurz by attacking him with 1 "panga" and wounding him severely in his head, arms, neck, both hands and left shoulder. In the alternative count it was alleged that the accuseds on 16th January 2015 at or about 2.00 am at Mbuyuni Nungwi in the Northern "A" District caused grievous harm to Michael Kurz by attacking him with panga and wounding him severely in his head, arms, neck, both hands and left shoulder. In the hearing of the case the High Court was assisted by three assessors, namely: Ms. Lemmy Abdi, Mr. Claude J. Majaliwa, and Mr. Mussa Moil'd Khamis. On the side of Director of Public Prosecution he was represented by learned State Attorneys Mr. Khamis Othman, Mr. Said Ali, and Ms. Rahima Kheir. The accuseds were represented by learned advocate, Mr. Rajab Abdalla Rajab. In the hearing of this case the prosecution called ten witnesses to prove their case against the accuseds. These witnesses were marked PW1 to PW10 in the proceedings of the case. The first witness (PW1), Michael Kurz testified that he has a dive centre in Nungwi and he has been living there with his wife Delanie Kurz for the past 16 years. On 16.1.2015 at 2.00 am he was in the house and he woke and shortly he heard a glass being shattered and his wife was screaming that "they are com in g ", "they are c o m i n g He thought there was a robbery as the glass was smashed His wife was coming from the bathroom which was 6 mts from the bedroom. His wife went back to the bedroom and he saw some people running tow ards the bedroom. He slammed the bedroom door and locked it, but som ebody from outside was hammering the door and the lock broke and the door was opened. He saw five people and he was able to recognise all of them as the passage was well lit and he saw them very clearly. The first person had a red and black scarf (bandana) on his head and he has a cut-off ear. He was holding a crowbar. The other was tall and strong built and the other three were average build. He tried to grab the crow bar in order to take it away. 2 While he was fighting with a person with a crow bar som ebody hit him with a machete first on the hands and then on the head. There was blood everywhere. He fell on the floor and those people ran away. He was the only person injured and those people ran away and did not take anything from the house. The whole episode took five to ten minutes. He remained in the floor bleeding, his right hand was cut, and his head and right arm was also cut. The cut was made by machete and the condition was not good. The witness identified his attackers on that night as the accused persons who are here in court. He testified further that they have a watchman called Iddi, but he learned that he was tied by attackers and was told he would be killed if he made noise. On cross-exam ination he testified that he never saw the accuseds before the incident. He also agreed to have made a statem ent at the police station im m ediately after the incident. He was shown the statem ent and he agreed that there is no mention that some of the attackers are strong, but he said he made the statem ent when he was half dead. He was conscious, but he was in pain and was bleeding. He said the attackers are about the age of 40 as they look. They were some in front of him and some behind him. Only one attacker had a machete. He was taken to hospital by his neighbour. When the witness was asked by the Court he identified the 2nd accused, Omar Juma as the person who did not enter the house. He also identified the 1st accused Rashid Othman as the one having a machete. He testified that the corridor had three big spot light with each having more than 50 watts. The second witness (PW2), Delanie Kurz testified that she is living at Nungwi with her husband Michael Kurz. They have been living there for the past 20 years and they own a dive centre- East Africa Diving. On 16.1.2015 she was in the house sleeping and about 1.00 or 2.00 o'clock she went to the bathroom and then to the kitchen to drink some water. 3 Then she returned to the bedroom passing the front of the house where there is a glass and she saw two shadows and then the people smashed the glass. There were two lights in the passage one on each wall. The bandits were 2 or 2.5 mts from where she was, but she was not able to recognise any of them. She ran to the room and shouted to her husband to wakeup. She saw people with machete and a metal bar; they were four of them. She together with her husband went behind the door for the purpose of locking it. The attackers managed to grab her husband and there were some people behind. They cut her husband on his hand, arm and oh his head. She locked the door and shouted. She then opened a veranda doo and went out shouting as the neighbour's house is far. She tried to go out but she did not have the gate key, so she went to the car and put on the light and started making noise. Shortly, the neighbour, Chris came to the house and they tried to get the doctor. They went to Mnazi Mmoja Hospital and then to Alrahma where they found a Cuban doctor who treated Michael. On cross-exam ination she testified that she saw four people fighting with her husband, but she does not know if they were more. Some had machete and some had metal bar, she does not know how many had machete and how many had metal bar. The third witness (PW3), Iddi Khamis Hamad testified that he is living at Kidoti, but he is working as watchman at Nungwi in PW2's house. He has been working there for the past two years. He went to work at 8.00 pm and leave at 6.00 am. He was guarding the house together with Makame. On 16.1.2015 he was the watchman there and he was alone. He went there around 8.00 to 9.00 pm. At m idnight he was invaded by the accuseds who are here in Court; they were eight of them. He was guarding the east and they passed on the western side. Then he heard footsteps and he wanted to know if they were dogs or something else. He followed the footsteps and when he reached the corner the attackers came out and surrounded him. They told him they need his boss, and if 4 he shout they will kill him. He was able to recognise those people as there was enough light; there were four lights and they were very bright and also they were close to him as they went to him whispering that he should keep quiet. They tied his hands behind his back and also tied his legs and they put him on the ground. They asked him which room his boss was sleeping. He told them he did not know. Then he heard the glass being smashed. He did not witness anything after he was put on the ground, but he heard noises from the house and he knew a person is being assaulted. He heard Michael scream ing and their neighbour, Chris went to the police and when accuseds saw car light from Chris they left. The accuseds left a black shoe and crowbar. The police untied him and he found that he was tied with piece of clothes. The witness identified the ropes which were used to tie him and also the shoe which was found in the scene. He was not sure about the crowbar. About the condition of Michael he testified that he had cuts from hands, head and arm. His condition was bad and he thought he would not survive. Michael was given first aid and then taken to the hospital. The witness was able to identify 1st accused, Rashid Othman and 6th accused Samuel Mbaga. The witness added that it was the first tim e to see them and he saw them again in Mahonda police station in the identification parade and in Mfenesini police station. In the identification parade there were 10 people and he was asked to identify the accused. Then he was asked to go inside the room and the people were re-arranged and he was asked to identify them. This routine was repeated three times. In those three times he identified 1st and 6th accuseds. The accuseds he identified did not hide their face when they invaded him. On cross-exam ination he testified that he was not shown the ropes and shoe before coming to court, he also said that the identification parade was done at Mahonda, but he does not rem em ber the clothes the accuseds were wearing. He further said he did not see Michael Kurz being attacked, he did not see the attackers jum ping the fence, but he is sure 5 they jum ped the fence as they did not pass through the gate. He testified that in his statem ent at the police he mentioned that some attackers had mask and some did not have and he recognised two who did not hide their faces. The accuseds went there with machetes and clubs (vigongo). When asked by assessors they testified that the two accuseds were there looking at him. Those who did not go inside were three and when they heard the car noise they ran away. The fourth witness (PW4), F6225 Det. Kheri testified that he is a photographer of police events in Northern Region of Unguja. Their headquarter is at Mahonda. He has been doing this work for the past 12 years. On 16.1.2015 while at home he was informed that at Nungwi there is a house which was invaded and one person has been seriously injured. He got the inform ation around 3.00 to 4.00 am. The O.S told him that the injured person has been rushed to Alrahma hospital and he went there. When he reached there he found him in the initial stage of treatm ent and he took three pictures. The first