republic vs yusufu ally hutta 4 others 2023 tzhc 23474 15 december 2023

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (IN THE SUB REGISTRY OF ARUSHA) AT ARUSHA ORIGINAL JURISDICTION CRIMINAL SESSIONS CASE NO. 66 OF 2022 REPUBLIC VERSUS YUSUFU ALLY HUTTA..................................... 1st ACCUSED PERSON AMANI MUSSA @PAKASI.............................. 2nd ACCUSED PERSON RAJABU YAKUB ABDALLAH @ IKAPU........ 3rd ACCUSED PERSON ABASHARI HASSAN OMARY......................... 4th ACCUSED PERSON IDD SALUM ABDALLAH................................. 5th ACCUSED PERSON Date of Last Order: 08.12.2023 Date of Judgement: 15.12.2023 JUDGEMENT MAGOIGA, J. The accused persons, YUSUPH ALLY HUTTA, AMANI MUSA @PAKASI, RAJABU YAKUBU ABDALLAH@IKAPU, and ABASHARI HASSAN OMARY (to be referred herein as the 1st, 2nd, 3rd and 4th accused persons respectively in this judgement) stand charged with one count of conspiracy to commit terrorism acts contrary to sections 4(1), (2) i (c) (i) and 27 (c) of the Prevention of Terrorism Act, No. 21 of 2002, seven counts for commission of terrorist acts contrary to section 4 (1), (3) (a) (i) (i) of the Prevention of Terrorism Act, No.21 of 2002 and with the alternative counts to counts 2- 8, for counts 9-15 for attempted murder contrary to section 211 (a) of the Penal Code, [Cap 16 R.E. 2002]. And whereas, the accused persons, IDD SALUM ABDALLAH and SHABAN IDD @ BABA TUNA (to be referred herein in this judgement as the 5th and 6th accused persons respectively) were each charged with one count of harboring of persons who have committed terrorist acts contrary to section 19 (a) of the Prevention of Terrorism Act, No.21 of 2002. The court was informed that on 07th day of July, 2014 at Mizani area within District and Arusha region jointly and together with other persons not in court, the 1st, 2nd, 3rd and 4th accused persons did conspire to commit terrorist acts, to wit: detonating a hand grenade with intention of killing persons at Varna restaurant located at Uzunguni area within city and region of Arusha, an act prejudice to the public safety and by its nature and context may reasonably be regarded as being intended for the purpose of intimidating a section of the public within the United Republic of Tanzania. 2 The court was also informed that on 07th day of July, 2014 at Varna restaurant Uzunguni area within Arusha district in Arusha region, jointly and together with other persons not in this court, the 1st, 2nd, 3rd and 4th accused persons, did commit a terrorist act, to wit: detonating a hand grenade in public gathering at Varna restaurant located at Uzunguni area within Arusha city and region, thereby causing seriously bodily harm to MAHOSA GUPTA, RITHWIK KANDEWAL, MAHAL GUPTA, DEEPAK GUPTA, MANISHA GUPTA, VINOD JAIN SUBASH and PRATEEK JHAVERI, an act which involves prejudice to the public safety and by its nature and context may reasonably be regarded as being intended for the purpose of intimidating a section of public within the United Republic of Tanzania (the subject of 2nd to 8th counts in this suit). In the alternative charges to 2nd to 8th counts inclusive in this judgement, the court was further informed in 9th to 15th counts inclusive that, the 1st, 2nd, 3rd and 4th accused persons on 7th day of July, 2014 at Varna restaurant Uzunguni area within district and region of Arusha jointly and together unlawful attempted to cause death to MAHOSA GUPTA, RITHWIK KANDEWAL, MAHAL GUPTA, DEEPAK GUPTA, MANISHA GUPTA, VINOD JAIN SUBASH and PRATEEK JHAVERI (the subject of 9th to 15th counts). 3 Furthermore, the court was as well informed in the 15th and 16th counts that, on diver dates between 3rd August and 17th September, 2014 at Tandika Makangarawe area within Temeke district in Dar es Salaam region and 3rd August, 2014 and 24th August, 2014 at Magoza village within Mkuranga district in Coastal region, the 5th and 6th accused persons respectively harbored AMANI MUSA @PAKASI and RAJABU YAKUB ABDALLAH @ IKAPU respectively while knowing or having reasons to believed that such persons committed terrorist act to wit: detonating a hand grenade in public at Varna restaurant located at Uzunguni area within district and region of Arusha, an act which involves prejudice to the public safety and by its nature and context may reasonably be regarded as being intended to be for the purpose of intimidating a section of the public within the United Republic of Tanzania. The accused persons pleaded not guilty to the charges of conspiracy, the acts of terrorism, attempted murder and harboring persons who have committed terrorist acts. Committal proceedings and preliminary hearing were conducted whereby the prosecution stated in details all facts and evidence of the case and the accused persons pleaded not guilty to the charges facing them respectively. 4 Briefly, the facts of this case are straightforward that, in the night of 07th day of July, 2014 at around 22.00 hours a big explosion occurred at Varna restaurant situated at Uzunguni area within district and region of Arusha causing grievously harm to MAHOSA GUPTA, RITHWIK KAN DEW AL, MAHAL GUPTA, DEEPAK GUPTA, MANISHA GUPTA, VINOD JAIN SUBASH and PRATEEK JHAVERI who were customers to that restaurant on that fateful night to them. Immediately, the matter was reported to police authorities in Arusha and serious investigations were mounted which, among others, enabled the arrest, interrogations and consequently charging the accused persons for the offences facing them in this court. During investigations, the 1st, 2nd, 3rd and 4th accused persons under caution, admitted in writing to be responsible for the Varna restaurant explosion and its consequences. Equally, the 5th and 6th accused persons under caution, admitted in writing to have harbored the 2nd and 3rd accused persons respectively knowing or having reasons to believe that the said accused persons were involved in terrorism acts. However, during preliminary hearing and during the trial of this suit, all the accused persons denied all charges facing them and strongly retracted/repudiated the alleged cautioned statements for common reason that at the time and place the allegedly cautioned statements were 5 recorded, the accused persons were in different places and as such impossible to make such a confession, hence, calling for full trial. During full trial, at all material time of prosecution case, the Republic was represented by Mr. Shaban Mwegole, learned Principal State Attorney, Ms. Verediana Mlenza, learned Senior State Attorney, Messrs. Nestory Mwenda, Almacheus Apolinary Bagenda, Alawi Miraji, Ms. Witness Mhosole and Ms. Eva Manga, learned State Attorneys. On the other hand of the defense case at all material time, the 1st accused person was represented by Mr. Omar Gyunda, learned advocate, the 2nd accused person was represented by Mr. John Shirima, learned advocate, the 3rd accused person was represented by Mr. Simon Mbwambo, learned advocate, the 4th accused person was represented by Ms. Zalphina Abdallah, learned advocate, the 5th accused person was represented by Mr. Gabriel Rwahira, learned advocate and the 6th accused person was represented by Mr. Joshua Mambo, learned advocate. During trial, the Republic called a total of 17 witnesses and tendered in court a total of 13 exhibits. In its ruling of case to answer or no case to answer, this court found the 6th accused person with no case to answer and entered a finding of not guilty and discharged him from these proceedings. The rest of the accused persons under affirmation fended 6 i ith neither exhibit nor witness to support their defense themselves with neitner exinuit stories. For security reason and given the nature of the offences of terrorism, the names of the witnesses will not be revealed but be referred by numbers as testified. The case for prosecution was opened by P21. P21 under oath told the court that he is medical doctor and specialist in orthopaedic and traumatology at Lutheran Medical Centre @ Selian hospital in Arusha city. P21 told the court that, on the night of 07.07.2014 at around 23:00 