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JUGDEMENT OF JERRY MURRO CASE

IN THE RESIDENT MAGISTRATE’S COURT OF D’SALAAM AT KISUTU:CRIMINAL CASE NO. 22 OF 2010 REPUBLIC VERSUS 1. JERRY MURO 2. EDMUND KAPAMA @ DOCTOR 3. DEOGRATIAS MGASA @ MUSSA JUDGMENT The accused persons in this case Jerry s/o Muro, Edmund Kapama @ Doctor and Deogratias s/o Mgasa @ Musa are both stand charged for the following offences:- The first count is conspiracy c/s 32 of the prevention and combating of corruption Act, 2007, the particulars of this offence is that Jerry s/o Muro, Edmund s/o Kapama @ Doctor and Deogratias s/o Mgasa @ Musa in January 2010 within the city and region of Dar es Salaam, conspire together and with other persons unknown to commit the offence of corrupt transactions contrary to section 15(1)(a) of the prevention and combating of Corruption Act, 2007. The second count is corrupt transaction, contrary to section 15(1)(a) of the prevention and combating of corruption Act, 2007, and the particulars of this offence is that the accused persons Jerry s/o Muro, Edmund s/o Kapama @ Doctor and Deogratias s/o Mgasa @ Musa, on 29th day of January, 2010 at Sea Cliff Hotel within the City and Region of Dar es Salaam the first accused person being employed by Tanzania Broadcasting Corporation as a reporter, corruptly solicited TSh 10,000,000/= from Michael Wage @ Karoli as an inducement for them to forebear from broadcasting news relating to allegations of misuse of public funds by the said Michael s/o Wage @ Karoli who was an accountant of Bagamoyo District Council a fact which was in relation to their principal’s affairs. The third and last count is for 2nd and 3rd accused persons and the offence is personating to be a public officers, contrary to sections 100(b) and 35 of the penal code Cap. 16 R.E 2002. The particulars of this offence is that Edmund Kapama and Deogratias Mgasa @ Musa on 29th, January 2010 at Sea Cliff Hotel within the city and region of Dar es Salaam falsely represented to be employees of prevention and combating of Corruption Bureau and assumed to interrogate Michael Wage @ Karoli in connection with allegations of corruption. All accused persons denied all count offences and a plea of not guilty was entered, hence full trial. The prosecution side called a total of seven witnesses in bid to prove their case against the accused persons, those witnesses whose evidence was recorded seriatim was, Defective Staff Sargent Peter Jumamosi, A.P Kumar, Michael s/o Wage @ Karoli, Asst Inspector Seleman, Inspector Antony Mwita SSP Duan Nyanda, Detective CP. Lugano. These will hereinafter be referred to as PW-I, PW-2 PW-3, PW-4, PW-5, PW-6 and PW-7 respectively. On other hand the 1st accused persons invited one person to testify as his witness for defence side and make a total of four witnesses for the defence case 1st, 2nd and 3rd accused persons inclusive. The prosecution side led by the learned Principal state Attorney Boniface and the learned counsel Rweyongeza and Kamala for the 1st accused person while the learned counsel Magafu represented the 2nd and 3rd accused person. Summary of the prosecution case basing on the evidence by the above named prosecution witnesses is as follows:- PW1 – I Defective Staff Sargent Peter Jumamosi sworn and state that he resides at Chang’ombe police line and he is working as police officer since 1995, at R.C.O Office Special Zone Dar es Salaam. PW-I told the court that he remember on 1st day of February 2010 he was at Central Police Office his boss (ZCO) Zonal Crime Officer one Mr. Mkumbo ordered him to take the caution statement of the 3rd accused person Deogratias s/o Mgasa who was alleged for an offence of obtain money by false pretenses. In his evidence PW-I further avers that he introduced himself to the 3rd accused person and asked him if he will prefer to call any of his relative or his advocate before interrogation and 3rd accused person said he don’t wish to call anybody, PW-1 took the statement of the 3rd accused person who also read it and signed. PW-1 went further and avers that on the following day on 2nd day of February 2010 and 3rd day of February 2010 he also took additional statement and that the 3rd accused person admitted the said allegation against him. When the caution statement of the 3rd accused person tendered as an exhibit the same was objected by the defence counsel Mr. Magafu, an inquiry was conducted and the caution statement of the 3rd accused person was admitted as exhibit “P-1”. As PW-I cross examined by the counsel for the 3rd accused person, PW-I told the court that he took the first statement on 1.02.2010 the date the 3rd accused person arrested and that he cautioned the accused person that he was alleged to obtained money by false pretense. Upon further cross examination PW-I avers that he took the second statement of the 3rd accused person who did not admit until he admitted when his 3rd statements were recorded. PW-2 A.P Kumar Alan, Adult 35 years old, affirmed and state He is an employee of Sea Cliff Hotel as I.T. Manager. (Information Technology