CRIMINAL SESSION NO

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA DAR ES SALAAM SUB REGISTRY AT DAR ES SALAAM CRIMINAL SESSION NO. 61 OF 2022 _________________________ REPUBLIC VERSUS MBWANA SULEIMAN PUGA JUDGEMENT Date of last order: 6th December 2024 Date of Judgement: 30th January 2025 MTEMBWA, J.: The Accused Person herein stands charged with the offense of murder in four counts contrary to sections 196 and 197 of the Penal Code, Cap 16, R.E 2022. In both counts, it is alleged that on 23rd August 2016, at Mbande CRDB Bank area, within Temeke District in Dar es Salaam Region, the Accused Person, together with other persons who are still at large, murdered G.9524 PC TITO, G.9996 PC GASTON, E.5761 CPL YAHAYA and F.4666 CPL KHATIBU. As it can be briefly discerned from the facts, together with other casualties, the deceased persons were police officers employed by the 1 Tanzania Police Force and were stationed at Mbagala Police Station. On the fateful day, both were on call to offer security services at CRDB Bank, Mbande Branch. At the time, while some had just arrived at the Bank for the night shift, some were about to retire from the day shift. While the handover was still in progress, the Accused Person, together with his allies, attacked the police officers who were by then unprepared. According to PW1 and PW2, during the attack, G.9996 PC GASTON, E.5761 CPL YAHAYA and F.4666 CPL KHATIBU were killed instantly by gunshots while G.9524 PC TITO was seriously wounded and immediately rushed to the Hospital. However, soon thereafter, he was also reported dead. The facts reveal further that, during the attack, one AK-47 Gun (Avtomat Kalashnikov), commonly known as an SMG (Sub Machine Gun), and one SAR gun (Semi-Automatic Rifle) were robbed. It could appear that the attack did not end there; the assailants also went to a nearby Police Post, Mbande Police Post, and stole one complete police general uniform, including a shirt, a pair of trouser, a belt in national flag colors and a Barret police cap. With the help of the civilians, the bodies were removed from the area of the scene to Muhimbili National Hospital for storage. The Postmortem Examination Reports revealed that the source of death for both deceased 2 persons was severe polytrauma or excessive loss of blood due to multiple injuries as a result of gunshots. Following an investigation, the Accused person was arrested at his home on 11th August 2017. Having been interrogated, he admitted to have participated in the incident. He also led the convoy of police officers to where the exhibits were hidden, including two guns, one SAR (semi-automatic rifle) and an SMG (sub-machine gun), 31 ammunition (bullets), one magazine, 69 wires (electric detonators and detonating cords) and one complete police uniform, including, a Barret police cap, a belt in national flag colors, a trouser and a shirt with staff sergeant badge. The Accused Person pleaded not guilty to the charge. Consequently, the Republic fronted thirteen (13) witnesses and tendered fourteen (14) real and documentary exhibits. The Accused relied on his affirmed testimonies and tendered no exhibit. At the outset, I wish to point out that in Misc. Criminal Application No. 25 of 2022, this Court granted a prayer to conduct the proceedings by hiding the actual identities of the witnesses. Similarly, on 7th August 2024, this Court ordered the matter to proceed in camera, where prosecution witnesses had to adduce evidence in a witness protection box. 3 In the conduct of this matter, the Republic was represented by Mr. Faraji Nguka, Ms. Ashura Mzava and Mr. Erick Shija, both learned senior state attorneys assisted by Mr. Harrison Lukosi and Ms. Nancy Rugaihuruza, both learned state attorneys. The Accused Person enjoyed the service of Mr. Francis Munuo and Mr. Augustino Mariano Mwanyigu, both learned counsels. Before I look into the nitty gritty of the accusations against the Accused, briefly, I will look into the evidence adduced by the parties during hearing. According to PW1, named “P”, on 23rd August 2016, around 19:00 hours at night, he was at Mbagala Police Station. While there, he received a call from one of the police officers who was on duty at Mbande CRDB Bank, who informed him that unknown persons had attacked them. By that time, the informant police officer had managed to escape from the area of the scene and was hiding somewhere. Having been so informed, PW1 gathered his fellow police officers and went to the area of the scene using a private vehicle. Having arrived there, he witnessed three dead bodies belonging to CPL Yahya, CPL Hatibu, and PC Gaston. He was also informed that PC Tito was seriously injured and thus was rushed to the Hospital by civilians. Thereafter, he went to see the police officer, who was hiding somewhere 4 and comforted him. He required him to calm down to explain what happened to him. PW1 continued to testify that on the fateful day, four police officers lost their lives. While at the area of the scene, he was informed of the death of PC Tito, who was initially rushed to the Hospital. He added that at the area of the scene, two guns make AK 47, commonly known as SMG were robbed by the attackers. At a nearby police post, one complete police uniform was also taken. On the same day, he initiated the police case file No. MBL/IR/7541/2016 and handled the same to one of the police officers for further investigation. Cross-examined by the Defense Counsel, PW1 testified that he was one of the police officers to arrive at the area of the scene first. Having arrived there, he saw three dead bodies of the police officers. He also witnessed several bullet shells. The surviving police officer told him that while at the Bank, the police vehicle arrived with other police officers to take over the night shift. While the police officers for the day shift were signing out, those who arrived were shot by attackers. He managed to escape to a nearby House. He was, however, unable to describe to him the physics or identities of the attackers. Re-examined by the learned state attorney, PW1 observed 5 that the Armory keeper knows the serial number of the stolen guns. He was informed of the stolen guns by the surviving police officer and the stolen uniforms from the police officer stationed at Mbande Police Post. P1 testified as PW2. Examined by the learned state attorney, PW2 testified that on 23rd August 2026, he reported at Mbagala Police Station. That evening, he recalled to have been on the roll for a night shift with CPL Hatibu at CRDB Bank at Mbande. As usual, both picked up the SMG guns from the Armory keeper (PW8) and entered the police vehicle to the area of duty and arrived safely. While there, they were attacked by an unknown person, and by then, he was standing near CPL Hatibu. A few minutes later, he saw CPL Hatibu lying down. He also laid down while preparing his SMG to fire back, but it could not. He realized that it was not working properly. The attackers continued to shoot at them, and luckily, he managed to escape from the area of the scene to a nearby House. While there, he called PW1, who wanted him to wait patiently. He kept waiting while the cracking sounds of bullets were still heard outside, and thereafter, he could not hear anything. PW2 observed further that, after some time, PW1 arrived at where he had been hiding. Together with him, they moved to the area of the scene, 6 and having arrived there, he witnessed the dead bodies belonging to CPL Hatibu, PC Gaston and CPL Yahaya. He then narrated the whole story to PW1. Thereafter, he went back to Mbagala Police Station and handed back his gun to the Armory keeper (PW8). On 24th August 2016, together with PW4, he went back to the area of the scene and again explained to him what had happened on the fateful day. Thereafter, PW4 drew a Sketch Map (Exhibit P2 collectively). PW3, a police officer, was named P2. Examined by the learned state attorney, PW3 testified that on 23rd August 2016, he was repairing his motorcycle in the evening at Mbande area near CRDB Bank. While there, a police vehicle make Leyland Ashork registered as PT 38889 with police officers arrived. One of the police officers got out of the vehicle and he was shot instantly by the attackers. Another one also got out of the vehicle and was also shot. His SMG gun was left unattended near a trench and he picked it up. Having done that, he prepared it to shoot back, but it was not working properly. Having failed to use it, he stayed low with it. While there, he witnessed another police officer being shot by the attackers. Examined further, PW3 testified that, having attacked the police officers, the attackers disappeared, heading to Mbande Police Post by 7 Motorcycle. Thereafter, he came out of the trench where he was hiding, went near the police vehicle and witnessed three dead bodies belonging to the police officers. One of the police officers was not dead but was seriously injured and was rushed to the Hospital by the civilians. The Police Vehicle had gunshot holes and the front windscreen was also pierced. He picked up the Radio call from the Police vehicle and informed the control room of the attack. The control room promised to bring other police officers for help and indeed, a few minutes later, other police officers arrived at the area of the scene. He handed the gun (SMG) to the police vehicle driver and explained everything to Afande, including the fact that the attackers were male in gender. Cross-examined by the Defense Counsel, PW3 admitted to have not described the attackers' attire or their physics. He also admitted not to know the deceased police officers because he was not working with them at the same Police Station. Due to the memory lapse, he could not identify the attacker in Court. P16 testified as PW4. He testified that, on 24th August 2016, he received from PW1 a Police case file No. MBL/IR/7541/2016 regarding a murder incident while at Mbagala Police Station. Having received it, together 8 with PW1, he went to CRDB Bank at Mbande. By that time, no suspect had been arrested. At the area of the scene, he drew the sketch map, and in the afternoon, he accompanied the deceased’s relatives to Muhimbili National Hospital for postmortem examinations. On 11th April 2017, he received information from P9 on the suspects' whereabouts. On 12th April 2017, P9, in association with the task force, arrested the accused. On 13th April 2017 in the morning, He reported at Mbagala Police Station and found the Accused in custody. PW1 then instructed him to record the accused's caution statement. PW4 continued to testify that having been so instructed, he called the Accused from the Cell to an office where there were chairs and a table. By then, the Accused was in good condition with no scars or injuries. Before recording his caution statement, he explained the rights he was entitled to, including the right to have a relative, lawyer, or friend. He agreed to proceed without their presence and signed to that effect. He cautioned him that his statement may be used as evidence in Court against him. He understood and signed. Having prefaced to him as such, he started to record his caution statement from 09:20 to 11:25 hours in the morning. During the interview, the accused admitted to have committed the offense together with his allies. 