20200629 TZHC Dar es Salaam

IN THE HIGH COURT OF TANZANIA (DAR ES SALAAM DISTRICT REGISTRY)

AT DAR ES SALAAM

ORIGINAL JURISDICTION CRIMINAL SESSION CASE NO. 156 OF 2015

THE REPUBLIC

VERSUS ALLIASGAR MOHAMED BH~Mll

RULING ON A PRIMA FACIECASE Date of last Order: 25/6/2020 Date of Ruling: 29/6/2020 MGONYA, J. The genesis of this ruling is for the court to establish as to whether after the closure of the Prosecution case the accused person herein one ALLIASGAR MOHAMED BHIMJI has a case to answer. The proceedings of the instant case are preceded by an order of the Highest Court of the Land through its Judgment dated 1st day of July 2019 after the Accused's Appeal was heard on merits and upon its finality, through the Court's Judgment, the entire proceedings of the High Court were nullified and a new trial 1 was ordered. For ease of reference, let me quote the wording of the order from the said judgment: "Thus, having nullified the entire proceedings of the High Court, we order that a new trial be commenced as ,expeditiously as possible before another Judge and a new set ofAssessors." It is from the above order, the case of REPUBLIC VERSUS ALLIASGAR MOHAMED BHIMJI in Criminal Case No. 156 of 2015' was scheduled for a new trial. Pursuant to the Court of Appeal's Order, I as preceding Judge together with a Gentleman Assessor. Mr. SALUM NJALALE; and two Lady Assessors, Ms . .i.-~_.,.,..::-"~ ... ~ , - - -. . . . . . WINIFRIDA NGABONA and MS. YUSTA JULLU respectively sat with; me as required by law. Prosecution is led by Ms. Mwasiti Athumani Ally, Senior State Attorney assisted by Ms. Esther

Kyara Senior State Attorney and Mr. Ramadhani · Kalinga , State Attorney; while Defence is led by Advocate Timon Vitalis assisted by Advocate Roman Selasini Lamwai, Advocate David Pongolela and Ms. Jackline Massawe learned Advocate. This special session commenced on 22 nd June 2020. Up to the closure of the Prosecution's case, the Prosecution had arraigned before the court four Prosecution witnesses 2 . together with six Prosecution exhibits. After the testimony of PW4, Ms. Mwasiti Athuman Ally the Senior State Attorney and a Leading Prosecution Counsel prayed to close Prosecution case. The prayer was granted and the Prosecution case was accordingly closed. Mr. Timon Vitalis the leading Defence Counsel informed the court that they don't intend to make submission in respect of no case to answer as they leave the said task to the court to decide; hence this Ruling. However, before I go into that task, in the first place, I am of the considered view that, it is important to examine and briefly discuss the concept of no case to answer or otherwise generally and its application in Tanzania in Criminal cases. This will enable those who are now listening and who will have a chance to read this Ruling to have a better understanding of the concept of no case to answer or having a case to answer. The above concept is well entrenched practice in Common Law Jurisprudence through case law.

In some jurisdictions the concept has attracted legal provisions especially in Criminal Procedure statutes. The concept is also known as "halftime submission". In a criminal justice system, it is not disputed that, the burden of proving the guilty of the accused in a criminal case lies 3 r on the Prosecution. Therefore, in Criminal Law there is non- negotiation of the principle that in all decent society built on the sanctity of the rule of law, every accused of criminal offence is deemed innocent until the Prosecution has been able to submit sufficient evidence against the accused for the court to order him to defend his case. The principal of proving the guilt of an accused rests squarely on the Prosecution. It is not up to the accused to prove his innocence. Thus in a criminal trial after the closure of the Prosecution case, the defence has two options of whether to invite the court to dismiss the charge(s) and discharge the accused if in its opinion the evidence produced by the Prosecution after the closure of its case has not established a prima f'acie case against the accused. Thus the procedure of submitting on no case to answer~ Or,· after the court has ruled out that the accused has a case to answer to call its witnesses to rebut the Prosecution case. Case Law both internationally and domestic (in Tanzania) have supported this principle. In the United Kingdom the