picture shows his hand which was cut. The second shows a head injury and the third shows injuries on the arm. Then he w ent to the scene of crime and took the picture of the front of the house and of the rear. Also he took the picture of inside the house. He took a total of nine pictures. Inside the house he saw a lot of blood. The nine pictures were admitted in evidence and were marked as Exhibit PI. On cross-exam ination he testified that the pictures do no show a date when they were taken, but he said he photographed the event on the same day it happened. He added that he is not an expert on blood and he does not know if a person was cut or he cut himself. The fifth w itness (PW5) ASP Abdalla Om ar Juma testified that he is a policeman working at Mkokotoni as the Head of Investigation of Northern "A" District. On 22.1.2015 at 1.40 pm he was at Mahonda police station as acting Head of Investigation of Northern "B" District. He was informed by the Head of Investigation of Northern Region to supervise the 6 identification parade. The witness Iddi (PW3) informed the police that there are three accuseds whom he will be able to identify if he sees them again. According to section 40(1) of Criminal Procedure Act No. 7 of 2007 and PGO 232 he managed to make two identification parade. In one parade there were two accuseds, Rashid and Ramadhan and he put nine other people to make them eleven and he asked them to stand on a line outside the station and he informed the accuseds about their rights before he brought the witness. One of the right is to stand in a position they choose, others include calling any other person to witness the parade. After the accuseds stood in the position of their choice he called Iddi Khamis to pass at the front and at the rear. The witness passed and identify Rashid and Ramadhan by touching them. They then removed the witness and asked the accuseds if they want to change the position or clothes. They called the witness for the second and third time and he identified the two accuseds in all three occasions. On the second parade it involved one accused, Emmanuel and they called eight other people and together they were nine. He told the accused about his rights and he choose the position. The witness was called and he identified Emm anuel by touching him. They removed the witness and the accused was given an opportunity to change position or clothes. On the second and third time the witness was able to identify the accused, Emmanuel. After he finished with the parade he filled PF 186 and he signed it. The accuseds used the right given and they changed the position. The witness was inside the office when the parade was arranged and re-arranged. He testified that the circum stances forcing making of the identification parade is when the witness says he can recognise the accuseds when he sees them again. The person who conduct it must be of the rank of inspector or above. The person participating in the parade are normal people even those people who pass by, but they should resemble the accused in term s of age, height and physique. He added that when he 7 conducted the parade he knew it concerns a case from Nungwi which involved assault. He recognised PF 186 as it has his signature and his handwriting. On the PF 186 he testified that when he signed it his rank was inspector. On the first parade he testified that Rashid stood on the position 1 from left and Ramadhan stood on position 2 from right. On the second parade Emmanuel stood on position 1 from right and they were all identified. He said it is a long time since he saw the accuseds but was able to identify Emmanuel in Court. He tendered the PF186 as exhibit which was received in evidence and collectively marked as Exhibit P2. On cross-exam ination he testified that he conducted both two parades. In PF186 he did not mention where he was facing and did not explain how the witness identify the accuseds. He also did not explain in the form how he connected the accuseds. He said he was not the investigator of this case, but he told the witness also about his rights if he wants the accused to speak or move. On the re-examination he said there is no regulation in the PGO saying that he should write everything in PF 186. When the witness was asked question by assessors he said that among the people in the parade there were no police offices and there was no one in the parade whom he knew before. The sixth witness (PW6), D5648 D/Sgt Juma testified that he is working at Nungwi police station in the Departm ent of Criminal Investigation. His duties involves deterring criminal offence by doing patrol and apprehending the accuseds. He is also investigation police/crim inal cases. He has been in the force for the past 19 years. On 16.1.2015 at 3.05 am he was at Nungwi police station and he received information from Christopher Goodwill that bandits have invaded the house of Michael and Delanie Kurz. Their house is close to the police station, so he took three policemen with w eapons and went to the house of Mr. and Ms Kurz. When he reached there they found a guard tied with ropes on his hands and legs. The ropes were made of pieces of clothes of different colours. Those pieces of clothes are used by painters. The house had a fence; they 8 entered and untied the guard. There was also a black shoe (raba). The front glass door was smashed by a heavy stuff. We entered inside and found an iron bar of num ber 7 shape. We collected them as evidence. He entered inside and found a lot of blood in the sitting room, on the toilet and on the wall. Then he found Michael Kurz who was severely injured on the head, arms, hands, shoulder and neck. He was not talking, he was just breathing. To save his life they rushed him to Al-rahm a hospital. He informed his superior about the incidence in order to get more police officers and photographer. The photographer came and also police dogs were brought. Pictures were taken, but the dogs failed to trace where the accuseds went. He added that he returned to the station and opened the file Nungwi PCR1/2015 with the offence of burglary and grievous harm. Later, they changed the offence to attem pt murder. The evidence: black shoe, iron bar and the rope were also marked PCR 1/2015. After seeing the ropes used he was suspicious that offenders came from a painter's group at La gema Hotel. Together with other police officers they invaded that group and apprehended several people including the accused Om ar Juma. After interrogation others were released but Omar was put into custody after admitting to participate in the incidence. Om ar also named Abdalla Hatibu Mketo (Dula), Rashid Othman Ramadhan (Tall Mnene), and Hafidh Ramadhan (Mangi). He found Rashid Othman at Kijichi and Abdalla Hatibu at Darajani and Abdalla named Rashid Othman, Hafidh Ramadhan and Omar Juma. The inform ation from Rashid lead them to the capture of Ramadhan Hassan Shaaban at Kijichi who also confirm ed to have participated in the incidence and the shoes found at the scene were his. Ramadhan also named Rashid, Omar, and Hafidh Ramadhan. Then they managed to capture Hafidh Ramadhan and Samuel Emmanuel, but he did not participate in the capture of these accuseds. On 22.1.2015 identification parade was conducted and the guard Iddi identified the three accuseds, Rashid, Abdalla and Samuel Emmanuel. 9 He added that he was satisfied that the accuseds were responsible for the offence com m itted at that night. Michael Kurz after reaching Al-rahma was stabilised and then he was moved to Mnazi Mmoja Hospital. They went with PF3 to Al-rahm a but it was filled by Dr. Salum of Mnazi Mmoja Hospital. Michael Kurz was then transferred to South Africa. He further testified that the ropes were the remaining pieces of clothes used by painters in removing painting. When he saw them he knew that they came from painters. They were brought by someone from painting area. Om ar was the one concerned with those ropes as he was selling painting at the beach. The others three were responsible after being named by others. Even when they were captured they admit to have been involved and they named other people. The witness was able to recognise all the accuseds in Court. Regarding the scene of crime, he testified that the area was fenced and has light everyw here and you can recognise a person. Inside the house there are big flood lights. The witness knew two of the accuseds before, namely Om ar and Samuel Emmanuel. In addition the witness tendered in evidence the iron bar, the black shoe, and ropes made of clothes which were admitted in evidence and marked as Exhibit P3, P4 an P5 respectively. On cross-exam ination he testified that he does not know how many areas are there in Nungwi where paintings and souvenirs are being sold. He said they are more than one and the ropes have no name of the accused. Regarding the shoes he said he does not know the num ber of the shoe, but Iddi during interrogation said the shoe belonged to Ramadhan. Ramadhan was there at Mahonda police station. When he later he asked the accuseds to wear the shoe, it fitted Ramadhan only. He added that although he did not study medicine but from what he saw by his eyes he knew that it was a serious case, and the accuses affirmed in front of him that they were involved in the incidence. 