9 An attempt to tender the Accused’s caution statement was vigorously objected to by the defense counsel, however, having conducted a trial within a trial to determine his voluntariness, the same was admitted as Exhibit P1. PW4 continued to observe that on 14th April 2017, together with P1, they went to the Kisiju area within Mkuranga District to inspect where one SMG gun, one SAR gun, 31 ammunition, 69 explosives, and one police force complete uniform were recovered. He inspected the area and drew the sketch map. On 17th April 2017, while at Mbagala Police Station, he contacted the exhibits keeper (P12) and took one SMG gun, one SAR gun, 31 ammunition and 69 explosives to the Ballistic Officer (P11) at Dar es Salaam for examination. On 20th April 2017 in the afternoon, he collected from him (P11) one SMG gun, one SAR gun, 26 ammunition, 5 fired cartridges, 65 explosives, 4 wires, and a Ballistic Examination Report. Having been handled with the said exhibits, he handled the same back to the exhibit keeper at Mbagala Police Station. He tendered a Sketch Map dated 14th April 2017, drawn at Kisiju within Mkuranga District and a Sketch Map dated 23rd August 2016, drawn at Mbande CRDB Bank and both were admitted as Exhibit P2 collectively. 10 Cross-examined by the Defense Counsel, PW4 admitted to be a police officer working in the investigation department and was employed in 1999. Having recorded the caution statement, the Accused signed it by his name on every page. Cross-examined further, PW4 observed that the accused told him that he had never gone to school but learned how to read and write through other people. He admitted not to be involved in discovering and seizing the mentioned items. He only took them to the ballistic officer as an investigator to ascertain whether they were working properly. In the statement, the accused seems to have led the police officers to where the stolen items were hidden. Re-examined by the learned state attorney, PW4 testified that he was also given a wire from the ballistic officer. At first, he handed to the Ballistic Officer 69 explosives. Later, it was discovered that there were only 65 explosives; the other four wires were not explosives. According to PW5 named P12, he has 17 years of experience working at a forensic bureau and laboratory at the Ballistic Department. He was trained in firearms identification at Chuo cha police Moshi in 2009 and Dar es Salaam Police Academy in 2010. In 2012, he was trained in explosives identification and post-blast courses at the International Law Enforcement 11 Academy in Botswana. In 2014, he was trained in identifying and examining firearms at Forensic Burau in Turkey. His duties included identifying and examining firearms, ammunition, spent cartridges, bullets, explosives, and tools said to have been recovered from various incidents. When discharging his duties, he is guided by section 47 of the Tanzanian Evidence Act, section 205A of the Criminal Procedure Act, Order No. 229 of Police General Orders, and Laboratory Operating Procedure. The authority to examine the firearms is drawn from GN No. 748 of 2022. PW5 recalled being at his duty station on 17th April 2017 when PW4 came from the OCCID office at Mbagala Police Station with the letter and the exhibits, including one SMG gun Caliber 7.62mm, one SAR gun Caliber 7.62mm, 31 bullets Caliber 7.62mm, 65 explosives make electric detonators and 4 detonating cords (1 white and 3 red in colour). Those exhibits were in Azania sulfate bag. The letter asked him to examine whether they were working properly and identify the 69 wires. Having received the exhibits, he registered them as FB/BALL/LAB/65/2017 and signed the dispatch book. Thereafter, he labeled the exhibits as follows: one SMG gun was labeled as K1, one SAR gun K2, 31 ammunitions K3 – K33, 65 electric detonators K34 – K97 and 4 Detonating Cords K98 – K101. 12 Examined further, PW5 testified that, having labeled the exhibits as such, he stored them on the shelves with doors and opened the files for investigation. He observed that they have proper Cupboards at the office to keep the exhibits professionally received from the clients. He is the only one who can access the shelves or cupboards as he keeps the keys. He submitted the file to his superior, who in turn instructed him to examine the exhibits. PW5 then started to examine the exhibits. One SMG gun with Caliber 7.62mm labeled as K1, had no serial numbers. He tried to revive the numbers using the ETCHING Solution but was unsuccessful. He examined it by taking three bullets from 31 ammunitions labeled as K3 – K33 and test- firing them and it worked properly. He got three fired cartridges and labeled them as T1, T2 and T3. One SAR gun with 7.62mm caliber, labeled as K2, had a cut-off buttstock and no senior number. He made a test-firing using two bullets from the remaining ammunition labeled as K3 – K33 and it worked properly. He then got two fired cartridges and labeled them as T4 and T5. He resolved that the exhibits labeled K1 and K2 were working correctly. As to the 69 electric detonators, he discovered that 65 of them labeled as K34 – K97 were explosives-type electrical detonators used in blasting operations. Physically, they have two wires, one negative and the 13 other positive. The other 4 wires labeled as K98 – K101 were detonating cords. He learned that as a ballistic by using a Four Transform Infrared (FTIR) device. Examined further by the learned state attorney, PW5 observed that after examining the exhibits, he enclosed them in the plastic bags, sealed them with the words “Evidence,” dated and signed them. The first plastic bag had 26 remaining ammunition or bullets, having used 5 of them. The second one (the small one) had 3 fired cartilages. The third one had 2 test- fired bullets (fired cartilages). The fourth one had 35 electric detonators. The fifth one had 30 electric detonators. The sixth, seventh and eighth plastic bags had red detonating cords, and the ninth one had a white detonating cord. The plastic bags were covered in non-transparent envelopes, and all were put together with two guns in Azania sulfate bag. PW5 testified that he sealed the plastic bags on 20th April 2017, prepared a Ballistic Examination Report, and handed it, together with the exhibits, to PW4. He tendered the Ballistic Examination Report dated 20th April 2017, referenced as FB/BALL/RAB/65/2017, with Information Register No. MBL/IR/7541/2016 and was admitted as Exhibit P3. Similarly, having determined the objections raised by the defense counsel, one SMG 14 gun with a 7.62mm Caliber labeled as K1 with no serial numbers and one SAR gun with a 7.62mm Caliber labeled as K2, with a cut-off buttstock were collectively admitted as Exhibit P4 collectively. He also tendered the twenty-six (26) ammunitions and five (5) fired cartilages labeled as T1 - T5 were collectively admitted as Exhibit P5 collectively. He further tendered the Sixty-five (65) electric detonators labeled as K34 – K97 were collectively admitted as Exhibit P6 collectively and four (4) detonating cords labeled as K98 – K101 were collectively admitted as Exhibit P7 collectively. Lastly, PW5 admitted that another name for the SMG gun is AK-47. Cross-examined by Defense Counsel, PW5 testified that PW4 was the one who brought him the exhibits for examination. He mentioned the exhibits to be; one SMG gun, One SAR gun, 31 ammunition and 69 explosives, including 65 electric detonators and 4 detonating Cords. Although he signed in the Dispatch Book, he admitted to have not tendered it in Court. He also admitted to have not tendered a letter with instructions to examine the exhibits. He refuted the assertion that the one who seized the exhibits must also be the one to tender them. Although he did not arrest the Accused, he admitted to know that the exhibits were recovered from him. Cross- examined further, PW5 admitted that an uneducated person cannot erase 15 the serial numbers on the Gun. He testified further that the Magazine is part of the SMG gun. However, the magazine had no ammunition/bullets when it was brought to him, although that cannot be traced from his report (Exhibit P3). The learned state attorney did not re-examine PW5. P11 testified as PW6. He is a retired police officer as an exhibit keeper at Mbagala Police Station. He testified that on 13th August 2017, in the afternoon, P9 brought him the exhibits related to the murder incident in the case file No. MBL/IR/7541/2016 and required him to store them. The exhibits included one AK-47 (Avtomat Kalashnikov), commonly known as an SMG, one SAR gun (Semi-Automatic Rifle), 69 detonators, 31 ammunition, and a pair of police uniform (general duty uniforms), including a shirt with a Staff Sergeant badge, one police belt in national flag colors, and one barret cap with the Tanzania Police Force badge. Having received the exhibits, he registered them in PF 186 (Exhibit Register) and assigned them “No. 49.” He then stored them. The exhibits were in the white Azania sulfate bag. He labeled against it as MBL/IR/7541/2016, murder incident; Exhibit Register No. 492017. Inside the suck/bag, he also labeled each exhibit with MBL/IR/7541/2016. 