salient decision among others is the case of R. V. GALBRAITH {1981} IWLR 1039; which lays down the test that a trial court must take into account when dealing with a defence of no case to answer. In that case it was held thus: 4 "{a) If there is no evidence that the crime alleged had been committed by the accused person there is no difficulty. The judge will of course stop the case; {b) The difficulty {for the court) arises where there is some evidence, but it is of a tenuous character, for example, because of inherent weakness or vagueness, or because it is inconsistent with other evidence; {c) Where the judge comes to the conclusion that the prosecution evidence, taken at its height is such that a jury properly directed could properly convict upon it, it is his duty upon a submission being made, to stop the case; and {d) Where however the prosecution evidence is such that its strengths or weaknesses depends on the view to be taken of a witness reliability, or other matters which are generally within the province of the jury and where on one possible view of the facts there is evidence upon which a jury could properly come to the conclusion that the defendant is guilty, then the judges should allow the matter to be tried by the jury.,, 5 It must be noted that although the guidance in Galbraith case is clearly tailored for jury trials, it is submitted that crucial aspects of

the guidance can easily be made to apply to judge- led trials as well. In this regard, it is instructive to refer to the decision from Northern Ireland case of CHIEF CONSTABLE OF NORTHERN IRELAND V. LO {2006} NI261, where Kerr L. CJ, (as he then was) observed that: "The proper approach of a judge or magistrate sitting without a jury does not therefore, involve the application of a different test from that of the second limb in R. v. Galbraith. The exercise that the judge must engage in is the same, suitably adjusted to reflect the fact that he is the tribunal of fact. It is important to note that the judge should not ask himself the question, at the close of the prosecution case, "do I have a reasonable doubt?" The question that he should ask is whether he is convinced that there no circumstances in which he could properly convict. Where evidence of the offence charged has been given, the judge could only reach that conclusion where the evidence was so weak. or so 6 discredited that it could not conceivable support a guilty verdict" In Tanzania, in criminal proceedings a submission of no case to answer has enjoyed a wide range of application and attracted a lot of decisions both from the High Court of Tanzania and the Court of Appeal. Indeed, the essence of the application of the submission of no case to answer is through entrenchment under section 230 of the Criminal Procedure

Act, Cap. 20 [R.E. 2002]. For the sake of brevity of this ruling, I do not wish to reproduce the said section. In this regard, I wish to start with a decision of the East African Court of Appeal to demonstrate the position in Criminal proceedings. In the case of BHATT V. R. {1957) E.A. 332 the Court of Appeal for East Africa defined a prima facie case in the following terms at pages 334 - 335: "Remembering that legal onus is always on the prosecution to prove its case beyond reasonable .doubt, we cannot agree that a prima facie case is made out if, at the close of the prosecution, the case is merely one "which on full consideration might possibly be thought sufficient to sustain a conviction." This is perilously near suggesting that 7 the court would not be prepared to convict if no defence is made, but rather hopes that the defence will feel the gaps in the prosecution case. Nor can we agree that the question whether there is a case to answer depends on whether there is ''some evidence irrespective of credibility or weight, sufficient to put the accused on his defence". A mere scintilla of evidence can never be· enough; nor can any amount of worthless discredited evidence. It is true, as Wilson, J. said that the court is not required at that stage to decide finally whether the evidence is worth of credit, or whether if believed it is weighty enough to prove the case

conclusively; that final determination can only properly be made when the case for the defence has been made. It may not be easy to define what is meant by a ''prima facie case", but at least it must mean one in which a reasonable tribunal, properly directing its mind to the law and the evidence could convict if no explanation is offered by the defence." 8 Moreover, in the case of MASHAKA MGUNDA V. R. in Criminal Appeal No. 4 of 1999 {CAT} - Mwanza sub- registry, {Unreported), the Court of Appeal held: •~ Court is not required to give reasons when deciding whether or not there is a case to answer except, of course, where, the position is in controversy. According to section 230 of the Act, if at the close of the prosecution case it appears to the court that a case is not made out against the accused, the court is enjoined to dismiss the charge and acquit the accused without further ado. Similarly under section 231 if a case is made out the court is required merely to again explain the substance of the charge to the accused and to inform him of his right to defend himself and the mode of doing so and the right to call witnesses. There is no requirement for a reasoned decision, but it is sufficient if it appears to the court that there is a case to answer. As first stated, a reasoned decision would only be called for where the defence submit that there is no case to answer and

