R v Biza (Confirmation Case 993 of 1994) [1994] MWHCCrim 7 (20 October 1994)

--.......:. ... IN THE BIGB COURT or MALAWI PRINCIPAL REGISTRY CONJ"IRMATION CASE NO. 993 or 1994 THE REPUBLIC versus REGISON BIZA - ~ ' f MALAW1"'-""',';,) , /I ,:;,~"' C cc£, ,;'l~ . i 7,.?..i \.- 1/,:::-' • '-..... _..---::-;\I--< LI~~ , / / t( ·, From the Re sident Magistrate's court sitting at Blantyre c riminal Case No . 6 4 of 1994 CORA. M a CBIMASUI.. A PBIRI, ACTING J Assani, senior state Advocate for the stat Maulidi, of counsel for the accused Nkhoma, Official Interpreter Mkwepu, Recording Officer ORDER IN CONJ"IR!wm. TION The accused person was charged with theft by a person employed in the public service contrary to Section 2 78 a s read with Sec tion 283 {l) of the Penal Code. The particu lars stated that Reg ison Biza on or about the month of May, 1994 at Likangala Secondary School in the Municipalit y of Zomba being a person employed in the public service as accounts clerk and hav ing by virtue o f h is employment received or had in his custody or under his c ontro l 202 reams of duplicating paper and 4 boxes of stenci ls to the value of K7, 730. 00 was unable to produc e the said 202 re ams o f duplicating paper and 4 boxes of stenci ls to his employer or make due account therefor. He was convic ted after a full tri al and sentenced to mandatory term of 14 years i mpris onment with hard labour. When the matter came be fore a review ing j udge she had reservations about the convic tion . in a capacity of accounts clerk. The facts of the case indicate that the accused was a civil s ervant working He was s tationed a t Likangala Secondary School. one of his d utie s was t o look after stores. Unfortunately he was not the only person who had key s for the store-room. The headmaster had a master key. o ne day some investigations were done at Zomba Mar ket which r evealed that the accused person sold papers and other s tationery t o some mar ket vendors. Accused was arrested. The police and t he he admaster checked the position of stationery in t he s tore r oom. The accused was not present. The check revealed loss of s tationery l isted in the charge sheet . The evidence in the lower c ourt did not conclusively prove that the stationery whic h the accused i s a lleged to have been selling was the stationery which belonged to Likangala Secondary School. 2 / ••••• . I - 2 - During the hearing of this case on confirmation the a c cused person was represented by Mr. P. J. Maulidi, Sr who force fully submitted t hat the learned magistrate erred in placing little or no we ight on the fact that the headmaster had acces s to the stor e -room and therefore the prosecution could not prove beyond reasonab le doubt that the missing the accus ed . Furthermo re, he attacked the lack of proper a ccounting and r ecord ing system at Likangala Secondary School. I n s ummary the l earned counse l contended that the evidence was suc h th at it would not safely ground a conviction. items were stolen b y The Le arned Senior state Advocate who appeared for the state s upport had no hes itation in submitting that the state did not the c onvic tion. In a very logic al presentation Mr . Ass ani submitted t hat there was no problem in finding that the a ccused was e mployed in the public service and that by virtue of his employment he had i n h i s custody or under his control the items listed i n t he charge sheet. However, Mr. Assani submitted that the ev idenc e did n o t prove that the accused had failed t o a ccount for the same to the satisfaction of his employers. The ev idence does not link the paper which was stolen and the time when that was done a nd f i nally the role which the accused played i n that net-work . There was no stock-checking. The Learned Sen ior state Advocate a rgued that he was not suggesting that the headmaster was invo lved but that the evidence leaves a lot of serious d oubts as to the c ulprit. I n the circumstances it would be unsafe to uphold the conv i c tion. Therefore I quash the conviction and set aside the sente nce . The accused should be released forthwith un less held f or other l awful cause . Pronounced in open court this 20th day of October , 19 94 at Blantyre . G. M. CHIMASULA PHIRI ACTING JUDGE