RULING KESI YA MDOGO WA ROSTAM AZIZ

IN THE HIGH COURT OF TANZANIA AT TANGA CRIMINAL SESSIONS NO.19B OF 2011 THE REPUBLIC VERSUS 1. KILEO S/O BAKARI KILEO 2. YAHAYA S/O ZUMO MAKAME 3. MOHAMMADAL S/O GHOLAMGHADER POURDAD 4. SALUM S/O MOHAMED MPARAKASI 5. SAID S/O IBRAHIM HAMIS 6. BAKARI S/O KILEO @ MAMBO 7. ASSAD S/O AZIZ ABDULRASUL Date of last order: 18/4/2012 Date of Ruling: 30/4/2012 RULING Mussa, J; The seven accused persons stand arraigned for two counts, namely, conspiracy to commit an offence and trafficking narcotic drugs. The conspiracy charge is predicated under section 384 of the penal code as well as sections 22(a) and 25 of the Drugs Act. The particulars accompanying the count are that on divers dates between 1st April 2009 and 8th March 2010, at various places within Dar es Salaam, Tanga and the Republic of Iran; the accused persons, jointly and together, conspired to traffick narcotic drugs. The second count is laid under section 16(1)(b)(1) of the Drugs Act with particulars that on the 8th March 2010, at Kabuku, Handeni District, the accused persons did, jointly and together, traffick 92.2 kilograms of heroin hydrochloride valued at shs.2,397,274,000/=. A total of twenty witnesses along with 25 exhibits were featured in support of the information filed by the Director of Public Prosecutions [DPP] . At the close of the case for the prosecution, the entire defence team stood on a plea of no case to answer with respect to all accused persons excepting the first accused. Learned counsel from either side involved detailed submissions which I propose to summarise, albeit, briefly. On behalf of the sixth and seventh accused persons, Mr. Loomu – Ojare commenced his submission by seeking reliance on a stream of authorities which involved the subject of no case to answer. The cases referred were R. V. Selemani Mussa [1973] LRT 47; R.V. Edward Mongo [2003] TLR 45; R.V. Kafengele [1968] HCD n.43 and; Bhatt V. R. [1957] EA 332. Counsel then referred to the testimony SP Salum Hamdun [PW.6], of which, he said, did not anyhow implicate the sixth accused on the first count. And, according to counsel, neither was there any other evidence implicating the sixth accused on the first count of conspiracy. As regards the second count, Mr. Loomu – Ojare suggested that the sixth accused was in the alleged ferrying motor vehicle as a mere passenger and not the driver. The prosecution, he said, had not shown that the sixth accused was aware or had control over the contraband goods that were retrieved from the car. With respect to the 7th accused, counsel submitted that he was not amongst those arrested at Kabuku and; there was not a spec of evidence whatsoever, direct or circumstancial, implicating him with either conspirancy or trafficking the drugs in issue. On the premises, counsel urged, the case for the prosecution fell short of a prima facie case as against both the 6th and 7th accused. Mr. Chuwa for the second and third accused started by fully adopting the authorities referred to by Mr. Loomu – Ojare. On the list, he added the cases of Jonas Nkinze V.R. [1992] TLR 213 and; Malula V.R. [1995] TLR 3]. Counsel then, just as well, submitted that the testimony of PW.6 had no bearing on his clients with respect to the first count. As regards the second count, Mr. Chuwa submitted that the motor vehicle in which his clients were traveling was not found with any contraband goods. As such, he contended, the prosecution did not anyhow link them with the contraband stuff retrieved from the second car. True; I would say, as submitted by counsel, the 2nd, 3rd, 4th and 5th accused were traveling in the green Rav 4 and not the silver Suzuki in which the contraband stuff was retrieved. Quite apart, it should be recalled, the referred accused party were, jointly, alleged by Zablon [PW.9] to be guests at Nyinda classic hotel with effect from the 2nd March, 2010 to 8th March, 2010. It is also understood that in the course of testimony, Zablon identified exhibit P.6 to be amongst the luggage accompanying the accused party. In reference to this testimony, Mr. Chuwa discounted Zablon’s testimony as one which is manifestly unreliable. Zablon, he said, was discredited for his failure to register a customer-hotelier contract to evidence the accused person’s alleged stay at the hotel. Furthermore, counsel added, his [Zablon’s] detail about the luggage is of no consequence against any of the accused; more so, as he did not particualrise as to whom amongst the accused was or were owners of exhibit p.6. On the