Republic vs D.3769 PC Tegeza [2000] TZHC 209 (13 June 2000)

, . NCHALLA, J. IN THE HIGH COURT OF TANZANIA A:1 BUKOBA ORIGINAL JDRIBDICTION '""'HE REPUBLIC Versus JUDGMENT -;;:r.:dr:i:: .... =·-·-- The accused 9 a member of the Tanzania Police Force in the Field Force Unit (acrony:11 FFU), is calJ.ed Tegeza, with Force number D.3769 (PoC. Tegeza). He stands charged with two counts of murder c/s 196 of the ·?enal Code. In 1st count he is alleged -bo have murdered a fellew police officer PoC. Thomas with Force number C. 7001. And l.n the 2nd count he is alleged to have murdered · Protase Gervas a watchman wh,) was employed by the National Bank of Commerce (acronym NBC) at 1-:a:Lsho in_ Karagwe Districto In both counts it is alleged that on or about the 4th day of June, 1986 at Kaisha village in Kr-r:1t:f.J9 District, Kagera Region the named .aec'3Sed murci.ered the twc, pers.'JnGc Tne victims of the offence are alleged to have been shot at by the accused s:i.1:!U.lta".leously, hence in one transaction. The accused pleaded not guilty to both counts. The prosecution examined five witnesses i:J. their attempt to prove the charge against the accused. There was another witness by the name of Carvar Muntbali who was called by the prosecution tote- stify at the trial in thes,, sessions, however, without the prose- cution first complying with the mandatory provisions of section 289(1) CPA, 85 which provides for the additional witnesses for the prose- cution. That section provides thus 11 No witness whose statement or •••• /2.

ii. 2 substance of evidence was not read at the committal proceedings shaJ.l be called by the prosecution at the trial unless the prosecution has ... given a re<W3onable ntice in writing t.e the accused person or his - advocat, Jltf the intention to call such witness.n :Mr:-. Rweyemamu, _lea:cned defence counsel strongly oppesed Mr. . ' Munthali to testify on the prosecutionfor-reasoI.l __ that the proseeutien -- --t ·. had not .-•mplied with the mandatory provisions of section 289(1) CPA, 85 quoted above. I recorded submissions from counsel for the parties;en this legal point and I made my ruling in which I upheld the defence, and rejected the prosecution intention .te examine Mr. Munthali. Having said this I now relate the prosecution evidence, i;J:•hn Nyinondi (PoW.1) was the first prosecutioriwitne'ss, He testfied that on 4/6/86 at 8.30 p.m he was coming from a bar in Kaisp. twnship going to his home in, that village. Then he heard gunshots, and he was afraid and started dashing to enter his house· which was just a few paces aheado Before P .w .1 entered his house, , he saw PoC. Thomas, the deceased, running holding his gun. The deceased had been guarding the NBC bank at Kaisha -.-en that night• P .c. Thomas asked P .w o 1 to take him to hospital as he was injured.·· P .c. Thomas said he l:1ad been shot at but did not say at that time as to who had shot him., P.W.1 said until at that juncture gunshots were still sounding from the direction where the NBC bank was. Before P.W.1 took P.C. Thomas to hospital, he first entered his house, and when he came out he could not see P.Co Thomas. Instead P.W.1 saw his neighbour, Clephas, and he asked Cleophas whether P.C. Thomas had been taken to hospital, and Cleophas answered yes. But P.W.1 lit his torch in the vicinity, and there he saw P.Co Thomas lying helpless on the gr-ound. He reached him and raised him and walked with him to hospitalo P oC o 1'hc:n.,s was still talking., a. P.W .1, ., .- .. '

3 however, denied th.a~ he obsefved PCo Thomas to see where he had been . . . l:ihot at 0 and injured; nor did he ask him who had shot at him To me his piece of evidence sou.rids quite incredible as it is,str~~ fo; a . ·-· person to offer assistance to a person, waJk. with him for _a great distance __ te hospittl ·,.d.-=.:J:·.:..Jut observing how that pers?n has ·been injured and, in this case, who shot P .co Thomas. This was the most logical thing that p 0 W .1 ought to have done. His reason for not having done so is incredibleo PoW 0 1 said that at the hospits .. 'i P.C. Thomas was asked who shot at him and he ment:t- ... 1:c:-.'::d t::.'.'.') &.G;;.sc-d T.eg,)ZI:'.,, P .w .1 gave a very exhaustive account of what P.Ca Thomas had narrated to the doctor at the hospital as to how thEl accused had gone to the NBC premises on that night and told P.C. Thomas that he (accused) was proceeding to Bukoba on the· fllowing day. That after PC.Thomas wished accused ' . farewell, then accused shot at him and also at ·Protase Gervase, who I •. was in the company of P.W.1 guarding the bank ijn that night. P.W.1 said that when P .c. Thomas d:iiclosed as to who shot at him and at :! Protase Gervase a nurcc by the name of Petronida Nsange was present and also heard this. ::_r:.:::.:;: nurse testified on the defence as D.w.2, but den.ied that P.C. Tho~:s:.s had said he wasEhot at by the accused Tegeza. On the contrary D.,W. 2 said P.C.Thomas said he had not identified the person who shot at him.. P .w. 1 mentiorii:ld other persons whom he alleged were aJ.so present in the hospital and ·heard P.C. . . Thomas saying that the accused shot at him. Tho,se persons are Medical i\ Assistant Bartha.zar Kutegesa. and a police fficr Pie: Charles. But . . ·. . . l !" ' ,' none of these were called to testify to support this crim:inatig piece of evidence against the accusedo mt convincing reas~n has been. given by the pr~~ecution for this very serious rrd.ssibns The· evidence of the Primary court Magistrate Mr. Abdul Karim K. Yusuf (P.W.2) did not in any way incriminate the accused • . ... /4.