Manager. PW-2 further avers that on 1.02.2010 the General Manager introduced him to three police officers who wanted to check at CCTV room as the said police officers wanted to identify the persons whose image were captured by the Camera from 28th day of January, 2010 up to 31st day of January, 2010. PW-2 went further and state that the said Camera Captured the image of three persons 29th day of January 2010 and that he made a print out and gave the said police officers, the said CCTV picture were tendered and admitted as exhibit P-2”. As PW2 cross examined by the counsel for the 1st accused person, Mr. Rweyongeza PW-2 told the court that he is working with Sea Cliff for four years now and that it is not possible to Manufacture the print out as he is not a photographer. Upon further cross examination PW-2 told the court that they don’t record the sound. Also as PW-2 cross examined by the counsel for the 2nd and 3rd accused person Mr. Magafu, the learned counsel PW-2 told the court that he prepared a print out and gave one CD to police officers. PW-3 Michael s/o Wage Karoli, 51 years old, adult, Christian sworn and state he is working with Bagamoyo District Council as an accountant and that he remember on 28th day of January 2010 he receive a call from one Jerry Muro who told him that he is working with TBC. PW-3 further told the court that the person introduced himself as Jerry Muro told PW-3 to meet at Dar es Salaam and they met at Calfonia Restaurant about 11:00am. In his testimony PW-3 further avers that, he was with his Driver before the 1st accused person Jerry s/o Muro told him to leave the said driver and shifted to another table, there the 1st accused person told him that there was allegation against PW-3 Michael s/o Wage @ Karoli concerning with misuse of public fund at Bagamoyo District Council. PW-3 led by the learned Principal state Attorney he told the court that the 1st accused person called others persons and one of them introduced himself as Assistant Director of PCCB and that the 1st accused person by that time he had a pistol and it was the time the 1st accused person told PW-3 that he wanted to prepare a report following an interview with PW-3 concerning with the allegation against him and that interrogation will be reported direct through Tanzania Broadcasting Cooperation (TBC) during “Usiku wa Habari”. PW-3 further told the court that he denied the allegation but he later on asked the 1st accused person Jerry s/o Muro to assist him and the 1st accused person told PW-3 to give them TSh 10,000,000/=. In his testimony PW-3 avers that he told the 1st accused person that by that time he had only Tsh 1,000,000/= and the remaining sum he will pay it on the following day and that he was considered, the 1st accused person gave PW-3 a lift up to Best Bite Restaurant where PW-3 met his driver ready for journey back to Bagamoyo. PW-3 further told the court that after he had conversation with his relatives and some friends he discovered that he was coned and he decided to report that incident to central police station. In his testimony PW-3 avers that he was told by the police officers that he had to call 1st accused person and tell him to come at City Garden and PW3 did it and the 1st accused person arrived at the place with a Saloon Car the police officers surrounded the 1st accused person who wanted to drive and leave the place but he was surrounded and later on arrested. PW-3 also avers that the 1st accused person was taken to central police station and his motor vehicle was searched various properties were found on it includes handcuffs, and spectacles identified by PW-3 as his property. PW-3 further avers that he was shown a pistol produced by the 1st accused person and identified it as the one used by the 1st accused person to threat him. PW3’s statement tendered and admitted as exhibit “P3”. As PW-3 cross examined by the counsel for the 1st accused person Mr. Rweyongeza PW-3 told the court that he did not know Jerry Muro before this incident and that he did not read from any newspapers concerning with the issue of embezzlement of public fund of which PW-3 was responsible but he knows there was such allegation for misuse of public funds. Upon further cross examination PW3 avers that he reported the matter on 31st day of January 2010 and that he opted to go to central police station instead of PCCB office, because one of the accused person introduced himself as a PCCB employee, and that he reported that matter after having conversation with his relative who advised him to report it to central police station. Also as PW-3 cross examined by the Mr. Magafu counsel for the 2nd and 3rd accused persons PW-3 told the court that he is Christian who got first communion in 1968 and join local government as an accountant at Bagamoyo District Counsel in March, 2006 and his salary by then was 1,400,000/=. Upon further cross examination PW-3 avers that he sold his motor vehicle in 2003 and build two houses at Morogoro with loan from Bank he managed to build others house and make total of nine houses. Upon further cross examination