foregoing premises, Mr. Chuwa also contended that the 2nd and 3rd accused persons have no case to answer. On behalf of the 4th and 5th accused persons Mr. Akaro, likewise, fully adopted the Loomu – Ojare authorities. Having done so, he heavily relied on the referred case of Bhatt. Going by the ratio decidendi; learned counsel urged that the prosecution is enjoined to establish a prima facie case of which cannot be on the heels of worthless discredited evidence. Mr. Akaro then joined hands with Mr. Chuwa in the submission that there were no contraband stuff in the car into which the 4th and 5th accused were traveling. Again, he just as well submitted that, at best, Zablon’s telling was worthless discredited evidence. What is more, he also said, there was no telling from Zablon as to, particularly, whose luggage exhibit P.6 were. On the cummulative score, Mr. Akaro l pleaded a no case to answer on behalf of his clients. In reply, Mr. Mganga for the prosecution began by cautioning against the court involving a fully fledged analysis of the evidence at this stage. To this, he referred to the case of Rex Vs Jagjiwan Patel [1948] Vol.1. TLR 85. Learned Principal state attorney then involved sort of a backdrop through which, according to him, the accused persons, either particularly or severally, were involved or joined in the alleged conspiracy which is the subject of the first count. As to the obtaining legal position on conspiracy, Mr. Mganga referred three cases, viz - R.V. Karia [1949] 16 EACA 116; Stanley Musinga V.R. [1951] EACA 211 and Wanjiru Waimathi V.R. [1955] EACA 512. As regards the second count, Mr. Mganga submitted that the first to sixth accused were implicated by several witnesses who attended the Kabuku occurrence. The 1st to 5th accused, he said, were additionally, implicated by Zablon. According to his submission, the 6th accused was not implicated by Zablon but his traveling in a car in which the narcotic drugs were; is enough to found a prima facie case. Coming to the seventh accused, learned principal state attorney contended that his implication stems from his involvement in the conspirancy. If I understood him well, Mr. Mganga sought to impress that the seventh accused is implicated upon an aggregation of four separate facts: Counsel made reference to, first, the seventh accused being in Tanga on the 4th march, 2010 as testified to by Francis [PW.11]; second his involvement as the third accused’s translator on the 10TH March, 2010 at the police station as testified to by Shukuru [PW.12]; third, his alleged showing as one of the characters in exhibit P.11, that is, the photographs and; fourth, his, alleged, dramatic efforts to avoid the police at Arusha and later immigration officers at Namanga. In a nutshell, Mr. Mganga submitted that all accused persons have a case to answer. It will now be convenient to address learned rival arguments and; I propose to approach the subject in the light of the cerebrated case of Bhatt wherein it was, inter alia, held:- The question whether there is a case to answer cannot depend only on whether there is some evidence irrespective of its 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. Nonetheless, I am equally wide awake of the caution, sounded by the same court, against a fully fledged analysis of the evidence upon a plea of no case to answer. His lordship, the President, had this to say in reference to Patel’s case [cited by learned Principal state attorney]:- It is true, as Wilson, J. said, that the court is no required at that stage to decide finally whether the evidence is worthy of credit, or whether it 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. There were no further guidelines and, it seems to me that one of the most difficult challenge to be faced by a trial court is, for instance, to adjudge certain evidence as worthless or discredited without involving a fully fledged probative and weight analysis. It is, so to speak, so tricky an undertaking to an extent that, almost invariably, courts have hesitated to uphold a submission of no case to answer in borderline cases. More often than not, where a submission is hastily taken, it rather tends to activate a pre-determination of issues which, in the result, may confuse or preclude the defence case. Thus, in my determination as to whether any or some of the accused have a case to answer, I shall refrain a fully fledged probative and weight analysis of the evidence. To begin with the evidence bearing on the 2nd, 3rd, 4th and 5th accused is largely