hours to 5 am on 08.07.2014 attended seven victims (2 women and 5 men) Asian by origin who had sustained injuries in several parts of their bodies and were bleeding. According to P21, one of the victims was seriously injured of his leg and it was resolved it be amputated one leg because was seriously damaged, others had broken ankles, injuries on stomach and other had injuries in the shoulders and shows the damage was due to blast or explosion and the damages to the four victims were grievously bodily harm. P21 in proof that he attended the victims as a doctor and the extent of damage to each victim attended, tendered in evidence seven PF3s of the victims due to explosion at Varna restaurant which were 7 colleoivelv admitted In evidence without any objection as exhibit Pla- g- The second witness for prosecutions was P19. Under oaths P19 told the court that, in 2014 he was the Assistant Manager of Varna restaurant and on that night of 07.07.2014 was on duty at around 22:00 hours heard a big blast in the restaurant and upon checking found his clients were injured, bleeding and were crying for help. According to P19, he ran to Arusha Regional Commissioner's home to seek help or assistance from policemen who were guarding at his home. P19 went on telling the court that when he returned back to the restaurant, police had arrived and taken care the scene of crime under their management. P19 told the court that he did not know who caused the blast. The third prosecution witness was Pll. Under oath Pll told the court that in 2014 was working as security guard atTTCL properties at Uzunguni area near RC's home. According to Pll, while at his place of work and with the help of security electrical lights that were on at Varna restaurant and not very far from where he was, at around 22:00 hours, saw a motor cycle coming towards Varna restaurant with two people wearing a black­ jackets covering their heads. Pll went on telling the court that, the motor cycle went direct to Varna restaurant entrance, switched off its lights and 8 the passenger alighted motor cycle, and took something from his pocket and threw it towards the restaurant and quickly the motor cycle and the two drove away towards Mount Meru hotel. Pll told the court that he observed all these with the help of security electrical lights that were on at the entrance of Varna restaurant. Pll went on telling the court that, shortly he heard a loud blast and heard people crying for help. Pll went to see and saw many people injured and bleeding who were Asian by origin. Pll did not identify the motor cycle nor the driver and passenger because things happened very fast and it was night. The fourth witness for the prosecution was P27. P27 under oath told the court that he is a police officer with 16 years of experience working with Forensic Bureau and responsible for examination of firearms and ballistic. P27 told the court he is gazetted officer by G.N. 748 of 2022. P27 went on telling the court that, on 14.07.2014, he received a letter from RCO - Arusha and three envelopes brought by P34 from Arusha for its examination to establish whether the said exhibits related to explosions. The said exhibits were safety pin, spring and fragments of the hand grenade. According to P27, after complying with all legal requirements, he examined the said exhibits and concluded that the said exhibits are used in hand grenade explosive. P27 tendered in court exhibit receipt form as exhibit P2. P27 as well tendered in court three plastic bags labelled "A", "B" and "C" containing the safety pin, spring and fragments of the hand grenade as exhibit P3a-c respectively. P27, also tendered in evidence a report of examination of exhibit P3 and same was admitted as exhibit P4. Next witness for the prosecution was P15. P15 under oaths told the court that he is police officer trained and specialized in crime scene management. P15 told the court that on 07.07.2014 he was ordered to manage the scene of crime at Varna restaurant a place where a blast had occurred on that very night. P15 told the court he cordoned off the restaurant with cordoning tape. In the morning of 08.07.2014 P15 visited and in the examining the scene of blast was able to retrieve from the scene of crime safety pin, spring and fragments of the hand grenade which were later sent to Forensic Bureau and managed to identify exhibit P3a-c as the exhibit retrieved from the scene of crime. Next witness for the prosecution was P34. P34 under oath told the court that he was given exhibit P3 and took it to Dar es Salaam Forensic Bureau for examination and returned them to Arusha and managed to identify them in court. According to P34, he handed the said exhibits to Exhibit Manager at Arusha for safe custody. 10 Next witness for the prosecution was P20. P20 under oath told the court that, he is police officer with rank of Superintendent of Police. P20 went on telling the court that, on 09.09.2014 around 19:00 hours together with other police officers led by an informer managed to arrest the 2nd accused person (AMANI MUSA PAKASI) herein at Tandika Yombo at Dar es Salaam who was hiding at the home of the 5th accused person after committing terrorism acts in Arusha. According to P20, on that very night of 10.09.2014, wrote a cautioned statement of the 2nd accused person in Dar es Salaam Central Police station. According to P20, in the cautioned statement which was written in compliance of all legal procedures, the 2nd accused person admitted to be involved in the conspiracy and terrorism acts in Arusha, and in particular, the blast which took place at Varna restaurant and mentioned his fellow co-offenders as Yusufu Ally Hutta, Rajab Yakub Abdallah and Abashari Hassan Omary and that after the incident they ran and went to hide at Chanika, Mkuranga and Tandika Yombo, where he was arrested. The cautioned statement of the 2nd accused person was seriously objected but eventually after trial within trial was cleared for its admission in evidence and was marked as exhibit P5. li Further testimony by P20 was that on 17.09.2014 they managed to arrest IDD SALUM ABDALLAH at Tandika Yombo with the help of the informer. P20 also managed to identify the 2nd and 5th accused persons in court as the persons he arrested. Next witness for the prosecution was P18. Under oath P18 told the court that he is a police officer and was among the team of anti-terrorism officers in the country working in Dar es Salaam. According to P18, on 11.09.2014 led by AMANI MUSA PAKASI (the 2nd accused person) travelled from Dar es Salaam to Kondoa district in Dodoma region and managed to arrest RAJABU YAKUB ABDALLAH® IKAPU (the 3rd accused person), who was hiding after being involved in terrorism acts in Arusha, and in particular, the Varna restaurant explosion which occurred on 07.07.2014. According to P18, after the arrest they travelled to Arusha and arrived in the morning of 12.09.2014. P18 identified RAJABU YAKUB ABDALLAH @IKAPU (the 3rd accused person) in court as the person he arrested at Kondoa. Next witness for the prosecution was P29. P29 under oath told the court that he was a police officer and was working at Criminal Investigation Department Arusha region in 2014. P29 went on telling the court that he was supervising all anti-terrorism teams at regional level and remembers that there were several incidences of bombing in Arusha which were being investigated since 2013 onwards. According to P29, on 12.07.2014 his team was able to arrest Ramadhani Hamad Waziri one of the accused persons they were hunting for being involved in terrorism acts. According to P29, through Ramadhani Hamad Waziri they managed to arrest the 1st and 3rd accused persons. P29 identified the 1st and 4th accused person in court as the persons who were arrested on 12.07.2014. Further testimony of P29 was that while in Dar es Salaam with national anti-terrorism team managed to arrest the 6th accused person at his home. P29 identified the 6th accused person in court. Next witness for the prosecution was P16. Under affirmation, P16 told the court that he is a police officer working with