4 - However, I have been taken aback how and why this Magistrat~ deiy ·involved himself in the investigation of this case as if he was a -police officer. I am aware that it is the duty of a good citizen to assist the.police_ in their investigation and suppression of crime, but there a'!'.'e limitations, parlicuJ.arly_ so ?.. a magistrate · who may likely act as ...., Justice of the Peace in recording extraj ·· dicial statements of the arrested suspects. A Magistrate who had thoroughly involved himself in the :investigation of a case will not do justioelater in recording the extrajudicial statement of the person who is suspected to have committed the crime in the investi- gation ~f which the Magistrate had deeply taken part. Just like an arresting-pelice officer would not do justice to an accused.8r ·suspect in recording his caution statement after having taken part in arresting such suspect. The law and jurisprudence does·~t permit this because if this is permitted then justice will not be seen to be done. I warn strongly all Magistrates in this Zone not to engage themselves in the role of investigation of rimes, as that is the role of the police. Be that as it may, P.Wo2 said that on the material night he was coming from Ramadhan prayers at around 9.00 p.m. going to his home near the police ~ .. :11 • ...,,'.: 'it Kaisho when he heard gunshots. He then hurried to his house. When he arrived at his house, he saw CPL Edward, (PoWo4) who was then the Incharge of Kaisha police post, waking up his fellow police officers in order thnt they go out to learn about the gun-shots. PoWo4 asked P.W.2 to lead the JX)lice to Isingiro where th gunshots had been fired. Here is where the.' . . . . Magistrate (P.W.2) assumed the role of an investigating officer, and you will hear what he did throughout. , I ' j 4 PoW.2 led the pdlioe officers right to Isi.ngiro where they arrived at around 1o30am• Isingiro, •.. /5.

5 according to P.w.Li-., wM just about ?.¼ mi.les away. Orie wonders why P.J.2 and the police officers spent 4J{ ho'JI's to waJk from Kaisho_to -- --- .... Isingiro. P .w .2 said when they arrived at Isingiro P .w .4 asked ·p.w.2 t go to Star Guest house to learn in which room the accused had put up. It is 3urjrising wh;J t.!1.e __ Magistrate (P .w 0 2) was being used to find out m which room the accused had lodge·d in -star. .Gueit ·--- ...... ___ _ house. Why did the police officers themselves not do that? All the same P.W.2 went to Star Guest H-::m.se and inquired in which roem the ' aocused was. ·> "i He 1t!EJ3 told that it was room No.1, and P.W.2 retUl"aed and reported to ? .w .,4. 'l'he;:i ? c,," o4 a:nd P W .2 and the other peliee •fficers went together to h'" Star G·a18st house to see the aoc;ed. ~ P.w.4 and Pc:W.2 went to check the accused, they 1eft behind the other police officers conealed somewherea Why this wae .e it is not accounted for 1, vI'.:ler.l PoW.4 and PcW.2 came to the rj5m where accused had lodged, p,,w,,L;. knocked at the door and identified hi.mGelf -ta t.he accused. P.W.2 sa:;._d accuse.d cpe.ed the door. P.W.4 aalte cused if he had hear,.l ·:;.:;:, :.:,·:,. _;;e:;1.:..-i:;s v the accwed answered he bad heard them. Then P .W ,,4 told the a,;c·t:,3ed that he wanted his gun because the po:..ice h.8-:l 110 gun. P .w o2 sa:1.cl accused reluctantly handed over bis gun --:) P. W ,, i.;. w:t..o theI asked accused to join them As they carae 01.1.t of ·:·;hu r:::ium ~~1 w;:,.:.::.:'.:1 acc1..1sed was, the accused returned to co:lect k..:: '.;,'':,t .• L, <lid so e_nd then came out and joined them. P.W.2 said PoWa4 saw the accused's gun wet on its barrel, he smelt it and found it smelling urine. P.Wo2 smelt that stuff in the gun and he also smelt urine,, But P .w .2 said P. \v. 4 . did not ask the accused why his gun was smelling urine. PoW.2 said that from the guest house they proceeded to the hospital but when they came there they were not permitted to enter the hospital buildings which were enclosed with a locked gate. Thay returned to Isir..g:.!·c 2n:. t•,ok cover at son~ place till dawn.