16 PW6 continued to testify that on 17th April 2017, in the morning, PW4 (P16) required the following exhibits for examination by a barrister: one AK- 47 Gun, also known as an SMG, one SAR gun (Semi-Automatic Rifle), 69 detonators, and 31 ammunitions. He required him to sign out in PF16. On 20th April 2017, in the afternoon, while in the office, PW4 returned to him one AK-47, also known as an SMG, one SAR (Semi-automatic rifle), 69 detonators in three groups; 65 tired together known as explosives; 4 tired together (3 in red and 1 in white color) known as detonating cords; 26 ammunitions (5 cartridges stored in two different packages; one package with two and another with three cartridges). Having received the exhibits, he re-registered them with the same entry No. 49. PW6 observed that, from the Barrister, the exhibits were kept in the same Azania white suck/sulfate bag. Inside, the suck, AK-47 and SAR guns were in a transparent nylon. He tendered the following exhibits; Court Exhibits Register (PF 16) for Mbagala Police Station and was admitted as Exhibit P8; One Tanzania Police Force uniform, comprised of a trouser, a shirt, a belt in the national flag color, and a Barrett Police Cap, were collectively admitted as Exhibit P9 collectively. PW6 also identified Exhibit P4 collectively, Exhibit P5 collectively (5 cartridges and 26 17 ammunition) and Exhibit P6 collectively (65 electric detonators and 4 detonating cords. Cross-examined by the Defense Counsel, PW6 admitted to have been informed by the person who brought him the exhibits that they were related to the murder incident. He also admitted to be unaware of the person who is responsible for the exhibits. Cross-examined further, PW6 testified that a complete gun must have a magazine. When the exhibits were handed to him, no suspect had been arrested. His duty was only to receive the exhibits and re-issue them when needed. He admitted not to know the suspect. According to P14, who testified as PW7, she was a medical pathologist at Muhimbili University of Health and Allied Science (MUHAS) and Muhimbili National Hospital (MNH) before retiring in 2016. On 25th August 2016, she was on duty at MNH and was stationed in the mortuary room. While on duty, she was required to examine two dead bodies with the view to establish the cause of death. The first dead body belonged to G. 9524 PC TITO, a male African, and she was informed that he was a police officer. The body was identified to her by the relatives. She examined the physical body and resolved that it had entry and exit wounds. There was a fracture of the right femur of the right leg, thereby causing excessive bleeding and loss of blood. 18 Another wound or injury crashed on the liver. Other multiple injuries were on the right and left arm. Upon further examination, she found a piece of metal resembling a cartridge or bullet, and she handed it to the respective police officer supervising the exercise. PW7 then opened the chest and resolved that there was a lot of blood in it and the stomach. She measured the blood volume, and she got two (2) liters. She resolved that the source of death was due to excessive loss of blood due to multiple injuries. She registered the body as PM 755/2016. After that, she handed the body to the relatives for burial activities. PW7 also examined a dead body belonging to G.9996 DC GASTON, who was also a police officer. The body was entirely bloody, which professionally is known as a “blood-soft body”. She examined the physical body and discovered that there was a wound on his head. There was a fracture on his skull and you could see the brain. Another fracture was on Maxilla and mandible (taya ya juu na chini). The fracture on the Maxilla also caused a fracture in the lower brain vessels, thereby affecting the eyes and nasal systems. There was another fracture on the left hip and a heavy bone fracture. There was also a perforated heart (moyo ulitobolewa). Further, there was an entry of the bullet from the back to the chest through the heart. 19 She also recovered something from the chest like a cartridge that was handed to the police officer. In the end, she resolved that the cause of death was due to severe polytrauma due to injuries caused by gunshots and loss of blood. Having done that, the body was stitched to its usual look, and thereafter, it was handed to the relatives for burial activities. As a matter of keeping records, the body was registered as 754/2016. PW7 tendered the two Reports on Postmortem Examination dated 15th August 2016 for G.9996 DC GASTON and G. 9524 PC TITO and were admitted as Exhibit P10 collectively. Cross-examined by the Defense Counsel, PW7 testified that the first dead body had a piece of metal while the second one had a cartridge and both were handed to the police officer. She recorded the findings on the same day in the register, and later, she prepared the medical reports. Cross- examined further, PW7 testified that the reports were prepared on 17th March 2021 for all deceased persons. They were thus all second originals prepared for the second time. The Police force instructed her through PF99 to examine the bodies, and by then, she had 20 years of experience, which is why she could identify the cartridges in the bodies. 20 P8 testified as PW8. He introduced himself as a retired armory keeper of Mbagala Police Station. Examined by the learned state attorney, PW8 testified that on 23rd August 2016, he was at his workplace in the morning. He recalled to have issued to G.9996 PC Gaston an SMG gun registered as TZPL5185 and another one to G.9524 PC Tito registered as TZPL4331. The two police officers were going to offer security service to CRDB Bank at Mbande within Temeke District in Dar es Salaam Region. In the evening hours, he issued an SMG gun registered as TZPL4639 to F. 4660 CPL Hatibu and another one registered as TZPL5229 to F.8588 PC Rajabu. They were also going to guard CRDB Bank at Mbande Area. The Armory Register was recorded as such. PW8 continued to observe that on the same day, around 18:00 hours in the evening, he received information that the police officers stationed at CRDB Bank at Mbande, day and night shifts, were invaded, and four of them were killed; among them, three had guns. The two guns issued to G.9996 PC Gaston and F. 4660 CPL Hatibu were not returned to the armory except those issued to G.9524 PC Tito and F.8588 PC Rajabu. PW8 tendered an Armory Register (PF No. 200) Volume 2/2016 for Mbagala Police Station and was admitted as Exhibit P11. On 13th April 2017, he recognized one SMG 21 gun (Exhibit P4 collectively) at Mbagala Police Station. He could not identify the other Gun because it had no serio or registration number. Cross-examined by the Defense Counsel, PW8 testified that on 23rd August 2016, he did not issue SAR gun to any police officer. He admitted to have not encountered anyone who stole the SMG gun. He also admitted to have only one SMG gun in the armory with a crack on the smoke stack (Gango la Moshi). The SMG guns given to PC Tito and PC Rajabu were returned at 01:00 hours at night on 24th August 2016. On his part, P17, who testified as PW9, introduced himself as a retired medical officer. In 2016, he worked at Mbagala Hospital within Temeke District. By 2017, when he retired, he had 17 years of experience. Examined by the learned state attorney, PW9 testified that on 23rd August 2016, at night hours, he was at his workplace when P3 came in with PF3. He had an injury on his left arm. Having received him, he dressed his injury and stitched it. The injury was 5 millimeters deep. After that, he prescribed the medicine for him to use and filled in the Medical Examination Report (PF3), which was tendered and admitted as Exhibit P12. P9 testified as PW10. He introduced himself as a police officer stationed at Mabagala Police Station in 2017. On 24th August 2016, he was 22 at his duty station when the OC-CID handed him a police case file No. BL/IR/7541/2016, regarding the murder incident. By then, no suspect had been arrested. With his team, he started to investigate the issue. The incident happened at CRDB Bank, Mbande branch, where four police officers were murdered. On 11th August 2017, in the morning, while at Mbagala Police Station, the secret informer informed them that one of the suspects was at Mbagala Kongowe. Quickly, they moved to the suspect’s house at Kongowe and were able to arrest him. The suspect was known by the name of Omary Mpili. Having detained him, they took him to Mbagala Police Station for custody. During an interview, he denied the accusations and as such, they resolved to detain him for further investigation. Later, however, Omary Mpili mentioned Mbwana Selemani Puga (the Accused) as one of the suspects involved in the incident. On 12th April 2017, around 23:00 hours at night, they went to the Accused’s Home led by Omary Mpili, and after arriving there, they arrested him. Having arrested him, PW10 searched his house, and he could not find anything connected to the crime. In an interview, the Accused told them that the weapons used in the murder incident at CRDB Bank, Mbande Branch, were hidden at Kisiju area within Mkuranga District in the Coast Region. 23 Having been informed as such, they went back to the Police Station and took police vehicles to the named area being led by the Accused and arrived there on 13th April 2017 at 01:30 hours at night. Having arrived there, they parked the vehicle alongside the road and walked to the interior. Examined further, PW10 testified that, within the cassava farm, there was a Hut (Nyumba ya Msonge), and no other Houses around the area could be traced. The Accused informed PW10 that the Hut is mainly used when the attack mission is completed. The accused walked five paces from the Hut and told them that some weapons were hidden/buried underground. He then unearthed the soil and unveiled one SAR gun (semi-automatic rifle) and an SMG gun (sub-machine gun). He also unveiled from the hole 31 ammunition (bullets) and one magazine. Afterward, the Accused moved six paces and unearthed 69 wires from the hole. Thereafter, he walked five paces and unearthed one Barret police cap, a belt in national flag colors, a trouser, and a shirt (general duty uniform) with a staff sergeant badge. The shirt had a name on it. With the above-mentioned exhibits, PW10 prepared a certificate of seizure, which he and the accused signed. A Certificate of Seizure dated 13th April 2017 was admitted as Exhibit P13. 