assign reasons for the submission." 9 Nevertheless, from the above exposition of the law and decided cases, I think, it is imperative to state that in appraising the no case to answer submission in a Criminal case after the conclusion of the Prosecution case, the court must be mindful that at that stage of the proceedings, the Prosecution only needed to have adduced sufficient evidence to provide a prima facie case against the accused. Thus, at the conclusion of its case the Prosecution is, in my view, at that stage, not under any obligation to have proved the case beyond reasonable doubt. It only needs to have evidence pointing to or attaching to all the ingredients of the offence(s) alleged against the accused person. Thus in making a decision over the no case to answer submission, the question the court ought to ask itself is whether there are circumstances based on the Prosecution's evidence in which can convict the accused. At this juncture, I now turn to consider as to whether in the instant case and particularly at this stage, the accused Alliasgar Mohamed Bhimji has a case to answer. Before I proceed to tackle the above issue, I wish to thank the learned counsel from both sides for their respective attendance and prompt participation to this stage for their respective examinations in chief by the Prosecution State 10 Attorneys and the respective cross examinations from

the Defence of which to my considered view went well, harmoniously and professionally. They have demonstrated great industry in pursuing the matter and I value their professionalism. This also applies to the Gentleman Assessor and Lady Assessors for their valuable time and questions to the witnesses for the purpose of getting elaborative information from their respective testimonies. I wish to assure all of you that I have perused carefully the evidence presented by the Prosecution witnesses and the exhibits tendered; and I have no doubt that taken together with what I have discussed above on the application of the concept of no case to answer, I am now in a position to table my findings at this necessary stage of the case as herein below: The facts of the case as read before the court by Prosecution reveals that the Accused person namely ALLIASGAR MOHAMED BHIMJI was an employee as Head of Motor Vehicle Maintenance Unit at Triple A Offices at Mbagala Mission within Temeke District in Dar es Salaam Region. On the material day, on 19th day of October, 2015 at 20:00 hours the accused was at the Maintenance Workshop continuing with his work; he heard a quarrel between HUSSEIN JETA @ ALNASIR (Director Triple A), JAMAL REMTULLAH and the 11 deceased DAVID MWALOLO @ KALANGULA (driver) who were all in the office of the Director nearby the maintenance workshop. It is further alleged

that, the Accused person then entered into the Director's office and saw the deceased DAVID MWALOLO @ KALANGULA was about to hit HUSSEIN JETA@ ALNASIR with the iron bar; so the accused shot the deceased twice leading to his death. Further, the said HUSSEIN JETA @ ALNASIR and JAMAL REMTULLAH went to report the incident at Chang'ombe Police Station and they were arrested and interrogated. An autopsy was carried on the deceased's body and the report shows that the death was caused by HEMORHAGIC SHOCK due to bullet wounds. The Ballistic report which was handled over to the investigator of this case reveals that a pistol make Beretta Caliber 40 inches with serial No. PY: 153456 which is owned by the Accused person was used to shoot the deceased. The Accused person is now before the court charged with the offence of MURDER contrary to section 196 of the Penal Code CAP. 16 [R. E. 2002]. In order to prove the case against the accused, Prosecution brought before the Court four witnesses namely PWl - ASP John Mayunga Sangija, Investigator and Head of Ballistic 12 Laboratory; PW2 - ACP Ramadhani Kingai - RCO Arusha Region, PW3 - Jamil Remtullah - Former-Human Resources Manager of Triple A Company and PW4 - Inspector Khalid Almasi from Kimara Police Station. Prosecution also tendered six exhibits to prove the charge of Murder against the accused. The same are: Exhibit Pl - A Pistol make

Beretta with serial PY-153456; Exhibit P2 - Four ( 4) un used bullets and two (2) spent cartridges, Exhibit P3 - two spent cartages from the crime scene; Exhibit P4 - Examination Report from Criminal Investigation Department - Forensic Bureau; Exhibit PS - Form "C" for Post Mortem Examination; and Exhibit P6 - A Report on Post Mortem Examination. I have carefully examined the evidence adduced in this court from Prosecution and from the outset, I conclude that the evidence adduced in court is based on circumstantial evidence. This is so because of the following: First, there is no any witness who was brought before the court and stated that he clearly saw the accused person herein to have shot the deceased one David s/o Mololo despite the fact that according to PW3 one Jamil Remtullah, apart from the deceased, he was in the room where the shooting incident took 13 place together with three other persons in that room. These are the Director of the Company where the accused was working, one Hussein Jeta, the head/chief driver one Edwin Martin Madata, PW3 himself Mr. Remtullah and the accused herein. It is from his affirmed testimony of PW3 that apart from being in that room, he did not see the person among other three persons therein sho0ting--tl-le deceased. ______ _ - Second, the allegation that it is the Accused person who pleaded not guilty before the court he was the