Criminal Investigation Department. P16 told the court that on 12.09.2014 he interrogated the 3rd accused person under caution after following all legal procedures. According to P16, the 3rd accused person- RAJABU YAKUB ABDALLAH© IKAPU in his cautioned statement admitted to be one of the planners and doers of the acts of terrorism at Varna restaurant in the city of Arusha which occurred on 07.07.2014. P16 identified the 3rd accused person in this court as the person he interrogated on 12.09.2014. P16 as well 13 managed to tender under protest the cautioned statement of the 3rd accused person in court after being cleared during trial within trial in evidence as exhibit P6. Next witness for the prosecution was P30. Under oath P30 told the court that he is a police officer and in 2014 was assistant to OC-CID Arusha district. As Assistant to OC- CID, was supervising all police officers under him and doing administration duties and most of the time was acting deputy OC-CID Arusha district. On 07.07.2014 he went to Varna restaurant after being informed that a big blast had occurred to that restaurant and gave some directives, visited the victims at hospital and participated in most of the investigative measures taken including crime scene management, search and arrest of the accused persons, collection of evidence and narrated all incidents and his involvement as leading investigator. In essence, his testimony was that the accused persons who bombed Varna restaurant were Yusufu Ally Hutta, Amani Musa Pakasi, Rajabu Yakub Abdallah© Ikapu, and Abashari Hussein Omari. As to the other two accused persons were charged because with knowledge, they harbored the terrorists who bombed Varna restaurant. Next witness for the prosecution was P9. Under oath P9 told the court that on 22.07.2014 he interrogated the 4th accused person under caution 14 after following all legal procedures. According to P9, the 4th accused person- ABASHARI HASSAN OMARY in his cautioned statement admitted to be one of the planners and doers of the acts of terrorism at Varna restaurant in the city of Arusha which occurred on 07.07.2014. P9 identified the 4th accused person in this court as the person he interrogated on 22.07.2014. P9 as well managed to tender under protest the cautioned statement of the 4th accused person in court after trial within trial in evidence as exhibit P7. Further testimony of P9 was that on 23.07.2014 he interrogated the 1st accused person under caution after following all legal procedures. According to P9, the 1st accused person YUSUFU ALLY HUTTA in his cautioned statement admitted to be one of the planners and doers of the acts of terrorism at Varna restaurant in the city of Arusha which occurred on 07.07.2014. P9 identified the 1st accused person in court as the person he interrogated on 23.07.2014. P9 as well managed to tender under protest the cautioned statement of the 1st accused person in court after trial within trial in evidence as exhibit P8. Next witness for the prosecution was P36. P36 under oath told the court that he is a police officer and while on duty on 07.07.2014 at night was instructed to go to Selian hospital to write the statements of the victims 15 of Vama restaurant and in obedience went to Selian hospital. According to P36, when he arrived there, it was already on 08.07.2014 and was able to record the statements of victims who were Manisha Gupta and Mahal Gupta who were willing because they wanted to get referral and go outside Arusha for further treatment. The said witness statements of the two victims were admitted in evidence without any objection and marked collectively as exhibit P9a-b under the provisions of section 34B of the Tanzania Evidence Act, [Cap 6 R.E. 2022] Further testimony of P36 was that in the morning of 08.07.2014 further directions were given to him to go back to Selian hospital and recorded other statements of the victims. According to P36, on 08.07.2014, managed to record the witness statements of Vinot Subash and Mahosa Gupta. P36 managed to tender the two witness statements of the victims in evidence without protest as exhibit PlOa-b under the provisions of section 34B of the Tanzania Evidence Act, [Cap 6 R.E.2022]. Furthermore, P36 told the court that on 11.07.2014 also managed to record the witness statement of Prateek Jhavel at Selian Hospital in Arusha. P36 managed to tender the witness statement of Prateek Jhavel under the provisions of section 34B in evidence and was marked as exhibit Pll. 16 Next witness for the prosecution was P37. P37 under affirmation told the court that he is a police officer and that on 08.07.2014 was instructed to go to Selian hospital and recorded the witness statements of the victims of the Varna restaurant blast and managed to write the witness statements of Rithwick Kendwal and Deepak Gupta. P37 managed to tender the witness statements of Rithwick Kandwal and Deepak Gupta under the provisions of section 34B of Tanzania Evidence Act, [Cap 6.R.E 2019] as exhibit P12a-b. Next witness for the prosecution was P12. P12 under affirmation told the court that he is a police officer working in CID department Dar es Salaam and that between the night of 17.09.2014 to 18.09.2014 was ordered to write the cautioned statement of IDD SALUM ABDALLAH the 5th accused person in this case. P12 told the court that on 18.09.2014 he interrogated the 5th accused person under caution after following all legal procedures. According to P12, the 5th accused person- IDD SALUM ABDALLAH in his cautioned statement admitted to harbor AMANI MUSA PAKASI the 2nd accused person who was planners and doers of the acts of terrorism at Varna restaurant in the city of Arusha which occurred on 07.07.2014. P12 identified the 5th accused person in this court as the person he interrogated on 18.09.2014. P12 as well managed to tender under protest 17 the cautioned statement of the 3rd accused person in court after trial within trial in evidence as exhibit P13. Next witness for the prosecution was P13. P13 under oath told the court that he is a police officer and works with CID department of police. According to P13 was assigned duties to record the cautioned statement of the 6th accused person in court as the person he recorded his cautioned statement on 25.08.2014 and managed to identify the 6th accused person. However, P13 under protest from defense failed to tender in evidence the cautioned statement of the 6th accused person. And the last witness for the prosecution was P35. P35 under oath told the court that he is the Exhibit Manager of the Police since 2009 to date. P35 went on telling the court how he was handed over exhibit P3a-c for safe keeping and how he handed over the same to P34 to take them to Dar es Salaam for forensic examination and how the same were returned to him and lastly how he handed them to this court for prosecution of this case. This marked the end of the prosecution case and same was marked closed. The accused persons after being addressed under the provisions of section 293((2) of the Criminal Procedure Act, [Cap 20 R.E. 2019] 18 (hereinafter to be referred as CPA)opted to defend themselves under affirmation and none called any witness in support of their case. YUSUFU ALLY HUTTA under affirmation and hereinafter to be referred as 'DW1', at all material time admitted to his names and that he is aware that he is charged with conspiracy, terrorism and attempted murder. DW1 went on telling the court that, he was arrested on 13.07.2014 by police and was taken Kisongo area in a police post known as Matevesi ©Guantanamo. While at that police post was asked of his personal particulars and the whereabouts of Yahaya Sensei. According to DW1, he told the police not knowing such a person and was later moved to Engutoto police post where he stayed till on 01.08.2014 when he was taken to court and charged with several offences but which he was acquitted of. According to DW1, the offences facing him now are framed against him because ever since he was arrested which is more than 9 years, he has never been charged until 24.02.2022 when he was added to this