CRIMINAL SESSION CASE NO

IN THE HIGH COURT OF TANZANIA IN THE SUB-REGISTRY OF MTWARA AT LINDI CRIMINAL SESSION CASE NO. 3 OF 2022 REPUBLIC VERSUS AHMAD s/o MALASI MADI —-......... -................ 1st ACCUSED JUMA s/o AHMAD MALASI @ Baluani ——————....... 2nd ACCUSED SALUMU s/o HAMISI LADA @ Lipwakala....... -............ 3rd ACCUSED AMIRY s/o ABDILLAH MN1YAMA @ Dazigita.............. —- 4th ACCUSED 8th December 2023 and 30th August 2024. JUDGMENT Ebrahim, J.: The accused persons namely, Ahmad Malasi Madi, Juma Ahmad Malasi @ Baluani, Salumu Hamisi Lada @ Lipwakala and Amiry Abdillah Mniyama @ Dazigita (henceforth “the accused persons”) were jointly arraigned in this court charged with the offence of murder contrary to sections 196 and 197 of the Penal Code [Cap. 16, RE 20191. The prosecution side alleged that the murder incident took place on Page 1of 59 the 7th day of January, 2016 at Nambahu village within Lindi District, Lindi Region where the accused persons murdered one Selemani Mohamed Nangwalanya (henceforth “the deceased"). it was alleged that on the material date the accused persons armed with a gun AK 47 ambushed Nambahu AMCOS at the time When Nambahu AMCOS leaders were distributing money to the villagers after selling their cashew nuts. They blazed guns and shot to death the deceased, a villager who was also at the scene to collect his money. The accused persons robbed all the money at Nambahu AMCOS and run away. The incident was reported at Lindi police station; The police attended the crime scene accompanied with Mwajuma Rashid Nambuga, Clinical officer (PW1) who conducted a post-mortem examination of the deceased. The body of the deceased was discovered to have an injury on the right side of the chest and another one on the spinal cord indicating that he was pieced with a sharp object that passed through his chest to the fourth spinal cord. Thus, the cause of death was established to be due to severe bleeding from the chest. All accused persons pleaded not guilty to the charge. Page 2 of 59 In proving their cose, prosecution colled eight witnesses (8) and tendered ten exhibits (10). The defense side called four witnesses, the accused themselves and tendered two exhibits. At the trial, the Republic was represented by Mr. Yahya Gumbo, learned State Attorney. The representation of the accused persons was as follows: - the 1st accused by Mr. Chiputula, the 2nd accused by Ms. Ndumbalo, the 3rd accused by Mr. Hagai Mwambingu and the 4th accused by Ms. Radhia Luhuna; all are learned advocates. The 1st prosecution witness was Mwajuma Rashid Nambuga, Clinical officer (PW1). Prosecution called to the stand their second witness E.7848 Sgt Diadon Joseph Rweyemanu (PW2). Together with PC Dickson and Defective Kalisti they were the policemen who escorted the money of “Chama cha Msingi cha Nangwanda” around 1400hrs of 07.01.2016 to Nambahu village. They dropped the money at the godown and it was around 1900hrs when they were informed about the ambush. Page 3 of 59 They went back to the scene of the crime around 2040hrs and guarded the area until 2200hrs when OC-CID and other police officers arrived. The third prosecution witness was Athumani Salum lyonga (PW3). He was the Chairman of the AMCOS. Explaining the ordeal of the incident day i.e., 07/01 /2026, he said after the police and NMB official left, they went inside to divide the money to the branches which was Tshs. 443,755,200/“. Suddenly, they heard the sound of a gun and the door was opened. He saw two people one holding a machete and another one a gun dressed in “Ninja" style with long robes. They told them to lay down and they could only see their eyes. He said there were loads of people and the bullets were shot randomly to disperse people. He heard one of the bandits shouting “ua” and another one responding that he has already shot someone. After the shooting the noises subdued and three people left in a motorcycle with the money. On getting up from where he had laid down and go outside, he saw two people injured and the deceased (Seiemani Mohamed Nangwalanya) has been shot dead on the chest. Page 4 of 59 In a bid to prove the weapon used to kill the deceased, prosecution called H.4225 Forensic Corporal Elisha (PW4) a Ballistic expert. He said on 27.06.2019 he received exhibits for forensic examination from Detective Corporal Joel (PW8). Those exhibits are: 1 gun -AK 47 No. 56065529 with 7.62 mm x 39(exhibit PE 3); A magazine with 21 live ammunition (exhibit PE4); 7 live ammunitions (K2-K8 - 3 tested and 4 live ammunitions- exhibit PE5); and 7 spent cartridges (exhibit PE 6 - QI -Q7). He labelled the 7 live ammunitions K2 -K8 and the 7 spent cartridges Q1-Q7. He tested the gun and observed that it was working properly, He continued testing the gun by firing 3 live ammunitions from the 7 live ammunitions with caliber 7.62mm. (3 tested cartridges- T1-T3 and 4 live ammunitions - K5-K9 - exhibit PE5). He explained further that by using a microscope he compared exhibit PEA (QT-Q7) to see if they are coming from the same gun and the answer was in the affirmative. He went further and compared exhibit PE6 with three tested cartridges (T1 - T3) and discovered that they are also the same. He therefore made a finding that QI - Q7(exhibit PE6) were fired from a Page 5 of 59 gun AK 47 No. 56065529 (exhibit PE3) because the samples produced from T1 - T3 are the same as from QI - Q7. He prepared an examination report (exhibit PEI) and photograph book (exhibit PE2). PW4 handed back the exhibits and the report to PW8 on 24/07/2019. Responding to cross examination questions he admitted to have read exhibit PEI in Swahili while it was written in English. He responded also that the result would not be the same if another type of gun was used. PW5, Mr. Athumani Mbwana Koja was assigned to go to Dar Es Salaam on 09/05/2020 to apprehend the 4th accused person namely Amiry Abdillah Mniyama who was living at Mbagala. He said they went to arrest the 4th accused around 1900hrs and took him at Maturubai Police Station at Mbagala where he recorded his statement from 1930hrs to 2045 hrs. The cautioned statement of the 4th accused person was admitted in court as exhibit PE7 after the court conducted trial within a trial and overruled the preliminary objections raised on the voluntariness and points of law. Page 6 of 59 The sixth prosecution witness was PF. 21245, Assistant Inspector Mwamvita Mawala (PW6). She recorded the cautioned statement of the 2nd accused on 28/12/2018 which was admitted in court as exhibit PE8 after the court dismissed the preliminary objection after conducting trial within a trial. ASP Albert Jonathan Ephraim testified as PW7. On 16.12.2018 together with other three policemen he went to collect the 1st accused person and one Fakihi Athumani Ngalada who were at Tandahimba Police Station and take them to Mtwara after being arrested for armed robbery. He testified that on their way to Mtwara, he was talking to the 1st accused and Fakihi concerning the incident that led to their arrest at Msumbiji, they said they robbed a phone and had a weapon which is at Nambahu. PW7 said the 1st accused and Fakihi also named Juma Ahmadi Malasi, Salum Hamisi Lada and Amiry Abdillah Mniyama as their co- perpetrator. He said, they had to take them back to Tandahimba and on the way Fakihi Athumani told him that he has hidden the weapon at the bush behind his house. As for the 1st accused, he told him he knows that it is Fakihi who has the weapon. Fakihi led them to the bush in Nambahu village, Bakwata Page 7 of 59 Hamlet. Where they found a green (faded) Sulphate bag and inside the bag there was one gun AK47 with serial no. 56065529 with its magazine and 21 live ammunitions. PW7 inspected the gun and filled in a seizure certificate (“Exhibit PE 9"). They returned to Tandahimba police station to collect the 1£i accused and returned to Mtwara. He testified further that the 1st accused and Fakihi were specific in their talking that apart from the phone incident, they also robbed money at Nanyumbu AMCOS Lindi being one of many others. He said on 28/12/2018 around 0545hrs they managed to arrest Juma Ahmad Malasi at Nambahu and on the same day at around 1200 hrs at Nambahu village they arrested Salum Hamisi Lada from the assistance of Juma Ahmad Malasi. He took them to Mtwara where they arrived around 1500 hrs. He testified further that Fakihi and Ahmad said that they contributed money and purchased a weapon at Msumbiji. In re-examination he explained that they left the 1st accused for security reasons as it was easier to manage one accused than two at ago because in armed robbery there is a danger of being ambushed. As for an independent he said, since other accused persons were still Page 8 of 59 at large they could not risk to bring an independent