6 P 0 W 0 2 was still with these police officers in their .. cc.,urse of investi- gation about the gunshotso On the following morning they returned to the hospital but again they were turned down. So, they went to the NBC house. It was then at 7.30 a.m. They entered the bank and found Protase Gervas_ seriously wounded lying on the floor. Both of his legs had been broken by gunshot~ ··-He-was .al.king faintly. There was blood all around on ,the floor. This witness said t·ha t ·the -bulJ,,ts which were found in accused's possession in his gun were 48, although his evidence on this point is not quite clearo But what is material in the evidence of PoWo2 is that he did not hear Protase Gervas (the decased) telling ::::,w.,4 that he <Protase) had been shot at by the accused. PoW.2 said they picked spent cartridges at te NBC bank. They picked 9 cartridges inside the ba:ik and 2 outside the bank - totai 11 cartridges., PoWo2 said the bag of the accused which was in the Guest house was ta..'..cen to lii:13 NBC bank and was emptied there, but P .w o2 does not know if a,.v1y bullets were found in that bag which he refers to as a kitbag or half G-:'.•: 0 ·r according to P 0 W.4o According to P oW .2 he parted with the p·):'.:7.ce officers at 7 .,45 a.m after viewing the NBC bank and after :-:-i W J- ::::::::··:·0sted. the accused at the Bank. Hewever, P.W.,2 said tba:::; ·.::;,- -t .. -.'.".l.::,t j,mcture he did not know why accused was arrested-:- The evidence of ASP :Pan..::,::as P~::e:c•a (?,.v.' .3) is quite interesting and curious. CUrious because i·~ diff~rs in m"l.torial particulars from the evidence of P.W.4 his subord::..nate officer. P.W.3 was at the material time OCS at Bukoba police ::,-:;ationo On 4/6/86 he happened tti have gone to Isingiro in Karagwe for treatment at Isingiro hospi ta1. But before even going to the hospital for treatment he found.himself involved in the investigation of this controversial case. P.W .. 3 said that he had put up in a guesthouse at Isingiro, and it appears his mission to Isingiro was not known to the police in Karagwe District, because acqording to ::.i,c:; ev i :en ___ -· aL.d 0-ven the evidt:mce of CPL

.. 7 ' t,, Edward (PoW4) who was officer Inchaie of the potid"post at Kaisho, under whose Jurisdiction Isingiro was, the two (PJW3 and PoW.4), had ~ . not seen each other on 4-6-86 before this incident happenedo Be that as it may, P.W.3 said he ww in his room in the guest house at Isi- ngiro when he heard the gunshots at 11 .,00 p.m. I am saying the gu..'1- shots because there were no other gunshots that were heard in the night on 4/6/86, other than the gunshots which all the witnesses heard and have testified upono But one wonders that PoWo3 heard those gunshots at 11WOO p.mo, while all the rest of the witnesses At least this is a good estim3.tion of time fer p1Jrpose of credibility, rather ·than the est.iI!l['.tion made by P oW o3 i.,;hicc:1 extends the time of those gunshots to ano-;her two hours later, which cwts doubt as to whether P.Wo3 ww referring to the same gunshots about which the rest of the witnesses have testified upon, or some other gunshots. This is one of the contr.ad::c·1•::.:,::1,s in the evidence on the prosecution side which casts doubts~ .?,nd :.,.0:.'.ci.3 t~:.~ credibility of the prosecution case to questiono P.W.3 said tha:,_: ·: .. i:':'..:l. he hes,::-d ;he guri.Ehots, he went out to observe but he disco7ered th.3.t e··ery one Lui locked oneself in ones, room for fear of death. Accord:.:..:.: to PcW.,3 ther0 ww a chilling silence in the area. So, likewise P.W.3 locked himself in his room till the following roorning when he met with PoW.4 and other J>Olice officers from Kaisha, and together they starte~ investigation about the gunshots in question. This was at 9.00 a.,m according to P.W.3a PoW.3 said even PoWo2y the Magistrate, was among them. P.Wo3 said they went to the NBC bank and entered therein. P .w o3 said he drew a sketdhmap of the NBC premises, the scene of ')rime (Exh P4), He said he picked pieces of discharged bullets from the scene. At :.; .. point VtAU in the sketch.map l::'3 pi..;ked 2 spe11t cartridges, ;~d other oo o/8.

8 . - 2 spent cartridges at point "B". P ,.W .3· said- . .t.h~-- :P,ersons who were sh,. t: at and injured at the NBC promises in this incident had been· removed and taken to hospita.lo But surprisingly P .. W.2 and P.W.4 did not ghr:::, such.evidence that they v )re in the company of P .. W.3 when they visited the NBC prerrd.ses on 5/S/86 •. Hq_\v'ever, at some stage P .. W.3 said that P .. W 0 4 told him that he (P .. w .4) and other polic·e--offic.er:.._ had been at the scene p,•.\viowly on that day, but P.W.4 had told P.W.3 that nothing had been rernved from the scene. This rooans the spent cartridges exhibto in this case were picked from the scene by P.W.3, contrary -:;o what PoWo4 said that it was him who had picked the spent cartridges from the scene, and that he picked a total of 11 spent cartridges, contrary to the number of spent cartridges w:--s~~-- P oW .3 alleged to have picked from the scene wh~.ch were either 2 or b. as P .. W.3 gave a confl:'.cting evidence on this point. P,.W.3 said, however, that while they were visiting the scene he saw P .. W.4 ,-,.th an envelope which contained other cartridges, but whose number PoWo3 did not know nor wh~~e PoW 0 4 had obtained them. This piece of evidence creates doi:·Jts as to the number of spent cartridges that were found at the '= ;e".le and wb.o picked them. P .w .3 said when he a-::i.d the other police o} ficers vis:!.ted the scene, the accused had c:i.r,..,.i::;- been arrested and _:_ocked up. P .W o3 saw accused in the lock t~~ at Kaisho police pest:. P .w .3 asked P .. W .4 why he had arrested. .... .;.. ___ : :.:....: up the accusedo P.W.4 replied that it was becawe accused's gun was found in an UlLUSual state,. whatever that means, it is not elabo- rated! But one thing is clear that up until 5/6/86, many hours after the gunshots were fired and the two deceased shot at anc! injw·::r' resulting into their death P}•J.4 had not disclosed to his senior officer or boss (P.Wo3)v that the accused had been mentioned by the two deceased personse that i.t was him ,,·he :fa..: . .-.:..... Jd and. shot at them ..

