Republic v Hilaly Pili

THE JUDICIARY OF TANZANIA

IN THE HIGH COURT OF UNITED REPUBLIC OF TANZANIA AT KIGOMA MURDER NO. 000024712 OF 2024 REPUBLIC .............................. COMPLAINANT / APPELLANT / APPLICANT

VERSUS HILALY PILI .............................. RESPONDENT / DEFENDANT

RULING NKWABI, J 07 & 07/03/2025 An information of murder offence against the accused person, HILALY S/O PILI, which is contrary to section 196 and 197 of the Penal Code, Cap. 16 R.E. 2022 was lodged in this Court. It is alleged therein that the accused person intentionally killed Fitina Shauri Juma on 24/03/2024. The accused person pleaded not guilty to the charge at the time he was called upon to plea to the charge. When the hearing of the case commenced, the prosecution was represented by Mr. Nestory Kuyula, Ms. Rehema Mpozemenya and Mr. Michael Karol, all learned State Attorneys. The accused person was present in person and was represented by Mr. Moses Rwegoshora, learned counsel. The prosecution was able to bring to Court seven witnesses to testify, the names of some of the witnesses shall be apparent as I go along with the discussion in this ruling. The prosecution too tendered two documents which were admitted as exhibit P.1 (the postmortem report) and exhibit P.2 (the sketch map of the scene of offence). I having considered the prosecution evidence, both oral and documentary, I have held a stance that the prosecution has failed to establish a prima facie case against the accused person. Below, is the explanation of my stand view. It is clear, in the evidence, that there were hostilities between the accused person and the family of PW.4 who is the father of the deceased.

That bad blood, is disclosed in the testimony of PW.1 and PW4 whereby PW.4 said had no any communication with the accused person for a long time. In such situation, for a court of law to convict an accused person, there should be high degree of consistence in the prosecution witnesses to dispel fears of bias. That high consistence in the prosecution witnesses is wanting in this case as I will demonstrate shortly. That position of law can be seen in Michael Haishi v. Republic [1992] T.L.R. 92 (CA) where it was held: Page. 1 Hon... JOHN NKWABI “Since all the witnesses hailed from a village which was hostile to that of the appellant a high degree of consistency than the one displayed is essential to dispel fears of bias.” The fear of bias is magnified by the fact that the material witnesses are relatives of the deceased. I find solace in Paul Tayari v. Republic, Criminal Appeal No. 216 of 1994 (unreported), where the Court of Appeal had these to say: “We wish to say at the outset that it is of course, not the law that whenever relatives testify to any event they should not be believed unless there is also evidence of a non-relative corroborating their story. While the possibility that relatives may choose to team up and untruthfully promote a certain version of events, it must be borne in mind that, the evidence of each must be considered on merit as should also the totality of

the story told by them. The veracity of their story must be considered and gauged judiciously just like the evidence of non-relatives.” Unfortunately, the prosecution case is tainted with irreconcilable contradictions of accounts of witnesses. For instance, while PW.1 imply that the deceased was suffering from malaria and low blood pressure and went for treatment at a dispensary where PW.2 Damary Samwel works, PW.2 denies to have ever attended to the deceased. While PW.4 suggests that he called upon contributions for transportation of the body of the deceased, PW.1, the son of the deceased was not aware of it, which if true that PW.4 had called for contributions (harambee), PW.1, adult son of the deceased, should have known that harambee. Suggesting otherwise is incomprehensible. I will let the relevant witnesses speak for themselves as here below: PW.1, Idd Omary Abdala, testified that: “On 22/03/2024 in the morning at 08:00 am when I was at home in Ujiji area, I was phoned by my friend at Katumbi who saw my biological mother at the dispensary doing check-up. My biological mother is Fitina Shauri. I tried to call her in vain. On the next day that is 23/03/2024 I got information through phone by Hilary Pili, my step-father, he told me that my mother is suffering from low blood pressure and malaria and that there is a doctor who is treating her. PW.4, Shauri Juma Kabeza,