10 On the re-exam ination he testified that Iddi recognised the person who owns the shoe who is Ramadhan Hassan. He identified him during identification parade. Rashid Othman when interrogated he agreed to have used "panga" and he lead them to a place where he said to have hidden the "p a n g a ", but they did not find it. The seventh witness (PW7), Christopher Jam es Goodwill testified that he has a diving business at Nungwi and Kendwa. On 16.1.2015 he was at his resident which is 100 mts from Michael's house. At 5.05 am he was awaken by the noise of his dogs and security. He exit his house to investigate the locomotion and he heard the scream ing and noise of the car from Delanie's house, his neighbour. He opened the gate and could see Delanie's house and he saw there were many people in their compound and he knew they were being robbed. He took his car and drove to their house and he saw many people running and some of them were jum ping the fence. It was about 50 mts. He could not recognise the people but saw them. He stopped at the gate and he dropped one of his security there and he entered the property and found Delanie on her car. He was not sure if some people were there so he im m ediately went to the police station which is about 400 mts. When he reached there the police station was closed but he managed to wake some police officers. Within few minutes they were able to get guns and bullets and they put them on his car and they returned to the property of Michael and Delanie. When he arrived he saw Michael who had been savagely attacked by "panga "and "mndu". His condition was critical; he was surprised that he survived. The corridor and walls were covered with blood. He left the property again and went to find a friend called Gerry Hallam who is also a neighbour. On their arrival they bandaged Michael and imm ediately sent him to Stone Town. Michael was slashed on his arms, on his both hands and on his head and back. When he arrived there he entered through the gate the thieves entered the house by smashing the big glass window. All 11 the lights were on and that is the reason why he was able to see inside the house where there are a lot of security lights. On cross-exam ination he testified that he saw with his own eyes that Michael Kurz was slashed by "panga" and " m n d u He saw the remaining of human who has been savagely slashed. He did not witness the act and he does not know the person who slashed Michael. The eighth witness (PW8), Sadik Werino Kaiwan testified that he lives at Mahonda and he is working as a tiles technician. On 22.1.2015 at 1.00 pm he was at Mahonda police station where he has a case and one police officer asked him to assist them in the identification parade. He agreed to assist them and was taken outside the police station and they were arranged in line and one person came. They were about nine persons, and he did not know any of them. He does not rem em ber where he stood. The person who passed chose one person who was next to him. He identified the person who was identified and who is in court wearing a blue T-shirt. He identified Samuel Emmanuel Mbaga. The police then asked him to give his statem ent of what he saw. He testified that they were told about their rights; they could change positions or change clothes. The identification parade was done twice. He testified that he does not about the second parade, but what he knows is the two persons were identified and he can identify them. He identify Rashid and Hafidh. He added that the second parade had 11 persons and after completion he gave the statem ent of what he witnessed. On cross-exam ination he testified that he was there on the parade, and other people who participated in the parade were of different heights. In the second parade there was sim ilar mixture. Samuel was the tallest. He added that he knows the person who identified them but he is not here in Court, he said he does not rem em ber the clothes the people in the parade were wearing. He said those rights were explained while the one 12 identifying people was there, and even the parade was arranged when he was there. The ninth witness (PW9), Sadiel Castillo testified that he is a doctor from Cuba, but now working at Al-rahma hospital. He has specialised in bones and wounds. He has 16 years experience and he has been in Alrahma hospital for the past two and half years. He testified that in hospital there is a register where the name of the patient, gender, age and the treatm ent given is written. The doctor is the one writing in that register. There is also another paper where the patient's diagnostic is written. When he was shown reports he recognised they as they were written by him and have his signature. He testified that the two reports in English are for internal use at Alrahma hospital, and the one in Spanish is a referral report to Mnazi Mmoja where a patient was going to be treated by Cuban doctor. The English report concerned a patient and his condition together with the treatm ent given. The patient was received on 16.1.2015 at 6.00 am.; he had wounds on the head, back and on the hands. The patient's name is Michael Friedrich Marthias Kurz, a male aged 58. The Spanish report referred the patient to Mnazi Mmoja Hospital as the patient had a dangerous wound on the skull. The wound was endangering the life of the patient as it was bleeding heavily. The wounds were caused by sharp tools; it could be machete or hoe. The transfer was made so that CT Scan could be made. In Alrahma they do have CT Scan. He tendered the reports in evidence and they were admitted as Exhibit P6. On cross-exam ination he testified that he wrote the report in 2015. He did not write a knife but he wrote a tool which is sharp. He added that he had a patient the whole morning from 7.00/7.30 am to 11.00 am. The tenth witness (PW10), Salim Om ar Mbarouk testified that he is a doctor working at Mnazi Mmoja Hospital. He is working in the unit responsible for police forms. His duties involve taking care of people coming with PF3, and he fill those PF3. He has seven years experience in 13 this unit. The PF3 is accom panied by the patient and it explains what has happened. They investigated on what has been stated and the findings are filled in the PF3 and are handed over to the police officer or the person concerned. He said he know a PF3 filled by him by his handwriting, his name and signature and his work code num ber which is 05/52 and also a stamp of Mnazi Mmoja Hospital. When shown the PF3 he recognised it as filled by him. He said the PF3 concerned Michael Kurz aged 58 and dated 16.1.2015 and it relates to grievous harm. The patient had m ultiple cut wounds on the arm, hands, chest and the rear of the head and back. The wounds were deep and were caused by a sharp object and the wounds are dangerous. The injuries were severe and endangering life. The patient was transferred to South Africa. The patient was semi conscious when he arrived at the Hospital. He tendered the PF3 and was admitted in evidence as Exhibit P7. On cross-exam ination he said he met the patient around 8.00 am. first he was sent to Alrahm a hospital and it was possible that he was attended at Alrahma from 8.30 to 11.00am. He said he does not what happened at Alrahma, and he has not seen the documents for referral from Alrahma. He added that he has not written the age of the wound, but the PF3 is self explanatory as he has written the date which shows the age of the wound. On re-exam ination he said he does not rem em ber the exact time he received the patient. After the testim ony of PW10 was taken the Prosecution closed its case and the Court after analysing the evidence and the testim onies of the prosecution w itnesses found the accuseds have a case to answer. The defence case started and the second accused Om ar Ali Juma testified as DW1. He testified that he is living at Amani and his job is selling photographs at Nungwi which are used as postcards. He goes to work at 8.00 to 9.00 am and he returns home at 4.00 pm. On 16.1.2015 he reached Nungwi at 8.30 am and returned home at 4.00 pm. He did not go 14 to Nungwi again on that day. He testified that he does not know Michael Kurz and he knew him for the first time when he came to testify in Court. He added that he is not concerned with the offence and he does not know anything. He was just apprehended. Further, he does not sale ropes made of painting colours and he does not know people who are selling those ropes. He did not cause grievous harm to Michael Kurz. He was told by police that there was investigation going on regarding postcards. He was taken to Mahonda police and asked to take bond so that he could be released. While he was there he heard about the identification parade. He added that he was brought in Court because he was doing business without paying taxes; he was not told anything about attacking Michael Kurz. He prayed that since he was not identified this Court should acquit him. On cross-exam ination he testified that he is selling photographs and has no business of painting. He buys the photographs at Ngome Kongwe. He added that his work station is at La gema Hotel and Royal Hotel. He said the police used to go there and demand money and had problem with Sgt. Juma. When asked by assessors he said he has been apprehended three tim es for doing business without permit. The third accused, Abdalla Khatib Mketo testified as DW2. He testified that he is living at Kianga, Unguja. He was apprehended at Donge Darajani at a "m askan" for labourers in the construction business. He was apprehended with a "kiroba" on his hand. The police told him why he was consuming alcohol at that place. He added that he has not committed those offences as he does not know Michael Kurz. There is no witness who testified in this Court that he was involved in the com m ission of those offences. He prayed for the Court to set him free. On cross-exam ination he testified that he does not rem em ber the date on which he was apprehended and he does not rem em ber the person who apprehended him. He was apprehended by a civilian not a police officer. 