witness as he could have divulged the information on the incident and make it difficult to arrest the remained accused persons. The last prosecution witness was Assistant Insp Joel (PW8). He was among the police officers who attended the crime scene on 07.01.2016 around 2200hrs. He thus collected seven (7) used cartridges and seven (7) live ammunition with caliber of 7.62mm. He saw a body of the deceased laying down, and he sketched a map of the crime scene which was admitted as exhibit “PE 10". He said he recorded the exhibits into his diary of crime scene and back at the office he handed them to the armory - keeper for custody. On 07/04/2019, together with other four policemen they went to Mtwara police station to collect the accused persons and he was also handed the gun AK- Sub- Machine Gun. No 56065529 with its magazine containing 21 live ammunitions which had a caliber of 7.62 mm. Page 9 of59 He testified further that on 27/06/2019, he took the exhibits from the armory keeper to Ballistic Expert at Forensic Bureau, Dar Es salaam for the purpose of comparison examination. He handed the exhibits to Constable Elisha Mwakdjinga (PW4), an expert. He collected the exhibits together with the examination report on 28/07/2019 and returned to Lindi. He again handed the exhibits to the armory keeper. On 10/05/2020, he was handed another accused person namely Amiry Abdillah Mniyama @ Dazigita by Sgt Athumani Koja (PW5) who had arrested him at Dar Es salaam. After the closing of prosecution case, the court found all four accused persons with a case to answer and addressed them in terms of section 293(2)(3) and (4) of the Criminal Procedure Act, Cap 20 RE 2022. In their defence, all four accused persons protested their innocence. The first accused Mr. Ahmad Malasi Madi (DW1) told the court that he started living in Zanzibar from year 2003, Before that he was living at Muungano Village, Nambahu Ward, Tandahimba District. He received a call from his sister informing him about the 2nd accused Page 10 of 59 arrest (who is their relative) on 16.12.2018. He made a follow up about his brother at Tandahimba police station on 02/01 /2019. He was arrested on 13,01.2029 around 0300hrs at his mother's house and taken to Mangaka police station. He was then transferred to Mtwara, Chuo cha Police Mitengo where he stayed until May, 2019. On 01/04/2019 while at Mtwara, he was interrogated concerning terrorism and how he acquired his properties. He denied knowing about terrorism and he was tortured. It was on 10.05.2019 when he taken to Lindi Central Police Station where he saw Juma Ahmadi Maiasi [2nd accused) and Salumu Hamisi Lada (3rd accused). He denied to have been present at Nambahu on 07.01.2016 and that he did not commit the offence of murder. He tendered two letters - exhibit DEI (d letter dated 03/05/2001) and exhibit DE2 (a letter 02/09/2021) which he wrote to claim his two: phones Techno and NIDA identity card. He urged the court to see that he was not found with the gun. As for being named in cautioned statement of PW4 (exhibit PE7) he recanted that he was not involved. Page 11 of 59 Responding to cross examination questions, he said the second accused and him do not know each other well but he wanted to bail him. He said also that he did not know the offence he was charged with. He admitted that he can read and Write. He denied to know other accused persons. Juma Ahmad Malasi was the second defence witness (DW2). He testified to have been arrested on 16/12/2018 and taken to Tandahimba police station and put in a lock-up. He said he was not interrogated until 21/12/2018 when he was transferred to Mtwara Police Station. In the morning of 28/12/2018, he was taken outside at the back of the police building where he was made to sit on the stool and surrounded by non-uhiformed police with guns. He said he was interrogated about his religion and alleged him to be Al-Shabab. He was hand cuffed, put in a fridge and tortured. He was then taken to the police Mess where Afande Mwamvita brought a statement and forced him to thumb print it. He did not know what was it for and it was not read over to him. He was: then taken to Mitengo and stayed there until 07/05/2019 when he was transferred to Lindi and later was taken to court on 15/05/2019. Page 12 of 59 He denied to know anything about the murder and prayed for the court to accord no weight to the cautioned statement because it is not what he was interviewed by the police. He prayed to be acquitted. Responding to cross examination questions, he said DW1 knows where he lives and he also knows DW1 well. He said also that he did not know if Afande Mwamvita also tortured him and that in his defence he did not say where he was on 07/01/2016. The third accused person, Mr. Salumu Hamisi (DW3) said he was arrested on 17/12/2028 when he Was asleep at his home around 0200hrs. He was blindfolded and taken to a house and put in a room until the morning of 20/01 /2019 when he was taken to a hall at Field Force and started to be interrogated on how he managed to dig a well. Unsatisfied by his responses he was -hand-cuffed on iron poles and his nails were removed by using a plier and they inserted a nail on his chest. He said they took him back to Mtwara Police Station on 08.05.2019 and then to Lindi where he joined other accused persons in this case. He denied to know any of the co-accused before this case. Page 13 of 59 He also denied to know any of the allegations mounted against him; Responding to cross examination questions he said he does not know Nambahu Lindi. The last defence witness was Amiry Abdillah Mniyama (DW4). He testified to have been arrested at Mbagala Dar Es Salaam on 09/05/2020 around 1945 hrs and taken to Mbagala Maturubai Police Station. At the police station he was taken to a special room near football pitch where a gun was pointed at him and asked the questions he does not know the answer. He said on that day he was not feeling good as he had malaria and he asked for the medicine but he did not get any. They cuffed him on the iron rod and severely beat him. Two hours later, they came with a paper which he did not know the content. He was forcefully made to sign them. He was then taken to Lindi Police Station joined with other accused persons in this case charged with murder. He said he knew all three accused persons from prison. He prayed for the court not to accord any weight to the cautioned statement because it was not his statement as he was forced to sign. He prayed to be acquitted. Responding to cross examination questions, he said he has not Page 14 of 59 objected that it was not his signature and that the signatures in the cautioned statement are his. He also admitted to have been taken to Maturubai police station safely and informed about his case. After closing of the defence case, parties prayed to file their final submissions. Save for the counsel of the 3rd accused person, all other legal counsels from both parties filed their submissions which I shall refer the relevant to the issues raised in the cause of evaluation of evidence and determination of the case. In light of the above reproduced evidence, the issue that calls for determination by this court is whether the prosecution has managed to prove that the accused persons in this case murdered the deceased? It is the position of the law that in a criminal case the burden of proof is always on prosecution and it never shifts - Section 3(2) of the Evidence Act, CAP 6, R.E. 2022. The standard of such proof is beyond reasonable doubt - Boniface Siwingq V Republic, Criminal Appeal No. 421 of 2007 CAT (Unreported). Further, the position of the law in a murder case like the instant one is that the prosecution is required to Page 15 of 59 establish two things; actus reus and mens - rea with malice aforethought. This position of the law was well articulated by the Court of Appeal in the case of Mohamed Matula V Republic [1995] T.LR 3, that: “Upon a charge of murder being preferred, the onus is always on the prosecution to prove not only the death but also the link between the said death and the accused; the onus never shifts away from the prosecution and no duty is cast On the appellant to establish his innocence" In this case there is no dispute regarding Actus Reus as the deceased one Selemani Mohamed Nangwalanya is dead and he died un­ natural death. This is as per the testimony of PW1, a medical officer who performed the postmortem examination of the deceased; and PW3, a chairman of Nanyumu AMCOS Who identified the deceased. Therefore, the cause of death was proved by other evidence than Postmortem Examination Report as stated in the case of Elias Mtati @ Ibich Vs Republic, Criminal Appeal No. 65 of 2014 - CA - Dodoma. In that case, the issue for consideration first is whether