PW-3 told the court that the accused person did not shows him their identity cards, as he believes that 1st accused persons Jerry Muro and decided not to suspect the 2nd and 3rd accused persons, and that he gave them one million shillings so that the report could not be announced at the media. During re-examination led by Principal State Attorney Boniface PW3 avers that his house at Morogoro have nothing to do with this case and he used his own Mobile phone to call the 1st accused person whose mobile phone number is 0653-568080. PW-4 Ass Insp. Issa Seleman, Adult, 30 years old, affirmed and state. He is working with R.C.O Ilala Investigation Department and that he remember on 30/01/2010 he received a call from one Michael Wage who told him what the accused person were doing he was told by RCO Ilala to opened a file PW-4 further avers that he took three police officers they made a trap and the 1st accused person came with a Saloon Car at City Garden having saw PW-3 with other persons, the 1st accused person wanted to leave the place but he was surrounded. PW4 further avers that he ordered that 1st accused person to go at Central Police Station after the PW3 identified him as the person they were communicating. As PW-4 cross examined by the counsel for the 1st accused person Mr. Rweyongeza PW-4 told the court that they normally never handling corruption cases and that he receive a call at morning hours he also saw the money that PW3 had. Also as PW-4 cross examined by the counsel for the 2nd and 3rd accused persons he told the court that there was no body suggested that the money had to be taken to PCCB for further action. During re-examination by the learned principal State Attorney Boniface PW-4 avers that he used his mobile phone to call the 1st accused Jerry Muro and the later was responding. PW-5 Inspector Antony s/o Mwita, adult, male, sworn and state that he is working as investigator with zonal crime office and his duties is to investigates all cases assigned to him. PW-5 further avers that he remember on 2nd day of February 2010 he went at Sea Cliff and met the IT-Manager (information Technology Manager and he manage to identifies the captured CCTV pictures to be that of Jerry Muro and others. PW5 further avers he also got a receipt of buying handcuffs the said receipt was tendered and admitted as exhibit “P-4” from Mzinga Corporation Upanga Shop. PW-5 further avers that he went at Mzinga Corporation for confirmation if the 1st accused person bought the handcuffs from their shop and he was told that it was true the 1st accused person bought the handcuffs from their shop. As PW-5 cross examined by the counsel for the 1st accused person, Mr. Rweyongeza, PW-5 told the court that he went at Sea Cliff twice, the first time they went to confirm if the 1st accused person went at Sea – Cliff and for the second time they went to collect some information which they wanted. PW-6 SSP Duan Nyanda Dila, 49 years old RCO Ilala sworn and state he was assigned a work to search the motor vehicle of the 1st accused person Jerry Muro, the search was conducted, at the motor vehicle make Toyota Cresta with Registration number T. 545 BEH. PW-6 further avers that the search was conducted in presence of the 1st accused person and other persons, then one pair of spectacles and one handcuffs were found, the soul spectacles was tendered and admitted as exhibit “P-6”, the handcuffs was also tendered and admitted as exhibit “P-7”. As PW-6 cross examined by the counsel for the 1st accused person the learned counsel Rweyongeza PW-6 told the court that, the spectacles was found at a dashboard, and PW-3 Michael Wage identified the said spectacles to be his property. PW-7 F3848 Dcpl Lugano, male, adult, sworn and state he is working with Tanzania Police Force at special Zone Dar es Salaam as an investigator. PW-7 further avers that he remember on 31st day of January 2010 he was assigned a work to inspect in the Motor vehicle of the 1st accused person he did the work to assist RCO (pw-6) and in the cause of inspection they found handcuffs, and one pair of spectacle. PW-7 further avers that the 1st accused person submitted to him a firearm make pistol with 10 rounds ammunitions the said pistol and ten rounds ammunition were tendered and collectively admitted as exhibit “P-7”. This became the end of the prosecution case upon this honourable court finds that all accused persons have a case to answer, under section 231 of Cap. 20 R.E 2002 all accused persons were explained their right to enter a defence. DW-I Jerry s/o Muro, 30 years old resident of Kunduchi, a journalist led by the counsel Rweyongeza sworn and state, he is a senior journalist who was working with TBC until he was charged with these offences. DW-I further told the court that under Tanzania Broadcasting Corporation (TBC) he was a supervisor and reporter of night news famous known as “Usiku wa Habari”. DW-I also avers that by reporting and revealing crimes he was promoted and awarded to be a best journalist on matters relating to Health, HIV, Good government and Corruption. In his defence DW-I