15 He said he stayed at Stone Town and has no habit of going to the country side. He said he has no friends and he lives alone. The friends at Maskan are those he meet for work; they are working mates and not friends. He added that Om ar Juma Ali is not his working mate and he has never met him. Further, he said he does not know the victim; he met him here in Court. The fourth accused, Ramadhan Hassan Shaaban testified as DW3. He testified that he is living at Bububu. He is a mason and he is involved in the construction of houses. He is working anywhere he gets the job. He added that he is not responsible for those charges against him as he does not know Michael Kurz. He came to know him as well as his wife here in Court. W hat he rem em bered is that he was asked to go out and there was identification parade and he was asked to stand in the parade and the witness was asked to identify people. The witness was there when he was coming out; he was standing with a police officer. He was told that he is there for the purpose of parade, and that's all. Further, he testified that he does not know the witness and he saw him for the first time on that day. He added that he did not change the position because the witness was still there in front of them. After the parade he was given a paper to sign and was taken into custody. In addition he said that the witness who identified him was lying as he did not participate in comm itting that offence and he prayed to the Court to set him free. On cross-exam ination he testified that he was apprehended at Bububu and the parade was conducted at Mahonda police station. He said he did not count the people who were involved, and he does not rem em ber if Rashid Othman was there. He met him at the police station. He testified further that when he goes to work he took tools according to the work. He has worked in Nungwi and he went there with his colleagues. He did not go with Rashid, and he has no friend called " t a l l In 2014 he went to work at Neptune Hotel. In addition he testified that he stayed in custody 16 for many days and the police informed him about the identification parade when they were outside. He also said that he does not know Mbaga. When asked by assessors he testified that the parade was conducted twice and the w itness picked him twice at the same position. He added that he was apprehended when he was coming to watch football and he was told that he was a vagabond. In Nungwi he said that he worked at Neptune and Royal hotel. When asked by the Court he answered that he does not know how the shoe was found and he did not wear that shoe. He also said that he does not know the size or num ber of the shoes he is wearing. The sixth accused, Samuel Emmanuel Masaga testified as DW4. He testified that he is living at Sogea. He said it is not true that he attempted to kill Michael Kurz. He does not know anything about the incident involving Michael Kurz, and he was not identified by Michael Kurz. He said he has one ear; his left ear is missing, but Michael did not say which ear was missing. The testim ony of Michael is a lie as he was not involved in the incidence. He was apprehended at Sogea, but he does not know the persons who arrested him. He remembered that when he was released from a cell he saw people in line and was asked to stand there and another person passed and identified him. He was asked to change position, but he said he does not know what's going on. He said further he does not know how many people were there, but some of them were fat and short. He was the tallest one, and there was no one with one ear. He asked the Court to do justice by setting him free. On cross-exam ination he said he does not know the appearance and height of those involved in the parade. He also said he does not know Mangi or Dulla or any of the accuseds. He testified that his job is to load sand in the trucks. The trucks go to pick him and then he does the work. He added that he does not take with him anything when he goes to work. The shovels are found in the trucks. They used to take sand from 17 Zingwezingwe. His work does not involve going around with "panga" at night. He used to finish work at Zingwezingwe at 17.00 hours and he goes to bed at 21.00 hours. He added that he was not identified at the identification parade. The first accused, Rashid Othman Ramadhan testified as DW5. He testified that he is acting operation m anager of Islander Security General Cleaner. Their headquarter is at the airport. He was working at the sub office in Mnazi Mmoja. He said that it is not true that he comm itted any offence against Michael Kurz. He was not identified by anyone. He was removed from custody and went outside where there were nine people. There was a person who was sitting on the police car (Defender). He passed two times on the parade. On the second time he touched him on the back. He was asked by the supervisor to change position and he said he does not need to change position as he was the tallest and with the big body. He is 6.2 feet tall others were 5.8 feet. He was black, while majority of other people were white. He was not told anything he was just given his shoes. He was not given his rights during the identification parade. He prayed to the Court to dism iss this case as it has many irregularities. On cross-exam ination he testified that his company was established in 2004 and has no branch. It is an infant company. They are guarding one hotel called Takrim u at Mchangamle. He added that he is not teaching guards on how to use weapons, and he does not use "panga". He said he did not know the heights of those people in the parade it was just his opinion, but there was no one who was 6 feet tall. He said the paper is white but there is no person with that colour of a paper, he added that the person who passed in the parade touched his shoulder; he does not know if he identified him. On re-examination he testified that colour are different, there is black and white, the prosecutors and the advocate are white. 18 The fifth accused, Hafidh Ramadhan Ali testified as DW6. He testified that he is living at Mpendae and he is an electrician. He said the allegation against him are not true and he was not involved in that event. He heard about the offence when he was at the Regional Court, Mfenesini. He was also not involved in the identification parade; in the form No. 186 his name was not there. PW3 and all other witnesses also did not mention his name and hence he was not involved. He asked the Court to set him free. On cross-exam ination he testified that he was working in different com panies and also privately. In 2004 he worked at La gema Hotel as electrician. He was arrested at Makadara police post by Advocate Dickson Peter and Yussuf Khalfan. He was stopped there for civil case as those advocates claimed some money from him. The police did not take his statem ent and he does not know any of the witnesses. The one who fabricated this case is Yussuf Khalfan who told him he is working at DPP's office. He knows his advocate company. He added that he does not know about the identification parade. He was at La gema in 2004 and in 2008 left Zanzibar and returned in 2014. He testified further that he got technical certificate in 1995 and finished Form IV in 1993. He said he does not know his age when he finished Form IV, but now he is 38 years old. He added that he does not know Omar, he saw him at Mahonda police station. The Defence did not have any more witnesses and hence closed its case. The Advocate for Accuseds informed the Court that he will not make any submission in this case. Similarly, the DPP also decline to make any submission. Therefore, the Court then proceeded with the summ ing up of the case to assessors in accordance with section 278 of the Criminal Procedure Act. In this regard it was explained to the three assessors that the accused was charged with the offence of attem pt unlawfully to cause death contrary to section 210 (a) of the Penal Act No. 6 of 2004 of the Laws of Zanzibar. In the alternative the accuseds were also charged with 19 the offence of causing grievous harm contrary to section 225 of the Penal Act No. 6 of 2004 of the Laws of Zanzibar. Section 210 reads: "Any person who: (a) Attem pts unlawfully to cause the death of another; or (b) N/A Is guilty of a