Actus Reus with Malice Afore Thought was committed by the accused persons. Going by the evidence produced in court by the prosecution, it is clear that none of the prosecution witnesses testified to have Page 16 of 59 identified or see any of the four accused persons murdering the deceased. It follows that, the evidence implicating the accused persons to the charged offence is circumstantial. Prosecution case greatly relies on the repudiated cautioned statements of the 2nd and 4th accused persons which also mentioned the 1st and the 3rd accused persons; oral confession of the 1st accused person and a gun believed to have fired the bullets that killed the deceased following the comparison of the cartridges and live ammunitions found at the crime scene and the ones seized by the police from the bush. The position of the law regarding circumstantial evidence is that circumstances must be incapable of more than one interpretation than the guilty of the accused. This principle was enunciated by the Court of Appeal in the case of Mathias Bundala V R, Criminal Appeal No. 62/2004 where it was held that; "In a case depending conclusively on circumstantial evidence the court must before deciding on a conviction, find that the inculpatory facts are incompatible with the innocence of the accused and are incapable of explanation upon any other reasonable hypothesis than of guilty’1, (emphasis is added}. Page-17 of .59 Now, would the above pieces of evidence by prosecution witnesses suffice to form unbroken chain in such a way that the inculpatory facts are incompatible with the innocence of the accused? Before I proceed to evaluate the evidence and determine its weight, I find it apt to firstly address the following issues raised by the defence counsels in their submissions. Advocate Chiputula, counsel for the P1 accused raised an argument that PW4 did not read in court exhibit PEI when it was admitted in court:. Instead, he only explained it and related to what he testified in chief. He added that, during cross examination PW4 admitted not to have read Exhibit PEI which he claimed that he denied the 1st accused the right to know the contents of such exhibit. Hence exhibit PEI should not be accorded any weight. With respect to Mr. Chiputula, I find his argument is geared to mislead the court. The records i.e., page 29 of the typed proceedings are clear that upon receipt of exhibit PE in court, PW4 read and explained both exhibits PEI and PE2. Page-. 18 of 59 Moreover, when he cross examined PW4 at page 32 of the typed proceedings, it is not true that PW4 admitted not to have read the exhibit but rather he admitted that exhibit PEI is written in English but he is reading it in swahili and he denied to be reading something different I find the argument of Mr. Chiputula is self-defeating because exhibit PEI was written in technical terms of which had PW4 not translated and explained it in swahili, I wonder if 1st accused would have understood what was being said in so far as his argument of fair trial is concerned; or even Adv, Chiputula himself forthat matter. More -so, all the evidence in court was adduced in swahili to enable parties clearly understand the evidence adduced in court. I therefore find his line of argument to be misleading and baseless. That being said, exhibit PEI would be accorded the weight it deserves in the course of evaluation of evidence. Another argument vigorously insisted by Mr. Chiputula is that the case.: against the first accused Was not proved to the required standard because the person who arrest him was not called to testify how and why he arrested him and that he was arrested basing on the suspicions. Again, as extensively submitted by counsels of both sides, Page 19 of 59 that it is the duty of the prosecution to prove the case beyond reasonable doubt. Thus, whether a person has been arrested on suspicion or on a different alleged offence or that there is no information on how he was arrested, the same would not merely exonerate the accused from the criminal liability on the charged offence unless prosecution has failed to prove the alleged offence beyond reasonable doubt. In-fact, it is the essence of the maxim” innocent until proven guilty”. A person is arrested upon being suspected to have committed the alleged offence. This line of argument is also baseless. Another argument that I find it apt to address at the outset was raised by advocate Radhla counsel for the 4th accused person that prosecution amended the charge contrary to the requirements of section 234(1) of the Criminal Procedure Act, Cap 20 RE 2022. She referred to the first charge which was filed on 15th May 2020 with only three accused persons and another charge filed on 5ih January, 2022 which added the 4th accused person. She said the 4th accused was added without leave from the committal court as there is no record showing that there was any application for leave to amend the Page 20 of 59 charge rather the record on amendment is found on 4th June, 2022 where prosecution announced to have amended the charge and prayed for the new charge be read to the accused person. She was therefore of the view that due to such shortcoming, this court should find that prosecution has failed to prove its case beyond reasonable doubt. To buttress her argument, she referred to the case of Hussein Ramadhani Vs the Republic, Criminal Appeal No. 195 of 2015 (CAT) which quoted with approval the case of Masasi Mathias V R, Criminal Appeal No. 274 of 2009 which stated there was no amendment to the charge sheet in compliance with section 234(1) of the Criminal Procedure Act. Section 234(1) of CAP 20 RE 2022 reads: “Where, at any stage of a trial, it appears to the court that the charge is defective, either in substance or form, the court may make such order for alteration of the charge either by way of amendment of the charge or by substitution or addition of a new charge as the court thinks necessary to meet the circumstances of the case unless, having regard to the merits of the case, the required amendments cannot be made without injustice; and all amendments made under the provisions of this subsection shall be made upon such terms as the court shall seem just", [emphasis is mine]. Page 21 of 59 The law above, clearly insists that the alteration of the charge to meet circumstances of the case should have regard to the merits of the case and be made without injustice. A quick glance of page 23 of the typed proceedings of the committal proceedings reveals that on 4th June 2022 there is indeed no order of the court concerning the substitution/amendment of the charge sheet to add another accused person. It follows that, having regard to the circumstances of this case and considering that Ms. Radhia had all the time to raise such an argument at the very early stage of the Case before the trial began to avoid unnecessary prejudices if any, the questions now is as to whether the omission on the record of the order of the court to acknowledge the amend ment/substitution in the circumstances of this case caused injustice to the accused persons? It is my concerted position that it did not and such omission can be cured by the oxygen principle as I shall explain below. Firstly, not all the shortcomings either in the proceedings or procedures shall invalidate the case because every case is determined on its own circumstances and facts focus being on broad sense of justice. Page 22 of 59 Secondly, the cited cose of Hussein Ramadhani (supra) is distinguishable to the circumstances and facts of this case on the basis that in the cited case the appellant was convicted of rape while the charge sheet alleged that he had canal knowledge of a 10 years old girl. Thus, there was variance between the charge sheet and the evidence in the sense that while the victim adduced evidence that she was sodomised, the charge sheet alleged rape contrary to section 130 (2) (a) and 131 of the Penal Code {CAP 16 R.E. 2002J. Following such variance between the charge sheet and the evidence adduced in court that was relied on to convict the accused, the Court of Appeal found that the trial court should have amended the charge and section 234(1) of CAP 20 could have cured such defect. To the contrary, in this case, the committing court did not record the order of amendment. However, going through the record further, after prosecution announced to have amended the charge and as stated by the accused’s counsel that the amendment was to add the 4th accused; the charge was read over again to all four accused persons and were asked not to enter their plea. Apart from additional of the 4th accused person, the statement of the offence in the charge Page 23 of 59 sheet remained the same and the evidence adduced in court by prosecution was on the charged offence