• 9 -- The confusion and difficulty in the prosecution evidece wa.s accentuated by the pol_;::9 officer who was incharge of the police p;s:~ at Kaisho, then with the rank of Corporal Edward, now SergecJJ.t Edwor<:. (P.W.4). As al.ready stated, this witness gave evidence which conta.i:.:.s substantial materials which are quite divrced from the versions of P.W.2 and P.W.3 •. This witness said he was at Kaisho police lines on the material night, and he heard the gunshots from Isingiro direct:!.or·. at 9.00 porn, and right-away he woke up his fellow police officers, ar:<3 they went to Isingiro centre, 2¼ miles away, where the NBC bank was, the scene of crimeQ F.W.4 said they were led to Isingiro by the Primary eourt Magistrate (P.l·J .2). They arrived at Isingiro at aro::: ... : 11 .-.00 p.m. P .w .4 said they found ;;1c:.r.,.y peo;,le at the bus-stand, tb.ey asked them what had happened. Those people, bus-passengers, whom P.W.4 said he did not know, told him that they had seen P.C. Thomas (deceased) running, catching his stomach, saying that he had been shot at by P.C. Tegeza, the accused. P.W.2 who testified here did not state this in his evidence.: Fow.4 said they started looking for accused whom they k'J.3W hC!.d put up in the single guest house at Isingiro bus-stand ready ·J:o t.- ·;;_7 -:l t0 To;koba on transfer on the fellowing day, "n 5/h/860 'rhey went and checked in that guest housef and they were told th::..t accnt,e:l. was in rooa: No,,1o P.W.4 said he and P.W.2 first we?:J.t i:,, t:'.1e roo:11 ::.n whioh accused was, and P.w.4 peeped through the keyhole in the door and saw ace used lying across his bed holding his gun, and was smoking a cigarette. The lamp was burning in that room. P.W.4 knocked at the door and identified himself to the accused. The accused took about five minutes before he opened the door Then he opened the door and P.W.4 and P.W.2 entered the room. They asked accused if he had heard the gunshots, he said he had, and that he had e·,·-:-n gone to the NBC ba.: k but did not find P.C.Thomas who was on guard there. P.W.4 s.:dd he quickly seized

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accused over that gun, and that P oW o2 assisted P oW o4~ aud e·;re~ tha other l)Olice officers came and assisted P oW o4 until they snatched t':ir-, gun from the accused. ;'.W.2 did not state such facts in h:i.s evide:o.·,t;"' P.W.4 said he q_u:i.ckly removed the magazine from the-accused's gun t~::·)

he saw urine droppfo.g from that guno He smelt t~.e s~·· .•ff and fol.illd .:.t to· be urine, but did :.!e".: ask accused whence that urine cameo P .,W o 4 said he checked the rn,gazine and found it wi-f:h 30 bullets - 5.ts capacity. Howevc::'~ there were other bullets in accused' 5 , .... ·· .- ... -·· .. .. ···-.... kitbag or me::..·elJ oag, as J::: ;11,,..; ·een VF..rio::t.sly described. So: ccl.GC:,.F'·,d. with ropes. P.Wc2 wver se .. i.d. thisi P.,W,.4 'Jai.c: they went with tr,e accused and took cov ,r at l"''.'.l".!J':;! J_:,lace near the 1 ;uest ho'lS e u...'ltil dawn at 6.30 a.m. T}. m they went to the ba"'.lk 11remises, but there wan no one there. PoW.,-+ s&id he picked 2 cartri6.ges outside t:ie ban.'!.;: house near a window - 4 m9tres therefl'Y.)mo They entered the bank 9 vered Protase Gervr.s (decee.s9·i.) ·.;?:c,:) wa.G lying on the floor near the had been shot at 'Jy the accv."l:::,do P W o2 never said this in his evidence: Po W o 4 s.cid he picked 9 · ·':::'hi:r·· spea-c cartridges inside the bank bu..lding. Tt..Dy carried P::'ote..se to hosgital. ThereaHer P.,W.4 said he radio cal.led and informed the RPC and RC0 at Bukoba town~ who later came late at around 2o00 pm. in tr .. e co1np:;iny of P 0 W c3o P.We4 said he first saw P.Wo3 at Kaisho poli.ce post O!l 5/6/86 at 2.00 p.m., when he arrived there i:;1 the company of the R?C However, P.W.3 told a different storyo P. W. 4 also hazarded a very :i.ncrimi.uatinr acco..mt. °'.p;:,dnst the accused to the effect that the accused ccnfr:;:·- ... •.::(. to him that he had shot at and kHled P,,(".,,':.:.•:,'11..:-'1.f'> because he had defrauded accraed /•1.-1 O c/ l : ·.:I