case. DW1 completely denied to have been interrogated under caution on 23.07.2014. DW1 shown the contents of exhibit P8 and he completely denied the whole contents save for few particulars such as names, tribe, religion and gender. In strong terms, DW1 denied to have signed and 19 thumb printed in exhibit P8. As to particulars, DW1 told the court that, P9 is a police officer, who is able to get those particulars from detention register. According to DW1, P9 is liar because he had never been locked up at Arusha Central police. DW1 queried that if he confessed why was he not charged in 2014? DW1 went on defending that exhibit P8 had no case reference number and IR number if at all he was before P9. DW1 denied to have written his names at page 5 of the verification and denied the names Yusufu A. Hutta. Further, DW1 denied to have been arrested on 21.07.2014 and that he was arrested Ngaresaro USA river area in Arumeru district. Furthermore, DW1 denied to bomb Varna restaurant and that on that date he was at Ngusero at USA River. DW1 pointed out that prosecution failed to bring the motor cycles allegedly use in commission of the offence, hence, prosecution failed to prove their case. DW1 asked why he was not taken to justice of peace if at all he confessed. According to DW1, Pll was key witness but nowhere he said he identified him. DW1 denied to know other co-accused persons in this case save that they met when they were charged together on 1.08.2014 for Abashari Hassan Omari and on 24.10.2014 for Amani Musa Pakasi and Rajabu Yakub Abdallah. 20 On the above reasons, DW1 prayed that this court find and conclude that the case for the Republic was not proved at all and consequently proceed to acquit him and set him free. AMANI MUSA PAKASI under affirmation and herein to be referred as "DW2" told the court that he is a thiomi by tribe and was born at Kondoa district in Dodoma region. According to DW2, he was resident of Arusha since 2012 and has been doing business of carrying of people's luggage at Kilombero market. DW2 remembers that on 06.09.2014 was arrested at his uncles' home for reason of showing them where his uncle by the name of Seif was. Not knowing where his uncle was on that day, DW2 was taken to Sakina police post. At Sakina police post, DW2 was asked of his personal particulars i.e names, age, religion and gender. According to DW2, he was then transferred to Matevesi police post ©Guantanamo where again he gave his personal particulars and at all material time the issue was where was his uncle Abdi Seif who was teacher of madrasa (muslim faith). According to DW2, the second day after his arrest was tortured by police and that he sustained injuries on his left leg. DW2 went on telling the court that he remined at Matevesi @ Guantanamo till on 24.10.2014 when he was taken to court and charged with conspiracy, terrorism and causing grievously harm which was PI No. 50 of 2014 which was due to explosion which occurred at Varna restaurant. DW2 denied to know where Vama restaurant is and that what P20 testified was lies. DW2 further denied to be arrested in Dar es Salaam and that he had never been to Dar es Salaam in his life at all. DW2 told the court that no independent witness came to testify that he was in Dar es Salaam on the alleged dates. According to DW2, exhibit P5 was creation of police to fix him up against these charges and completely denied to have been interrogated under caution both at Arusha and Dar es Salaam.DW2 denied to have mentioned his co-accused as stated in exhibit P5 and told the court that he only met them in this case. DW2 also denied to have travelled with the police to Kondoa to arrest the 3rd accused person. As to exhibit P5, DW2 only agrees with the names, religion, and gender but denied other contents in exhibit P5. DW2 pointed out that he has never owned a motor cycle and have never been a driver at all. DW2 went on denying knowing Hamza Kalemera and to have been at Sanawari juu as the Republic alleges that they had conspired. On the above reasons, DW2 urged this court to find and hold that the Republic utterly failed to prove its case and proceed to acquit him of the charges facing him and consequently set him free. 22 RAJAB YAKUB ABDALLAH© IKAPU under affirmation and herein to be referred as "DW3" told the court that he is standard seven leaver and was first born to his family which lives at Mapango village within Chemba district in Dodoma region. According to DW3, he told the court that, he was arrested on 11.09.2014 around 21:00 hours by police and taken to Dodoma Central Police station. At Dodoma Central Police, DW2 told the court that he gave his personal particulars and was later locked up that night. In the morning of 12.09.2014 was transferred to University of Dodoma police post and the oral interrogation was to tell them where Yahaya Sensei was. DW2 went on telling the court that he doesn't know that person and he doesn't know where he was. DW3 denied to have been cautioned at Dodoma other than being asked orally where Sensei was. According to DW3, he stayed at Dodoma Central Police till on 19.09.2014 when he was transferred to Arusha and was put into a police post known as Matevesi @ Guantanamo. At Matevesi, DW3 told the court, still the issue was the same as to whereabouts of Sensei. After two weeks, DW3 told the court that he was transferred to Arusha Central Police station where he gave only his particulars and stayed there till on 24.10.2014 when he was taken to court and charged with three counts of conspiracy, terrorism and causing grievously bodily harm. DW3 denied to have been cautioned at Arusha Central Police. DW3 went on telling the court that he 23 stayed with the former case till on 24.2.2022 when the same was changed and were charged of conspiracy, terrorism and attempted murder. DW3 told the court that P18 is a liar because after his arrest was taken to Dodoma and not Arusha and denied to have travelled with P18 to Dar es Salaam a place he has never been since he was born. DW3 denied that the 2nd accused person led them to their home and the first day he heard of him was on 24.10.2014. DW3 further denied to have been cautioned by P16 on 12.09.2014 because he was in Dodoma on that date. DW3 shown exhibit P6 and told the court that what he recognizes in exhibit P6 are his names, tribe, gender and religion but denied all other contents including signatures and thumb print. DW3 also denied to be called @Ikapu. Equally, DW3 denied knowing his co- accused persons before till on 24.2.2022 when were joined in this case. DW3 denied to have been in Arusha and no way he could conspire to a place he has never been. DW3 denied the allegations that he was the one who gave the bomb to Yusufu Ally Hutta that was used to bomb Varna restaurant. According to DW3, all what was testified by prosecutions witnesses was lies as he has never been to Dar es Salaam to hide at any given time. 24 On the above reasons, DW3 prayed to this court to find and hold that the Republic have utterly failed to prove its case and consequently acquit him and set him free. ABASHARI HASSAN OMARI under affirmation and herein to be referred as "DW4" told the court that he was born at Singida and is an nyiramba by tribe and standard seven leaver. According to DW4, he first came to Arusha in 2013 to his uncle Hamidu Juma who was staying at Sanawari. In 2014, DW4 told the court that he was selling shoes at Sanawari and Arusha city centre. According to DW4, he was arrested on 19.07.204 and was taken to Sakina police post where he was asked of his particulars, which he gave and was put into lock up and stayed there till on 01.08.2014 when he was taken to court and charged with murder which occurred ta Soweto in PI No. 52 of 2014 and PI No. 60 which occurred at Olaisiti and it was through the former charges that he met the 1st accused person herein. As to the current charges, DW4 told the court that he was charged on 24.02.2022. DW4 denied to have been arrested by P29 on 21.07.2014 at Ngasero because he doesn't know the place called Ngasero. DW4 charged that Ramadhani Waziri who assisted