of murder. On that background, I find no prejudices occasioned to the accused persons that the law and this court cannot tolerate. Thus, I do not agree that on that omission alone, it should be termed that prosecution failed to prove the case beyond reasonable doubt. Apart from the above three arguments, all parties discussed in their submissions the position of the law in criminal case pertaining to the burden of proof to the prosecution which is beyond reasonable doubt. The defence counsels mainly based their submissions challenging prosecution case on the fact that one Fakihi Athumani Ngalanda being a material witness was not called to adduced evidence hence urged the court to draw adverse inference. They also challenged the cautioned statements to have been admitted in contravention of the revised law 2019, not indicating the time when the recording of the statement began and that both cautioned statements of the 2nd and 4ih accused persons were involuntarily recorded hence should not be availed any weight. Defence counsels also challenged the Page 24 of 59 prosecution evidence that there is no direct witness to implicate all the accused persons as none was found with the alleged weapon (gun). Hence, the testimonies of PW4 and PW8 do not link the accused persons with the charged offence. They argued also that there is no corroborative evidence to convict the accused persons mentioned by their co-accused and if at all, the 2nd and 4th accused persons were interrogated on other offences of terrorism and not murder. They cited a number of cases to support their arguments. As for the prosecution side, their submission mainly focused on the oral confessions of the 15T accused; the principle of confession leading to discovery; being mentioned by the co-accused; the weapon linking the accused to the charged offence; and the cautioned statements of the 2rd and 4th accused persons. All the above raised issues shall be addressed in the analysis of the evidence before the court. As intimated earlier, the prosecution case is predicated on circumstantial evidence; Page 25 of 59 Verily, the important piece of evidence in this case is to see whether the weapon (gun) alleged to have murdered the deceased can be linked with the accused persons. At this juncture the evidence of PW7, ASP Albert Jonathan Ephraim would tell the beginning of the arrest of the DW1 and Fakihi Athumani Ngalanda. He went to collect them from Tandahimba police station on 16.12.2018 and take them to Mtwara after being arrested for armed robbery. According to his testimony on their way to Mtwara, PW7 was talking to them concerning the incident that led to their arrest at Msumbiji. He said, DW1 and Fakihi said they had a weapon which is at Nambahu and named the 2nd, 3rd and 4th accused persons as their co- culprit and it led to their arrest. PW7 said Fakihi Athumani told him that he has hidden the weapon at the bush behind his house and the 1st accused admitted to know that it is Fakihi who has the weapon. Fakihi led them to the bush in Nambahu village, Bakwata Hamlet and exhibit PE3 (a gun AK47 with serial no. 56065529) and a magazine with 21 live ammunitions (exhibit PE4) were found. PW7 tendered a seizure certificate (‘‘Exhibit PE 9") in respect of the seized weapon. On their way to Mtwara, PW7 said that the lsf accused and Page 26 of 59 Fakihi told him about the incident of robbing money at Nambahu AMCOS Lindi and that they contributed money to purchase a gun at Msumbiji. On 07.01.2016, Assistant insp Joel (PW8) collected seven (7) cartridges (exhibit PE6) and seven (7) live ammunition which had a caliber of 7.62 mm at the crime scene on the incident date. Together with exhibits PE3, PE4, PE6 and 7 live ammunitions were taken to PW4 H.4225 Forensic Corporal Elisha for examination and comparison. After the examination (exhibit PEI) he made a finding that exhibit PE6 which were collected from the crime scene were fired from exhibit PE3 a gun found with Fakihi Athumani Ngalada. At this instance, I can easily conclude that their testimonies form a chain of establishing a murder weapon and that exhibit PE3 was used at the crime scene. I am saying so because, PW4 who examined the said exhibits is an expert in field and apart from the general questions from the ballistic forensic accused persons’ counsels, there was no any other expert called to disapprove his findings. Perhaps, the only question that would have exercised the mind of the court is howto differentiate one gun from another in mind of the question by adv. Chiputula Page 27 of 59 concerning the presence of other AK 47 guns. On that, PW4 explained that the gun he attended had a number meaning that it is what differentiates one gun from another. He identified the serial number of the gun AK 47- No. 56065529 [exhibit PE3). Section 18 of the Firearms and Ammunition Gontrol Act, 2015 provides that; “A firearm licence shall not be issued to any person unless the firearm bears the manufacturer's serial number or any other identification mark by which the firearm can be identified." [emphasis is added]. The above section proves that a gun or firearm is identified by a serial number or a peculiar mark and in the instant case No. 56065529. Therefore, I find no reason to disbelieve the expert opinion of PW4. Also, I find no reason to also disbelieve the testimonies of PW7 and PW8 in so far as the collection of the exhibits is concerned and as for PW7 on how he came to know about the place where exhibits PE3 and PE4 were hidden. Besides, it is a rule of the thumb that every witness is entitled to credence and his/her testimony accepted unless: there are good and cogent reasons not to believe such a witness. Page 28 of 59 Good reasons for not believing a witness include the fact that the witness has given improbable or implausible evidence and or the evidence has been materially contradicted by another witness or witnesses. This position was addressed by the Court of Appeal in the case of Khamis Said Bakari VR, Criminal Appeal No. 359 of 2017 which cited with approval the celebrated case of Goodluck Kyando vs Republic, [2006] TLR 363 where it was held that: "every witness is entitled to credence and must be: believed and his testimony accepted unless there are good and cogent reasons for not believing a witness”. In so far as the testimonies of PW4, PW7 and PW8 are concerned, I see no contradiction to discredit their testimonies, rather their testimonies were coherent and consistent. The testimony of PW7 implicates DW1 as he admitted before him while in the car talking that he knows it is Fakihi who is a custodian of a weapon which they purchased in Msumbiji and that they were involved in the incident of 07.01.2016. Before, I proceed to discuss other pieces of evidence relied by prosecution case, for coherence purposes, it is proper I discuss the Page 29 of 59 relevance of the evidence of DW1 and Fakihi vis a vis the argument on the failure by prosecution to call Fakihi. It is a settled law that an oral confession of guilt made by an accused person before or in the presence of a reliable witness be a civilian or not may by itself be sufficient to ground a conviction against the accused- see The Director of Public Prosecutions Vs Nuru Mohamed Gulamrasul, [1988] T.L.R. 82; Peter Didia @ Rumala vs Republic (Criminal Appeal 421 of 2019) [2022] TZCA 709 (11 November 2022); and Posolo Wilson @ Mwalyengo vs. Republic, Criminal Appeal No. 613 of 2015 (unreported). In Posolo Wislon’s case (supra), the Court of Appeal held that; "ft is settled that an oral confession made by a suspect before or in the presence of reliable witnesses, be they civilian or not may be sufficient by itself to found conviction against the suspects.” [Emphasis added]. In another case of Mohamed Manguku vs Republic, Criminal Appeal No, 194 of 2004, (unreported), the Court insisted that such an oral confession would be valid as long as the suspect was a free agent when he said the words imputed to him. It means therefore that even where the court is satisfied that an accused person made an oral Page 30 of 59 confession, still the trial court should go extra mile to determine whether the oral confession is voluntary or not. Section 27(3) of the Evidence Act, CAP 6 RE 2022 provides for voluntary confession that: "(3) A confession shall be held to be involuntary if the court believes that it was induced by any threat; promise or other prejudice held out by the police officer to whom it was made or by any member of the Police Force or by any other person in authority." The circumstances under which DW1 and Fakihi admitted to the knowledge of the gun and their involvement on the incident of 07.01.2016 to PW7 was not at all intimidating. They were casually talking in the car while travelling from Tandahimba to