felony, and is liable to im prisonm ent for life. The term "atte m p t" has been defined in section 395 (1) as follows: ” When a person, intending to com m it an offence, begins to p u t his intention into execution by any m eans adapted to its fulfilm ent, and m anifests his intention by som e overt act, but does not fulfil his intention to such an extent as to com m it the offence, he is deem ed to attem pt to com m it the offence The term "causing d eath" has been defined in section 202 as follows: "2 0 2 . A person is deem ed to have caused the death o f another person although his a ct is not the im m ediate or the sole cause o f death in any o f the follow ing cases: a) If he inflicts bodily injury on another person in consequence of which that other person undergoes surgical or medical treatm ent which causes death. In this case it is immaterial whether the treatm ent was proper or mistaken, if it was em ployed in good faith and with common knowledge and skill, but the person inflicting the injury is not deemed to have caused the death if the treatm ent which was its 20 im m ediate cause was not em ployed in good faith or was employed without common knowledge or skill; b) If he inflicts bodily injury on another which would not have caused death if the injured person had submitted to proper surgical or medical treatm ent or has observed proper precautions as to his mode of living; c) If by actual or threatened violence he causes that other person to perform an act which causes the death of that person, such act being a means of avoiding such violence which in the circum stances would appear natural to the person whose death is caused; d) If by act or omission he hastens the death of a person suffering under any disease or injury which apart from such act or omission would have caused death; e) If his act or omission would not have caused death unless it had been accom panied by an act or omission of the person killed or of other persons". On the other hand section 225 reads: "225. A ny person who unlaw fully does grievous harm to another is guilty o f a felony, and is liable to im prisonm ent for a term not exceeding seven years". The word nha rm ", "grievous h a rm ", and " dangerous harm " have been defined in section 4 of the Penal Act as follows: 21 "harm " m eans any bodily hurt, disease or disorder w hether perm an ent or tem porary" "grievous harm " m eans any harm which am ounts to a maim or dangerous harm , or which seriously or p erm anently injures health or which is likely so to, injure health, or which extends to perm anent disfigurem ent, or to any p erm an ent or serious injury to any external or internal organ, m em ber or sen se" "dangerous harm " m eans harm endangering life". The accuseds in this case were alleged to have attempted unlawfully to cause death or to cause grievous harm to Michael Kurz on 16th January 2015 at Nungwi, Zanzibar. The prosecution called 10 witnesses who testified in support of the prosecution case, and the defence did not call any witness, but all the accuseds testified to prove their innocence. In brief the testim onies of these witnesses are to this effect: i) PW1, Michael Kurz is the victim of the attack. He testified that he was attacked by five accuseds whom he recognised all of them. One had a m achete and one had a crow bar. They smashed the glass window entered into the house and hammered their bedroom door. While attem pting to take away the crowbar he was cut by machete on several part of his body. He fell down and there was a lot of blood. The accuseds left without taking anything. ii)PW 2, Delanie Kurz is the wife of the victim. She testified that she saw four accused smashing the glass of their house and then they attacked her husband with machete and iron bar. She went out through the veranda shouting for help and enter in their car and started making noise. 22 iii) PW3, Iddi Khamis Hamad, a watchman guarding the house of PW1 and PW2. He was on duty on that night when eight people invaded the house and they met inside the com pound and was asked to keep quiet and then the attackers tied his hands and legs and put him on the ground. He was able to identify three of the accuseds who did not have mask in their faces. He identified them on the identification parade conducted at Mahonda police station which involved three accuseds. iv) PW4, F6225 Dt. Kheri testified that he is a photographer working in the police force. His office is at Mahonda. He photographed nine pictures showing the injuries PW1 sustained after the attack, and the scene of the crime. v)PW 5, ASP Abdalla Om ar Juma is the police officer who conducted the identification parade at Mahonda police station where the three accuseds were identified by PW3. vi) PW6, D5648 D/Sgt Juma is the investigator of the case. He is the first police officer to reach the scene of the crime. He found the victim bleeding in the house, the watchman was tied with rope and also collected the exhibits namely, the shoe, ropes and crow bar left on the scene. Following the ropes found at the scene he went to La gema hoteld where he was able to arrest Om ar Juma Ali who named the other accuseds who participated in the offence. When the other accused were arrested they named each other and they succeeded to arrest six accuseds. vii)PW 7, Christopher Jam es Goodwill is the neighbour of PW1 and he was awakened by the noise of the dog and his guards. He heard noises from P W l's house and when they went to see what was going on they met people who were running from the house and 23 others were jum ping the fence. He went to inform the police at Nungwi and then together they went to the house. They found PW1 was savagely cut and bleeding and they took him to the hospital. viii) PW8, Sadik Werino Kaiwan is the person who was at the Mahonda police station for his own case and was asked to participate in the identification parade where the three accuseds were identified. He narrated how the parade was conducted and the accused were identified. ix) PW9, Sadiel Castillo, a Cuban doctor working at Al-rahm a hospital. He attended the victim, PW1 and after observing that the dangerous wound on his skull was severely bleeding, he referred him to Mnazi Mmoja hospital. x) PW10, Salim Om ar Mbarouk, a doctor from Mnazi Mmoja hospital. He attended the victim and filled the PF3. He testified that the victim had dangerous wound on his head and he was referred to a hospital in South Africa. The prosecution witnesses have also produced various evidences to prove their case. These evidences are: i) The nine photographs of the scene of the crime and the victim were admitted as Exhibit PI. ii) The PF 186 was admitted as Exhibit P2 iii) The iron bar (crowbar) was admitted as Exhibit P3 iv) The black shoe was admitted as Exhibit P4 v) The ropes made of painted clothes were admitted as Exhibit P5 vi) The medical reports from Al-rahma hospital was admitted as Exhibit P6 24 vii) The PF3 was admitted as Exhibit P7. On the side of defence, they did not call any witness, but the six accused testified, and their testim onies in brief are to this effect: a) DW1, Om ar Ali Juma is the second accused who denied everything. He did not participate in the crime comm itted against PW1. In fact he met him and his wife for the first time here in Court. He is living at Amani but he is working at Nungwi where he is selling photographs at the beach which are used as postcards. He was arrested for doing business without permit. b) DW2, Abdalla Khatib Mketo is the third accused who denied everything. He did not participate in the crime committed against PW1. In fact he met him and his wife for the first time here in Court. He is living in Kianga and was apprehended at Donge, Darajani in the maskani for daily labourers. He was arrested for consuming liquor (kiroba). c) DW3, Ramadhan Hassan Shaaban is the fourth accused who denied everything. He did not participate in the crime comm itted against PW1. In fact he met him and his wife for the first time here in Court. he is a mason and he is living at Bububu. He was apprehended as he was coming from watching television. He was told that he was a vagabond. d) DW4, Samuel Emmanuel Mbaga is the six accused who denied everything. He did not participate in the crime comm itted against PW1. In fact he met him and his wife for the first time here in Court, he is living at Sogea and was apprehended at Sogea. He is working in the trucks carrying sand and his work is loading sand in the trucks at Zingwezingwe. 