police was not called in this case to testify for prosecution. DW4 called P29 as 25 liar and for his failure to bring detention register, the prosecution failed to prove that DW4 was at Arusha Central Police. DW4 denied to have been cautioned by P9 on 22.07.2014 and queried that if it is true, he confessed as alleged in the cautioned statement, then, DW4 could have been charged in 2014 and not 2022. As to the co­ accused, DW4 told the court the he knew them through this case and prior to this case he never knew them at all. DW4 when shown exhibit P7, agreed with names, religion and gender and denied the rest of the contents and denied knowing Sensei at all. DW4 went on denying driving a motor cycle on 07.07.2014 On the totality of the above reasons, DW4 urged this court to find and hold that the Republic has utterly failed to prove a case against him and consequently acquit him from the charges facing him. IDD SALUM ADBALLAH under affirmation and herein to be referred as "DW5" told the court that he was a second-year student at Muslim University of Morogoro when arrested at Morogoro and also a teacher at Murubona secondary school at Kigoma. According to DW5, he was arrested on 11.09.2014 by policemen who told him he should show them where to get Yahaya Sensei. But upon failure to tell them where that person by name Sensei was, he was arrested and taken to Dar es Salaam 26 Central Police station and locked in. DW5 went on telling the court that the next day was taken to Mwenge- a place known as centre for interrogations because many people were being interrogated there. At Mwenge interrogation centre, was asked of his personal particulars and short history and then the main issue was where Yahaya Sensei and that questioning was accompanied with torture and was later taken to Osterbay police station and the interrogation at all material time was where was Yahaya Sensei. According to DW5, he was taken to Arusha on 13.09.2014 and was locked up to Arusha Central Police and no one cautioned him at all both in Dar es Salaam and Arusha. DW5 went on telling the court that he stayed in cell until on 24.10.2014 when he was taken to court and charged of harboring terrorists who were mentioned as Yahaya Sensei and Mohamed Myeke in PI No.74 of 2014. DW5 told the court that he stayed with PI 74 of 2014 till on 24.02.2022 when it was withdrawn and his fellow co­ accused were discharged and he was given the current PI No. 66 of 2022. DW5 denied knowing the 2nd accused person he was charged of harboring but he met him in prison in 24.02.2022. DW5 denied knowing anything to do with Varna restaurant. DW5 went on denying knowing that AMANI MUSA PAKASI is accused of terrorism and harboring him. 27 DW5 also denied being arrested by P20 at Tandika Yombo and that he was interrogated under caution by P12. Further denial by DW5 was that he had never stayed at Tandika Yombo and he owned no house at Tandika Yombo. DW5 told the court that there are contradictions in the prosecution case such as, one, P20 testified that he arrested the 2nd accused person on 09.09.2014 but the charge sheet says DW5 harbored the 2nd accused till on 17.09.2014 and queried how possible to harbor a person who was already under arrest, two, the charge sheet says the 2nd accused person was harbored at Tandika Makangarawe but testimony of P20 says Tandika Yombo, these, according to DW5 are two different places without any useful explanation, three, the dates in the charge sheet shows the same person was harbored by two people at the same time i.e by 6th accused person and by himself which is not possible, and, four, in the cautioned statement exhibit P13 said AMANI MUSA PAKASI was harbored by Abdulmajid Wema and Wema Ismail. In the totality of the above reasons, DW5 urged this court to find and hold that the cautioned statement was prepared by police in order to fix him up for failure to tell them where Sensei was. And, on that same vein invited this court to acquit him and set him free. 28 In the totality of the above, all accused persons denied all the evidence against them and called the charges against them false and were framed against them for reasons known by police. And lastly urged this court to dismiss the charges and set them free. This marked the end of hearing of the defense case. The learned trained minds for parties prayed to file their respective final closing submissions and I granted the prayer. For avoidance long judgement, I will consider their final closing submissions in the course of answering the issues in this case, which are; one, whether on 07.07.2014 occurred a bombing at Varna restaurant situated at Uzunguni in Arusha city? Two, whether the accused persons made the cautioned statements to the police; Three, whether the bombing was done by the 1st to 4th accused persons after conspiring to do so? Four, Whether the 5th accused person harbored the 2nd accused person at Tandika in Dar es Salaam while knowing that 2nd accused person is a terrorist and was hunted by the police for terrorism acts in Arusha, and five, whether the prosecution discharged their unwavering legal burden of proof beyond reasonable doubt that that it was the accused persons who planned and executed bombing of Varna restaurant. .-Ik 29 I truly commend the trained legal minds for the parties in this case for complying with the short period granted to file the final closing submissions and the insightful input on this case. Further, I am grateful to each one who in one way or another made this justice process, came to an end at this level of the court. However, from the reading of the final closing submission of the learned advocate for the 1st, 2nd and 4th accused persons, I noted some new legal issues raised and argued which if considered may prejudice the other side of the case and cause miscarriage of justice. I wish to point out that there is big difference between final closing submissions and written submissions. The latter, is intended to argue and exchange the arguments in turn with the opposite party who will have a chance to reply as such avoid a denial of right to be heard; while the former is meant that everything is okay and parties argue on the basis of what was heard between parties. Notwithstanding the above, I will try to give them legal touch because are legal issues. Before going into in depth analysis of evidence on record and answering the issues raised above, I wish to point out that going by the provisions of section 4 of the Protection of Terrorism Act, Act No.21 of 2002 of which the accused persons are charged with, terrorism is by its nature and context is serious offence with far reaching consequences to the property and life, prejudice to national security and aim at intimidating the public or a section of the public. Therefore, when dealing with terrorism offences, it is imperative, to take in mind the guidance in the case of Sophia Seif Kingazi Vs. Republic, Criminal Appeal No.273 of 2016 CAT (Unreported) at page 28 while quoting with approval the case of Capt. Lamu and another Vs. Republic, Criminal Appeal No. 145 of 1991 (unreported) quoting Miller Vs. Minister of Pensions, [1947] 2 ALL E.R. 372 held as follows: "the law would fail to protect the community if it admitted fanciful possibility to deflect the course of justice if the evidence is so strong against the man as to leave a remote possibility in his favour which can be discussed the sentence of course it is possible but not in the least possible the case is proved beyond reasonable doubt but nothing short of that will suffice." With that in mind and given the nature and context of terrorism, I now consider the evidence on record. Having gone through the evidence for the prosecution and read all exhibits tendered and evidence by defense and having read the final 31 closing submissions by both legal trained minds for parties, of which I repeat to commend both sides for their insightful input on this criminal case, I find the Republic managed to establish by both oral testimonies coupled with documentary evidence that on the night of 07.07.2014, a big blast or explosion by bombing occurred at Varna restaurant situated at Uzunguni area in the city of Arusha and caused grievously bodily harm to Manisha Gupta, Mahal Gupta, Vinod Jain Subash, Mohosa Gupta, Prateek Jhaveri, Rithwik Kandawal and Deepak Gupta herein to be referred as the victims. This is evidenced by the oral testimony of P21, P19, Pll, P27 P15, P29 and P30. Also is the documentary evidence as contained in exhibits Pl, P3, P9, PIO, Pll and P12 proved that on that fateful night at Varna restaurant situated at Uzunguni area in the city of Arusha an explosion occurred which was a result of hand grenade as correctly established by P27 and exhibit P4- the report of the Forensic Bureau Dar es Salaam. Therefore, with the above evidence on record, no doubt that on the night of 07.07.2014 occurred bombing at Varna restaurant, which was calculated and intended to cause injuries or death to the persons who were present at Varna restaurant, intimidate public and cause national insecurity. 