told the court that he started the work of journalism since he was form three at Loyola Secondary School and thereafter he undertook various training from different places such as British Embassy, South Africa, U.S.A and Sweden. DW-I went further and avers that before he was employed at TBC he had already worked with Radio Tanzania DSM, ATN and ITV and his daily activities was to collect news and reported the same to the media and that he remember to have reported news with picture showing how police officers were receiving bribes from the Motor Vehicle drivers at various place includes DAR ES SALAAM, COAST, MOROGORO, IRINGA and MBEYA from there he received some threats SMS from unknown persons for what he did, and other SMS were just to congratulating him for a good job. DW-I also told the court that he was not forced by anyone to reveal corruption at public service but he started to meet challenge at his work when he was assaulted by a persons who told him that was just a beginning and that he will see what next,DW-1 then he reported that incidence to his Boss Joyce Mhavile and later to police post but no one was arrested. In his defence DW-I also avers that he remember there was people went to his house with firearms they asked him and took his computer and identity card, he reported that event at Osterbay Police Post but the said criminals were not found from there he was advised to process a license for possessing a firearm he went at “Duka la Mzinga” and buy a pistol and handcuffs, he was given a receipt. DW-I went further and avers that he was doing his job at Njombe District, a certain Motor vehicle make Mitsubish Pajero blocked him as if there was people wanted to assault him he fire at the air they ran away and he reported that event to the office of OCD – Njombe where he was told why he don’t find some money instead of finding people. DW-I went further and state that he remember to have been at Sea Cliff but not at the alleged date, and the picture tendered as exhibit are not his picture, and that the said are not clear to the extent one cannot identifies the face of those persons. DW-I further told the court that he is still facing problems after this case as he was stopped from working with TBC until this case comes to an end and that he could not get his money US 4000/= being awards price for the reason of this case after being awarded and declared as a best journalist of the year. DW-I went further and aver that he prays this honorable court to consider this case as a cooked one aimed to ruin him. As DW-I cross examined by the counsel for the 2nd and 3rd accused person, Mr. Magafu, DW-I told the court that he don’t know the 2nd and 3rd accused person and he never seen them before this case commenced. As DW-I cross examined by Principal State Attorney Mr. Boniface DW-I told the court that, he remember he was arrested at city Garden on 31/1/2010 and he never met with Michael Wage PW-3, until he saw him at City Garden. Upon further cross examination DW-I told the court he knows at police force there are good officers and the ones who are unethical and that he doesn’t know the 2nd and 3rd accused person. DW-2 Denis s/o Cosmas @ Msisi, 28 years old, resident of Ubungo Maziwa sworn and state he knows the 1st accused person since he was standard seven and that once the 1st accused person had an emergence he normally use him (DW-2) as his driver. DW-2 also told the court that he remember on 28.1.2010 the 1st accused person gave him a task to drive his motor vehicle and DW-2 was told by the 1st accused person that they are going to Habari Maelezo. DW-2 went further and avers from Habari Maelezo on the way to TBC the 1st accused person received a call and they turn to Sea Cliff at Sea Cliff he heard the 1st accused person saying that the person who called him to go there is not seen and the mobile phone number was not reachable, from there, they went back to TBC and later on they went to park the said motor vehicle at Ubungo Maziwa. Upon cross examined by the state attorney Mr. Boniface DW-2 averrs that he was born in 1982 he studied standard seven at Mabibo Primary School and that he knows Jerry Muro since he was at standard seven. DW-3 Edmund Sospiter @ Kapama , 53 years old, sworn and state he knows this case as a cooked case as he don’t know one Michael Wage and the later did not identifies him during identification parade. DW-3 further told the court that he did not commit any crime with co-accused persons and he saw the 1st accused person when they were charged together. DW-3 further avers that he knows the 3rd accused person Deogratius s/o Mgasa because he is having a shop at Wazo area but he never sat with him anywhere together with 1st accused person. As Dw-3 cross examined by the counsel for the 1st accused person Mr. Rweyongeza DW-3 to told the court that he don’t called Doctor and that is not his name, upon further cross examination DW-3 told the court that identification parade was conducted but no identification parade register was tendered, and that the name Jerry Muro he knows it through the media. As DW-3 