• 11

e! 4o,OOO/= bribe money from a coffee smuggler who had given them---i:l..,_ __ sack or bag of coffee worth 80 1 000/=, which PoC.Thomas went to sell but- did not pay half of the price of that coffee - 40,000/= to accuse'." However, PoWo4 never rcorded the caution statement from accU3ed about this alleged confession. For this reason, and having-·regaz:4 .. t the •·-··-·-- ---··. confused and incredible account of PoW.4 in his evidence, this court found it not feasible or necessary to hold a trial within a triaJ. on the alleged confession 7 as no other witness cl~itled to have heard the accused making the alleged admission which aroounts to a confession., Even the alleged stat8ments by P.C. Thomas (deceased) to P.W.1, and the statement of Protase G0rvas (deceased) to PoW.4 which could be described in law as dying declarations, were not found to have been actually made, they /ere not proved to have been made. So, this , court has not acted on those alleged dying declarations. P.W.4 had made two statements to the police, the first one on 5/6/86 just a day after the incident, the second one on 10/9/90 more than three years afi:e:c· this ~-:.::,cide::'.l.t, and infact when this case was already on trial by the H:i..gh. Co;Jrt., On this fact or circumstances, I find PoWo4 to be er- . .:,-'.;;) d.ishcnesto The second statement which P.W.4 made when this ca,:a wa,3 c:d:read.;r on t:dal is a contemptuous one to this court 1 _as that statement appears to have been intended to mislead. this court, and to make this court give a wrong and unjust or adverse decision against the accusedo This is so because in his second statement P.Wo4 introduced highly incriminat:L.g materials against · the accused. For example in that statement he said that he seized or snatched the gun from accused. That some bus-passengers whom he did not know told him that P.C.Tegeza the accused, had shot at PoC.Thomast That Protase Gervas told him that accused had shot at him. That. accused had told him that he shot at P .c. Thomas because he had defrauded him of 4oOO:./=, bribe moneye All these highly •••/12u

12 incriminating materials are not to be found in PoW.4 1 s statement which he made to the police on 5/6/86 when his memory was quite fret+. . . . . . . . on the--izi.cident •.. _ T.he -~wo statements of P .w .4 were tendered by the defence to impeach P .W 0 4 under .s;c"t1oif-1t54(1-)-(.c) .oJ_ the Tanzania .... ·---- ~ Evidence Act, 67. Those statements were marked exhibits Di ;-;,;d In cross-examination by Mr. Rweyemamu learned advocate, P.W.4 replied that he does not know how many bullets were in accusedVs gtu1· when accused re:p0:-ted ir:- c,uty at Kaisho police station on transfe:;:, from Btlkoba FFU on 4/3/860 P.w.4 said that when ac-cused was age.fa trEμ1Sferred back to Bukoba on 4/6/86 he wrote a letter to the O'J FFU Bukoba to confirm to him that 9 bullets had been spent from the accw;(d_, s gun lawfully, but P.,W o4 said he did not know the lawful purpose for which the said 9 bullets were spent from accused's gun, but was just; told so by P.C.Thom~ the dec;eased. P.W.4 said on 5/6/86 accusedVs gun had 30 bullets i:.l ::ts ::,,.,>.Zine. That gun is SMG. NO. 9472184 (Exh P.5). P 0 \r1'04 r1.__:_i::J:i.tted that in his letter to OC FFU Bukoba, W!1iC-h he wrote on 4/6/86 1:i.wn 1

• stated that the accused had 51 bullets on hi . .:: transfer back to B-ukoba on 4/6/86. This mea:ns 1 if you add the 9 bullets which P .w ~ /~ sai.d h5.d been lawfully spent from accused vs g·t you get a total cf 60 bullets 9 and this is the number of bullets the accused is claiming in his defence that he was issued by his OC FFU at Bukoba in March, 86 when accusod was transferred to Kaisho This evidence is quite plausible., '.I.his evidence raises doubts whet.hE',:i: real.ly the 11 spent cartridges which were se;it to the BalH.st:l.G expert at D'Salaam Identification Bureau~ wex-e actually .fired fr.::--: accused's gun and on the material night or deJ - 4/6/862 A lot of doubt still lingers on this question. P.W.4 admitted that sometime