32 The defense's cross examination and argument that the owner nor evidence that Varna existed was made out of context, misconceived and misplaced against the evidence on record because P19 was very clear on this point. Moreso, there was no issue of ownership of the same to bring licence and other evidence asked by the defense. This brings this court to answer the 1st issue in the affirmative in this case. Next for determination is 'whether the accused persons made cautioned statements to the police?. Having read the submissions by learned advocates for the accused persons, I wish to deal with the each accused person's cautioned statement and each submission made by defense counsel. I will start with the statement of the 1st accused person- YUSUFU ALLY HUTTA- exhibit P8. Mr. Gyunda learned advocate for the 1st accused person submitted that the cautioned statement of the 1st accused person was written out of the prescribed time of 4 hours since his arrest on 21.07.2014 without extension contrary to section 50(1) (a) of the CPA. On that note, guided by case law in the case of Justine Kakukura Kasusura @ John Laizer Vs. Republic, Criminal Appeal No.175 of 2010 [2016] TZCA 646 (9, May, 2016) and guided by the evidence on record of P29 and P30 that the cautioned statement was recorded on 23.07.2014, was obvious out of time and urged this court to expunge it 33 and proceed to acquit the 1st accused person. Further, Mr. Gyunda argued that interrogation of the accused person for other offences is not automatic right of extension to record a statement out of time. I wish to point out that, this point that the 1st accused person's cautioned statement was taken out of time was not among the reasons, why the 1st accused person objected the tendering and admission of exhibit P8 in the main proceedings. His objection was that he was not at Arusha Central Police station, he has never been cautioned and that signatures on exhibit P8 are not his. On the other hand, the Republic speaking through P29 and P30 gave reasons why the 1st accused person's statement was written on 23.07.2014 that since his arrest he was being interrogated for other offences and there were other pressing investigative steps that were being conducted against the 1st accused person. This legal point has tasked my mind but with due respect to Mr. Gyunda on this point, he is trying to blow hot and cold because you cannot say you were not cautioned and again change and say I was cautioned out of time. But again, I find the learned advocate for the 1st accused person read the law in pieces. The parliament in its wisdom in enacting the provisions of section 50 of the CPA, had in mind that there are circumstances which cannot be possible to interview the suspect within 34 four hours as general rule and without seeking an extension and still be lawful. One of those circumstances are as provided for under sub section (2) of section 50 of the CPA. The said sub section for easy of reference provides as follows: "Subsection (2)- In calculating a period available for interviewing a person under restraint in respect of the offence, there shall not be reckoned as part of the of that period any time the police officer investigating the offence refrains from interviewing the person, or causing the person to do any act connected with the investigation of the offence- (a) while the person is, after being taken under restraint, is being conveyed to police station or other place for any purpose connected with the investigation. (Emphasis mine) Going by the spirit and literal wording of the above sub section is clear and without ambiguity that, what was explained by P29 and P30 falls within the wording of that subsection. The argument, therefore, by Mr. Gyunda that, the statement was taken out of time are but misplaced and misconceived on his part and this makes all cases cited by him to support his line of argument distinguishable from the circumstances of this case. 35 That said, I find this argument not merited in this case and same is dismissed for the cautioned statement was recorded, yes, out of prescribed time as general rule but within the exceptions to the general rule. As to the other issue of corroboration, I will deal with them later when dealing with the fifth issue whether the Republic discharged their legal burden. As to P9 recording two cautioned statements no law was cited which bars a police officer from recording more than two cautioned statements of the accused persons, hence, is dismissed as well. With that note I find that the 1st accused person made his cautioned statement to police and much as no torture or inducement is raised to shake the evidence by prosecution, I find and hold that the 1st accused person was free agent and voluntarily made the cautioned statement to police. The learned advocate for the 2nd accused person in his final closing submissions raised and argued that the whole charge was superfluous for including the offence of conspiracy while the offences of terrorism were enough much as commission of the offence has been complete. In support of his stance, Mr. Shirima cited the case of Hassan Idd Shindo and another Vs. Republic, Criminal Appeal No. 324 of 2018 CAT (Mbeya) (Unreported) quoting the holding in the case of John Paulo 36 Hida Vs. Republic, Criminal Appeal No.335 of 2009 (Unreported) in which it was held that: "it was not correct in law to indict or charge the appellants with conspiracy and armed robbery in the same charge because, as already stated, in a fit case, conspiracy is an offence which is capable of standing on its own." I have had an opportunity to read both cases by the Court of Appeal on this point, but with due respect to Mr. Shirima, learned advocate for the 2nd accused person, the effect is to render the offence of conspiracy superfluous and not the whole charge. Much as other arguments were on merits of the case will be considered along when dealing with the other issues. Suffice to say, at this juncture, it is my finding that the 2nd accused person was cautioned by police as free agent and gave his statement as shown in exhibit P5 at Dar es Salaam Central Police. As to the 3rd accused person denied to have ever been cautioned at all, was not at Arusha Central Police on the alleged date of the cautioned statement and that the signatures and thumb prints are not his in exhibit P6. The Republic maintained that the 3rd accused person was cautioned 37 at Arusha Central Police station and signed the cautioned statement and thumb printed the same. Having impartially considered the denial of the 3rd accused person that he was at Dodoma and distanced himself from signing the said cautioned statement, and in my respective considered opinion, I find the denial is an afterthought on his part because; one, he has never issued any notice of alibi (be it orally or written) ever since committal proceedings were conducted when he knew that the prosecution would prove that his cautioned statement was recorded at Arusha Central Police station, when preliminary hearing was conducted and finally when hearing of the prosecution case