Mtwara. Moreover, DW1 in his examination in chief did not register anywhere that he was either tortured, intimidated or promised any favour by PW7. If at all he said, he was tortured when he arrived at Mtwara. Therefore, his oral confession before PW7 was without any blemishes. All defence counsels were adamant that failure to call Fakihi as a custodian of the weapon should entitle the court draw an adverse inference. While I admit that the evidence of Fakihi would be a cherry on top of an ice cream to the prosecution’s case, still, the absence of Fakihi is not fatal to make this court draw an adverse inference. My reason being, DW1 acknowledged the presence of the weapon in Page 31 of 59 the custodian of the said Fakihi. Fakihi admitted where he has hidden the gun in the presence of DW:1. Their admissions led to the discovery of exhibit PE3 as. exhibited by exhibit PE9(certificate of seizure) . Hence admission leading to discovery as I shall demonstrate in the due course. It follows that the absence of Fakihi does not in any way damage prosecution’s case as exhibit PE9 proves that it was exhibits PE 3 and PE4 that were seized and its seizure was also led by DW1 by confirming that exhibit PE3 was with Fakihi. Another argument that cropped up concerning the seizure of exhibit PE3 and PE4 was the absence of an independent witness, search warrant and the fact that DW1 was left at Tandahimba Police Station while PW7 and other police officers went to seize the weapon accompanied by Fakihi. I am abreast of the position of the law i.e., section 38(1) of the Criminal Procedure Act, CAP 20 RE 2022 that search warrant must be issued where there is reason to be believe that there is anything in respect of which an offence has been committed. Nevertheless, the law under section 42(i) and (ii) of CAP 20, RE 2022 gives a leeway to search without a warrant in an emergency where it is necessary to do so in Page 32 of 59 order to prevent the loss or destruction of such item; and the search or entry is made under circumstances of such seriousness and urgency as to require and justify immediate search or entry. Looking at the circumstances of this case, the search and seizure was in the bush, in other words it was literally in no man’s land. As per the testimony of PW7 when DW1 and Fakihi admitted the presence of exhibit PE3, they immediately returned to Tandahimba to secure such weapon. Such kind of circumstances would call for no search warrant. As for the independent witness, PW7 explained on the sensitivity of the offence of armed robbery and the fact that other accused persons were still at large. Thus, an independent witness could have divulged the information which would have made it difficult to arrest other accused persons. He explained also that in so far as this case is concerned, it deals with armed robbery of which there could be an ambush. Therefore, it would be easier to deal with one accused than two which was the reason they left DW1 at the police station. I find the explanation given in respect of the above raised arguments to be plausible, hence I see no reasonable doubt has been raised in that regard. Page 33 of 59 Now coming to admission leading to discovery. It is the position of the law that a confession leading to discovery is reliable. This position is articulated under section 31 of the Evidence Act, Cap 6 R.E. 2022 which reads: " When any fact is deposed to as discovered inconsequence of information received from a person accused of any offence in the custody of a police officer, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, is relevant" The above position of the law was further expounded in the case of John Peter Shayo and 2 others vs Republic (1998) TLR 198 where it was held as follows: " (i) Confessions that are otherwise inadmissible are allowed to be given in evidence under section 31 of the Evidence Act 1967 if, and only if, they lead to the discovery of material objects connected with the crime, the rationale being that such discovery supplies a guarantee of the truth of that portion on the confession which led to it", [emphasis added]. As intimated earlier, confession of DW1 and Fakihi led to the discovery of exhibit PE3 which was a murder weapon and the involvement of DW1 on the incident. On the other hand, DW1 Ahmad Malasi Madi defence of denying his involvement on the incident of 07.01.2016 because he heard about Page 34 of 59 the arrest of DW2 on 16.12.2018 while he was in Zanzibar and he went to Ta n da him ba on 01.01.2019; does not in any way establish his alibi. As alluded earlier, there is reliable evidence of PW7 that on 16.12.2018, DW1 orally admitted his involvement which also led to the discovery of the weapon used in the commission of the offence on the same day. Moreover, he has not established his alibi of the incident date or even of 16.12.2018 in terms of section 194(4) and (5) of Criminal Procedure Act, CAP 20 RE 2022 by giving notice or at least provide address of his alibi before the closing of the prosecution case to cast a shadow of doubt to the prosecution case. His defence that he heard about the arrest of DW2 on 16.12.2018 while he was in Zanzibar was mounted during his defence hearing and I find no difficulty in saying that it was an afterthought. Hence, I accord no weight. In going further to see whether there is another piece of evidence that still implicates DW1 in relation to other accused persons, it necessitates this court to now address the evidence concerning DW2 and DW4. As alluded earlier, another pieces of evidence relied upon by prosecution to prove their case are the cautioned statements of D W2 and DW4. Page 35 of 59 I shall begin with the cautioned statement of the 4th accused person (DW4) which was admitted as exhibit PE7. Exhibit PE7 was admitted after this court overruled the preliminary objections on points of law and the objection that the said exhibit was involuntarily recorded. In her final submission, counsel for the 4th accused argued that exhibit PE7 should not be considered as enough evidence to attract the conviction of the 4th accused person as it was recorded under the revised edition of 2002 while the recording Was done on 9th May 2020 which should have been under the revised edition of 20:19. She argued also that exhibit PE7 contravened the provisions of section 57(2)(e) of CAP 20 and that it was involuntarily recorded. Beginning with the objection that the recording of exhibit PE7 contravened the provisions of section 57(2)(e) of CAP 20, this point of objection need not detain me because it is obvious that counsel for the 4th accused did not take time to thoroughly go through the said exhibit or she is just on the trial and error phase. At the first page of exhibit PE7, line 5 from the left shows: the date that the statement was recorded i.e., 09.05.2020 at 1930hrs which also reflects at the far right where it is recorded “A/luda: 19.30Hrs". More-so, PW5 testified in his Page 36 of 59 examination in chief and also in the trial within a trial that the recording started at 1930hrs. Nevertheless, counsel for the accused had an opportunity to cross-examine on the same of which she did not neither did the cross examined as to when DW4 was arrested. Failure to do so implies that what was stated by PW5 in his testimony was true. - Nyerere Nyague vs. Republic (Criminal Appeal Case 67 of 2010) [2012] TZCA 103. This line of argument is therefore baseless. As for the objection that the cautioned statement was recorded under the old revised edition of 2002 instead of the new edition of 2019 which vested new rights to be addressed to the accused person; I wish to state that adv. Radhia has not even told the court which are those new rights that were supposed to be addressed to the accused person but were not, to show the prejudice occasioned to DW4. If at all I see that DW4 signed all the pages of the cautioned statement. As for using audio/video recording under section 57(5) of CAP 20 RE 2019, the same may be done by the police and if it is available. Hence, it is an option availed to the officer recording the statement. Further again, the Criminal Procedure Act has only been revised from 2002, 2019 to 2022. Under the circumstances, all laws that are revised are for Page-37 of 59 continuation, revision and maintenance. Therefore, failure to cite RE 2019 in this case is not fatal and it is curable considering the fact that the cited RE 2002 appears on the first page of the prescribed form of the cautioned statement which happens to have not been phased out. For all purpose and intent, since DW1 's rights have not been prejudiced by the use of the old form, I find that the appearance of RE 2002 is not enough to invalidate exhibit PE7. Lastly, on the issue that DW4 signed exhibit PE7 whilst he did not know the