25 e) DW5, Rashid Othman Ramadhan is the first accused who denied everything. He did not participate in the crime comm itted against PW1. In fact he met him and his wife for the first time here in Court. He is the operation m anager of Islander Security General Cleaner who have their headquarter at the airport. f) DW6, Hafidh Ramadhan is the fifth accused who denied everything. He did not participate in the crime comm itted against PW1. In fact he met him and his wife for the first time here in Court. He is living at Mpendae and he is an electrician. He was apprehended at Makadara where he had a civil case with Yussuf Khalfan. He believes that this case was fabricated by Yussuf Khalfan who claims to work in the DPP's office The assessors were therefore told that they have a duty to assess whether the testim onies of the ten witnesses brought by the prosecution and evidence brought forward are sufficient to prove that either the accuseds have attem pted unlawfully to cause the death of Michael Kurz taking into account the definition of "attem pt" and "causing death" or they have caused grievous harm to Michael Kurz taking into account the definition of "harm ", "grievous harm" and "dangerous harm" under section 4 of the Penal Act. After the case was summed up before the assessors, they were asked to give their opinion, which they gave orally as follows: Assessor No. 1, Ms. Lemmy Abdi said on her side all the accuseds are guilty of both offences, namely to attem pt unlawfully to cause death and to cause grievous harm. Assessor No. 2, Mr. Claude J. Majaliwa said he has put the evidence in three groups. The inform ation in the file, the witnesses' testim onies and the accuseds' testim onies. He said the case involves offence of grievous harm. Michael Kurz identified Rashid Othman Ramadhan and Samuel 26 Mbaga. They are involved in that crime. Also Iddi identified those people together with Ram adhan Hassan Shaaban. Those accuseds did not cover their faces. PW5 testified that the accuseds named other accomplices. But Omar Juma Ali and Hafidh Ramadhan Ali were not identified in the parade and he did not see their involvem ent in the comm ission of the offence. Assessor No. 3, Mr. Mussa Moh'd Khamis said this case involves the offence of attem pt unlawfully to cause death. He has no doubt that Rashid Othman, Ram adhan Hassan and Samuel Emmanuel participated in the crime. They were identified by Michael Kurz, Iddi and on the identification parade. But Om ar Jum a, Abdalla Khatib Mketo and Hafidh Ramadhan he is convinced that they were not involved and they were not there. Now, coming to the case in hand, there is no doubt that a person named Michael Kurz was attacked by people who were armed with a "panga" and he sustained several injuries in his head, arms, hands and back. He lost a lot of blood and when he arrived at Alrahma hospital he was semi conscious. The eye-witnesses, (PW1, PW3, PW4, and PW6) have testified on those injuries and the two doctors who attended Michael Kurz at A l­ rahma hospital, Dr. Sadiel Castillo (PW9) and at Mnazi Mmoja Hospital Dr. Salim Om ar Mbarouk testified about the nature of the injuries Michael Kurz has sustained and produced medical report (Exhibit P6) and PF3 (Exhibit P7) to substantiate their findings. Further, the photographs were taken by PW4 (Exhibit P I) which clearly show those injuries. The question is who caused those injuries. The prosecution charged the six accuseds with the offence of attempted unlawfully to cause death and in the alternative causing grievous harm. They brought ten witnesses to prove their case. The incident took place at Nungwi at 2.00 am. Beside, the victim there were two eye-witnesses who were present in the house when the attack on Michael Kurz was comm itted. The victim himself, Michael Kurz who testified as PW1 testified that the glass door of his house was sm ashed and five people entered the house and went to their 27 room. Seeing those people he locked the door inside, but the attackers hammered the door and the lock broke. He saw five people and he was able to recognise all of them as the passage was well lit and he saw them very clearly. The first person had a red and black scarf (bandana) on his head and he has a cut-off ear. He was holding a crowbar. He is the 6th accused, Samuel Emmanuel Mbaga. The other was tall and strong built and the other three were average build. He tried to grab the crow bar in order to take it away. While he was fighting with a person with a crowbar somebody hit him with a machete first on the hands and then on the head. The 1st accused Rashid Othman was the one having a machete. There was blood everywhere. He fell on the floor and those people ran away. The whole episode took five to ten minutes. Michael Kurz testified that the 2nd accused, Om ar Juma was the only one among the six accuseds who did not enter the house. Therefore, he was not sure if he was there during the attack. The first eye witness is PW2, Delanie Kurz who explained how the incident took place and how her husband was attacked by people armed with machete and iron bar. She testified that she saw four of them, but she did not recognise any of the accuseds. The second eye witness is PW3, Iddi Khamis Hamad who was guarding the house of Michael Kurz. He testified that at m idnight he was invaded by the accuseds who are here in Court; they were eight of them. He was guarding the east and they passed on the western side. When he heard footsteps, he wanted to know if they were dogs or something else. He followed the footsteps and when he reached the corner the attackers came out and surrounded him. They told him they needed his boss, and if he shouted they will kill him. He was able to recognise those people as there was enough light; there were four lights and they were very bright and also they were close to him as they went to him whispering that he should keep quiet. They tied his hands behind his back and also tied his legs and they put him on the ground. He added that the accuseds left a 28 black shoe and crowbar. The witness was able to identify three accuseds during the identification parade, namely: the 1st accused, Rashid Othman, the 4th accused, Ramadhan Hassan, and the 6th accused, Samuel Mbaga. He testified that some attackers had masks and some did not have and he recognised those who did not hide their faces. There is no doubt that the testim ony of these two witnesses put in the scene of crime five accuseds. Three were identified by both two witnesses, namely: the 1st accused, Rashid Othman who was armed with a machete, the 4th accused Ramadhan Hassan, and the 6th accused, Samuel Mbaga who was armed with a crowbar. The two accuseds, Abdalla Khatibu Mketo (3rd Accused) and Hafidh Ramadhan Ally (5th Accused) were not seen and identified by PW3, but PW1 saw them among the attackers. Therefore, this Court is convinced that the five acccuseds did participate in the com m ission of the crime against Michael Kurz. Omar Juma Ali (2nd accused) was the only accused who was not identified or seen by any of the above two eye - witnesses. The only connection that Om ar Juma has with the commission of the crime is that he was the first to be apprehended by police. He was apprehended at La gema where paintings are being sold. According to PW6, D5648 D/Sgt Juma, the ropes which were used to tie PW3 came from this area. Further, Om ar Juma admitted to PW6 that he has participated in that incident, and he is the one who named Abdalla Khatib Mketo, Rashid Othman Ram adhan, and Hafidh Ramadhan Ally. All the three accuseds named by Om ar Juma were identified by PW1 to have participated in the crime and Rashid Othman was also identified by PW3 that he participated in the crime. But is this connection sufficient to prove beyond reasonable doubt that Om ar Juma participated in the crime, and what was the role he played in that crime. Was he present in the house during the attack or he just supplied the ropes? Unfourtunately the evidence produced by prosecution cannot answer those questions.Therefore, this Court is of the view that the connection was not sufficiently proved and the 2nd 29 accused's presence in the scene of crime and his participation was not proved beyond reasonable doubt, and hence, this Court hereby acquits the 2nd accused from both the charges. Coming back to the issue of identification, it is clear that the crime was committed at night around 2.00 am and it was dark, now the question is how did PW1 and PW3 was able to identify the five accuseds with no doubt that it was them who attacked PW1. In his testim ony PW1 testified that he saw five people and he was able to recognise all of them as the passage was well lit and he saw them very clearly. The first person had a red and black scarf (bandana) on his head and he has a cut-off ear. He was holding a crowbar. The other was tall and strong built and the other three were average build. The whole episode took five to ten minutes. When asked by the Court he said the corridor had three big spot light with each having more than 50 watts. PW3 testified that he was able to recognise those people as there was enough light; there were four lights and they were very bright and also they were close to him as they went to him whispering that he should keep quiet. PW6 also testified about the scene of crime, he said that the area was fenced and has light everywhere and you can recognise a person. Inside the house there are big flood lights. PW7 also testified that all the lights were on and that is the reason why he was able to see inside the house where there are a lot of security lights. From these testim onies it is very clear that there was enough light at the scene of crime to enable PW1 and PW3 to recognise the accuseds. Our laws are very clear regarding issues of identification. There are various guidelines laid down in case law. In Rashid Ally V. Republic [1987] TLR 97 it was held in order to justify a conviction solely on evidence of identification such evidence