stated until its closure. This is against the spirit of section 194 (4) of the CPA which mandatorily require the accused to give notice of alibi, 194 (5) of the CPA which require the accused person to furnish the prosecution with particulars of the alibi before the closure of the prosecution case, and 194 (6) of the CPA which leave the discretion to court when sub section (4) and (5) of the CPA were not complied with. I have carefully considered, this alibi in terms of section 194(6) and given the circumstances of this case, I found out that the accused person had advocate when preliminary hearing was conducted and when trial began but none bothered to give notice or particulars. Not only that but under 38 cross examination, the accused admitted telling his advocate of the defence of alibi but for undisclosed reasons none was done in compliance of the above provision. The said provisions were meant not to take the other party by surprise and accord fair trial for both parties. And sub section (6) of section 194 of the CPA, was meant and can apply where the accused person is a layman and is unrepresented. In my considered opinion, it would have been different situation, if the accused person was not represented for by the learned advocate. Much no reasons were given why this court should not disregard the requirement as was held in the case of Kubezya John Vs. Republic, Criminal Appeal No. 488 of 2015, CAT (TABORA) (Unreported), I proceed to reject this general denial. In the foregoing, therefore, I find this defence not merited in the circumstance of this case and is equally rejected. That said and done, I find that the 3rd accused person was at Arusha Central Police station and was cautioned by P9 and much as no issue of torture or inducement was raised to shake the evidence by prosecution, I find that the 3rd accused person was free agent and voluntarily made the cautioned statement to P16. 39 The learned advocate for the 4th accused person like learned advocate for the 1st accused person raised issue of time limit within which the cautioned statement of the 4th accused person was written. This will not detain me much. On the reasons when discussing the cautioned statement of the 1st accused person, I find this argument not tenable in these proceedings. In fine, I find that the 4th accused person made the cautioned statement before P9 and was a free agent. Lastly, the learned advocate for the 5th accused person denial in his final submission was that there were contradictions in testimony of P30 and P12 in that while P12 said he cautioned the accused person at Dar es Salaam and P30 said the 5th accused person was cautioned at Arusha. I have gone through the entire proceedings but I have failed to note such contradiction as argued by the learned advocate for the 5th accused person. Therefore, on the same reasons as reasoned in respect of the 3rd accused person, I find and hold that the 5th accused person made his statement at Dar es Salaam Central Police and was a free agent. Not only that but this court conducted trial within trial and consequently found that the cautioned statements were made by the accused persons and went on to admit them in evidence. Also, as to the signatures, all signatures were found similar and were scribed by the accused persons 40 and when compared by prisons officers in court by comparing the disputed signatures with the signatures signed during preliminary hearing, their observations was that same were written by the same person and even where there was slight variance was minor that did not affect its admissibility. The arguments by the accused person that the same were forged while the statements were written long before preliminary hearing and the admission during cross examination that one cannot forge something without having original is but an afterthought on their part. Moreso, each accused person denied to be where the alleged cautioned statement was made. The first accused person denied to have been cautioned at Central Police Arusha station, the 2nd accused denied to be at Dar es Salaam Central Police station on the alleged date of cautioned statement, the 3rd accused denied to be in Arusha but that was at Dodoma and the 4th accused denied to be in Arusha Central Police station. Indeed, the 1st to 4th accused persons are raising defence of alibi against all cautioned statements and their respective advocates argued that the prosecution failed to prove that the accused persons were at the places where the cautioned statements were recorded. In this they argued that no detention register was brought to prove that actually the accused were in lock up as testified by the prosecution witnesses. 41 On the part of the Republic, they argued that the 1st to 4th accused persons were at the places where the cautioned statements were recorded. I have seriously considered this point and with due respect to the accused persons and their respective learned advocates, this point was raised as an afterthought on their part. I will explain. One, the accused persons heard the substance of the case against them during committal proceedings. And, one of the documents that were read to them was their cautioned statements and specifically mentioned where the statements were taken but none of the accused person stated that the cautioned statement was not taken at that particular place and time. Two, during preliminary hearing, accused persons got a legal presentation but none even bothered to give notice either orally or in writing but the disputed cautioned statements were among the exhibits listed to be used against them. Not only that but during prosecution case and up to its closure, neither notice nor particulars were furnished and reasons were given why they remained silent and came up during defense to say so. This conduct on the part of the accused persons cannot be condoned. In the totality of all what is discussed above, lead to one conclusion that the 1st to 5th accused persons' cautioned statements were of the 1st to 5th 42 accused persons and were recorded by police without any torture or inducement and the 1st to 5th accused persons were free agents. Next issue is, whether the bombing was done by the 1st to 4th accused persons after conspiring to do so? All defence counsel argued with full force and with authorities that, the only available evidence implicating all accused persons were the cautioned statements but which were not corroborated at all and as such cannot mount conviction. The Republic, on the other hand, argued with full force and with authorities that, apart from the oral testimonies of the prosecution witnesses, in particular, the testimony by Pll who saw what happened and corroborated what is contained in the cautioned statements. Having carefully considered the rivaling arguments of the learned trained minds for parties and the authorities cited in support of their respective stances, as general rule, I agree with both parties that cautioned statements with confession must be corroborated before a conviction can stand if it is the only evidence. However, as is always case, there is no general rule without an exception. In the case of Richard Lubilo and another Vs. Republic, Criminal Appeal No. 10 of 1995 CAT (Mwanza) (Unreported) the court discussed the famous case of Tuwamoi Vs. Uganda [1967] E.A. 84 the Court of 43 Appeal insisted on corroboration but said that there are circumstances that a conviction can stand even where there is no corroboration in the following words: " if the confession is adjudged voluntarily and admitted but it is retracted or repudiated by the accused, the court will then as a matter of practice look for corroboration. But if the corroboration cannot be found, that is, if the confession is the only evidence against the accused person, the court may found a conviction thereon if it is fully satisfied that the confession is true. In this context, the truth relates to the correctness of the account given." In this case, I have carefully considered the evidence of PH- the eye witness of the people who bombed Varna restaurant