24 PW10 identified the Accused in the dock. Having seized the exhibits, they returned to Mbagala Police Station, where he called P10 to identify the police uniforms. He did that because the police shirt had his name. In the end, P10 identified the police uniform as belonging to him. PW10 also called PW8 (P8), the armory keeper, to identify the SAR and SMG guns. Ultimately, he could only identify one SMG gun and failed to recognize the SAR gun. After that, PW10 called PW6 (P11), an exhibit keeper, and required him to keep the exhibits. On 14th April 2017, they went back to the area of the scene where PW4 (P16) drew a sketch map while directed by the Accused. Lastly, PW10 identified in Court Exhibit P4 collectively (SMG and SAR guns), Exhibit P5 collectively (5 cartridges and 26 ammunitions), Exhibit P6 collectively (65 electric detonators), Exhibit P7 collectively (4 detonating cords) and Exhibit P9 collectively (full police uniforms). Cross-examined by the Defense Counsel, PW10 admitted to have 19 years of experience as an investigator. He also admitted not know where Omary Mpili is but he was arrested on 11th April 2017. He did not know when he was released. He was the one who informed them of the Accused to be the one responsible for the CRDB Bank Mbande incident. He denied being an investigator in this case. Cross-examined further, PW10 observed that 25 there were six police officers at the time of arresting the Accused person. They seized from him a SAR and SMG guns. He added that they started a journey from the accused's home to Kisiju at approximately 23:50 hours and arrived there at 01:30 hours at night. From there, they arrived at Mbagala Police Station at 08:00 hour in the morning. He also admitted that the SAR gun had no registration numbers. No village leader was around at the time of the seizure since it was an emergency search. The accused signed the certificate of seizure with his thumb and name. Re-examined by the learned State Attorney, PW10 testified that the register book for Omary Mpili is unnecessary in this case, which is why he did not tender it. When they searched the accused, no street leader was present; only police officers were there. P3 testified as PW11. He introduced himself as a businessman. While at his workplace on 23rd August 2016, at around 19:15 hours in the evening, he heard gunshots around the area. Listening to that, he ran away and hid in the nearby toilet for his safety. After that, he felt like being injured on his left elbow. Examined further, he testified that the cracking of bullets persisted for ten minutes and he could not tell where they were directed to. After 15 minutes, he went outside to seek medical assistance and the area 26 was crowded. He went directly to Mbagala Police Station, where he was issued with PF3 (Exhibit P12). Having been so issued, he went to Mbagala Rangi Tatu Hospital, where the wound was stitched. He knew they were gunshots because he used to see police officers at the nearby Bank testing their guns, so he was familiar with the sounds. Cross-examined by the Defense Counsel, PW11 admitted not to see the attackers. Next to testify was P10, who testified as PW12. He introduced himself as a retired police officer. Before retiring in 2019, he was a police officer in charge at Mbande Police Post. He testified that, on 23rd August 2016, he was at his workplace and in the evening hours, he handled the post to P7 in the evening and went home. While at home, P7 called and informed him of the invasion at CRDB Bank, Mbande Branch, near Mbande Police Post. Having been so informed, he went to Mbande Police Post to see what was happening. Having arrived there, the post was so crowded. He inspected the environment, but he could not see anything. Having entered the police post, he discovered that everything was not in the usual position. He also discovered that his uniforms were stolen from his office. He then went to CRDB Bank, Mbande Branch, to see what happened. Having arrived there, he saw three bloody dead bodies lying on the ground. He discovered that 27 the bodies belonged to male police officers. While there, he was informed that one of the police officers was seriously injured and was rushed to the hospital. PW11 testified further that on 13th April 2017, he was called by PW10 (P9) to appear at Mbagala Police Station to identify his uniforms. Having arrived there, he identified the uniforms stolen from his office, including, a barrett police cap with a police force crown, a belt in the national flag colors, a pair of trouser and a shirt with his rank and name. He identified Exhibit P9. Cross-examined by the Defense Counsel, PW11 admitted not have filed a loss report. He also admitted that he did not know the attackers. P13 testified as PW13. He introduced himself as a retired pathologist at Muhimbili National Hospital and a lecturer at Muhimbili University of Health and Allied Science (MUHAS). By 2016, he had more than 20 years of experience. Examined in chief by the learned state attorney, PW13 testified that on 24th August 2016, in the morning, he was at his workplace, Muhimbili National Hospital, stationed to examine the causes of death. While there, he was called to the mortuary room to examine two dead bodies belonging to the police officers, identified to him as CPL Khatibu and CPL Yahaya. In the 28 room, there were the deceased’s relatives and police officers. Having been so identified, he then started to examine the bodies. PW13 continued to observe that he first examined the body belonging to CPL Khatibu. He examined the physical appearance first and discovered that it had gunshot wounds on the right shoulder and at the back and blood was oozing from the mouth. He then opened the body to examine what was inside and having done that, he found a wound/injury on the lungs (laceration) and there was also abdominal bleeding on the chest. He resolved that the cause of death was due to gunshot wounds. Then, he filled in the Post mortem Book. PW13 also examined the dead body belonging to CPL Yahaya. He first examined the physical body and discovered that there were gunshot wounds on the thighs and abdomen. After that, he opened the body to look at what was inside and found that there were wounds/injuries on the lungs (laceration). There was also abdominal bleeding on the chest. In the end, he resolved that the cause of death was due to gunshot wounds. He then filled in the post-mortem Book. Examined further, PW13 testified that the two dead bodies belonged to male Africans. He was able to know that the injuries were due to gunshots because bullets caused entrance and exit wounds. The entrance wound is 29 typically round and the exit wound is rougher and bigger than the entrance wound. On 26th August 2016, he filled in the Postmortem Examination Reports for CPL Hatibu and CPL Yahaya and retrieved information from the postmortem book. He tendered the Postmortem Examination Reports for F. 4660 CPL Khatibu and E.5761 CPL Yahaya, both dated 26th August 2016 and were admitted collectively as Exhibit P14 collectively. That was the end of the prosecution evidence. Having reviewed the evidence adduced by PW1, PW3, PW4, PW5, PW6, PW7, PW8, PW9, PW10, PW11, PW12, PW13 and Exhibits P1, P2 collectively, P3, P4 collectively, P5 collectively, P6 collectively, P7 collectively, P8, P9 collectively, P10 collectively, P11, P12, P13 and P14 collectively, I was satisfied that a prima facie case to answer was established by prosecution warranting the Accused Person to enter his defense. He was, therefore, addressed in terms of section 293 (2) of the Criminal Procedure Act, Cap 20, R.E 2022. Having so addressed, the accused person was ready to give evidence on affirmation as hereunder. MBWANA SULEIMAN PUGA, the Accused, testified as DW1. He introduced himself as a shopkeeper at Mbagala Zakhiem in Dar es Salaam Region. Examined in chief by the learned Defense Counsel, DW1 testified 30 that on 23rd August 2016, he was at his workplace from 06:00 hours in the morning to 22:00 hours at night. On 11th April 2017, he was at his workplace from 06:00 hours in the morning to 22:00 hours at night. On 12th April 2017, he woke up and went to the shop. At around 19:00 hours at night, he went back home. While at home, he received a visitor, Athuman Omari Usonzo, his aunt’s son. At around 20:00 hours at night, the door was knocked and he opened it. Having done that, he realized that the police officers were outside his House, one of whom was Haridi. They arrested both of them and were taken to Tazara Police Station and remanded in different cells. He knew it was a police station because there was a national flag and other police officers. On 13th April 2017, at around 12:00 hours in the afternoon, one police officer came to him with papers. He did not introduce himself to him. The papers were already written on. He forced him to sign the papers but he refused. He was then beaten twice on his left and right leg. There, police officers took his thumb, inserted it into the ink, and affixed it to the papers by force. On 14th April 2017, he was taken to Kilwa Road Hospital, where he was treated. He was then injected and given some anti-aging drugs and thereafter, he was taken back to Tazara Police Station. 31 On 26th May 2017, in the morning, he was taken to Temeke District Court before Hon. Mwaikambo. He was mixed up with four other people he did not know before. While there, a charge of murder was read over to them and they were not required to answer anything because the Court had no jurisdiction. On 7th April 2022, they were called at Temeke District Court, where nolle prosequi was entered in favour of the four co-accused persons. He admitted not to know where Athuman Omary Usonzo is. DW1 testified not to be aware of the murder incident that happened on 23rd August 2016 at Mbande CRDB Bank. He resisted to know Omary Issa Mpili. He only came to know him on 26th May 2017. He also denied to know all the exhibits tendered in Court during hearing. Lastly, he implored this Court to consider his defense and set him free to join his family and friends. Cross-examined by the learned State Attorney, DW1 admitted to be aware that his caution statement was tendered in Court. He told the Court that he was beaten and forced to sign it. He insisted that the Caution statement was already written on. Although DW1 maintained that he is illiterate, having been given a blank paper, he could correctly write “11” and “12”. Cross-examined further, DW1 admitted that PW10 tendered the certificate of the seizure (Exhibit P13) without objection and that he did not 32 discuss or say anything about it during examination in chief. He also admitted to have not disputed by cross-examination the allegation that he directed the police officers to where the guns, ammunition, detonators, and police uniforms were hidden. Lastly, he admitted to have signed the caution statement on 9th August 2024 and disputed the assertion by the defense counsel that he did not. It was very unfortunate that there was no re- examination. That marked the end of the defense evidence. Having given it thoughtful attention, I ordered parties to file final written submissions on or by 6th January 2025. I passed through the records and noted that only the Republic complied with the order. I will, therefore, discuss briefly the Republic's final submissions. Having prefaced on what transpired, giving rise to the accusations, the learned state attorney submitted that in murder cases, it must be proved that the death was unnatural, as a result of an unlawful act by the accused person, with the intention to deliberately cause death (Malice aforethought). As to whether the deaths of the deceased persons were unnatural, the learned state attorney relied on the testimonies of PW7 and PW13, the Pathologists who examined the deceased bodies. He also placed reliance on 33 Exhibits PIO and P14 collectively (Postmortem Examination Reports). It was submitted further that the Accused never cross-examined PW7 and PW13 on the cause of death, and as such, the facts were deemed to have been accepted. He referred this Court to the case of Kadili Ally vs. Republic (Criminal Appeal No.99 of 2020) [2022] TZCA 62 (24 February 2022). Regarding whether the death was a result of an unlawful act by the accused person, the learned state attorney observed that, affirmatively, the death of G. 9524 PC TITO, G. 9996 PC GASTON, E. 5761 CPL YAHAYA and F. 4666 CPL KHATIBU were as a result of unlawful act by the accused person and others who are still at large. It was added further that prosecution depends heavily on the accused person's oral and written confession. During the hearing, the oral confession was not controverted during cross- examination when PW10, before whom it was made, was testifying. In the confessions, the accused person confessed and explained in detail how he was involved in committing the offense charged. The same was corroborated by circumstantial evidence of PW10, who testified on how they acquired secret information and how the accused was arrested. 