testified that: “I was surprised because the person who informed me is Kiza Omary. I demanded that I should bury my daughter myself because I had no knowledge of her sickness. They refused claiming that there was heavy rain so they could not transport the body. I had to call for contributions (harambee). We got money for transport. They slept at Ilagala and on the next day, the body was brought. They delayed to come because they said the road was in bad condition. I directed them to send the body to hospital for postmortem examination. The body was brought by Kiza Omary and Kasato.” Credibility of the material witnesses is thus questionable. Here I am guided by Shabani Daudi v. Republic, Criminal Appeal No. 28 of 2000, CAT (unreported) where it was underscored that: “The credibility of a witness can also be determined in two other ways: One, when assessing the coherence of the testimony of that witness. Two, when the testimony of that witness is considered in relation with the evidence of other witnesses, including that of the accused.” See also Mathias Bundala v. Republic, Criminal Appeal No. 62 of 2004, CAT (unreported) it was stated that: Page. 2 Hon... JOHN NKWABI “Good reasons for not believing a witness include the fact that the witness has given improbable evidence, or the evidence has been materially contradicted by another witness or witnesses.” For avoidance of doubt,

I have considered the hearsay evidence by PW.1 that his mother was sick suffering from malaria and low blood pressure and was seen when she went to get treatment at the dispensary under the res gestae rule. For res gestae evidence, I have sought inspiration from Kinyatti v. Republic [1976-1985] EA 234 (C.A.K.) at page 235 where it was stated that: “However, hearsay evidence may be admitted if the statement containing it is made in conditions of involvement or pressure and within proximity but not exact contemporaneity as to exclude the possibility of concoction or distortion to the advantage of the maker or the disadvantage of the accused. (Thomson v. Trevanion [1893] Skin 402; R, v. Forster [1834]6C 325; people v De Simone [1919] 121 NE 761; Subramanian v. Public Prosecutor [1956]1 WLR 965. …. This is what is referred to as res gestae which means “the transaction” Evidence to be admitted under this doctrine must be relevant to the transaction.” The sketch map (exhibit P.2) is unrealistic. Therefore, exhibit P.2 cannot be used to convict the accused person considering the distance from A to G to be longer (10 meters) than the distance from A to D (7) which appears is a at a far place. The one who instructed the drawer of the map one Ntunda Shaban might have thrown light but was neither recorded his statement by the police neither called to testify. He was not called to testify,

no wonder that witness had not witnessed the fateful incident unfold thus, I draw adverse inference against the prosecution for failure to call him to testy in terms of Boniface Kundakira Tarimo v. Republic, Criminal Appeal No. 350 of 2008, CAT, where it was underscored that: “It is thus now settled that, where a witness who is in better position to explain some missing links in the party’s case, is not called without sufficient reason being shown by the party, an adverse inference may be drawn against that party, even if such inference is only permissible.” The postmortem report, exhibit P.1, is of very little evidential value because, PW.6 did not inquire into the health history of the deceased and no any data were availed to the Court on his opinion. That violates the position of the law and thus makes the report to be of very little evidential value. See Republic v. Kerstin Cameron [2003] T.L.R. 84 where it was held that: “Since the evidence of an expert is likely to carry more weight than that of an ordinary witness, higher standards of objectivity are required of him and ‘should provide independent assistance to the Court by way of objective unbiased opinion in matters within his expertise.” Likewise, in Fakhruddin v. State of Madhya Pradesh, AIR, 1967 SC 1326 it was stressed that: ‘Mere assertion without mentioning the data or basis is not evidence, even if it comes from

an expert. Where the experts give no real data in support of their opinion, the evidence even though admissible, may be excluded from consideration as affording no assistance arriving at the correct value.” Page. 3 Hon... JOHN NKWABI Too, the integrity of the body of the deceased which was examined by PW.6 is questionable as it stayed in the custody of persons who were hostile to the accused person for a considerable time while transporting it. One may wish to have recourse to Chaali Kiama v. Republic [1979] L.R.T. 54 where it was decided that: “Discovery of the alleged bait money in the toilet by a police officer in the absence of a civilian called for the purpose of witnessing the search casts doubt as to whether the alleged bait money was not planted there.” In addition, the one who identified the body to PW.6 was not called to testify. The authority that was violated by that oddity is Hussein Hassan @ Antiti v. Republic, Criminal Appeal No. 541 of 2021, where the Court of Appeal of Tanzania held that: “We have also considered complaints of the appellant on failure to call material witnesses. We have demonstrated above that; the deceased body was identified by relatives. The record of appeal is silent as to who are those relatives and their whereabouts. It is in evidence further that one Kombe had knowledge regarding the dead body at the crime scene. Again, his whereabouts