cross examined by the principal state Attorney Mr. Boniface DW-3 told the court that he never went at Sea Cliff on 28/1/2010 and the statement tendered as an exhibit; are not the words from his mouth as he was forced to sign the written document presented to him. DW4 Deogratius s/o Mgasa, 34 years old, sworn and state that his name is Deogratius s/o Mgasa he don’t use the name Musa as per charge sheet and that he don’t know the 1st accused person and they never call each other through mobile phone. DW4 went further and avers that he never receive money from Michael Wage and that he saw the picture taken at Sea Cliff but he don’t know those picture because he didn’t went at Sea Cliff on 28/01/2010. DW4 further avers that even at identification parade Pw-3 did not identifies him and that his first caution statement was recorded on 1/2/2010 he denied the allegation and the second additional caution statement was taken on 2/2/2010 and last additional statement on 3/2/2011. Dw-4 went further and avers that he was told by a police officer by the name of Peter Jumamosi to signed the last caution statement after he was severely beaten to the extent that there after he was taken to Hospital for treatment, the discharged card was tendered and admitted as exhibit “D-I”. As DW-4 cross examined by the counsel for the 1st accused person, DW-4 told the court that he is not Muslim and that he don’t know the persons appears at the picture tendered as exhibit “P2” CCTV and that no person testified to the extent that he was seen receiving money from PW-3. As DW-4 cross examined by Principal State Attorney Mr. Boniface DW-4 told the court that, he don’t knows the persons appears at CCTV picture and that he was forced to sign the caution statement and that the 1st caution statement is the one he voluntarily gives his words and signed but the rest were not obtained from him voluntarily. That was all about the defence case, thereafter I have got an ample time to scrutinized careful the evidence on records, also I have read the written submission from both sides and the issue remain whether or not the charges against the accused persons has been proved beyond a reasonable doubt. To start with the first count of conspiracy c/s 32 of the prevention and combating of Corruption Act; 2007. As for the 1st count the issue is whether this offence has been proved against accused persons beyond reasonable doubt. The prosecution side relied on the evidence of PW3 Michael s/o Wage @ Karoli who said to have a meeting with the 1st accused person at Calfonia Restaurant by that time they were communicating by using their Mobile phone. The caution statement of the third 3, accused person were also tendered and admitted as exhibit “P-I”. The prosecution side also tendered CCTV – Picture as exhibit “p-2” just to show the court three people who according to prosecution side are the accused persons and PW-3, the picture captured by CCTV Camera at Sea Cliff. By starting with the evidence of PW3, he told the court that he was using his mobile phone to make communication with the 1st accused person and met at Calfonia Restaurant and Sea Cliff, PW-3 also in his statements he said on 31/01/2010 the 1st accused person wrote him a text (SMS) and I quote “VIPI MBONA HAUPATIKANI, in my view the print out of this SMS-Message was sufficient to establish communication between the 1st accused and the PW-3 Mr. Michael Wage @ Karoli, for a conspiracy to be proved here in our case communication between the accused persons themselves or with the complainant now PW-3 is inevitable, in my view I think something is missing here and this is nothing but a proof of communication between the accused persons themselves or from the mobile phone of the PW-3 and any of the accused persons. PW-3 told the court that his driver took him at Sea Cliff they were sitting at one table but when the 1st accused person arrived he shifted to where the 1st accused person’s was and left his drive alone, under this circumstances to establish whether there was a mutual plan or meeting, then the driver of PW-3 had a role to play as he saw his boss shifting from the table which they were sitting together and joined the 1st accused person in another table but PW-3’s driver was not called as a witness to clear the doubt. A part from the missing communication as I said earlier, the prosecution did not produced any evidence to show whether identification parade was conducted and PW3 indeed identifies the persons he met at Sea Cliff and sit at one table for discussion as the one brought during identification parade. As regard to the caution statement of the 3rd accused person, with the evidence on records nothing suggest that the accused persons are well known to each other also I have got an ample time to read the caution statement of the 3rd accused person, and find the following uncertain circumstances. The first caution statement was taken on 1/02/2010 the 3rd accused person was asked if on 29/01/2010 he was together with the 1st and 2nd accused person his answers was no. Additional caution statement was taken on 