34 Stretching further, the learned state attorney argued that the confession is corroborated by the evidence of prosecution witnesses to the effect that the accused person voluntarily led to the discovery of a Sub Machine Gun (AK47), commonly known as SMG, which is among the guns stolen on a fateful day; SAR gun together with other articles including, full Police Uniform stolen at Mbande Police post, 31 ammunitions, 65 Electric detonators and four (4) detonating cords. The exhibits were recovered at Kisiju village within Mkuranga District in Coast Region. In addition, the learned state attorney observed that the oral confessional referred to above was made before the police officer. To fortify, he cited the case of Joseph Thobias and 2 Others vs. Republic, Criminal Appeal No. 296 of 2019, Court of Appeal of Tanzania at Shinyanga (Unreported), where, having discussed the admissibility of oral evidence made before police officers under section 3 (1) (a) of the Evidence Act, the Court observed that an oral confession made by a criminal suspect is admissible and may be used to convict an accused person. To buttress further, he cited the case of Posolo Wilson @ Mwalyengo vs. Republic, Criminal Appeal No. 613 of 2015, Court of Appeal of Tanzania at Mbeya. 35 Apart from oral confession, the learned state attorney also addressed on the written confessional statement, which was repudiated and retracted by the accused person. It was admitted in evidence after a trial within a trial was conducted. He observed that it is trite that in criminal cases, the best evidence to be relied on is that of the accused person who freely confesses to the commission of the offense. He referred this Court to the decision of Ally Mohamed Mkupa vs. Republic, Criminal Appeal No. 2 of 2008, Court of Appeal (Unreported). In view of the above, the learned state attorney relied on the testimony of PW1, who testified that, on a fateful day, he assigned the deceased and other police officers to offer security service to Mbande CRDB Bank and later in the evening, he was informed that they were attacked and four of them were killed. PW2, the survivor, managed to run away during the attack. During the attack, PW3 was around the scene of the crime and witnessed an attack. He managed to pick up the gun left unattended and later handed it to the police officer. PW4 was among the investigators who drew a sketch map of the crime scene (Exhibit P2 collectively). He also recorded the confessional statement of the accused person, who voluntarily admitted to have committed the offence charged. The same was admitted as Exhibit P1. 36 In addition, he collected the seized exhibits to the forensic laboratory for examination. The learned counsel also submitted that PW10 testified on how the accused was arrested. On an oral interrogation, he admitted to have committed the offense. He led the convoy of police officers to Kisiju Village, where firearms make SMG (Sub Machine Gun) or AK47 and SAR (admitted as Exhibit P4 collectively), 31 ammunition (admitted as Exhibit P5 collectively), 65 electric detonators (admitted as Exhibit P6 collectively), 4 detonating cords (admitted as Exhibit P7collectivelly) and one pair of Police uniform (admitted as exhibit PE collectively) were recovered. The exhibits were seized and the certificate of seizure was admitted without any objection as Exhibit P13. Later, the seized firearms were taken to PW5 for examination, and a report thereof was tendered and admitted as Exhibit P3. The learned counsel was of the view that the confessional statement of the accused person contained nothing but the truth. He cited the case of Michael Mgowole & Another vs. Republic, Criminal Appeal No. 205 of 2017, Court of Appeal of Tanzania at Iringa, where the decision in Ibrahimu Yusufu Calist @ Bonge and 3 Others vs. Republic, Criminal Appeal No. 204 of 2011 (Unreported), was also considered. 37 The learned state attorney considered the inability not to object to the tendering of Exhibits P13, P8, P4 collectively, P5 collectively, P6 collectively, P7 collectively and P9 collectively a sign of acceptance. He cited the case of Eupharacie Mathew Rimisho t/a Emari Provision Store & Another vs. Tema Enterprises Limited & Another, Civil Appeal No. 270 of 2018, Court of Appeal of Tanzania at Dar es Salaam (unreported), where it was observed that the contents of an exhibit which was admitted without any objection from the appellant, were effectually and proved on account of failure to object at the time of its admission in evidence. In view of the foregoing, the learned state attorney observed that the prosecution managed to prove its case against the accused person to the required standards acceptable in law. He cited the case of Sophia Seif Kingazi vs. Republic, Criminal Appeal No. 273 of 2016 (unreported), whereas the case of Capt. Lamu & Another vs. Republic, Criminal Appeal No. 145 of 1991 (unreported) was quoted with approval. He also cited the cases of Chandrankat Joshubhai Patel vs. Republic, Criminal Appeal No. 13 of 1998 and Republic of Kenya vs. Jane Muthon Mucheru & Another, High Court of Kenya, Criminal Case No. 45 of 2018 (unreported). 38 Before he penned off, the learned counsel addressed this Court on whether the defense cast any doubt through cross-examination and the defense evidence. He chose to examine Exhibit P1 (the caution statement) and observed that this Court determined its voluntariness during trial within a trial and was accordingly admitted. During cross-examination, the accused person agreed to have signed the caution statement and refuted the allegations by his defense counsel that he did not. The learned counsel was surprised by the failure by the defense to cross-examine PW4, who cautioned the accused person. He considered such failure as a sign of acceptance of the facts. He referred this Court to the decision of Nzwelele vs. Republic, Criminal Appeal No. 140 of 2020, Court of Appeal of Tanzania at Mwanza (unreported). The learned counsel was not amused at all by the Accused’s attack to the confessional statement. He considered the move improper because the same was already cleared for admission by conducting a trial within a trial. He referred this Court to the decision of Nyerere Nyague vs. Republic, Criminal Appeal No. 67 of 2010, Court of Appeal of Tanzania at Arusha (unreported), where it was observed once a trial within trial had been conducted in respect to confessional statement as per section 27 (2) 39 of the Evidence Act, it is not proper the same to be attacked and objected during defense relying on the same grounds already determined otherwise its deliberations by this court becomes functus officio. In view of the arguments and cited authorities above, the learned state attorney implored this Court to find out that the accusations against the accused person had been proved beyond reasonable doubt. As said before, the defense counsel never complied with the order by filing the final written submissions. Having keenly and dispassionately considered the charge, prosecution, and defense witnesses, as well as the final written submissions by the Republic, the question would be whether the offense with which the Accused Person is charged has been proved beyond a reasonable doubt to enable this Court to enter a conviction and ultimately, the sentence. At the outset, I should endorse and recommend the prosecution attorneys and defense counsels' dedicated job toward finalizing this matter. Their professional skills in prosecuting and defending the matter have made my job more manageable and easier than I previously expected. Indeed, in Ahmad Omari vs. Republic, Criminal Appeal No. 154 of 2005, Court of Appeal of Tanzania at Mtwara (unreported), the 40 Court observed that in a criminal case, the prosecution bears the burden of proof and the standard of proof is beyond reasonable doubt. This is in accord with section 3(2) (a) of the Evidence Act (supra). In the famous case of John Makolobela Kulwa Makolobela & Another alias Tanganyika vs. Republic (2002) TLR 296, the court noted as follows; A person is not guilty of a criminal offence simply because his defence in not believed; rather, a person is found guilty and convicted of a criminal offence because of the strength of the prosecution evidence against him which established his guilty beyond reasonable doubts. According to the Charge, the Accused Person herein stands arraigned for the offense of Murder contrary to Sections 196 and 197 of the Penal Code (supra). In Chacha Ghati @ Gibita vs. Republic (Criminal Appeal No. 682 of 2020) [2024] TZCA 299 (3rd May 2024), the Court had this to say; We have earlier on stated that the appellant was convicted of murder and sentenced to death by hanging. In murder cases, the prosecution was required to prove beyond reasonable doubt the following: One, there was death of a human being. Two, the death was unnatural. Three, the accused participated in causing the death of the deceased and four the killing was actuated with malice aforethought. 