contents and he was tortured; such allegation is rather farfetched because PW5 explained that he recorded the cautioned statement of DW4 immediately after getting him at Maturubai Police Station where he was in a healthy condition. He said he accorded him all his rights. The narrative by DW4 that he Was asked things that he did not know without exactly saying what were those things which he was asked, clearly shows that he was making up stories. Furthermore, while advocate Radhia is telling the Court that the caution statement contained irregularities that it ought not to be considered for admission by this court, ironically, she did not even cross examine on Page 38 of 59 any of the irregularities rather she concentrated on whether PW5 had a movement order or not to travel from Mtwara to Dar Es Salaam. Again, apart from the make believe story of DW4, there was no any cogent proof to prove the torture. The Court of Appeal had in the case of Mkika vs. Republic, (Criminal Appeal 47 of 2001) [2003] TZCA 2 emphasized the importance of proving by evidence (PF3) when there are allegations of torture during the making of a confession statement. It was observed inter alia that; “Furthermore, apart from the mere claim by the appellant which has been repeated by Mr. Makowe in this appeal, no semblance of some backup evidence has been shown at least to indicate that the appellant was in fact subjected to torture." Furthermore, for the argument that DW4 did not know the contents of exhibit PE7, I took time to read the said exhibit and the personal biography of DW4 appearing in exhibit PE7 which again was not contested/challenged anywhere during the trial be it in prosecution’s case or DW4’s own defence case. For ease of reference, I quote a small portion where he said: " Mimi ni mzaliwa wa wilaya Tango Mkoa Mtwara, katika kijijl cha Nambahu. Nilizallwa mwaka 1988 katika familia ya mzee Mniyama hi Page 39 of 59 mtoto wa kwanza kali ya wafoto saba"7" mtoto wa pili kuzaliwa anaitwa YAH AYA na tatu RASHIDI wane RAZAKI watano TAMBUNA wa site WAHABI na wamwisho nimeoa na nina wafoto watafu ambao ni RUBIs/o AMRI, HANAs s/o AMRY na SUHAIRA s/o AMIRY, ninajishighulisha na ujasiriamali"... The personal information is so deep and unless PW5 was related to DW4, of which we have not been told so, no one else would be privy to such information except DW4 whose counsel wants this court to believe that he did not know the contents of exhibit PE7! Therefore, exhibit PE7 was freely and voluntarily recorded before PW5. However, it is important that I address the position of the law regarding a repudiated cautioned statement and its evidential value. The general position is that the accused person who confesses to his guilty is the best witness - see the case of Mohamed Haruna ©Mtupeni and Another v. Republic, Criminal Appeal No. 259 of 2007. This position must still conform to the requirement of the law that the confession must be voluntary and provide true account. Expounding further, the Court of Appeal held in the case of Emmanuel Lohay and Udagane Yatosha v. Republic, Criminal Appeal No. 278 of 2010 (unreported), that: Page 40 of 59 "...the court described the essence of confessional statements as such that they should shed some light on how the deceased concerned met his death, role played by each of the accused person; such details as to assure the courts concerned that the person making the statement must have played some culpable role in the death of the deceased", [emphasis added]. I am abreast of the genera! principle of the law on the repudiated/retracted confession that it requires corroboration as held in the case of Ali Salehe Msutu v.Republic [1980] T.L.R.l. I am also aware of the position of the law that a retracted/ repudiated confession can still form the basis for conviction without corroboration upon the trial court warning itself of the danger of acting on such confession. This position was held by the Court of Appeal in the case of Flano Alphonce Masalu @ Singu v. Republic, Criminal Appeal No. 366 of 2018 (unreported) that: 'The law Is trite that where an accused person retracts/repudiates his confession, the court can convict him on the uncorroborated confession provided that it warns itself of the dangers of acting solely on such confession and if it is fully satisfied that the confession cdnnot be but true", [emphasis added]. The above positions of the law which 1 fully subscribe to prompted me to dispassionately go through exhibit PE7 which I had already made a finding earlier that it was voluntarily recorded. In his detailed exhibit PE7, DW4 explicitly acknowledged that he is alleged to have committed the offence of murder of one old man at Page 41 of 59 Nombohu/Mnyombe village and he mentioned DW1 and DW2 as his accomplices. DW4 was recorded confessing thus: “Swali: Je unaelewa kosa lako na umelielewa? Jibu: Ndiyo nimeelezwa kuwa natuhumiwa na kosa la mauaji na nimeelewa tuhuma zinazonikabili. Swali: Je ni mauaji ya nani? Jibu: Mauaji hayo niliyafdnyd mimi nd wenzangu wawili ambao ni JUMA s/o HAMAD MALASI @BARUANt na HAMAD s/o MALASI MADl huko kotika kijiji cha NAMBAHU AU MNYAMBE, Swali: Je ilikuwaje? Jibu: Sikumbuki tarehe wala siku Ha ilikuwa mwaka 2016 muda wa sag 16:00hrs jioni nikiwa na JUMA s/o HAMAD MALASI na HAMAD s/o MALASI MADl tulikwenda kijiji cha NAMBAHU ya LIN DI ambapo siku hiyo kulikuwa na fedha zimelefwa kwa ajili ya kulipa wakulima wa korasho AMCOS, baada ya kupata taarifa kutoka kwa mwenzetu ambaye ni @ RAS ambaye ni mwenyeji wa kijiji hicho cha MNYAMBE. Baada ya peso kufikishd ghalani @ RAS alinipigiq simu tukiwa na wenzangu maeneo ya MKWAJUNI kwenye kljiwe chetu ambapo mimi niliweka “loud speaker" simu yangu Hi tusikie wote. @RAS alisema "Wadau mzigo umeshaingia huko". Nikimaanisha peso za malipo ya Wakulima wa Korosho, mimi nilifaka simu nikawaambia wenzangu JUMA s/o HAMAD MALASI na HAMAD s/o MALASI MADl twende iukajiandae kisha tukutane pori la “NYUNDO" maeneo ya mqkaburini, ambapo mimi nilifika nikamkuta JUMA s/o HAMAD MALASI na HAMAD s/p MALASI MADl. HAMAD s/o MALASI aiibebq mfuko na kiroba ndani yoke kulikuwa nd “Bunduki" ninaifahamu inqitwa SMG ikiwa na MAGAZINE yenye risasi, pia kulikuwa na kanzu yq HAMAD s/o yenye rang! nyeupe ambapo qliitwa na kumpa HASSAN! s/o MWANYA ambaye alikuja baadae pale porini hivyo tukawa wanne, fulianza safari tukiwa pikipiki aina ya SunLG yenye rangi nyekundu ambayo ni mali yd JUMA s/o HAMAD MALASI dereva akiwa ni yeye mwenye pikipiki tukiwa wamepakizana wote wanne tukielekea kijiji cha MNYAMBE, bunduki alikuwa amebebq HAMAD s/o MALASI MADL hila tulipo fika eneo la tukio HAMAD s/o MALASI MADl ajinikabidhi Bunduki hili niwalinde eneo la nje ya ghala kwani kulikuwa na wananchi wengi wqliokuwa wakisubiri malipo yao ya mauzo ya korosho, kabla ya kufika ghalani tullmshusha HASSAN s/o MWANYA njiani Hi kupata nafasi ya kubeba peso, pale ghalani Page 42 of 59 walioingia ndani ni HAMAD s/o MALASI MADI na JUMA s/o HAMAD MALASI. Waliingia ndani kwa kuvamia kwani mlango wa ghala ulikuwa wazi qmbapo kulikuwa na wahusika wa c'nama, waliingia ndani walikuwa na mapanga waliyoyaficha katika kanzu zao. Mimi niliendeleg kuwatishia wananchi kwa kufyetua risasi juu iliwqsisogee ene.o la tukio, lakini wananchi waliendelea kuja wenzangu waliioka ndani wakiwa wamebeba kiroba chenye pesa na tulipanda pikipiki tulipoanza kuondoka wananchi waliziba njia ndipo mwenzangu aiisema “nyoosha" akimaanisha niwapige risasi kweli na si kutishia Lena na mimi nilipiga risasi kuelekea walipo ziba njia nilioha mzee mmoja akianguka na wengine kukimbia hovyo na sisi kupata njia ya kupifd. Tulieiekea porini nyundo...Swali: Bunduki mliipatd wapi? Jibu: Tulin unua huko nchini Msumbiji kwa bei ya Tshs 600,000/=Swdli: Je ni nani alikwenda kununua bunduki hiyo? Jibu: ni mimi na Juma s/o HAMAD MALASI kwa kupitla njia ya panya, Swali: Je fedha uliyopafa katika mgao wa wizi ulitumia kufanya nini? Jibu:Nilitumia kwa mafumizi mbalimbali ya kawaida tu kimaisha, Swaii: Je una kitu kingihe zaidi cha kuelezakuhusiana na tuhuma hii, Jibu: sina zaidi haya ndio maeieza yangu I have endeavored to reproduce the cautioned statement of DW4 in order to vividly appreciate the content and context of his confession. As the content of the cautioned statement reveals, DW4 confessed his active participation in the commission of the offence. He was the one who shot the deceased to death in making the escape route clear from their robbery. He even confessed to have contributed to the illegal procurement of the gun from Msumbiji together with DW2. The confession by DW4 is so detailed and explains his culpable role in causing the death of the deceased that upon warning myself on the Page 43 of 59 danger of acting on such confession, I have no flicker of doubt that what he said is nothing but his true