must be water tight, the description and the terms of that descriptions on identification of the accused are matters of the highest im portance of which evidence ought always be given. Further, in the case of Sh iku Salehe V. Republic [1987] TLR 193 the Court of 30 Appeal held that before basing a conviction solely on evidence of visual identification such evidence must remove all possibilities of mistaken identity and the Court must be satisfied that the conviction is water tight. In this case the Court cited the case of W aziri A m an i V. Republic [1980] TLR 250 where the Court of Appeal advised as follows: " Although no hard and fast rules can be laid down as to the m anner a trial ju d g e shou ld determ ine question o f identity, it seem s clear to us that he could not be said to have properly resolved the issue unless there is show n on the record a careful and considered analysis o f all surrounding circum stances o f the crim e being tried. We would fo r exam ple> expect to find in the record questions such the follow ing posed and resolved by him: the tim e the w itness had the accused under observation, the distance at which he observed him, the conditions in which such observation occurred for instance, w hether it was day or night, w hether there was good or p o o r light at the scene, a nd further w hether the witness know or had seen the accused before or not". The testim ony of PW1 and PW3 clearly answers all the questions mentioned above. PW1 saw the five accuseds while he was being attacked. There was a zero distance and there was sufficient light and the incidence took place between 5 to 10 minutes. Similarly PW3 saw the attackers who were eight in number. He was able to identify three accuseds who did not have masks. There was sufficient lighting to recognise them, and they were very close as the attackers were whispering to him to keep quiet. These facts leaves us with no doubt that PW1 and PW3 are credible witnesses and were able to recognise the five accuseds and this elim inates the possibility of mistaken identity. The said identification was also supported by the testim ony of investigator (PW6) who clearly narrated how the accuseds were apprehended after they admit com m itting the offence as well as naming others who were involved. He testified that: after interrogation others were released but Om ar was put into custody after admitting to participate in the incidence. Om ar also named Abdalla Hatibu Mketo (Dula), Rashid Othman Ramadhan (Tall Mnene), and Hafidh Ramadhan (Mangi). He found Rashid Othman at Kijichi and Abdalla Hatibu at Darajani and Abdalla named Rashid Othman, Hafidh Ramadhan and Omar Juma. The inform ation from Rashid led to the capture of Ramadhan Hassan Shaaban at Kijichi who also confirmed to have participated in the incidence and the shoes found at the scene were his. Ramadhan also named Rashid, Omar, and Hafidh Ramadhan. Then they managed to capture Hafidh Ramadhan and Samuel Emmanuel". The chain of admission and arrest all pointing to the accuseds being involved in the commission of crime against Michael Kurz. Now we are coming to the offence comm itted, w hether the ingredients of the offence of "attem pt unlaw fully to cause the death o f anoth er" were allmet inthis case. There is no doubt that the assault or attack committed by the accuseds is an unlawful act, now the question is did the accuseds attem pted to cause death. Section 395 has defined the term "a ttem p t" as follows: " When a person, intending to com m it an offence, begins to p u t his intention into execution by any m eans adapted to its fulfilm ent, and m anifests his intention by som e overt act, but does not fulfil his intention to such an extent as to com m it the offence, he is deem ed to attem pt to com m it the offence". 32 There is no doubt that attacking a person using machete shows a commission of a particular offence or an attempt to com m it an offence, but the question is did the accuseds attempted to cause death. Section 202 has enum erated cases where a person is deemed to have caused death if it falls in one or more of the cases mentioned there under. In our case the most relevant is paragraph (b) which provides: "202. A person is deemed to have caused the death of another person although his act is not the immediate or the sole cause of death in any of the following cases: a. If he inflicts bodily injury on another which would not have caused death if the injured person had submitted to proper surgical or medical treatm ent or has observed proper precautions as to his mode of living; In this case, it is very clear that the accuseds using ” m achete" have inflicted various bodily injuries on Michael Kurz, and if Michael Kurz had not received proper surgical and medical treatm ent death would have ensued. Michael Kurz was first taken to the Al-rahm a hospital but due to the nature of the injuries and how dangerous they were he was referred to Mnazi Mmoja Hospital. The doctor of Al-rahm a hospital (PW9) testified that: " the p atie n t had a dangerous w ound on the skull. The wound was endangering the life o f the p atient as it was bleeding heavily. The w ounds were caused by sharp tools; it could be m achete or hoe". Similarly, the doctor of Mnazi Mmoja hospital (PW10) had similar findings. He testified that: " The patient had m ultiple cut wounds on the arm, hands, chest and the rear o f the head and back. The wounds were deep and were caused by a sharp object and the wounds are dangerous. The injuries were severe and endangering life. The p atie n t was transferred to South Africa. The patient was sem i conscious when he arrived at the H o sp ital". 33 From these testim onies, it is clear that the wounds were dangerous and if they were not attended medically and surgically abroad he would have lost life. Therefore this Court is satisfied that the offence committed in question falls under the above case in section 202(b). Further, as the offence under section 210 (a) is not qualified with anything such as intention or knowledge. This Court believes that the ingredients of section 210(a) have been satisfied. Similarly, the offence also squarely falls under the definition of "grevious h a rm " as the wounds were endangering life. But since the offence of grevious harm is the alternative count, this Court is of the view that there is no need to look on the alternative count of grievous harm and it agrees with the view of the Assessor No. 1 and Assessor No. 3. that the accuseds were involved in the offence of attempt unlawfully to cause death. After looking at the prosecution case we are now turning to the defence case. The 1st accused, Rashid Othman Ramadhan denied knowing Michael Kurz or participating in comm itting offence against him. He also denied being identified by anyone. Further, he attacked the identification parade. He said he was taken outside where there were nine people. There was a person sitting on the police car and he passed two tim es on the parade and on the second time he touched him on the back. He said he refused to change position as he was the tallest and with the big body. He also said that he was black while others were white. He also said that he was not informed about his right. The third accused, Abdalla Khatib Mketo denied everything, including having friends or knowing any of the accuseds. He said he was apprehended with a "kiroba" on his hand and the police arrested him for consuming alcohol. He said he did not comm it the offence and he does not know Michael Kurz. He asked the Court to set him free as no one testified that he was involved in the com m ission of that offence. 34 The fourth accused Ramadhan Hassan Shaaban also denied everything and he said he does not know Michael Kurz or his wife, he met them for the first time in Court. Regarding the shoe left at the scene which was alleged to be his, he denied the shoe and even denied to know the size or number of the shoes he is wearing. Further, he attacked how the identification parade was conducted. He said he was asked to go out and he found the identification parade and was asked to stand there. He said the witness was already there when he went out. He was standing with the police officer. He also said he was not informed about his rights, and he did not change position as the witness was still there. During cross- examination he testified that he does not rem em ber if Rashid Othman was there in the parade. Regarding his arrest he testified that he was arrested as a vagabond. The fifth accused, Hafidh Ramadhan Ali also denied everything, including involvem ent in the comm ission of the offence. He denied knowing Michael Kurz and his wife. He testified that he was 38 years old and he is an electrician. He finished Form IV in 1993 and got the technical certificate in 1995, but when he was asked on what age he was when he was in Form IV he replied that he does not know the age. He, further said he came to know about the case for the first time when he was at Mfenesini Regional Court, he said he was arrested at Makadara police post when he was there for a civil case. He said his case was fabricated by Yussuf Khalfan who is an advocate. The sixth accused, Samuel Emmanuel Mbaga also denied knowing anything