41 It follows, therefore, that in murder cases, the prosecution must establish to the satisfaction of the Court that a human being died an unnatural death and that the accused is the one who caused it with malice aforethought. To appreciate the evidence adduced before this Court, I will first look into whether the deceased persons died and if so, whether the deaths were unnatural. According to PW1, on 23rd August 2016, around 19:00 hours at night, he was at Mbagala Police Station. While there, he received a call from PW2 who informed him that unknown persons had attacked them at Mbande CRDB Bank. By then, PW2 had managed to escape from the area of the scene and was hiding somewhere. Having been so informed, he gathered his fellow police officers and went to the area of the scene using a private vehicle. Having arrived there, he witnessed three dead bodies belonging to CPL Yahya, CPL Hatibu, and PC Gaston. He was also informed that PC Tito was seriously injured and thus was rushed to the Hospital by civilians, however, he was sadly informed of his death later on the same day. Cross- examined by the Defense Counsel, PW1 testified that he was one of the police officers to arrive at the area of the scene first. Having arrived there, 42 he saw three dead bodies of the police officers. He also witnessed several bullet shells. PW2 was one of the surviving police officers. He testified that on 23rd August 2026, he was on the role call for a night shift with CPL Hatibu at CRDB Bank at Mbande. As usual, both picked up SMG guns from PW8 and entered the police vehicle to CRDB Bank at Mbande, where they arrived safely. Having arrived there, they were attacked. He managed to escape from the scene area to a nearby house while waiting for PW1. After the arrival of PW1, they both moved to the area of the scene, and having arrived there, he witnessed the dead bodies belonging to CPL Hatibu, PC Gaston and CPL Yahaya. According to PW3, on 23rd August 2016, he was repairing his motorcycle in the evening at Mbande area near CRDB Bank. While there, a police vehicle make Leyland Ashork registered as PT 38889 with police officers arrived. He witnessed the police officers being attacked by the attackers. After that, he went near the area of the scene and saw three dead bodies belonging to the police officers. He could not identify them by name because he was not working with them at the same police station. One of 43 the police officers was not dead but was seriously injured and was rushed to the Hospital by the civilians. The same evidence also was given by PW12. PW7 was a medical pathologist at Muhimbili National Hospital (MNH) in 2016. On 25th August 2016, she examined two dead bodies belonging to G. 9524 PC TITO and G.9996 DC GASTON. Having examined the bodies, she resolved that the source of death of G. 9524 PC TITO was due to excessive loss of blood due to multiple injuries. Similarly, she resolved that the cause of death of G.9996 DC GASTON was due to severe polytrauma due to injuries caused by gunshots and loss of blood. The two Reports on Postmortem Examination for the named deceased police officers were admitted as Exhibit P10 collectively. Similarly, PW13 testified as a retired pathologist at Muhimbili National Hospital and a lecturer at the Muhimbili University of Health and Allied Science (MUHAS). He recalled that, on 24th August 2016, in the morning, he was assigned to examine the two dead bodies belonging to the police officers, identified to him as F. 4660 CPL Khatibu and E.5761 CPL Yahaya. Having been so identified, he examined the bodies, and, in the end, he resolved that the cause of death was due to gunshot wounds. He tendered 44 the two Postmortem Examination Reports, which were admitted as Exhibit P14 collectively. Based on the testimonies of PW1, PW2, PW3, PW7, PW12, PW13, and Exhibits P10 collectively and P14 collectively, I am satisfied that G.9996 PC GASTON, E.5761 CPL YAHAYA, F.4666 CPL KHATIBU and G.9524 PC TITO are no longer alive. They are dead. In view of the evidence of PW7, PW13, Exhibits P10 and P14, they died unnaturally. Having so observed, the next issue is whether the Accused Person is responsible for the deaths, and if so, whether the killing was with malice aforethought. That will be the next episode. From the evidence available on record, no eyewitness testified to have seen the Accused Person killing the deceased persons. PW2 and PW11, testified to have not identified the attackers. PW3 testified to have identified the attackers by gender and not faces. He did not even describe their attires and physics. It follows, therefore, that the cause of death is wholly circumstantial. Prosecution heavily relies on the oral confession of the accused before PW4 and PW10 and a retracted Caution Statement. Indeed, as correctly submitted by the learned state attorney, an oral confession made by a suspect before or in the presence of reliable witnesses, 45 be the civilians or not, may be sufficient ground to base a conviction against the suspect (see Posolo Wilson @ Mwalyengo vs. Republic (supra). In the same vein, it is now settled that the very best evidence is of a person who confesses freely and voluntarily to have committed the offence in any criminal is a ground for conviction (see also Ally Mohamed Mkupa vs. Republic (supra). In determining whether or not to base a conviction on the retracted confession, I am also mindful of the everlasting principle stated in Tuwamoi vs. Uganda (1967) EA 84, which was later quoted in Hatibu Gandhi and Others vs. Republic (1996) TLR 12, that a trial court should accept with caution a confession which has been retracted or repudiated or both retracted and repudiated and must be fully satisfied that in all the circumstances of the case that the confession is true. In Hemed Abdallah vs. Republic (1995) TLR 172, among other things, the Court observed that it is dangerous to act upon a repudiated or retracted confession unless it is corroborated in material particulars or unless the court, after full consideration of the circumstances, is satisfied that the confession is true. Guarded by the above position, I will determine whether Exhibit P1 is corroborated by prosecution evidence. 46 According to Exhibit P1 (Caution statement of the Accused person), sometime in August 2016, he was called by Amiri to Kisiju together with Hassan, Shujaa, Ibrahimu Ultule, Mwalami Amiri, Ukewa, Omary Mpili, Mussa Omary Mpili, Mussa Omary Makongwa and Shamte Ally. Having arrived there, he informed them of the duty at CRDB Bank in Mbande against the police officers. He thus instructed them to go and buy Hijabs. On 23rd August 2016, they moved to CRDB Bank at Mbade in the afternoon. They carried Hijabs and firearms, each using a different private transport and met at Mbande Bus Station. Amiri instructed them to wear Hijabs during the attack and meet at Vigozi Camp thereafter. The Caution Statement reveals further that Amiri prepared a Motorcycle make Boxer to be used after the attack. The Accused was given one SMG gun by Amiri and was instructed to stay in a position where the police vehicle would stop. Other co-attackers also stayed in position. At around 18:00 hours in the evening, he saw a police vehicle coming and stayed in position while wearing a Hijab. He then fired at two police officers who, by then, were getting out of the car and instantly fell down. He then fired at the police vehicle driver and he also fell down. He then went closer and picked up two guns from two police officers who were, by then, down. 47 While the attack was on, he ran to Mbande Police Post and took a pair of police uniforms, including a cap and belt. One of his co-attackers came there, and both flew to Vigozi Camp by motorcycle and met Amir. On 24th August 2016, Amir instructed them not to go anywhere. The Caution Statement reveals further that the Accused buried under the soil the SMG gun and police uniforms. Thereafter, Amir instructed them to go back home and come back after one month. Of course, he did not go there because he was at Nyamuhimbo Village by then. On 12th April 2017, at around 23:00 hours at night, he was arrested at Mbagala Kuu by Police officers, one of whom was Inspector Kharid, who wanted to know the whereabouts of the stolen firearms. Having been interrogated, he informed Inspector Kharid to where the stolen firearms could be recovered. On the same night, they went to Kisiju within Mkuranga District and arrived there at around 1:30 at night on 13th April 2017. They had to leave the vehicle along the road as the camp was in the interior. They walked for some minutes and arrived at a certain Hut on the farm. Some sticks were inserted as signs of where the exhibits were buried on the ground. He excavated two firearms, police uniforms including a shirt, trouser, belt, and a cap with police force badge, explosives (detonators) and 31 ammunitions (bullets). Thereafter, 48 Inspector Kharidi prepared a certificate of seizure and he signed it. There was no independent witness because the area is far from other residences. Having done that, they moved from Kisiju at 06:00 hours and arrived at Mbagala Police Station at around 08:00 hours in the morning. A few minutes later, D/CPL Sylvester took him from the cell for an interview. From what I have tried to endeavor herein above and for reasons to be given hereinafter, the Caution Statement (Exhibit P1) by the Accused Person corroborates the testimonies PW1, PW3, PW4, PW5, PW6, PW7, PW8, PW9, PW10, PW11, PW12, PW13 and Exhibits P1, P2 collectively, P3, P4 collectively, P5 collectively, P6 collectively, P7 collectively, P8, P9 collectively, P10 collectively, P11, P12, P13 and P14 collectively. According to PW2 (the surviving police officer), on the fateful day, together with CPL Khatibu (one of the deceased persons), were on the roll to offer security services at CRDB Bank, Mbande Branch. As usual, both picked up SMG from the Armory keeper (PW8) and entered the police vehicle to CRDB Bank at Mbande, where they arrived safely. While there, they heard gunshots, and a few minutes later, he saw CPL Khatibu lying down. He also laid down while preparing his SMG to fire back, but it could not. He managed to escape from the area of the scene to a nearby house and hid there while 49 waiting for PW1. PW2 testified further that having arrived at the area of the scene, he witnessed the dead bodies belonging to CPL Hatibu, PC Gaston and CPL Yahaya. PW2’s testimony corroborates the testimonies of PW1, PW3 and PW12. According to PW3, on the fateful date, he was repairing his motorcycle in the evening at Mbande area near CRDB Bank when a police vehicle make Leyland Ashork registered as PT 38889 with police officers arrived at the Bank. He testified to have witnessed three police officers being shot by the attackers as they were getting out of the vehicle. Thereafter, the attackers disappeared, heading to the Mbande Police Post by Motorcycle. Thereafter, he came out of the trench where he was hiding, went near the police vehicle and witnessed three dead bodies belonging to the police officers. One of the police officers was not dead but was seriously injured and was rushed to the Hospital by the civilians. The Police Vehicle had gunshot holes and the front windscreen was also pierced. He explained everything to Afande, including the fact that the attackers were male in gender. PW12 also testified to have seen the three dead bodies at the area of the scene. He also confirmed that his uniform was stolen on the fateful date. 50 According to PW4, on 13th April 2017, in the morning, he reported at Mbagala Police Station, and by then, the Accused was already in custody. Having been instructed by PW1 and explained to Accused of the rights he was entitled to, he proceeded to record his caution statement. During the interview, the accused admitted to have committed the offense together with his allies. PW4 continued to observe that on 14th April 2017, together with P1, they went to Kisiju area within Mkuranga District to inspect where one SMG gun, one SAR gun, 31 ammunition, 69 explosives, and one police force complete uniform were recovered. He inspected the area and drew the sketch map. On 17th April 2017, while at Mbagala Police Station, he contacted the exhibits keeper (P12) for one SMG gun, one SAR gun, 31 ammunition and 69 explosives to the Ballistic Officer (P11) at Dar es Salaam for examination. On 20th April 2017 in the afternoon, he collected from the Ballistic Officer, one SMG gun, one SAR gun, 26 ammunition, 5 fired cartridges, 65 explosives, 4 wires, and a Ballistic Examination Report. Having been handled with the said exhibits, he handled the same back to the exhibit keeper at Mbagala Police Station. He tendered a Caution Statement (Exhibit P1) and two Sketch Maps (Exhibit P2 collectively). 