13 in May 86, the accused had travelled back to Bukoba from _I:(a:!.sho? and had left his gun and all the bullets with P.W o4e Accused had gon~---- back to Bukoba to attend to his wife who had been operated u.1)(.m. ar~ ·- .. was admitted· in- hospita,l,.. It was during this period of ai:cwSed 1 s but for what purpose they were fired, no explanation has been given~··- ·- ··--- This casts a lot of doubts on the prosecution case. The self confirmed Ballistic export, Mr. Iddi Ally Kindawite (P.W.5), gave evidence which did not in anyway clear the lots of doubts in the prosecution case., I describe P .W 0 5 as a self conf:l.rmc<i ballistic expert because h.'3 has no cfficial document to refer to in order to prove his baJ.listic expert knowledge o He just said that h<) trained on the job as a baJ.]j_stic expert under Mr. Malangalila S0n.i.o.:c .Assistant Commissionen'.' who was Head of the Bal:i.istic Department at the IB D t Sala.am. P. \ri 4 5 claimed to have been yerbally promoted to a ballistic expert, infact he later changed and said he is a Fire JL-rm . Examiner, but was not ei v-G::1. c..,;f letter of ..ppo~_ntment. He also said he has not been gazetted a:.3 a bE0.J:!..st:Lc expert or a Fire Arm EXaminer • This pari; cf Pa W ,5 1 s e-.,·:Ld.::::nce casts a lot of daub ts as to the examination or te.::ts i:ts.t he made to tha eleven (11) spent cartridges and the h-'o guns SAG No-, :A72'18!+ a..-rid SMG No(\947525i and the report which he prepar(.;d he::-eaft8r on those objects, which report he tendered as exhibito The 11 spent car·tridges and photo6 of the same were tendered and marked exhibit J!7 collectivelyo He also tendered identification report on the gun No. 9472184 SMG (Exh F5) and the same was marked exhibit P6o PoW.5 said he did not examine or prepare any report on the second gun because in his tests he found that all the eleven spent cartridges that were .sent to the IB . Ballistic Department by the OC CID Karagwe for examination, were fired from only one gun (Exb,,r:;~ the accusedis g-..m.. However~ P/:! 0 5

14 admitted that the OC CID K&.rag;ve h~,;.d stated in his let;t0T··whL·t: · ... referred the two guns to IB ntSalaaru that both gun.s had. been su.spe," • .cted to have been used in the commission of the crime at NBC b.;•::..;: on 4/6/86. At the end of his evidence I did not fin.a· that--E .. kl_e.5 had ... ,4··-··---. ___ ... ___ - resolved the glaring coubts in the prosecution case,, At ex1y rate a ballistic exp3:r.-t q s opinion does not afford a conlnsi·rn proof 9 and particul'e;:·ly in this case in which the expert. knowledge of PoW.5 is of very do'.lbful nature or standardo The accused test:Lfied on oath an.d called one witness on his defence o T'ne defence of the acci.:,:,ed is mai11ly based on alibi, notice of which he tim::::l.y gave both to th::..s court and to the p1°0 ..... >~ cut ion on 21/1/98 d 1.1ring t::1e preliminary hea:cing of the case befo:".',; rrry learned brothe.'.' J·usti.ce Lugakingira (as he then was)., Substantial.1:;i~ the accused stated that he did not kill the twc deceased persons r.,.amed n the :information, althoughi L"ldeed he knew those persmi,·io P.,C.,Thomas was accu.seo)s fellow police off:Ler also stationed at K,dshc. police station at the material time,, to Ka.isho police post on operational dutieE.; effectiv8 from 4/3/86.. ' and worked under· P "VJ !)4o 1\cused said that before he le:ft 131.koba. \ he wa.."> in posse:1,;;icn of the gun No" 9472'181} SMG (Exh P.5) ~ and h;;: was issued with only 60 bu7_lets for that g1;,n 1 with two magazine.so Such gun carriE s only 30 bull8ts in the mag,1.Zinc :ind. no more o Accused worked. at Kaisha up to 19/5/86 when he rece:i.voc. ::. telee::,..,·>.rr._ from thn OC FFU at Bukoba to the effect the.t accused's wife had been oprated upon and was in hospitaJ... So 2 accused prepared hl:m.,., self to travel to Bukoba to see his s:i.ck w:i.fe o Accused left Kai61.1~ for Bukoba on 2'i/5/86i' but left his gun and the 60 btiJlets wJ. th CPL Edwarl (P 0 W n4) his boss~ who refused pc:::-mts6io:n to the :;,_ccu&.:.::i. ,~., t .ft Or.., .,.) 0 i