similar. That being so, their implication or otherwise may be determined upon a unison consideration. I need only reflect on some material particulars; not all the evidence bearing on these accused persons. Evidence was to the effect that all were arrested at Kabuku on the 8th March, 2010 whilst traveling in a green Toyota Rav 4. Their car, it was said, arrived at Kabuku almost contemporaneously with the silver coloured Suzuki that was being driven by the first accused. Upon a search on both cars, it is commonplace that the alleged narcotic drugs were retrieved from the Suzuki and not the Rav 4. Quite apart and; as hinted upon, save for the 6th an 7th accused persons, the entire accused party were, allegedly, guests at Nyinda classic hotel with effect from the 2nd March to 8th March, 2010. That detail was testified to by Zablon who said the arrival of the accused party was joint, upon two cars, incidentally, a green Rav 4 and a silver Suzuki. What is more, Zablon identified exhibit P.6 to be amongst the luggage accompanying the accused party. It is common ground that exhibit P.6 is comprised of two bags and a suit case in which were the alleged narcotic drugs. According to Zablon, the accused party departed on the 8th March, 2010. By the way, that was the day when they were arrested at Kabuku. The issue is whether the 2nd, 3rd, 4th and 5th accused persons can be linked to contraband stuff, that is, despite the fact that the same was not retrieved from the car in which they were traveling. That issue would involve a massive reflection of the whole of the evidence but, at least, the testimony of Zablon, seemingly, avails a certain linkage. Both Mr. Chuwa and Mr. Akaro urged me to discount the evidence of Zablon for unreliability as well as being a discredited whole. To express at once and; with respect, such a wholesome discounting of the testimony of a witness would necessarily involve a fully fledged credibility, reliability and weight analysis of the entire account of the witness. As already hinted, it is not required of a trial the court, at this stage, to travel that length. That said, it seems to me, on the whole of the evidence, the 2nd, 3rd, 4th and 5th accused have been implicated sufficiently enough to call upon their defence. That is to say, the submission of no case to answer in their behalf crumbles. I now turn to the 6th accused. The sixth accused was not amongst the Nyinda classic guests to distinguish himself from the Zablon implication. Nonetheless, the evidence bearing on him stems from the allegation that he was traveling in the silver Suzuki from which the narcotic drugs were retrieved. In this regard, it should be recalled that Mr. Loomu – ojare submitted that the sixth accused was not driving the car, rather, he was a mere passenger. In addition, counsel submitted that it has not been shown that the 6th accused was aware or had control over the narcotic drugs. With unfeigned respect to learned counsel submission, it is not always the case that the driver would have knowledge or control over the contents of whatever luggage comprised in a motor vehicle. Indeed, on occasion, a passenger, rather, turns out to be the person in control to the exclusion of the driver.. That the 6th accused was traveling aboard the ill-fated Suzuki is, to me, a fact adversely telling against him. Lest my immediate proposition is misunderstood to mean that the 6th accused stands to be condemned upon his mere presence in the car; far from it. All I mean is that the detail is sufficiently telling to which I may only finally determine in the wake of his own version. Again, that is to say, the 6th accused has a case to answer. And now, finally, to the seventh accused. If I may express it from the very outset, there was little telling against this accused person whom was not even amongst those arrested at Kabuku. His incrimination was somewhat related to by detective sergeant John [PW.20]. According to him the seventh accused’s participation was hinted about by a police informer. It is common ground that the whistle – blower was not called into testimony and; perhaps, it was in keeping with good practice not to call him/her. Whistle – blowers play a pivotal role in the detection of crime and; if they become known, their usefulness will diminish just as their lives would then be at stake. Again, I would further remark that it was perfectly proper for PW.20 not to travel so far as to disclose details of the information; much as, if the contrary was the case, the court would have been abused by