active role in killing the deceased. His confession clearly shows the ingredients of the offence of murder in so far as actus reus is concerned and malice afore-thought is inferred. Moreover, the content of exhibit PE7 is corroborated by the testimony of PW3, Athumani Saturn lyonga (PW3) who was the Chairman of the AMCOS and was present at the crime scene on 07/01 /2026. In his testimony, he explained how they were suddenly ambushed inside the godown when dividing money to the branches by people who were holding machete and a gun dressed in Ninja style with long robes. He said there were loads of people and the bullets were shot randomly to disperse people. He heard one of the bandits shouting “ua” and another one responded that he has already shot someone. After shooting a person the noises subdued and three people left in a motorcycle and took the money. It was when he went out, and the deceased shot dead on the chest. His account of the events is exactly the same as the content of exhibit FEZ, Further to that exhibit PE10, a Page 44 of 59 sketch map of the crime scene also confirms the occurrence of the incident as drawn and testified by PW8. That being said, in view of the above principles enunciated by the case law, I proceed to hold that DW4 confessed to have shot the deceased to death. As to the identification of the gun used. The evidence of PW4, PW7 and PW8 which I have already discussed earlier proves that DW4 used exhibit PE3 to kill the deceased. The confirmation of the type of the gun used was confirmed by the testimony of PW4 a ballistic expert and exhibit PEI after being availed exhibits PE5 and PE6 collected from the crime scene by PW8 and eventually confirming that exhibit PE6 were fired from exhibit PE3. The seizure - exhibit PE9(certificate seizure) of exhibit PE3 was done by PW7 after the admission of the presence of such weapon by DW1 and Fakihi, Further-more there is also exhibit PE8 which is the cautioned statement of the 2nd accused (DW2). The same was also challenged by the defence counsel that the accused person was not interrogated on Page 45 of 59 the offence of murder thus the content of exhibit PE8 was written by the police and DW2 was forced to sign it. This line of argument need not detain me because, DW2 testified in chief that he was arrested 16.12.2018 at Muungano Village and he was transferred to Tandahimba Police Station where he stayed until 21.12.2018 when he was taken to Mtwara police. All that time he was not interrogated. He was interrogated for the first time on 28.12.2018. He said he was interrogated concerning his religion and he was only asked about his name, the place he lives and his job. He was tortured and later he was given a paper to sign which he did not know its content. DW2 said he was tortured because they thought he was Al-Shabaab. It goes therefore that being al-Shabaab and allegation of murder are two different offences. Therefore, it out-rightly proves that DW2 was not tortured on the offence of murder which he is charged with. Yet, there is no evidence in court that he was tortured when PW6 recorded his statement. Again, DW2 said he was only asked his name, the place he lives and his job. The question now comes, how did PW6 knew the detailed information concerning his life history contained in exhibit PE8 Page 46 of 59 from marrying his first wife called Rukia Makanyanga whom they were blessed with a son called Ahmad Juma- 10 years old; to the second wife namely Mwajuma Hassan whom they were also blessed with one child called Baidhati Juma- six years old. The content of exhibit PE8 also reveals that DW2 had a third child with Shamimu Ismail named Nuraidi Juma and a fourth child named Suheli Juma whom she had with another woman called Sada Kabunda. It follows that, it is not true that DW2 did not record his cautioned statement before PW6 because he said at the police, he was only asked his name. Otherwise, exhibit PE8 would not reveal all that information of his life. Moreover, at the whole duration of the trial, neither did DW2 nor his advocate challenged the fact that he had four children or even denounced in his examination in chief that his father’s name is not Ahmadi Malasi and his mother’s name is not Sharifa Issa, I therefore find the claim by DW2 that he does not know the content of PE8 is an afterthought. The same was recorded voluntarily, I so find. As to the relevancy of the retracted cautioned statement of DW2, the same principle applies as I have already intimated earlier. The question now comes as to whether the confession Of DW2 is nothing Page 47 of 59 but true and reveals the inculpatory facts of his involved and: a role he participated on the death of the deceased? The repudiated cautioned statement of DW2, exhibit PE8 is detailed on how he was involved in securing an illegal firearm - SMG which they had to contribute money between himself, DW4, DW3 and DW1 and come up with TZS 600,000/-. They purchased the gun for TZS 550,000/-. He said he contributed TZS 200,000/-, DW4 TZS 200,000/-, DW1 TZS 150,000 and DW3 TZS 50,000/-. He thus confessed to own SMG gun AK 47 No. 56065529 and 21 ammunitions together with DW4, DW3, DW1 which he said they got together with the gun and purchased some more from Msumbiji. He said in their group it is DW4 who knows how to use a gun and they have done a number of incidences of armed robbery. One of them being the incident of MNYAMBE - AMCOS LINDI in corroboration with one RASI. He confessed further that those who went to rob the money were himself, DW1, and DW4. DW4 had: a gun and he was riding a motor cycle - SANLG. He explained that it was him and DW1 who went inside and robbed the money while DW4 was outside firing a gun to disperse people. He said Page 48 of 59 they robbed TZS 200,000,000/- which was divided among DW1, DW3, DW4, Hassan Muwanya and RASI. Looking at the content of exhibit PE8 irrespective of the difference in date which he said 2014,1 do not find if to be alarming following their involvement of many other incidences; and it was not an issue of its admissibility; the content of how the incident occurred is exactly as to what was confessed in exhibit PE7 and the testimony of PW3. Exhibit PE8 did not confirm the death of the deceased but the shootings done by DW4 at the scene. Thus, supporting the occurrence of the incident that led to the death of the deceased and his active role. Thus, I also have no flicker of doubt upon warning myself of putting a reliance on such confession that DW2 also participated in the incident of 07.01.2016 that caused the death of the deceased and his active involvement is seen in detail. Thus, inspired by the principles enunciated in the case of Flano Alphonce Masalu @ Singu v. Republic(supra); and Emmanuel Lohay and Another (supra), I proceed to hold that DW2 confessed to have taken an active role and his confession is nothing but true. Page 49 of 59 In furtherance of the above findings, exhibit PE7 and PE8 mentions the active participation of DW1 in the incident from planning the incident of robbery and together with DW2, robbed the money in the warehouse. I agree that it is the testimonies of the co-accused which the law i.e., section 33(2) of the Evidence Act GAP 6 RE 2022 requires corroboration for the court to rely on them to form basis for conviction on other accused persons. In this case, the oral confession of DW1 to PW7 on his knowledge that Fakihi was the custodian of the murder weapon (exhibit PE3) corroborates the confessions of DW2 and DW4 in his involvement of the charged offence. Furthermore, there is also forensic report (exhibit PEI) and the testimony of PW4 which corroborate the confession of DW2 and DW4 on the type of gun used. It also corroborates the oral confession of DW1 which led to the discovery of exhibit PE3. Exhibits PE7 and PE8 also corroborate the oral confession of DW1 that they got the gun from Msumbiji. Before I address the position of DW3,1 also find it important to address the issue of chain of custody in this case. Surely, the evidence is clear that after PW7 seized exhibits :PE3 and PE4, he sent them to Mtwara Page 50 of 59 and handed to armory keeper. Exhibit PE 9 clearly shows the type and serial number of the gun that was seized. It is the same gun that was taken for forensic examination and eventually tendered in court as exhibit. Since it is an object that could in no way be tempered with as its identification by serial number is unique, I see no breakage of the chain of custody. As for the third accused person, Mr. Salumu Hamisi (DW3); I need not waste much time. Of course, his defence is not free of contradictions particularly on his assertion concerning knowing DW1 and DW2 or not. The law is clear that an accused would not be convicted on the weakness of his defence but on the