-- ·- ·--- 15 to travel with .his gun and the bu.l..lets back· to Bukoba~. A:-:::,-;;.::.oc. arrived in Bukoba and attended to his sick wife up to 30/5/,86 w}1e:,1 accused's wife was dis-:.J-:-':l:rged f:i:om hospital. on 1/6/'.!6 o.c-::t1ooci travelled .. back-·to·-Kaisbn and reported to PoW.4. .a,:;c;usE::d. had bee:n given a transfer fr·orn Kais ho back to Bulfoba due- .. to his Bick wife o So, accused reported hi,:, transfer to P aW 0 4 verbally as ac:cused ha.er-· ... not been given a letter to present to PoW.,4 about his i::r-ansfer f:n)m Kaisha back to Bukoba~ -PoW 04 did not permit the accused to :l.ec:.ve Kaisha till on 2/6/8€,o Accused saw P .w .4 on 2/6/86 and asked h:Lm for his gun and the 60 bu .. llets but P .w "4 toI.d accused to wa.:Lt t;:;..:u ... later when P.W.4 returned from his safari to Mr'ongo where he wc::s going on that day,. fo, on 3/6/86 accused went to see PoW .4 aga:L-.i about the handing o'n-,r of the gun and 60 bu1le ts back to him@ 'I·li..is time P .w .4 told hirr; ;hat the gun was there but the b.::.IJ et2 ',Jere r,.:--'.;: complete. Accused was astonished. Accused refused to accept the c-:J.:i. and bullets less them the 60 bullets which had been issuec. to l:;.:.:..m at Bukoba, and which :h. had handed orB:, to P.w)+., .Accused derr.;md.ed e °t'ull.ets, which .LW )-': .2ai.d :::b.;,3r h:;.d been lawfully fired. ;f:N.;m tb.e gun (Exh P5). Af-:;er so-r!:2 d<i:::ate~ P,W4 at _;,..st agreed ~~o g:b,e the letter to accused to t0k8 to h:L,s OC FFU at B·,;i)d:oba to stpport that 9 bullets had been .lawfully spent from accused.Vs gun, and that oU:l.y 5-1_ bullets had been left over o Then the accused receivGd. back his 6 .:i..--i · from P .w. 4 and 5 1 bullets and the letter to s-1ppori.: .c:wf1.1.i_ :.JS8 of ·;:.he 9 bullets :from accused's guno Tb.en accused started moving his belong:i2.1.gs from Kafoho police lines or homes and· went to rent a room at Star guest house at Is:lng:h·u near the bus stand, read.y to travel to Bukoba on the followil c.ay. According to accused, the gunshots in UL-Ls case were heard ou 3/6/86 at night and not on 4/6/86 as tl:.e p:rose-u:Uon ~ave m-:1:i.!ltaine,d,,

.... ___ -····- --. 16 However,, the Elifference of dates may have been due to the long passage of time from June 1986 when this mcident took place to .thie ., ···--- year 2000, a period of 14 years. And rooreover, the accused and the prosecution witnesses in substance have testified on the same gun- shots arid- not any othr gunshots, as the series of events in their testimony are similar in substance o Even the- parti9μ].ars of the information have described the date of the mcident as 0 on or about the 4th day of June, 1986V So, the incident could have taken place either on 3rd or 4th June, 1986. Be that as it may, accused said as he was in his room in the guest house at around 10.00 pm; he heard bulletshots sounding from the NBC direction at Isingiro •. He did not go out till at around 1.00 a.m. on the same night when PoW4 and PoW.2 plus other police officers came to knock at his door. PoWo4 and P.W.2 entered his room after accused opened for them. PoW.4 asked for accused's gun and also asked him if he ad heard the gunshots and he replied that he had heard them. Accused said he reroove(: the maga.z.me from his gun before he handed over that gun to P.W.4 but PoWa4 asked for the magazine. P.W.4 asked accused to accompan~,r them to go end learn what the gunshots were about. They went out and f:i.rst took cover at some shelter near accused's guest house,. Accused left aJ_l his belongings in the guest house after locking the door o.nd remained with the key. Later, at around 3.00 a.m accused asked for permission from P.W.4 to go back to his room in the guesthouse to take his jacket as he was feeling ~uite cold. Accused was permitted to go to get his jacket, and he did so as he was not handtied as P.Wo4 had allegedo After putting on his jacket accused returned and joined PoW.4 and his companions at the place where they had taken cover. Accused said that at around 5.00 a.m. as they were at their hiding place, they saw a group of people passing infront o"f_ them at a distance. p .w ,,4- was alarmed .... /17.

... 17 ... thinking that those people were thugs. P.W.4 fired two shots in the air from accused's gun in order to scare those unknown people who, indeed, ran away. ".A_t--6.3() -a.m.~ they first went to the hospital at Isingiro to check if any person had be~~-ta.ken··ther.~ injured by gunshot. P.W.4 . -~ - ... -- . ·- so instructed them to do. However,• the hospital at"t.erirants re.f.1¥.'ied -- ·~----. to let them in. So, they went to the NBC bank where they entered and observed therein. They discovered the deceased Protase Gervase who was lying in a pool of blood and had been badly injured•· Protase was still taJking 1 he asked P.Wo4 to give him mi1k. Accused did not hear Protase telling PcWo4 that he had been shot at by the accused. From the bank they went to the police station. They had not by this time got nny information that P .c. Thomas had also been shot at end killed. Then P .w o4 radio called and sent information to the RPC and RCO and to the OCD at Karagwe police station. Then PoW.4 arrested accused alleging that he had killed P.c. Thomas by shooting at him. P .u .4 locked--~1,i-p the accused at the police lock-up •. · Accused was surprise later when he came out of the lock-up to find his bag and other things at the police station when he had left them locked up in his room at the guest house. Accused complained that P.W.4 went and removed those things from the guest house in his absence.- Accused said there were 21 bullets in his bag. Accused said he never fired any bullet from the 60 bullets which were issued to him a; Bukoba FFTJ section on his transfer to Kaisho in March, 1986. For there were 30 bullets in the gun plus 21 bullets which were in his bag, plus 9 bullets which P .w 0 4 said were lawfuly spent --this comes to a total of 60 bullets, the exact number of bullets which were in his possession from the very beginning •. But P.W.4 said the accused was found in possession of 48 bullets on 4/6/86. If you add this number of bullets to the 11 bullets whose ••• /18. ·