02/02/2010 and the last additional caution statement on 3/02/2010, the purported confession is seen at the additional caution statement, Also we have seen CCTV picture tendered as exhibit “P-2”, the picture are print out according to the prosecution it is a picture which shows the image of 1st, 2nd accused persons and PW-3, captured by a stationary CCTV – Camera at Sea Cliff Hotel on 29/1/2010. I have carefully look at the picture I find that the said picture is faint, it is not a clear picture at all there are image of three persons their faces are not clearly seen. I believe this could have been cured only by displaying the said CD which was given to the police officers by using TV Screen and DVD as one of prosecution side already told the court that the police officers were given such CD for further identification and clarification of the said image. For the reason unknown the said CD which was given to the police officers from central police station was not played by using Tv screen to enable this Honorable court to have a clear images of the said persons whose image were captured by CCTV-CAMERA. With all this doubt as regards to the offence of conspiracy I find that in absence of any other independent evidence, it is not only insufficient but also is not safe to rely only on the caution statement of 3rd accused person in convicting the accused persons for this count offence. For the reasons aforesaid I hereby acquit accused persons for the first count of conspiracy c/s 32 of the prevention and combating of corruption Act, 2007 for the reasons that this offence is not proved beyond reasonable doubt as I have said herein above. Coming to the second count of corrupt transaction c/s 15(1)(a) of the preventing and combating of corruption Act, 2007. As for this offence the prosecution side through PW-3 and exhibit “P-3” the latter being the statement of PW-3 who told the court that the accused person being an employee of TBC and the 2nd and 3rd accused person did introduced themselves as employees of PCCB had a jointly brief conversation at Sea Cliff over the issue of embezzlement of Public Fund at Bagamoyo District Council, their discussion was that PW-3 had to pay the accused persons Tsh. 10,000,000/= so as to forebear from broad casting news relating to allegation against PW3 and cash money Tsh 1,000,000/= was paid and received by the 2nd accused person as an advance payments because PW-3 had no all the sum at per. With the evidence on record PW-3 said he gave the accused persons Tsh 1,000,000/= and promised to pay the remaining sum on the following day. There is no any other piece of evidence on records apart from the complainant shows that the accused person were seen receiving Tsh 1,000,000/= as a part payment of the agreed sum , if at all there was circumstances suggesting that the accused persons solicited PW-3 to give them bribe money, then a proof of communication was necessary on the side of prosecution, eye witness or any other independent evidence shows to that effect or that the accused persons and PW-3 were all found together, like I said earlier PW-3 told the court that he was communicating with the 1st accused person over the same issue but prosecution side did not see the need of finding those communication text or print out for that matter so as to assist this honorable court in determine whether there was communication between the suspects and the complainant just to show it is not the only words of complainant but there is such an independent evidence. The CCTV Picture like I said earlier is not clear and does not shows whether those persons whose image were captured by CCTV – Camera are in any manner the people who were in a conversation or the people who were together. Perhaps there was a need of a planned trap from prosecution evidence in a manner well known and well conducted by having a trap money which had to be supported by the evidence shows that the accused persons had such an intention shows that they were about to receive those trap money. In our case the evidence on records shows that this offence occurred at Sea Cliff but the 2nd and 3rd accused persons were arrested at different time and places while 1st accused person was arrested inside his car while driving at the said area I don’t understand why the arresting officer were in such hurry as they did not even gave a chance for the 1st accused person and PW-3 to greet each other at least to create environment suggesting that the two were well known to each other before and watch what would have been follow before they rush to arrest the 1st accused person who by then was still inside his car. It was also established on the evidence on records that this offence committed at Sea Cliff but non among PW-1, PW-2, PW-4, PW-5 , PW-6 and PW-7 testified to have seen the 2nd and 3rd accused person at Sea Cliff Hotel, save for PW-3 whose evidence I find insufficient and does not in any way corroborated by any other independent evidence. PW-3 told the court that the 1st accused person had a pistol and handcuff which the 1st accused used to threat PW-3 on 