regarding the offence and also said he was not identified by Michael Kurz as he failed to identify which ear was missing, he also denied knowing any of the accuseds. The accuseds also attacked the identification parade. He said when he came out of the cell he was asked to stand in the parade where some people were fat and short. He was the tallest and also with one ear. But on cross-exam ination he said he does not know the appearance and height of those involved in the parade 35 In looking at the testim onies of the accuseds, first all of them have denied to have anything to do with the offence against Michael Kurz. In fact, they denied everything even knowing each other. When the testim ony of PW1 put five of them on the scene of crime, and the testim ony of PW3 put three of them on the scene of crime. Further, the testim ony of PW6 clearly showed that the accuseds were apprehended after admitting participating in the crime and also they named each other. Further, their evidence showed evasive denial, for instance, Hafidh Ramadhan testified that his age is 38 years today; he was born in 1979 which means he finished Form IV in 1993 at the age of 14 years and he finished technical certificate at the of 16 years which is alm ost impossible. But when he was asked about his age when he finished Form IV he said he does not know his age. Similarly, his statem ent that this case was fabricated by Yussuf Khalfan is also not believed by this Court. Samuel Mbaga on his side testified that he was not identified because PW1 just failed to mention which ear was cut. Ramadhan Hassan on his side denied even knowing the num ber or the size of the shoe, which he wears. This Court do not believe their stories that they were not involved in the commission of offence against Michael Kurz. Secondly, the three accuseds, Ramadhan Hassan Shaaban, Samuel Mbaga, and Rashid Othman who were identified in the identification parade all attacked the conduct of the identification parade that: they were not inform ed of their rights, the witness was in front of them when the parade was arranged, and that the people in the parade were not similar to them in appearance, and the parade was conducted twice. Regarding the issue that the witness was already outside, there are a lot of contradictions in the testim onies of the accuseds. Ramadhan Hassan said the " w itness was there when he was com ing out; he was standing with the police o f f i c e r He added that "he did not change position because the w itness was still there in front o f them". Further, he said he does not know if Rashid Othman was there on the 36 parade. Rashid Othm an on his side he testified that: "he was removed from custody and went outside where there were nine people. There was a person who was sitting on the police car. This person was the witness. Samuel on his side did not mention that the witness was outside. He said when he went out he saw people in line and was asked to stand there. The three accuseds are all describing the same identification parade but each is giving his own version, which make this Court hard to believe when PW5, ASP Abdalla Omar testified that he conducted two identification parades. In one there were two accuseds Rashid and Ramadhan and he put 9 other people to make t h e m ll. On the second parade Samuel Mbaga was there together with 8 other people. The parade was arranged and accuseds were informed about their rights and then the witness who was in the office was called and he passed and identified the accuseds. The procedure was repeated three times and in all tim es the witness returned to the office and then came back. He also mentioned that the witness changed positions which was denied by the accuseds. The testim ony of PW5 was supported by PW3 and PW8. PW3 testified that: "in the identification parade there were 10 people and he was asked to identify the accuseds. Then he was asked to go inside the room and the people were re-arranged and he was asked to identify them. This routine was repeated three times. In those three times he identified 1st and 6th accuseds. The accuseds he identified did not hide their face when they invaded him. PW8, Sadik Werino Kaiwan was an independent witness who participated in the identification parade. He confirmed that two parades were made and all the people were informed about their rights. He also m entioned the person who were identified in the parade were Samuel, Rashid and Ramadhan. Regarding appearance and height, it is very clear that you cannot find people with the same features, for instance, it is difficult to find a person with a left cut-off ear with the same height and physique as Samuel Mbaga, what is required is resemblance, 37 and the Court believes all people in the parades were blacks and they resembles each other in times of height and physique. Therefore, this Court believes the identification parade though has m inor shortcomings, but was properly conducted and the accuseds were rightly identified. Hence, this Court after analysing the facts and testim onies of all prosecution w itnesses and evidence brought forward it is satisfied that all witnesses were credible witnesses. The prosecution was able to prove beyond reasonable doubt that it was the five accuseds who attempted unlawfully to cause the death of Michael Kurz. Although each of the accused had a different role to play in the comm ission of the offence section 24 of the Penal Act provides that each of them is deemed to have committed the offence. Section 24 provides: " When two or m ore persons form a comm on intention to prosecute an unlaw ful purpose in conjunction with one another, and in the prosecution o f such purpose an offence is com m itted of such a nature that its com m ission was a probable consequence o f the prosecution o f such purpose, each of them is deem ed to have com m itted the offence Therefore, in this case the prosecution has been able to prove their case beyond reasonable doubt, and the five accuseds, Rashid Othman Ramadhan, Abdalla Khatib Mketo, Ramadhan Hassan Shaaban, Hafidh Ramadhan Ally and Samuel Emmanuel Mbaga, are all guilty for the offence of attem pt unlawfully to cause death Contrary to section 210 (a) 38 of the Penal Act No. 6 of 2004, and are hereby convicted for this offence. (Sgd) ABDUL-HAKIM A. ISSA JUDGE 1 6 /3 /2 0 1 7 Coram : Abdul-hakim A. Issa, J DPP is represent by Mr. Khamis Othman (SA) Accuseds (Present) are represented by Mr. Rajab A. Rajab (Advocate) C/c : Amina Khalfan Assessors : l.M s. Lemmy Abdi ) 2 .Mr. Claude J Majaliwa )Present 3.Mr. Mussa Khamis ) DPP Your honour, the case has been fixed for judgm ent and we are ready. (Sgd) ABDUL-HAKIM A. ISSA JUDGE 1 6 /3 /2 0 1 7 Mr. RAJAB We are ready (Sgd) ABDUL-HAKIM A. ISSA JUDGE 1 6 /3 /2 0 1 7 COURT The judgm ent is ready and is delivered to the parties. (Sgd) ABDUL-HAKIM A. ISSA JU D G E -1 6 / 3 / 2 0 1 7 39 / DPP We have no previous conviction on all the five accuseds who have been convicted by this Court. We are praying for the Court to give severe punishm ent to all five accuseds an in order to deter others who want to pursue that road. We are praying for the Court to involve S. 325(1)&(2) of CPA. Similarly, we are asking this Court to grant com pensation to the PWI for the injuries he has sustained. (Sgd) ABDUL-HAKIM A. ISSA JUDGE 1 6 /3 /2 0 1 7 MITIGATION Mr. RAJAB I would like to thank the Court for reaching here. The prosecutor has said the accuseds have no previous conviction which means they are not habitual offenders. Five accuseds person convicted are first offenders, they deserve lenient punishment. They are also youth and energetic figures which means their im prisonm ent will cause loss to the nation. They are also responsible for num ber of dependants. Their im prisonm ent will cause hardship to their families. Im prisonm ent will make them to be hard criminal. The Court should also considered the period they have stayed in custody. Regarding compensation, based on the mitigation factors I am praying that the Court should invoke S. 325(2). The compensation should have been a substitute to the punishment. The accuseds should com pensate the accuseds. I humbly submit. (Sgd) ABDUL-HAKIM A. ISSA JUDGE 1 6 /3 /2 0 1 7 40 SENTENCE I have given a careful consideration to the nature of the offence committed whose punishm ent is life imprisonm ent. I have also considered the mitigation factors advanced that the accuseds are young and first offenders and are depended by their fam ilies During the hearing, it has also teranspered that the accuseds have poor means of livelihood and other have no regular jobs. Therefore, this Court dism iss the issue of com pensation to be pid to the victim by the Accuseds. Interms of sentence, this Court is of the view that the offence comm itted is serious and the Court has to award punishm ent which corresponds to the offence committed. Therefore the five accuseds are hereby sentenced to serve ten years im prisonm ent in the Education Centre. It is so ordered. (Sgd) ABDUL-HAKIM A. ISSA JUDGE 1 6 /3 /2 0 1 7 COURT The right of appeal si explained. (Sgd) ABDUL-HAKIM A. ISSA JUDGE 1 6 /3 /2 0 1 7 41 I certify that this copy is a true from the original YESAYA KAYANGE DEPUTY REGISTRAR HIGH COURT-ZANZIBAR / H A LLY/