18 cartridges P.W.4 alleged he picked from the scene, and which he sent to Dar-es-Salaam for identification, plus the 9 bullets which P.w)1-,_a.J..leged had. been lawfully fired or spent from accused's gun, you get !3- total of 68 bullets qulte in excess o~ the 60 bullets which a:ocused had been issued for the gun. The accused stressed --and · complained that PoW 0 4 has f;ilooly testified against him for reasons best known to himself. Accused said p .w .4 had other bulJts in his office for SMG guns, which he could have fired from accused's gun (Exh P5) at some other occasion and retained the cartridges which ·he later falsely e:U.eged to have collected from the scene, and which he then sent to IB for identificationc This was possible because P.w.4 had rerr:ained with the gun in q-..:iestion from 21/5/86 to 3/6/86. I find this evidence quite plausible, and the same raises quite great reasonable doubt on the prosecution case. Moreover, the prosecution did not tell this court what number of bullets the accued had been iseued at Bukoba when he was transferred to Kaisho police post on 4/3/860 No j.?lvsstigation waf3 made by the police to know this important fact. The doubt goes to accused's favour. Petronia M. Nsange (D.W.2) is the witness who was c~lled by the accused to refute the evidence by P.W.1 that the deceased P.c. Thomas had said while in the ward at Isangiro hospital, that he had been shot at by the ace used P .c. Tegeza 0 P oW. 1 had stated· in his evidence that D.W.2 was present and heard what P.C. Thomas had stated. D.W.2 was an Assistant Nursing Officer at Isingiro hospital at the material time. But D.W.2 said that PC.Thomas had said that he did not ide_ntify the person who shot at him. I summed up the case to the two gentlemen af3sessors. Both of them did not find any difficulty in stating their opinions straight that the prosecution did not prove the charge on the accused beyond reasonable doubt.e They advised me to acquit the accused.

• 19 As I have already discussed above, the prosecution evidence is (luite shaky and most of it quite incrediblei as the same is either perjurd or· exaggerated for reasons hithert6·.unknown. In particular· the evidence of PQW 0 4 the sama is overstat.ec! and perjured. The evidence of P.W .5 is ,i,:,.reliahle and incredible. So, too, i.S· the evidence of PeW.1. On the whole I am satisfied, as the two gentle- men assessors are, that the prosecution has failed completely to prove the charge on the accused beyond reasonable doubt. ConsequentJ.. I acquit the accusedo However, before I wind off my judgment I find it interesting to digress for a while and state that this case has had a chequered experience. It was first tried by my learned brother Judge Masanche who delivered his judgment on 2nd March, 1994 - six years ago - and convicted the accused and sentenced him to death. The accused appealed to the Cour~ of Appeal which, so to speak, allowed the appeal. when it nullified the entire proceedings and ordered a retrial. That was done on 21st day of November, 1996 - about four years ago. The retrial was comr ,enced b0fore my learned brother Judge Lugakingira (as he then was) on 2/1/98 7 thlt was adjourned to await attendance of more witnesses on the prosecution who did not appear until May, 2000 when th~ case waa r->a,ssigned to me for trial as Judge Lugakingira was then a'1d still is a Justice of Appeal, and has ceased to have original jurisdiction in the High Court. So, I have heard this case under the provisions of section 299(1 CPA, 85J The acquittal of this accused who has undergone a trauma.tic experience as I have endeavoured to show, reminds me, by way of a jest, three sayings or stories perhaps: First, that the hangman should not repeat hanging ap.:i:IT3vn whose noose breaks or g-ets cut before that person is actually hanged to deati.·.•:i Second, that a condemned person who is subjected to a firir,.:.;sqUad but no bullet •••• /20"

··- 20 - hits him, should be left freeo Thirdly, that history repeats itself_, . hat is that this accused WB.$ so to speak acquitted by the Court of Appeal, his acquittal by __ !his court is like history -·· repeating itself. I.ndeed 9 the acquittal of the ···accused .byJhis ······-- ------- court is quite coincidental to these three jokes. My decision however, and I state this with great emph8$is, is not in anyway related to or influenced by the above three sayings. My decision has been reached and made on the dictates of the law - criminal law hich requires the prosecution to prove the charge on an accused person beyond reasonable doubt, something which the prosecution in this ca$e has utterly failed to discharge. As already found and stated the accused is acquitted and discharged. I so find and ordero I (I i '· 1i' ,· . I: ; i' '1_1 i t i - fi . (/ - /' I I (. • 1/ / . ,-Ji ✓,-Jf A/Jl /j MoD. NCHALLA JUDGE 11/6/2000 13th/6/2000 Coram ~ M.D. Nchalla, J •:. For Republic - Mr Fele.shi 1 State Attorney For Accused: Mr. Rweyemamu Advocate Accused is also present under custody c.c. Mr. F. Kyaruzi Court: Judgment delivered in open court in the :presence of the parties, at Bukoba, this the 13th day of June, 2000. Right of appeal AT BUK0BA 13/6/2000 JUDC~ ~,,-..-.:_