51 The testimony of PW5 corroborated PW4’s testimony. He testified that on 17th April 2017, PW4 brought to him for the exhibits, including one gun make SMG Caliber 7.62mm, One Gun make SAR Caliber 7.62mm, 31 bullets Caliber 7.62mm, 65 explosives including electric detonators and detonating cords (one white and three red in colour). Thereafter, he labeled the exhibits as follows: one SMG gun was labeled as K1, one SAR gun as K2, 31 ammunitions as K3 – K33, 65 electric detonators as K34 – K97 and 4 Detonating Cords as K98 – K101. He examined the two firearms by test- firing them by using the ammunition or bullets labeled as K3 – K33 and they worked correctly. As to the 69 electric detonators, he discovered that 65 exhibits labeled as K34 – K97 were explosives-type electrical detonators used in blasting operations and the other 4 exhibits labeled as K98 – K101 were detonating cords. After examining the exhibits, he enclosed them in plastic bags, sealed them with the words “Evidence,” dated and signed them. He tendered the Ballistic Examination Report (Exhibit P3), One SAR and SMG guns (Exhibit P4 collectively), the twenty-six (26) ammunitions and five (5) fired cartilages (Exhibit P5 collectively), the Sixty-five (65) electric detonators (Exhibit P6 collectively) and four (4) detonating (Exhibit P7 collectively). 52 According to PW6, on 13th August 2017, in the afternoon, P9 brought him the exhibits related to the murder incident and required him to store them, including one AK-47 (Avtomat Kalashnikov), commonly known as an SMG, one SAR gun (Semi-Automatic Rifle), 69 detonators, 31 ammunition, and a pair of police uniform (general duty uniform), including a shirt with a Staff Sergeant Badge, one police belt in national flag colors, and one barret cap with the Tanzania Police Force crown. Having received the exhibits, he registered them in PF 186 (Exhibit Register) and assigned them “No. 49.” He then stored them. On 17th April 2017, PW4 (P16) requested the same exhibits in the morning and on 20th April 2017, in the afternoon, he returned to him one AK-47, one SAR (Semi-automatic rifle), 69 detonators in three groups; 65 tired together known as explosives; 4 tired together (three in red and one in white color) known as detonating cords; 26 ammunitions (5 cartridges stored in two different packages). He tendered the Court Exhibits Register (Exhibit P8), one complete Tanzania Police Force uniform comprised of a trouser, a shirt, a belt in the national flag color, and a barrett police cap (Exhibit P9 collectively). PW7 and PW13 were medical pathologists at Muhimbili National Hospital (MNH). On 25th August 2016, PW7 examined two dead bodies 53 belonging to G. 9524 PC TITO and G.9996 DC GASTON. Having examined the bodies, she resolved that the source of death of G. 9524 PC TITO was due to excessive loss of blood due to multiple injuries. Similarly, she resolved that the cause of death of G.9996 DC GASTON was due to severe polytrauma due to injuries caused by gunshots and loss of blood. On 24th August 2016, in the morning, PW13 was assigned to examine the two dead bodies belonging to the police officers, identified to him as F. 4660 CPL Khatibu and E.5761 CPL Yahaya. Having been so identified, he examined the bodies, and, in the end, he resolved that the cause of death was due to gunshot wounds. While PW7 tendered the Postmortem Examination Reports for G. 9524 PC TITO and G.9996 DC GASTON (Exhibit P10 collectively), PW13 tendered the two Postmortem Examination Reports for F. 4660 CPL Khatibu and E.5761 CPL Yahaya (Exhibit P14 collectively). PW8 was a retired armory keeper of Mbagala Police Station. He testified that, on 23rd August 2016, in the morning, he issued to G.9996 PC Gaston an SMG gun registered as TZPL5185 and to G.9524 PC Tito a gun registered as TZPL4331. The two police officers were going to offer security service to CRDB Bank at Mbande within Temeke District in Dar es Salaam Region. In the evening hours, he issued an SMG gun registered as TZPL 54 4639 to F. 4660 CPL Hatibu and another SMG gun registered as TZPL5229 to F.8588 PC Rajabu. Similarly, they were also going to guard CRDB Bank at Mbande Area and the Armory Register was recorded as such. At around 18:00 hours in the evening, he received information that the police officers stationed at CRDB Bank at Mbande, day and night shifts, were attacked and four of them were killed; among them, three had guns. The two guns issued to G.9996 PC Gaston and F. 4660 CPL Hatibu were not returned to the armory except those issued to G.9524 PC Tito and F.8588 PC Rajabu. He tendered an Armory Register (PF No. 200) Volume 2/2016 for Mbagala Police Station (Exhibit P11). On 13th April 2017, he recognized one SMG gun (Exhibit P4 collectively) at Mbagala Police Station. He could not identify the other Gun because it had no serial or registration number. According to PW10, on 12th April 2017, around 23:00 hours at night, together with other police officers, they went to the Accused’s Home led by Omary Mpili, and after arriving there, they arrested him. Having arrested him, PW10 searched his house, and he could not find anything connected to the crime. In an oral interview, the Accused told them that the weapons used in the murder incident at CRDB Bank, Mbande Branch, were hidden at Kisiju area within Mkuranga District in the Coast Region. Having been informed as 55 such, they went back to the Police Station and took police vehicles to Kisiju area within Mkuranga District being directed by the Accused and arrived there on 13th April 2017 at 01:30 hours at night. Having arrived there, the accused walked five paces from the Hut and told them that some weapons were hidden/buried underground. He then excavated down the soil and unveiled two guns, one SAR (semi-automatic rifle) and an SMG (sub-machine gun), 31 ammunition (bullets) and one magazine, 69 wires from the hole (electric detonators and detonating cords), one Barret police cap, a belt in national flag colors, a trouser, and a shirt (general duty uniform) with staff sergeant badge. The shirt had a name on it. With the above-mentioned exhibits, PW10 prepared a certificate of seizure, which he and the accused signed (Exhibit P13). At Mbagala Police Station, P10 (PW12) identified the police uniforms. Similarly, PW8 (P8), the armory keeper, identified the SMG gun. On 14th April 2017, they went back to the area of the scene where PW4 (P16) drew a sketch map while directed by the Accused. PW12 corroborated the testimony of PW10. Based on the above, I am satisfied that the prosecution evidence entirely corroborates the Caution Statement (Exhibit P1). It covers the whole incident, from when the attackers planned an attack to when it was fully 56 executed to where the robbed firearm (SMG) and other exhibits were recovered. The Accused also previously admitted and or confessed orally before PW10. The confession led to the discovery of the exhibits at Kisiju within Mkuranga District, including one SMG gun and a complete police uniform that were robbed during the attack. I examined the demeanor of the PW10, and I am satisfied that he was a witness of truth. I find no reason to doubt his testimony because he was coherent, direct, and specific about what happened. He appeared to have been telling the truth and not lies. The defense failed to cast doubt on him through the evidence or cross- examination. I, therefore, find him to be a credible witness. In terms of section 31 of the Evidence Act (supra), the oral confession of the accused before PW10 is relevant in proving the facts of the case. It is settled that an oral confession of guilt made by a suspect before or in the presence of reliable witnesses, be the civilian or not, may be sufficient by itself to ground conviction against the suspect. (See: The Director of Public Prosecutions vs. Nuru Mohamed GuEamrasul, [1988] T.L.R. 82). In Mohamed Manguku vs. Republic, Criminal Appeal No. 194 of 2004, quoted in Posoho Wilson @ Mwalyego vs Republic (supra) and Tumaini Daudi Ikera vs. Republic, Criminal 57 Appeal No. 158 of 2009 (all unreported), the Court insisted that such an oral confession would be valid if the suspect was a free agent when he said the words imputed to him. That means that even where there is such confession, the trial court should still go the extra mile to determine whether the oral confession is voluntary or not. What amounts to an involuntary confession is provided for under subsection (3) of section 27 of the Evidence Act (supra), which provides that: 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. In this case, the Accused confessed orally before PW10, a police officer. He even led the convoy of police officers to Kisiju area, where a number of the exhibits, including an SMG and complete police uniform robbed on the day of the incident, were hidden. From the evidence adduced, I see nothing to enable me to believe that such a confession was involuntary. Thus, the information given by the accused person was relevant to determine the person involved in the killing. Section 31 of the Evidence Act (supra) provides; When any fact is deposed to as discovered in consequence of information received from a person accused of any offence in the 58 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 More so, it is the principle of the law that a confession leading to the discovery of the exhibit related to the offense is