Republic vs Ismail Hassani (Criminal Session Cae No. 13 OF 1997) [1999] TZHC 190 (12 April 1999)

I . l. "I' KAil.-.. :.'.•J. -·~ ' •-.."·•,-:, .- ...... IN THE HIGH COURT OF i1TV/.ARA AT. MTWARA ORIGINAL JURISDICTION (MTWARA REGISTRY) CRTI~INAL SESSION CASE NO. 13 OF 1997 THE REPUBLIC versus: JUDGM.~NT The accused ISMAIL HASSAN is indicted with nilll'der c/s 196 of the Penal Cod~~zjap. 16. He is alleged to have killed one MOHAMED ,,MFAUME unlawfully and with malice aforethought. ·'!· When the in.ormation was read ver. to him· .and: in. his defence he. , agreed to have killed the d_eeeased unlawfully. Howevr he deriied ~ af'•rethought. He raised a defence of provocation, self defence and intoxication, The prosecution was then left with the heavy burden of proving beyond all reasonable doubt the ingredient of malice aforethought. T4',discharge this heavy burden the prosecution called 4 witnesses and produced 4 exhibits. The tetality of the evidence of these witnesses and these exhibits is to the effect that on 401.97 ~here was locai liquor which was being sold at a make shift pombe shop at Mkubilu Village, Mtwara District. That pombe shop was a makeshift in the sense that it was a more •pen ,. space amid coconut trees. Whoever wanted to sell his pombe he had to take it there and sell it there. On that day the deceased Mohamed Mfaume and PW4 SELEMAN ABDALLAH went there to drink pombe. They found a lady called SOPHIA d/o? selling palm wine. They ordered some and started drinking. They went on ordering more and .more palm wine and went on driILi{ing. It was the said Sophia who was serving them and that they were pay1ng her money instantly . -without any further talks or seduction. At about 6 pm the deceased 1 s father sent his son PW1 ALLY MFAUME to call the deceased back home as he wanted to go fishing with the deceased. PW1 Ally went there and delivered the message. The deceased requested him to wait for him while finishing his pombe. He obliged and waited but not. 'd:rin.1<.ing. · •• .;2 ••• 0

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At about ? pm j of them left together, that is; the· dece""ase'tf,, PW't Aily and PW4'•Seiemani~ There was also another man who was dr'iruing1 with: them. His name was either KIBWENGU or KIBVIBNGO~ Eitlier tney J:e.:f,t, liinr at the porrtbeshop or he le ft by his way whicn: was in another d:1re'ct'ion'~ · -lhen they' left for home, the deceased appeared fo llil.v€'ben- too drunk. He wa:s ;ai.king very. slowly.. PW1 and J?W4 left b.itn fiehin'd~ · While the deceased was about 70 to 80 paces· be.hind; PW1 and P-(2·· . heard him crying for help in that he was dying. They rushed there. When they arrived they found the deceased lying on the ground v,hiie the accused was standing nearby holding a shar:p-poirited slend,r iroh bat- knovm in the fishing circles as a MDEKI. It ·is usurtlly used for k'i-lling ' octopus or turtle (ngisi). It is also used for other fishing activities. Just when they arrived the accused ran away with his 11 mdeki.a ·The deceased told them that the accused had stabbed him ,.,,,i th a 11 mdeki 11 on his stomach arotind. his left side ribs He showed them the wound \·1hich was of the size of a mdeki. They took him home where eff'o'rts were illade to take . ..- ... ·.·' : •:. t'". : ,-.~ •. him to hospitclo But he died on the ·wa:y before fe-achin.g "the hospit·ai-. The Police were informed who visited the scene on 5.1.97. They went there with a Doctor. The Doctor examined the body'artd fbulld .the cause of death to be due to being stabbed with a sharp instrument cwhich punctured the heart which consequently stopped functioning {E:>Ch P2)~ The accused who had already been apprehended by the villagers was handed over to the police together with the mdeki Exh P4. He was consequently cli,.-,;rged with murder .. In his defence the accused stated that n.t the material time the said Sophia was his concubine who could loosely be called as his 11 wife• 1 whom he had stayed with since March, 1995. He was a palm wine tapper. and Sophia was a palm wine seller. On the material day the accused went for his usual duty of palm wine tapping and Sophia went to Harnis Pilis • home to sell her palm wine with Hamisi Pilis 1 wife. Later the accused went there too and started drinking. He drank 15 bottles of palm wine. In the evening he left for home accompanied by Sophia. They passed at Hamisi Mshamu I s home where their way home passed. They found the deceased drinking palm wine .in a 5 Litre plastic gallon while Ramis Nshamu's wife and Mohamed Pantalao were just there seated. Sophia and Mshamu's wife sat together and started talking while he \vas seated with Pantala.o. When the deceased finished drink.ing he got up and called Sophia and started talking to her. Sophia shouted 1 •Sikuelewi unasema ninill The accused got up and asked the deceased as to what he was telling his wife

