Chanda Mwape and Anor v The People (APPEAL NO.04/2022) [2024] ZMSC 20 (15 May 2024)

• J1 IN THE SUPREME COURT OF ZAMBIA HOLDEN AT LUSAKA (CRIMINAL JURISDICTION) l.)BUC OF APPEAL NO.04/2022 BETWEEN CHANDA MWAPE ANTHONY MWANSA AND lCOURTQp JUOICiARY ; 5 MAY 2Ui'4 1 ST APPELLANT 2ND APPELLANT THE PEOPLE RESPONDENT CORAM: Hamaundu, Kaoma and Chinyama, JJS On 5 th April, 2022 and 15th May, 2024 For the Appellant: Mr. M. Makinka, Senior Legal Aid Counsel For the State: Mrs. M. Muyoba- Chizongo, State Advocate JUDGMENT HAMAUNDU, JS, delivered the Judgment of the Court Cases referred to: 1. Molley Zulu & 2 Others v The People (1976) ZR 207 2. Saluwema v The People (1965) ZR 4 3. Kalonga v The People (1988-89) ZR 90 J 2 1.0 INTRODUCTION 1.1 This was an appeal by both Chanda Mwape and Anthony Mwansa (the 1st and 2 nd appellants respectively) against their conviction by the High Court (presided by Lisimba, J) for the offences of murder and attempted murder. One month after the hearing, and before the judgment could be rendered, the 1st appellant filed a notice of abandonment of his appeal. Therefore, the appeal has only proceeded with regard to the 2 nd appellant, Anthony Mwansa. l.2 We should point out that the State had charged four accused persons before the High Court for the two offences. Their order of appearance in the High court was as follows: Chanda Mwape (the 1st appellant who abandoned his appeal) was the 1st accused; McDonald Kasaila was the 2 nd accused; Anthony Mwansa (the 2 nd appellant now) was the 3 rd accused; and Moses Mwandu was the 4 th accused. 2.0 THE FACTS 2 .1 The facts of this case are these: On 1st March, 2011, during the night, a gang of thieves, armed with guns and J 3 machetes, broke into the house of Charles Katayi, (PWl), the victim in the second count of attempted murder, at his village in the Chiengi District of the Luapula Province of Zambia. They confronted the victim, demanding money from him. The victim resisted the demand and started struggling with one of the intruders. At that point, Chanda Mwape, whom the victim immediately recognized, shot at the victim. However, the bullet missed its intended target and, instead, struck a fellow intruder with whom the victim was struggling. 2.2 The thief was hit in the leg, whereupon he fell down and crawled out of the house. Emboldened by the turn of events, the victim grabbed a machete from the injured intruder and hacked him with it on the head. The victim then followed the thieves outside the house. However, when he reached outside, another intruder came up from behind and held him. A struggle ensued between the victim and the other intruder. 2.3 Again, Chanda Mwape appeared on the scene: he shot at the victim for the second time. The bullet hit the victim on J4 the shoulder. It then went right through the shoulder and hit the thief who was tackling the victim from behind. The thief was killed instantly, while the victim was rendered unconscious. 2.4 The thieves fled the scene, while the victim was taken to the hospital. The slain thief was never ever identified by anybody. He, however, became the victim and subject of the murder charge in the first count herein. 2.5 The first people to be apprehended in this matter were the 2 nd appellant and Moses Mwandu (the 4 th accused in the High Court). McDonald Kasaila (the 2 nd accused) was apprehended shortly thereafter, while Chanda Mwape was apprehended on or about the 10th May, 2011. 3.0 THE HIGH COURT PROCEEDINGS 3.1 During the trial, the victim (PWl) told the court that the intruder who was shot by Chanda Mwape in the house crawled outside on to the veranda where he sat down. PWl said that he left the intruder there with injuries that he had inflicted on him with the machete; and that, from there, he went outside to a corner of the house where the J 5 intrnder, who was subsequently shot dead, grabbed him from behind and started stIUggling with him. According to PWl, it was at that point that Chanda Mwape and other intrnders came. PWl told the court that one of the intrnders told Chanda Mwape to shoot PWl again, and that it was then that Chanda Mwape fired the fatal shot. 3.3 PWl told the court further that he was subsequently called to an identification parade where he identified Chanda Mwape, whom he had recognised on the fateful night, and McDonald Kasaila, (the 2 nd accused) whom he said was the intrnder who had told Chanda Mwape to shoot him on the second occasion. 