strength of prosecution evidence in proving a case beyond reasonable doubt. Yet still, there is no independent evidence that directly proves his involved to the killing of the deceased person. He was only mentioned by the co-accused in exhibit PE8 to have received money robbed in the incident of 07.01.2016 and contributed money to purchase an illegal gun. Apart from that there is no independent evidence to corroborate exhibit PE8. As already discussed above, in order to rely on the evidence of the co-accused, be it a confession or otherwise to mount a conviction Page 51 of 59 to another accused person, the same must be corroborated by another independent evidence, in so far as the case against DW3 is concerned, there is none. I therefore do not hesitate to find that prosecution failed to prove a charged offence against DW3. Another issue that calls for consideration by this court is the application of the doctrine of common intention provided under section 23 of the Penal Code, Cap 16 RE 2022 that: "When two or more persons form a common intention to prosecute an unlawful purpose in conjunction with one another, and in the prosecution of such purpose an offence is committed of such a nature that its commission was a probable consequence of the prosecution of such purpose, each of them is deemed to have committed the offence". [Emphasis added] The above piece of legislation was clearly explained in the case of Shija Luyeko V. R (2004) TLR 254 that; “(1) That two or more persons, of whom the appellant was one, each formed an intention to prosecute a common purpose in conjunction with the other or other; (2) That common purpose was unlawful; (3) That the parties, or some of them, including the appellant, commenced or joined in the prosecution of the common purpose; (4) That, in the course of prosecuting the common purpose, one or more of the participants murdered the deceased; Page52 of 59 (5) That the commission of the murder was probable consequence." Tailoring the above position of the law and the explanation held in the above cited case, I find it to be in four with the facts of the instant case. The accused persons jointly planned to execute unlawful purpose of robbing the money at Nambahu AMCOS. Each of the accused had a role to play in the commission of the offence. This is exhibited by the weapons carried i.e., machetes and a gun, In the course of commission of the offence, one Selemani Mohamed Nangwalanya (the deceased) was shot dead. It is crystal Clear that the accused persons were prepared to do whatever means necessary to execute their unlawful plan. In that case therefore, there is no degree or distinction on the level of their participation. I subscribe to the holding of the Court of Appeal in the case Nathaniel Alphonce Mapunda and Another V R, [2006] TLR,395 that: “The principle has always been that where a person is killed in the course of prosecuting a common unlawful purpose each party to the killing is guilty of murder”. Moreover, section 22 (a) (b) and (c) of the Penal Code, Cap 16, RE 2022, the law clearly states that each person who actually committed Page 53 of 59 the offence; who does or omits to do any act for the purpose of enabling the commission of the offence; who aids or abets another person in committing the offence; that person is deemed to have taken part in committing the offence and to be guilty of the offence. It follows that the law does not restrict the commission of the offence to the actual doer but to any person who aided and abetted the commission of the alleged crime. For the above reasons therefore, I find that all the accused persons are principal offenders irrespective of their role. Again, I find that the inculpatory facts which the circumstances from which an inference of guilt is sought to be drawn against the accused persons in this case to a form a chain of guilty and conclusive tendency unerringly point towards the guilty of the accused persons. All in all, save for the third accused person namely Salumu Hamisi Lada @ Lipwakala who is acquitted, I find no any other hypothesis than that Ahmad Malasi Madi, Juma Ahmad Malasi© Baluani and Amiri Abdillah Mniyama© Dazigita committed the act of actus reus by killing the deceased namely Selemani Mohamed Nangwalanya. Page 54 of 59 The next issue now is whether the accused persons killed the deceased with malice afore thought. Sections 196 of the Penal Code Cap 16, R.E. 2022 defines murder: "Any person who, with malice aforethought, causes the death of another person by an unlawful act or omission is guilty of murder". Under the provisions of Section 200 (a) of the Penal Code, [Cap. 16 R.E 2022], Malice aforethought is deemed to be established by evidence proving an intention to cause the death of or to do grievous harm to any person, whether that person is the person actually killed or not. Normally it is very difficult to establish an accused person's ill intent or malice aforethought when committing an offence such as murder in the absence of utterances. However, there are various factors to be considered as demonstrated in several cases one of which is the case of Enock Kipela vs The Republic [Criminal Appeal 150 of 1994) [1999] TZCA 7 (10 June 1999), where the Court of Appeal had this to say on malice aforethought: "...usually an attacker will not declare his intention to cause death or grievous harm. Whether or not he had that intention must be ascertain from various factors, including the following; (i) the type and size of the weapon, if any Page 55 of 59 used in the attack; (2) the amount of force applied in the assault; (3) the part or parts of the body the blow were directed at or inflicted on; (4) the number of blows, although one blow may, depending upon the facts of a particular case, be sufficient for this purpose; (5) the kind of injuries inflicted; (6j the attackers utterances, if any, made before, during or after the killing; and (7) the conduct of the attacker before and after the killing," At page 4 of exhibit PE7, DW4’s stated as follows on the killing of the deceased: "Mimi nilienda kuwatishia wananchi kwakufyatua risasi juu Hi wasisogee eneo la tukio, lakini wananchi waliendelea kuja. Wenzangu walitoka nddnl wqkiwa wamebeba kirobachenye peso ha tulipanda pikipiki, tulipoanza kuondoka wananchi waliziba njia ndipo mwenzangu alisema "nyoosha" akimaanishq niwapige risasi kweli na sikutishia fena na mimi nilipiga risasi kuelekea walipaziba njia niliona mzee mmoja akiariguka na wengine kukimbia havyo na sisi kupafa njia ya kupita." Page 56 of 59 It is gleaned from the above paragraph that; the accused persons killed the deceased after seeing that the citizens were trying to block the way to rescue their stolen money. In that regard, the accused persons decided to shoot them randomly for them to escape from the crime scene. Applying the above-referred factors as well as the provision of section 200 (a) of the Penal Code, [Cap. 16 R.E 2022] to the circumstances of this case, it is apparent that the accused persons’ act of being armed with a lethal weapon (gun) in public and shooting the deceased on the sensitive part of the body (chest) while committing robbery; and the bullet penetrated to the 4th spinal cord; to the accused persons fleeing from the crime scene leaving behind the deceased helpless, is a clear manifestation and proof that, they intended to either cause him death or cause grievous harm. There was no justification whatsoever for shooting him after they had stolen their money. Hence the element of malice afore-thought is answered in the affirmative. In the upshot and basing on the above analysis, I find that the prosecution side managed to prove all ingredients of the offence Page 57 of 59 Court: Right of appeal against conviction and sentence fully explained. R.A.Ebrahim Judge 30.08.2024 Order: in terms of section 351 (1) and (2) of the CPA, CAP 20, R.E 2022, Exhibits PE3, PE4, PE5, and PE6 shall remain in the custody of the police and be forfeited and destroyed upon fulfilment of the requisite laws and procgdyres. Judge Page 59 of 59 against the accused persons and thus the offence of murder has been proved beyond reasonable doubt. Therefore, I find them guilty proceed to convict the all three accused persons namely Ahmad Malasi Madi, Juma Ahmad Malasi@ Baluani and Amiri Abdillah Mniyama@ Dazigita respectively for the offence of murder contrary to section 196 of the Penal Code [CAP 16 R.E 2022]. Ordered accordingly. R.A Ebrahim Judge. 30.08.2024 SENTENCE There being no other punishment for the convicted offence and in terms of section 197 of the Penal Code Cap 16, RE 2022,1 sentence all accused persons namely Ahmad Malasi Madi, Juma Ahmad Malasi@ Baluani and Amiri Abdillah Mniyama@ Dazigita to suffer death by hanging. R.A.Ebrahim Judge 30.08.2024 Page 58 of 59