reliable. In the instant case, the Accused confession led the convoy of police officers to Kisiju area where a number of exhibits connected to the crime were discovered. In John Peter Shayo and 2 Others vs. Republic (1998) TLR 198 quoted in Tumaini Daudi Ikera vs. Republic, Criminal Appeal No. 158 of 2009 (unreported) the Court observed as that; (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 (ii) As a general rule, oral confessions of guilt are admissible though they are to be received with great caution, and section 27 (1) and 31 of the Evidence Act 1967 contemplates such confessions... Unexpectedly, the defense did not cross-examine PW10 on his vital and incriminating testimonies regarding the accused's oral confession, leading to the discovery of the exhibits. As the learned state attorney correctly alluded to, such inability is a sign of acceptance (see Kadili Ally 59 vs. Republic (Criminal Appeal No.99 of 2020) [2022] TZCA 62 (24th February 2022). Similarly, the Certificate of Seizure (Exhibit P13), listing the items discovered at Kisiju, signed by the Accused person, was tendered without objection from the defense. The accused person did not even dispute signing it. It is now settled that the contents of the exhibit admitted without objection may be used to prove the case if the Court is satisfied of its truthfulness. In Eupharacie Mathew Rimisho t/a Emari Provision Store & Another vs. Tema Enterprises Limited & Another (supra), the Court observed that; it is settled law that the contents of an exhibit which was admitted without any objection from the appellant, were effectually proved on account of failure to raise an objection at the time of its admission in evidence. Apart from his oral confession before PW10, the Accused Person also confessed before PW4. According to PW4, during the interview, the Accused admitted to have committed the offense together with his allies, who are still at large. I examined his manner of giving evidence, including his demeanor, and I am satisfied that he was a witness of truth because he was coherent, direct, and specific on what he was informed freely by the Accused person 60 during the interview. He appeared to have been telling the truth and not lies. The defense failed to cast any doubt on him through evidence or cross- examination. I, therefore, find him to be a credible witness too. The caution statement by the Accused (Exhibit P1), as recorded by PW4, is relevant. First, it acknowledges and corroborates the evidence of PW10 regarding an oral confession made before him, which led to the discovery of the exhibits connected to the murder incident, specifically the SMG and the police uniform, which were robbed on the day of the incident. Secondly, it details and elaborates on relevant information on how the incident was planned and executed. It also details on what happened after the incident, including where the exhibits connected to the crime were hidden. For these reasons I maintain my earlier position that the Caution Statement is corroborated by the prosecution evidence thus relevant. I thus find the confession valid in accordance with the law. I see no reason to hold otherwise, considering the available records. In Michael Mgowole & Another vs. Republic (supra), the Court observed; Second if the confession contains a detailed, elaborate relevant and thorough account of the crime in question, that no other person would have known such details but the maker (See WILLIAM MWAKATOBE v R, Criminal Appeal No. 65 of 1995 (unreported). 61 Third, since it is part of the prosecution case, it must be coherent and consistent with the testimony of other prosecution witnesses, and evidence generally. (SHABAN DAI- JD/ v R, Criminal Appeal No. 28 of 2001 (unreported) - especially with regard to the central story (and not in every detail) and the chronology of events. And, lastly, the facts narrated in the confession; must be plausible. According to the Accused Person (DW1), on 23rd August 2016, he was at his workplace from 06:00 hours in the morning to 22:00 hours at night. On 11th April 2017, he was at his workplace from 06:00 hours in the morning to 22:00 hours at night. On 12th April 2017, he woke up and went to the shop. At around 19:00 hours at night, he went back home. While at Home, he received a visitor, Athuman Omari Usonzo, his aunt’s son. At around 20:00 hours at night, the door was knocked, and he opened it. Having done that, he realized that the police officers were outside his House, one of whom was Haridi. They arrested both of them and were taken to Tazara Police Station and remanded in different cells. He knew it was a police station because there was a national flag and other police officers. DW1 testified further that on 13th April 2017, at around 12:00 hours in the afternoon, one police officer came to him with papers. He did not 62 introduce himself to him. The papers were already written on. He forced him to sign the papers, and he refused. He was then beaten twice on his left and right legs. There, police officers took his thumb, inserted it into the ink, and affixed it to the papers by force. On 14th April 2017, he was taken to Kilwa Road Hospital, where he was treated. He was then injected and given some anti-aging drugs, and thereafter, he was taken back to Tazara Police Station. On 26th May 2017, in the morning, before Hon. Mwaikambo, together with four co-accused persons, a charge of murder was read over to him, and he was not required to answer anything because the Court had no jurisdiction. On 7th April 2022, before the Temeke District Court, nolle prosequi was entered in favour of the four co-accused persons. DW1 denied to be aware of the murder incident that happened on 23rd August 2016 at Mbande CRDB Bank. He resisted to know Omary Issa Mpili. He only came to know him on 26th May 2017. He also denied to know all the exhibits tendered in Court during hearing. Lastly, he implored this Court to consider his defense and set him free to join his family and friends. Cross-examined by the learned State Attorney, DW1 admitted to be aware that his caution statement was tendered in Court, but he was beaten and forced to sign it. He insisted that the Caution Statement was already 63 written on. Cross-examined further, DW1 admitted that PW10 tendered the certificate of seizure (Exhibit P13) without objection and that he did not say anything about it during examination in chief. When PW4 thought to tender the Caution Statement by the Accused (Exhibit P1), the defense counsel preferred objections, which this court resolved accordingly. Similarly, objections relating to the involuntariness of the confession were resolved during trial within a trial. In such circumstances, I can no longer entertain objections relating to involuntariness at this stage. In any case, I am functus officio to my earlier deliberations on the subject (see Nyerere Nyague vs. Republic (supra). The Accused claimed to be illiterate. However, during hearing, having been given a blank paper by the learned state attorney, he could correctly write “11” and “12.” According to the Caution Statement, he did not go to school but knew how to write and read through other means. During cross-examination, the Accused admitted not to have contradicted PW10 on his allegations that he directed the police officers to where the guns, ammunition, detonators, and police uniforms were hidden. Cross-examined further, he admitted not to have objected to the tendering of the Certificate of Seizure (Exhibit P13), listing the items discovered at 64 Kisiju, signed by him. He did not even dispute to have signed it. I have asked myself how if he did not lead the convoy of police officers to the Kisiju area where exhibits were recovered, why then he signed the certificate of seizure. The collective evidence of PW10 and Exhibit P13 support and corroborate the assertion that the Accused was present at Kisiju when the exhibits were recovered. It also corroborates the fact that the said exhibits were recovered from him. In my opinion, the allegations against the Accused by PW10 regarding the discovery of the exhibits connected to the crime in the Accused’s presence went unchallenged. Although the Accused, through his defense counsel, objected to the tendering of the Caution Statement (Exhibit P1), he never disputed its contents, nor did he contradict or dispute the testimonies of PW4, the author. Even if Exhibit P1 was not part of the records, the oral testimony of PW4 would have remained intact and unchallenged. In Shabani Ng'ombe @ Kenyeka vs Republic (Criminal Appeal No. 454 of 2016) [2019] TZCA 607 (3rd December 2019), the Court observed; At any rate, even if we were to agree with the appellant that Exhibit PI was irregularly tendered and admitted, we would only discard it from the record. However, that will leave intact the oral testimony of PW4, the author of the PF3 guided by our previous decision in The Director of Public Prosecutions vs. Erasto Kibwana and 2 65 Others, Criminal Appeal No. 576 of 2016 relied upon subsequently in Thomas Robert Shayo vs. The Republic, Criminal Appeal No. 409 of 2016 (both unreported). As the learned state attorney alluded to, every witness is entitled to credence and his evidence believed unless there are cogent reasons to disbelieve him/her. However, the defense casts no doubt on the prosecution's evidence. The prosecution evidence against the accused was too strong to be deflected by such fanciful and remote possibilities. From what I have tried to endeavor hereinabove, I am satisfied that the prosecution evidence points fingers at the Accused Person to be one of the murderers who murdered G.9524 PC TITO, G.9996 PC GASTON, E.5761 CPL YAHAYA and F.4666 CPL KHATIBU. The testimonies of PW1, PW2, PW3, PW7, PW12, PW13, and Exhibits P10 and P14 reveal that the killing was with malice aforethought due to the manner of execution and the weapon used (gunshots). The commission of the offense, therefore, was proved beyond reasonable doubt, and I thus find him guilty of the offense of murder. In the circumstances, I hereby enter a conviction against MBWANA SULEIMANI PUGA of the offense of murder contrary to sections 197 and 198 of the Penal Code (supra). 66 H.S. MTEMBWA JUDGE 30.01.2025 As far as this case is concerned, my hands are tied by my oath of office to uphold the Constitution and to respect the laws of the land. Considering the import of section 197 of the Penal Code (supra), there is only one penalty for the offense of murder and that is death by hanging. Having entered conviction as such, I hereby sentence MBWANA SULEIMANI PUGA to suffer death by hanging until he dies. I order accordingly. Right of appeal explained. DATED at DAR ES SALAAM this 30th January 2025. H.S. MTEMBWA JUDGE 67