G Mustafa, J.A. read the following considered judgment of the court: The appellant was convicted of murder on purely circumstantial evidence. On the material day the appellant and the deceased had H a little quarrel in a pombe shop, but the quarrel was settled more or less amicably, and each went his separate way. This was according to the evidence of P.W. 3 Maliki Bakari who was a crucial witness for the prosecution. According to P.W. 3, later that evening, he was in his shop serving customers, and at about 8.30 p.m. just before he was to close, the deceased appeared and wanted to I purchase some cigarettes. There was a light in the shop. As he was taking out some cigarettes to sell to the deceased, he
heard a voice saying "Aisay, umenitoroka. Ulifikiri sintakuona." P.W. 3 stated that he could A recognize the voice as that of the appellant whom he knew well. Immediately on hearing that statement, the deceased ran off, without his cigarettes. P.W. 3 thereupon assumed that the appellant had run off after the deceased.
Later on the same night, an alarm was raised, and P.W. 3 discovered that the dead body of the B deceased was lying on the road some distance from his shop.
P.W. 3 told the assembled villagers of what he had seen and heard and suggested that the killer must have been the appellant, and a search was made for the appellant. C
P.W. 1 and P.W. 2, both police officers, arrived at the scene. P.W.1 went to the house of the appellant. The appellant was absent, and PW.1 searched the house. He found a shirt which appeared to have blood stains. He seized it. He asked the appellant's wife who was present to whom did the shirt belong. She said it was the appellant's. Later blood samples of the appellant and the deceased D were taken, and they, together with the shirt, were sent to a Government Chemist for analysis. It was discovered that the blood of the deceased and the appellant and the blood stains on the shirt all belonged to the same group. E
On their way back to the police station from the village, the police vehicle in which were P.W. 1 and other police officers and village officials was stopped by the appellant who gave himself up stating that he had heard that the villagers had implicated him in the killing, but that he had not done so, and he was therefore surrendering himself to the Police for proper investigation, presumably. F
The prosecution case depends on two important circumstances. The first would be the voice identification of what the appellant was alleged to have said, as a result of which the deceased suddenly ran away. In view of the fact that the earlier dispute between the appellant and the G deceased was settled amicably, it is difficult to understand why the appellant should have said "you ran away from me", or "that I could not trace you". Also it is notorious that voice identification by itself is not very reliable.
As regards the shirt with blood stains, it is difficult to conclude that it must have been the H appellant's. The shirt was seized in the appellant's absence, and the wife said it was the appellant's shirt, also in his absence. Thereafter it was never shown to the appellant, nor was he asked if the shirt was his. There was insufficient evidence to link the shirt to the appellant on the evidence adduced by the I
A prosecution. It was also not established whether the blood stains on the shirt were extensive or otherwise.
In our view the circumstantial evidence in this case does not irresistibly lead to the inevitable inference that it was the appellant and nobody else who had killed the deceased, in view of the B lacunae in the evidence adduced by the prosecution.
Mr. Mwale for the Republic eventually conceded that he is unable to support the conviction.
In the result we allow the appeal, quash the conviction, set aside the sentence of death imposed on C the appellant, and order that he be released forthwith unless otherwise lawfully detained.