along with the account given by 1st to 4th accused persons in their respective cautioned statements herein on how they were dressed and what exactly happened as correctly argued by the learned stated Attorneys, and rightly so in my own opinion, I find the confession of the 1st to 4th accused person is nothing but the truth. I will explain why I am taking this stance. One, Pll told the court that his statement was written on that same night and he narrated exactly 44 what was stated in the cautioned statement of the 2nd accused person in term of dressing. In exhibit P8, DW1 stated clearly that he threw a hand grenade to Varna restaurant on 07.07.2014 which detonated shortly. In the cautioned statement of DW2, which was exhibit P5, he admitted to drove together with DW1 to the scene of crime using a motor cycle and the later threw the hand grenade inside the restaurant and stated exactly how they were dressing as stated by Pl 1. DW3 in his cautioned statement stated that he was the one who supplied the hand grenade which DW1 detonated at the scene of crime. In the cautioned statement of DW4 he stated that on that fateful night he drove the motor cycle on which he carried DW3 who took the hand grenade which was handed over to DW1 which was detonated at the scene of crime. In his cautioned statement DW4 was all aware of the impending attack. To me this amounts to corroboration, if not, then, the cautioned statements contained the exact account of what happened. Two, the cautioned statements were recorded on different dates and places and by different police officers but the narration of the accused persons as to how conspiracy started, its objective and eventual execution of the bombing was done is other than that the 1st to 4th accused persons inclusive were responsible of what happened on that fateful night at Varna restaurant. Three, in the absence of torture or inducement of any kind during the recording of the cautioned 45 statements and much as the same were cleared of their admission through trial within trial is another indication that the accused personal denial for the bombing of Varna restaurant is an afterthought than a genuine, which cannot be accepted in this case. Four, failure to issue notice of alibi as the only defence available by the accused persons while under legal representation is another indication that the accused persons had no other defence but remembered the same when it was too late. As correctly decided in the case of Kezya John Vs. Republic (supra) quoting the Ugandan case of Kibale Vs. Uganda [1999] 1 E.A 148 which held that: "A genuine alibi is, of course expected to be revealed to the police investigating the case, or to the prosecution before trial. Only when it is so done, can the police or the prosecution have an opportunity to verify the alibi. An alibi set up for the first time at the trial of the accused person is more likely to be an afterthought than a genuine one." Fifth, in the above quoted case, the Court of Appeal went on to hold that 'an alibi is not intended for the accused person to prove his innocence. But in situations where, like here, the accused person is depending on the defence of alibi, it is his duty to demonstrate his aibi albeit on a balance of probability/ This was not done at all in this case by any of the accused persons nor their respective advocates. On the totality of the above reason, I find that the admission/confessions of the accused persons were true and the accused persons were the ones responsible for the bombing of Varna restaurant on the fateful night of 07.07.2014 as charged in this case. Next issue for determination is whether the 5th accused person harbored the 2nd accused person at Tandika in Dar es Salaam while knowing that 2nd accused person accused of terrorist acts and was hunted by the police for terrorism acts in Arusha? The only evidence available on record by the prosecution who have a duty to prove the offence of harboring is the oral testimony of P20, P12, exhibit P5 the cautioned statement of 2nd accused person and exhibit P13- the cautioned statement of 5th accused person. Mr. Rwahira, learned advocate for the 5th accused person argues that P30 testified that the 5th accused person was cautioned in Arusha, but I have traversed the proceedings of this suit nowhere P30 testified so. The argument by Mr. Rwahira that, a charge has to specify the house is a owned or rented home is not a legal requirement. As to the dates the charge sheet is clear that was on diver dates between 3rd August 2014 and 17th September 2014. I see no contradictions, and even the ones 47 pointed by the 5th accused person were cleared during cross examination where the diver dates were put straightforward that it was between the dates which are in the charged sheet. Mr. Rwahira, learned advocate for the 5th accused person argued that the accused person raised a defence of alibi. The defence of alibi by the 5th accused person is rejected on the same reasons above when rejecting the alibi by the 1st to 4th accused person herein above. On the totality of the above reasons, I find that the 5th accused person also was cautioned by police and was a free agent. Not only that but was equally arrested in Dar es Salaam and the alleged arrest at Morogoro is an afterthought and not genuine one. Therefore, the 5th accused person is equally found to have harbored the 2nd accused person herein above as admitted in exhibit P13 as charged. And lastly, the issue is, whether the prosecution discharged their unwavering legal burden of proof beyond reasonable doubt that, it was the accused persons who planned and executed bombing at Varna restaurant. The defence counsel had different view that the prosecution utterly failed to prove the case against the accused persons beyond reasonable doubt. The reasons, the defence counsel advanced, were that there was no corroboration regard being that the only evidence available is the repudiated or retracted confessions of the accused persons and contradictions, for the 1st accused person that the cautioned statement was written out of time prescribed without extension by the recording officer, and for the 2nd accused person that the whole charge is superfluous and for the rest of the accused person were general denials. On the other hand, the Republic, had it that, the case for prosecution has been proved beyond reasonable doubt for the evidence is loud and clear that on 07.07.2014 Varna restaurant was bombed by the 1st and 4th accused person inclusive as admitted in their cautioned statements, corroborated by Pll and other testimonies of the prosecution witnesses, their conduct after bombing by running to Dar es Salaam and Kondoa, alibi given as an afterthought and that the prosecution witnesses identified all the accused person in court even after elapse of 9 years and that the testimonies of the Republic witnesses were without any inconsistency and contradiction at all. Having heard the rivalling arguments on this issue but given what I have endeavored to discuss above, I have no doubt that the prosecutions in this suit have proved the case for terrorism acts beyond reasonable doubt save for conspiracy offence which as rightly guided in the case of John Paul Shida Vs. Republic (supra) becomes superfluous and not the 49 whole charge as Mr. Shirima argued. The rest of the counts of terrorism are proved beyond reasonable doubt against the 1st to the 4th accused persons as charged. Equally, the offence of harboring against the 5th accused person, in my considered opinion has been proved beyond reasonable doubt against the 5th accused person as charged. Consequently, I hereby find the 1st to 4th accused persons guilty as charged and convict them for 2nd to 8th counts inclusive for terrorism acts contrary to section 4(1), (3) (a) (i) (i) of the Prevention of Terrorism Act, No.21 of 2002. Equally, I find the 5th accused person guilty as charged and convict him for the offence of harboring a person accused of terrorist acts contrary to section 19(a) of the Prevention of Terrorism Act, No.21 of 2022. It is so ordered. 50