is unknown. As if that was over, given the nature of the offence, none of the local leaders testified, at least on account of witnessing the dead body in their locality. …” Clearly, as no prosecution witness testified to have seen the accused person attack and kill the deceased, the prosecution case heavily hinges on circumstantial evidence. But for circumstantial evidence to ground conviction the same should satisfy the requirement of the law. In Marecha Mashaka. v. Republic, Criminal Appeal No. 447 of 2019 the Court of Appeal of Tanzania considered the holding of the Privy Council in Lezjor Teper v. Reginam [1952] A.C. 480 at page 489 where it was underscored that: “It is also necessary before drawing the inference of the accused’s guilt from circumstantial evidence to be sure that there are no other co-existing circumstances which would weaken or destroy the inference.” One may also seek authority in the case of Machumbe Chacha @ Michael v. The Republic, Criminal Appeal No. 360 of 2021, where the Court of Appeal of Tanzania cited with approval the decision in Ally Ramadhani v. Republic, where it was held that: “... the conditions to be satisfied for the principle of circumstantial evidence to be applied that: 1. The facts upon which guilty is to be affirmed must be firmly established beyond reasonable doubt; 2. The evidence should unerringly be pointing towards the guilt of

the accused; 3. All the pieces of evidence should form a chain leading to only one conclusion that the crime was committed y the accused and no one else; 4. The evidence must be incapable of explanation of any other hypothesis than that of the guilt of the accused and should be inconsistent with his innocence.” In this case, there is a circumstance that the deceased was divorced to another man, who knows, she might have been attacked and killed by her divorced husband for revenge. The accused person, according to the prosecution evidence, was newly married to a 2nd wife. There is no evidence, on the prosecution side which negates the Page. 4 Hon... JOHN NKWABI temptation to think that at the material time, the accused person was having good time with his newly bride, so the deceased was attacked and killed by another person. The sketch map shows that there were two different houses at the compound for each wife of the accused person. The other possible hypothesis is that the deceased died of a natural cause, malaria or lower blood pressure but the relatives of the deceased, because were hostile to the accused person, did something in order to falsely implicate him to teach him a lesson. In the premises, it is impossible to convict the accused person by relying on circumstantial evidence. My position here is also fortified by the decision of the Court of Appeal in Hussein Hassan

@ Antiti v. Republic, Criminal Appeal No. 541 of 2021, CAT. where it was underscored that: “..., the foregoing evidence not only leads to multiple interpretations, but also creates doubts which, in our respect view, should benefit the appellant.” It would appear that the accused person was arrested and prosecuted on suspicion which was entertained by PW.4. It should be borne in mind that suspicion however grave is not sufficient to enter a conviction as per G. Ntinda v. Republic, Criminal Appeal No. 17 of 1991 (Unreported) (CAT) where it was stressed that: “There was, we agree, a lot of suspicion against the appellant as the person who killed the deceased, but, as the trial judge will no doubt agree with us on reflection, suspicion no matter how grave cannot be the basis of a conviction in a criminal charge.” There is guidance on what to do where a court finds that there is no enough evidence to ground conviction if the accused person chooses to keep quiet in his defence. The guidance can be found in the case of Republic v. Makuzi Zaid & Another [1969] H.C.D. No. 249, where Georges C.J., as he then was, quoted with approval Bamaulal P. Bhat v. Republic [1957] EA 332 where it was held that: “The case to be prima facie case must be such that a reasonable tribunal properly directing its mind to the law and the evidence can convict if no explanation is offered by the defence.” The

above position is reinforced by a very recent decision of the Court of Appeal of Tanzania delivered on 05/03/2025 in Bundala Gushana v. Republic, Criminal Appeal No. 199 of 2022 [2025] TZCA 180 where the Court of Appeal had these to say: “Although, the appellant defense can be regarded as the implied admission of the offense charged, the conviction cannot base on the defence. See the case of the Republic v. Anthony (Criminal Appeal No. 99 of (2000) (2005) TZCA 29 (14 June 2005, TANZLII). Since the prosecution had not discharged its burden to prove the case, the appellant defence could not be used to warrant the conviction.” All things considered, I rule that the prosecution has failed to establish a prima facie case against the accused person and is accordingly acquitted under section 293(1) of the Criminal Procedure Act, Cap. 20 R.E.

2022. It is so ordered. Page. 5 Hon... JOHN NKWABI Dated at KIGOMA this 7th of March 2025 . J. NKWABI

JUDGE OF THE HIGH COURT Page. 6 Hon... JOHN NKWABI