3.4 The arresting officer (PW5), told the court that, in the course of his investigations, he received information that a member of the community of Lupiya village in Chiengi District had a bullet wound. The witness said that he went to a house in the village and found the 2 nd appellant nursing a wound on the left leg. According to PW5, there was also another person in the house, namely, Moses Mwandu (the 4 th accused). J6 3.5 PWS went on to tell the court that he apprehended the 2 nd appellant and Moses Mwandu. The witness said that the two then led him to McDonald Kasaila, whom he apprehended at a place called Yenga in Kashikishi. 3.6 PWS again told the court that, subsequently, he received information that there was a person who was in possession of an AK 4 7 rifle in Mununga area. He said that he went to a house in that area where he found Chanda Mwape and an AK 47 rifle. He then took Chanda Mwape, and the rifle, to the police station. 3. 7 PWS then said that an identification parade was conducted where only Chanda Mwape and McDonald Kasaila participated, together with other participants. No explanation was given as to why the 2 nd appellant and Moses Mwandu were never placed on an identification parade. 3.8 PWS further told the court that the 2 nd appellant's wound was so serious that when he was taken to the hospital, the medical authorities amputated the leg. J 7 3.9 In his defence, the 2 nd appellant told the court that on the 25th February, 2011, he had gone into the bush with his friends to hunt game animals. He said that when the crime herein happened, he was still in the bush. According to the 2 nd appellant, on 6 th March, 2011, officers from the Zambia Wildlife Authority found him in the bush and shot him in the leg when he ran away from them. With the help of his friends, he went to a place called Lupiya where he was taken to a doctor working for the Red Cross Society. The doctor told him to find a place to stay within the area. The 2 nd appellant said that the only person he knew in the area was Moses Mwandu, (the 4 th accused); and so, he went to stay with him. The 2 nd appellant went on to say that, on the advice of the doctor, whose opinion was that the 2 nd appellant's wound needed to be treated at a big hospital, soldiers were called; they came and collected him, together with Moses Mwandu. 3.10 According to the 2 nd appellant, they then travelled a distance of about 35 kilometres to the soldier's camp. From there the soldiers phoned the police in Chiengi to go and JS take the 2nd appellant to Nchelenge hospital: and that was how the police came to pick up the 2nd appellant, together with Moses Mwandu, and eventually arrested them. 3.11 Moses Mwandu, in his defence, supported the 2 nd appellant's story that he was brought to Moses Mwandu's house by his friends. However, his version of the story concerning their apprehension was that armed personnel came to his house and took him and the 2nd appellant straight to Puta police station where they were detained. 3.12 The learned trial judge convicted Chanda Mwape on the ground that the victim (PWl) had recognised him on the night of the robbery, and that the said identification was supported by the fact that Chanda Mwape was later found in possession of the firearm which was proved by ballistic examination to have been used during the robbery. 3.13 Coming to McDonald Kasaila (the 2 nd accused) the learned trial judge made a mistake in his analysis of the testimony of the arresting officer (PW5). According to the judge, PW5 testified that McDonald Kasaila was the one who was found in the house where the appellant was nursing his J 9 gunshot wound. The record, however, clearly shows that what PW5 said was that the person whom he found with the appellant was Moses Mwandu (the 4 th accused). PW5 went on to say that it was the appellant and Moses Mwandu who then led him to the apprehension of McDonald Kasaila. 3.14 That said, the learned trial judge acquitted McDonald Kasaila on the ground that PW l's evidence of identification against him was not particularly strong. According to the judge, the conditions of light on the night of the robbery were quite poor and, therefore, for PW l's identification to be reliable he should have gone further to describe by what other features he had been able to identify McDonald Kasaila. The judge then said that there was no other connecting link because the fact that McDonald Kasaila was found with the appellant (an erroneous finding by the judge) did not mean that the only inference that could be drawn was that he participated in the robbery. 