29/1/2010 but he did not report that incidence neither on the same date nor on the following date until on 31/1/2010 when he reported that incidence at central police, despite the fact that there is a proof that 1st accused person is legally possessing a pistol and handcuffs which he bought from Mzinga Corporation one cannot easily believe that PW-3 who is an educated person Accountant of Bagamoyo District Council could simply be under arrest of a journalist the 1st accused person and keep quite without reporting to state organ at a right time. Under all these circumstances and the reasons aforesaid I am of the settled view that this count of corrupt transaction c/s 15(1)(a) of the prevention and combating of Corruption Act, 2007 has not been proved beyond reasonable doubt against all accused persons and for that matter I hereby acquit them all for the offence charged. As for the last count of personating as public officers c/s 100(b) and 35 of the Penal Code Cap. 16 R:E 2002, the prosecution side relied on the evidence of PW-3 and the statement tendered as exhibit “P-3”, PW-3 told the court that the 2nd accused person introduced to him as the Deputy Director General of PCCB by the name of Doctor and the 3rd accused person introduced himself as assistant of the Deputy Director General of PCCB by the name of Musa. PW-3, according to his testimony and his statement the persons introduced to him were Doctor and Musa in defence hearing the 2nd and 3rd accused person denied those names, perhaps one may asked himself or herself if the educated person like PW-3 who is an accountant by profession can accept a person introduced to him by a single name of Doctor to be Deputy Director General PCCB and still believe that man to the extent of complying with his orders. I think PW-3 had a duty to ask for identity card of the 2nd and 3rd accused persons before he trusted them. With the evidence on records prosecution side did not produce any evidence to show if the identification parade was conducted and if PW-3 identifies the persons he named Doctor and Musa as the 2nd and 3rd accused persons, no even other independent evidence that the names Doctor and Musa are the nick names of the 2nd and 3rd accused persons. The exhibit “P-I” being the additional statement of the 3rd accused shows that the 2nd and 3rd accused person did introduced themselves to the PW-3 as an employees of TBC to mean they work together with the 1st accused person while on other hand the statement of PW-3 tendered as exhibit “P-3“shows that the 2nd and 3rd accused person did introduced themselves to “PW3” as an employees of PCCB. Exhibit “P-1” being the additional statement of the 3rd accused person and “P-3” which is the statement of PW-3 are not talking of the same story while exhibit “P-1” shows that the 2nd and 3rd accused person were introduced themselves as an employees from TBC to mean that the 2nd accused person being the boss of the 1st accused person, the 3rd accused person was just a driver of the second accused person that means they were all TBC employees. Exhibit “P-3” shows that the 2nd and 3rd accused persons introduced to PW-3 as PCCB employees. This circumstance make a puzzle as to which is which all were exhibits tendered by prosecution side but are just telling the different stories apart from the evidence of PW-3 nothing was tendered as exhibits to support this evidence like identity cards,any documents or any other independent evidence apart from that of PW-3. Under this circumstance I am satisfied that the evidence on records leaves doubts and it is not sufficient and safe to rely on it to convict the 2nd and 3rd accused persons for the offence of personating as public officer c/s 100(b) and 35 of the penal code Cap. 16 R:E 2002 this being the position I hereby acquit them for the offence charged. I have carefully scrutinized the evidence on records, I find that there is a lot of inconstancies and contradiction of the evidence from the prosecution side, like I said earlier I also find that the prosecution has failed to prove their case beyond reasonable doubt for all three counts, therefore all accused person are hereby acquitted accordingly unless they are otherwise legally held. Sgd. Hon. F. L.Moshi – RM 30/11/2011 Delivered in open court this 30th day of November 2011 in presence of the learned Principal State Attorney Bonifance, Mr. Kamala for 1st accused person and Mr. Magafu for the 2nd and 3rd Accused person. Sgd. Hon. F.L. Moshi – RM 30/11/2011 Order: I have taken into consideration that the properties of the 1st accused person which were tendered as exhibit “P-4”, P-6” and “P-7” being receipts for buying handcuff, spectacles handcuffs and a firearm make pistol being the properties legally possessed by the 1st accused person the same should be restored to the custody of the first accused person immediately. It is so ordered. Sgd. Hon. F.L. Moshi – RM 30/11/2011 Right of appeal is fully explained to the aggrieved party. Hon. F.L. Moshi – RM 30/11/2011 Chanzo:www.katabazihappy.blogspot.com

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