one who shot the deceased from mere oral statements from two witnesses being PW2 and PW3. It is from the record that PW2 who by the time of event was the deputy Temeke RCO, Mr. Ramadhani Kingai who testified before this court that he came to know that it is the accused person herein who shot the deceased to death after the accused had confessed to him. He said, the confession was made orally by the accused person at the police station when he was together with boss one Mr. Hussein Jeta and Jamil Remtullah when they went to report the incident. PW2 further informed the court that, it is the accused person who handled him the pistol (Exh. Pl) alleged to have been used by the accused person in shooting the deceased. 14 - - - - - - - - - - - - - - - - - ~ ---- ,r-,- Apparently, it is also the PW2 who testified before the court . that, after it came to his knowledge that it was the accused herein who committed the offence, he decided to handle the accused to Detective Coplo Luanga who was on call for the accused interrogation and finally taking his cautioned statement. PW2 who is also the Senior Police Officer informed the court that - - the- acct1sed-was- also- taken-to tbe_Justice of Pegce who also took the accused person's extra judicial- statement. It was alleged by PW2 that, in both statements, the accused herein confessed to have committed the offence using his own pistol of

which was admitted before the court as Exhibit Pl. To my surprise, up to the time Prosecution have closed their case, none among the two statements were tabled before the court as evidence to form part of the evidence against the accused person. At this juncture, let me remind the Prosecution that, Murder is a serious offence that attracts a capital punishment if proved. I have failed to understand if it was by default or by mistake that such crucial evidence was not brought to court and instead, mere words escorting such a serious allegation against the accused being simply uttered orally by Prosecution witnesses for the court to believe in the absence of tangible evidence. 15 It also came to my knowledge through PW2's testimony that, in the cause of investigation, he wrote a letter to Central Arms Registry to ask among other things, necessary particulars of a pistol make Buretta with serial No. PY - 153456 which was admitted as Exhibit Pl, particularly to know to whom does it belong in terms of registration in order to establish whether the same belongs to the accused person herein or not. It was also the PW2's assertion that the said Authority indeed replied his letter by confirming that the owner of the said weapon is the accused herein. Again, it was my expectation in proving the Prosecution case, the two letters in that respect would have been brought before the court to

establish that the said pistol indeed belongs to the accused. Once again I do not understand whether it was by mistake or by design why such crucial evidence has not been presented before the court by Prosecution in the cause of charging the accused with this serious offence of Murder. The absence of those four fundamental and vital pieces of evidence to associate the accused person to commission of the offence charged is still surprising. The questions come then, do those alleged pieces of evidence exists? If yes, then why the same were not brought before the court?. 16 Taking into account of the testimony by PWl of which was purely expert opinion, of which I highly respect the said adduced testimony together with admitted Exhibits Pl, P2, P3 and P4. I don't have any intension to challenge the said expert evidence; however, again it was my expectation for PW2 to submit before the court the necessary particulars from the Central Arms Registry the name of the owner .of the said weapon which was brought for examination at the Ballistic Bureau, since it is not the work of the Ballistic expert to detect and state the owner of the said weapon, but only to establish as to whether those two spent cartridges were shot from the pistol that was brought to him. That duty lays squarely on PW2 as to establish that the said pistol belonged to the accused and if possible, to link him to the

offence he is charged with. In the absence of that proof, then PWl's testimony against the accused person herein becomes useless as we still don't know up to this time whose pistol (Exhibit Pl) belongs to. Though there is no proof that the weapon (Exhibit Pl) belongs to the accused herein, I remind the Prosecution that, still there is a serious task of proving who shot the deceased, since ownership of the weapon is one thing and one who pulled the trigger and killed the deceased is another thing. So under those 17 circumstances, should the owner of the gun be apprehended and arraigned before the court for Murder without further proof? Common sense does not allow a simple and such a shallow connection to be entertained, but it is until solid proof that the owner of that weapon indeed used the same with his own hand to kill, then the charge of Murder will follow. Coming back to the issue of lack of an eye witness to this case, I have failed to understand as to why important witnesses such as Mr. Edwin Martin Madata a head driver and Mr. Hussein Jeta who is the Director of Triple A Company where PW3, Deceased and Accused person were working could not appear before the court to testify. My concern is to the fact that they were all inside the office where shooting took place. One can understand PW3 saying that he was not in a position to see as to who shot David, the deceased as he