3 to what the deceased replied angrily 11 Wewe unanitakia nini.a The deceased grabbed a·taa tail ·from Pantalao and whipped the accused with it on his backo The accused ran into Msha.mu's house but the deceased followed him. The accused sciw a mdeki behind the door of Mshamu 1 s house and took it and ran outsideo The deceased followed him and whipped him again with the said taa tailo He then stabbed the deceased once with that 91 md<:i 11 and ran awa:y to his father where he was later apprehended. The1st assessor 01'-"i.AR ISSA and the 2nd assessor TABIA d/t ALLY were of-the opinion that the accused killed the deceased in self defence after being whipped by the deceased with a ta.a tail; and that he should;· be found guilty of ma."lslaugh ter. But the 3rd assessor ABDARAHM.A..1\I SitOSiJ:, •.·•- was of the opinion that there was no evidence that the deceased whipped(-';; the accused. And further that since the accused did not find the deceased making love with Sophia, the defence of. provocation cannot be entertained. He was therefore of· the opinion that the accused is guilty of murder. I have carefully considered the prosecution evidence, the defence . . evidence, the learned· state attorney's ·and learned ··aefence Counsel oral submissions, the assessors'· opinion, together•:wi th the overall circumstances surrounding this case. There is no dispute that the deceased Mohamed lfaume is really dead and that he died a violent death as established by the evidence of the prosecution witnesses and the Post Mortem Examination Report Exh P2 and by the admission of the accused himselfo There is also no dispute that it was the accused who caused the death of the deceased by stabbing him with a mdeki unlawfullyo The only crucial issue is whether in causing the dcceased's death the accused did so with malice afore thought. The Court is faced with a difficult question of deciding as lo whether the accused WD.S really whipped by the deceased. This question is difficult because those who were alleged to have been present did not give evidence or submit statcmentso The accused had mentioned them on 601.97 when s.P. Mshashu recorded his statement, but no efforts were made to record their statements for no reason except for Sophia who disappeared into the unknown immediately after this incidenceo Pantalao was still alive. In fact he was still a)_ive even on 6.10.97 when commital proceedings were completed and the accused mentioned him as his witness. He was still alive even on 20.8.98 when ptliminary hearing was conducted by this Court and the accused insisted that the said Pantalao should be called at the trial as his witness. It w6uld'cfappear he died thereafter:• ':· r' ·._. In the absence of any explanation from the proe-cution, the Court can safely presume that the prosecution managed to ask those people but they gave ·~":. • •• /4 •.•