3.15 As for Moses Mwandu, (the 4 th accused) the learned judge found that he was arrested only because he J 10 accommodated the appellant and failed to report him to the police. Moses Mwandu was consequently acquitted, as well. 3.16 Coming to the appellant, the learned trial judge dismissed his explanation as being totally unbelievable. The judge observed that it was a remarkable coincidence that the 2nd appellant had a gunshot wound in the left leg when there was a report that one of the thieves was shot in the leg. The judge further observed that, if the 2nd appellant's explanation was true, it meant that, upon being shot in the leg, the appellant walked a distance of 35 kilometres to Lupiya village. According to the learned judge, this could not be true because the injury was so serious that it eventually necessitated the amputation of the leg. Reciting our holding in the case of Molley Zulu & 2 Others v The Peoplel 11, which is that an explanation which cannot reasonably be true is no explanation at all, the judge dismissed the 2 nd appellant's explanation as an afterthought. 3.17 Upon convicting the 2 nd appellant on both counts, the trial Jll judge sentenced him to death for the murder of his fellow intruder; and to 25 years imprisonment for the attempted murder of Charles Katayi (PW 1). 4.0 THE APPEAL 4.1 The appeal, in so far as it relates to the 2 nd appellant, is only on one ground; this reads as follows: "The court erred in law and in fact when it convicted A3 on the basis of circumstantial evidence (namely) that of having been found with a gunshot wound on the left leg; and when it rejected A3's explanation as regards the said wound". 4.2 Mr Makinka, on behalf of the 2 nd appellant, points out what he perceives as being the weakness in the prosecution's evidence. He submits that, to start with, the 2 nd appellant was never identified as being one of the assailants. Counsel goes on to submit that the above deficiency in the prosecution's evidence is further compounded by the fact that, whereas PWl said that he hacked the intruder that was shot in the leg with a machete on the head, no evidence was led to show that the 2 nd appellant was found with such injuries on his head. He J12 also argues that the blood that was said to have oozed from the intruder's injuries was not tested to determine whether it was indeed that of the 2 nd appellant. 4.3 Counsel goes on further to point out that the complainant in his testimony did not say that the assailant was shot in the left leg: and that there was no evidence, forensic or otherwise, to show that the gunshot wound that the 2 nd appellant had on his leg was consistent with that which would ordinarily be inflicted by an AK 4 7 firearm. 4.4 With the foregoing observations, Mr Makinka argues that the 2 nd appellant's explanation that he was shot by officers from the Zambia Wildlife Authority cannot be ruled out. He therefore urges us to allow this appeal. 4.5 Mrs Muyoba - Chizongo concedes the appellant's argument. It is her position, therefore, that the State does not support the conviction of the 2 nd appellant. 5.0 OUR DECISION 5.1 We begin by agreeing with both counsel that, indeed, there was no evidence of identification against the 2nd appellant. We also agree with them that the only evidence that tended J 13 to incriminate the 2nd appellant was the uncanny coincidence that he, like the assailant who was shot, had a gunshot wound in the leg. The appellant, however, gave an explanation as to how his wound came about, but the trial judge rejected that explanation. We would like to start with the rejection of that explanation. 5.2 The trial judge's rejection of the 2 nd appellant's story was on the ground that it suggested that, after being shot in the leg by officers from the Zambia Wildlife Authority, the 2 nd appellant walked with a broken leg for about 35 kilometres. This, the trial judge found to be unbelievable. 