was laying on the floor after he had been hit on the face and particularly on the eye by the deceased, that he was not able to see the person who shot the deceased. However, for the two mentioned persons who were with the deceased in that room, they should have been in a better position to say and assist the court to identify and point out the person who shot the deceased. I am concerned with their assistance to this temple of justice as the same could have 18 •· I assisted the Court to reach to a fair decision and see that justice is done as the case before the court is not superficial but is a serious and sensitive case of life and death. Their testimonies in this case were of utmost importance for the administration of justice both to the deceased and to whoever that killed the deceased. Since the courts have to deal with accurate evidence in serious matters like this one, the proof of the case to link the accused person with the evidence laid down before the court so far, for the accused to defend the case against him is indispensable. The courts are not supposed to work on speculations and uncertain situations in these serious cases where someone's life is to be determined judiciously. As I have said, so far according to the evidence that have been laid before the court, this case is based on circumstantial evidence since no one saw the accused shooting the deceased. It is

not that I don't appreciate the circumstantial evidence in finding the accused with a case to answer; No!, but the evidence in Murder kind of cases has to be proved beyond reasonable doubt as law requires; and mostly to link the accused with an offence so that he can be found with the case to answer and to defend himself. In the case of NATHANIEL ALPHONCE 19 ·•♦ I MAPUNDA AND BENJAMIN ALPH0NCE MAPUNDA VS. REPUBLIC 2006 TLR pg. 396 it was held that: "Where circumstantial evidence is relied on, the principle has always been that facts from which an inference of guilt is drawn must be proved beyond reasonable doubt." It is a known fact that in a criminal case the burden of proof lies on the Prosecution to prove the case against the accused person beyond reasonable doubt. The burden of proof never shifts as well propounded in Section 3 (2) (a) of the Evidence Act, Cap. 6 [R. E. 2002]. It is difficult and impossible to order defense on the flimsy evidence which does not associate the accused person to the offence he is charged with. To convict a person on a serious charge of Murder on the basis of mere suspicions and hearsay evidence, is out of our legal context. This onus never shifts from Prosecution, and no duty is cast on the accused person to establish his innocence. Repeatedly, the standard of proof is one beyond reasonable doubt. By that it means proof of the charge against

an accused person must not leave any doubt that the accused actually killed the deceased in the manner stated in the information read before the court. 20 If the evidence given leaves the court with any doubt as to the accused person's guilt, the court must acquit the accused person. In the premises, acquittal of an accused person simply means that the case against him has not been proved to the required standard. Due to the above pointed discrepancies, I therefore find that the Prosecution has failed to, prov~ their case so as to require this court to call upon the Accused person to defend himself. In the event therefore, I find the accused person has no case to answer to the alleged offence of Murder contrary to section 196 of the Penal Code, Cap. 16 [R. E. 2002]. In the event therefore, the Accused person is hereby acquitted and set free forthwith. I further order the immediate release of the Accused from custody unless he is held otherwise for any other lawfully cause. It is so ordered. Right of Appeal explained. L. E. MGONYA

JUDGE 29/06/2020 21 COURT: Ruling delivered in the presence of Ms. Mwasiti Athumani Ally, Senior State Attorney for the Republic, Ms. Esther Kyara, Senior State Attorney for the Republic, Mr. Ramadhani Kalinga, State Attorney, for the Republic; Mr. Timon Vitalis, Advocate for the Defence, Roman Selesini Lamwai, Advocate for the- Defence; Mr.- Salum -Njalale, th_e _1st_ A_~se_~s9~, _f\:'ls. Winifrida Ngabona, 2nd Assessor, Ms. Yusta Jullu, the 3rd Assessor and Ms. Mwangoka RMA, this 29th day of June, 2020. ,..-- / L. E. MGO YA

JUDGE 29/06/2020 22