4 explanations which were unfavourable to the prosecution and that'',-iis. why the prosecution never bothered with recording their statements as their witnesses. It mu.st always be observed that in cases of this nature the accused has no burden to prove his innocence beyond all reasonable doubt. The burdedn of proving the guilt of the accused beyond all reasonable doubt is on the prosecution. Therefore in this case, after the accused had admitted to have caused tlie death of the deceased unlawfully but denied malice aforethought, .it was the duty of the prosecution to prove maliGe aforethought beyond all reasonable doubt. In that respect they ought to have asked those who the accused alleged were present. Those would have shed more light on whether the accused was really whipped by the deceased. It would appear that after mentioning those people, the prosecution left the matter to the accused to call them as his witnesses if he so wished, or they asked them and gave answers unfavourable to them (prosecution)o Pantalao is now dead and Sophia has disappeared into the unlmown through no fault of the accused. Since these poDential witnesses did not give their evidence, the Court has been left in the dark not knowing exactly whether what the accused said is false or correcto There is evidence by PW1 Ally and PW4 Seleman that where the accused stabbed the deceased was on their way home and not where the accused said. This evidence would be sufficient if there were no challenges from the accused, Mshamu 1 s house where the accused is alleged to have picked the '· · ... mq.eki is amids coconut trees. Therefore when the accused says_ he ran out but the deceased followed him and whipped him whereby he stabbed him with a mdeki, what he is actually saying is that he ran into the coconut trees near Mshamu's house where he stabbed the deceasedo The sketch plan Exh P1 shows coconut trees to be almost everywhere at the scene. ·The pombeshop itself was a makeshift amids coconut treeso Therefore when PW1 and PW4 said the deceased was stabbed while on his way home coJ4d possibly be just around.the make shift itself although on the direqtion towards his way homeo According to the accused the said makeshift w~ not far from Mshamu' s house and that when he arrived with Sophia h;· ··;6¥ma.·: the. deceased sitting outside drin.~ing pombe aloneo It would appear that the accused arrived when PW1 and PW4 had already left leaving the deceased finishing his pombe and thought he was coming slowly after they had lefto That is why they denied to have seen.the accused at the scene. That is why also the accused found the deceased sitting alone finishing his pombeo 0 • • /5 •• 0

· Since the only witness who was present when the accused stabbed the deceased and witnessed the circumstances surrounding the stabbling is the accused himself, and since the possibility of being whipped by the deceased for quarrelling over Sophia cannot be overruled, the Court is inclined to accept the accusedvs vcrsioaion; that is, he was whipped by the deceased, he ran away into Msha'Tiu's house where the deceased followed him, he (accused) saw a mdeki behind the door and took it and ran outside, th~. deceased followed him and whipped him again whereby he stabbed him for self defence. According to PW1 Ally the deceased was 4o years old. The accused by then was 26 years old. Under those circumstances the fear for his immediate death was great. Under those circumstances the accused did what any ordinary man of his type would have done although he used excesive force. The accused is not guilty of murder and is acquitted on that charge. But he is guilty of manslaughter c/s 195 P.Co He is hereby convicted accordingly. . \ / i S. :N. KAJI JUDGE 12 .. 4.99. PREVIOUS RECORD Mtinani: The accused is a first offender. But in sentesing the accused the Court should punish him severely as a lesson to others who kill others due to quarrels over women or due to alcohol. MITIGATION Kumwembe: The accused is a first offendero He has been in remand prison for 2 years and 2 monthso His mother and young brothers and sisters depend on himo He is the only male child in his family. SENTENCE I have carefully considered the accused's mitigation through his advocate Mr. Kumwembe, the learned State Attorney's remark together with the overall circumstances surrounding this case. Indeed this was a bad manslaughter bordering to murder. The deceased was drunkD The accused used excessive force in d€.i'ending himself. The accused, a palm wine tapper, who said he had drunk 15 bottles of palm wine was also probably drunk with poor judgment. Of course courts of law do not encourage drunkeness- B11t at the same time Courts know very well that there are people who drink pombe and got drunk and behave differentlyo Accused sentenced to 10 years imprisonment. So N, KAJI JUDGE - 12.4 .• 99 • 0 •• /6 ·) ..

Right of appeal explained. So 'Ne KAJI JUDGE 12.40990