5.3 We do not agree with the learned judge's view because, to begin with, it is based on a miscomprehension of the 2nd appellant's testimony: the 2 nd appellant did not say that he walked for 35 kilometres. He said that when the soldiers collected him from Moses Mwandu's house, they took him to their camp which was about 35 kilometres away. Further, the prosecution, in this matter, did not give the trial court a clear picture of the distances separating the various places involved in the case, such J14 as the distance between Lupiya village, (where the 2nd appellant was picked up from) and the place where the crime was committed. From this lacuna alone, a number of arguments can be made in favour of the 2 nd appellant: For example, the judge said that the 2 nd appellant could not have walked a distance of 35 kilometres with the serious injury that he had sustained, but the question may be asked; how did he manage to get to Lupiya village. Secondly, if the proximity of Lupiya village to the place where the crime was committed is not known, how then can the coincidence that the 2nd appellant had a gunshot wound in the leg be said to rule out any explanation other than that he was shot at the scene of crime. So, with such deficiency 1n the prosecution's evidence, the 2nd appellant's explanation as to how he came to suffer the wound in his left leg could reasonably be possible. Indeed, the Court of Appeal, this court's predecessor, in the case of Saluwema v The Peoplel2 J held: "if the accused's case is 'reasonably possible', although not probable, then a reasonable doubt exists, and the J 15 prosecution cannot be said to have discharged its burden of proof''. 5.3 What further compounds the weaknesses 1n the prosecution's evidence is the fact that no identification parade was ever conducted for the 2 nd appellant and Moses Mwandu; and no explanation was given for that failure. This, in our view, bordered on dereliction of duty on the part of the police. In the case of Kalonga v The Peoplel3 l, a case in which a dereliction of duty was also involved, we held: "failure to lift fingerprints is a dereliction of duty by police which raises a presumption that such fingerprints as there were did not belong to the accused". 5.4 Likewise in this case, the dereliction of duty by the police must raise the presumption that had they conducted the identification parade, the victim (PWl) would have failed to point at the appellant as having been among the assailants. And this presumption is made even more strong by Mr. Makinka's submission that no evidence was • J17 against him. The appellant now stands acquitted. E. M. ~lfildu SUPREME COURT JUDGE Pcdt=---~ R. M. C. Kaoma SUPREME COURT JUDGE J. Chinyama SUPREME COURT JUDGE J 15 prosecution cannot be said to have discharged its burden of proof''. 5.3 What further compounds the weaknesses 1n the prosecution's evidence is the fact that no identification parade was ever conducted for the 2 nd appellant and Moses Mwandu; and no explanation was given for that failure. This, in our view, bordered on dereliction of duty on the part of the police. In the case of Kalonga v The Peoplel3 l, a case in which a dereliction of duty was also involved, we held: "failure to lift fingerprints is a dereliction of duty by police which raises a presumption that such fingerprints as there were did not belong to the accused". 5.4 Likewise in this case, the dereliction of duty by the police must raise the presumption that had they conducted the identification parade, the victim (PWl) would have failed to point at the appellant as having been among the assailants. And this presumption is made even more strong by Mr. Makinka's submission that no evidence was J16 adduced showing that the 2 nd appellant had injuries on the head caused by PWl's hacking him with the machete. In our view the arguments by counsel about not testing the blood that oozed from the intruder's wound an~ not establishing whether the wound on the 2 nd appellant's leg was from an AK 47 rifle, are attractive but unnecessary for determination of this appeal. The weakness that has been shown above is enough to show that the prosecution's evidence did not rebut the 2 nd appellant's explanation in defence. 6.0 Conclusion 6.1 In conclusion, our view 1s that the weakness of the circumstantial evidence, coupled with the dereliction of duty by the police, meant that the 2nd appellant's explanation in defence was reasonably possible; and therefore, the prosecution had failed to prove the case beyond reasonable doubt. We, consequently, find merit in the appeal. We quash the convictions against the 2 nd appellant, as well as the sentences that were meted out • J 17 against him. The appellant now stands acquitted. Pcdt--~ R. M. C. Kaoma SUPREME COURT JUDGE J. Chinyama SUPREME COURT JUDGE