hearsay stuff. Nonetheless, despite the double-jointed ailment, the prosecution sought to have it both ways: To conceal the identity and so much of the information derived by the informer; whilst, by the same token, to secure the prosecution or, perhaps, persecution of the seventh accused anyway, as it were, even be it from without. In this regard, I make no bones at the remark that such a seemingly masochistic, bullheaded and witch-hunting approach does not deserve the highly esteemed office of the D.P.P. As it turned out, Mr. Mganga sought to implicate the seventh accused upon an aggregation of four sets of separate facts of which I have already enumerated in my recital of his submission. To begin with the first, it may be that the seventh accused was in Tanga on the 4th March, 2010 for an uneventful or innocent purpose. Secondly, his doing the translation exercise at the police station does not incriminate him anyhow. By the way, going by the tone of the testimony of PW.12, the seventh accused was, seemingly, assisting the police and; for that matter, it is incredible for the prosecution to seek to convert the detail as an arsenal. Thirdly, there was some mention about the photographs [P.11]. Learned state attorney went so far as to relate the characters and items involved in the photographs. With respect, those photographs were allegedly electronically generated by a cyber-crime expert whom was not acquainted with any of the characters or items comprised in the photoprints. It would have required an acquaintance to further relate as to whoever were the characters or whatever were the items reflected in the photographs. That evidence did not avail and it is not for the court to venture into that exercise on its own; more so, as it would, then, lent itself the misfortune of having to step unto a witnesses shoes. Neither may counsel seek to relate details from the bar. To say the least, for what they are worth, the practical utility of those photographs is anybody’s guess. Perhaps, a little telling was the fourth detail about the seventh accused avoiding the police and, eventually, immigration officers. Incidentally, his encounter with the law-enforcers bears some resemblance with what transpired in the Kenyan case of Kigecha Njuga V.R. [1965] E.A.773. In that case, the police had been told by an informer that the appellant [Kigecha] was about to perpetrate an armed robbery by the use of a disguised car. Indeed, soon after, he was seen driving a car of which the police attempted to stop. Kigecha did not wish to be stopped, whereupon, he led the police upon a wild chase through the streets of Nairobi City. Eventually, the fugitive drove against a pavement and the car was brought into a standstill by a tyre burst. Obviously a die hard, Kigecha alighted from the car and attempted a desperate flight on feet but; no sooner, he stumbled, fell to the ground and was arrested. A sime was retrieved underneath the driving seat of his car. In the trial proceedings, Kigecha was convicted for being armed by the day with intent to commit a felony. On appeal, the then Chief Justice of Kenya made this remark: Now what, it may be asked, was all this about? The appellant clearly was up to no good. He was possibly armed. But whatever he was fleeing from the scene…. is, on the evidence so far considered, a matter of mere speculation. This man wanted, very badly, to avoid the police. That is really all one can say. Likewise, I so find, the seventh accused anxiously wanted to avoid the police and, eventually, the immigration officers but; the reason behind his flight is a matter for conjecture. Again, as against this detail, that is really all one can say. In sum, I venture to say, the aggregation of separate facts outlined by learned Principal state attorney are either inconsequential or inconclusive in the sense that they are quite as consistent with an innocent explanation. In the result, the aggregation of facts are not really of moment. As was remarked by Green L, J. years back in Herniman V. Smith [1936] 2 ALL ER at pg.1389:- Nothing added to nothing makes nothing and it is not possible by adding a lot of things together to produce something which you are then entitled to say, in the aggregate form, evidence fit to be considered by the jury. The seventh accused, I would finally conclude, has no case to answer. Accordingly, in terms of section 293(1) of the CPA he is found not guilty and acquitted. It is so ordered. K.M. MUSSA, J. 27/4/2012 Chanzo:www.katabazihappy.blogspot.com. Mei 5 mwaka 2012