Kibango v People (SCZ Appeal 15 of 1994) [1994] ZMSC 138 (18 October 1994)

IM THE COUffT OF ZWTA SCZ APPEAL No, 15 CF 1^1 HOLOEK AT LUSAKA (CRIMINAL JURISDICTION) » e T w g e a: EDWARb KAQMA KIBASGO ■ A» I ' THE PEOPLE APPELLAHT ftESPOSOEMT Cora* Gardner Chai I* and Muzyatea. J. J. S. For the Appellant: Y. A. L. Kabooga. Director of Legal Aid For the Hesponden i M. Huuka. Senior State Advocate 23rd August 1954 and fotofoar,, 1094 Muzyatea, J. S. delivered the Judgment of the court ■>'?7 -'. • ■ ’ ■ 3%W (I) KAPDSA KUKE AKO AHOTHEP V* THE PEOPLE 1933 Z3. 94 The appellant was convicted of ourder andaggravated rtetwy Contrary to Sections20D and 394 respectively of tMPml Coda, Cap. 146 of the Laws of Zambia and sentenced 00 each count to death by hanging. . The particulars of the offence on count 1 were that Edward Xaoaa Xlbango, on the 18th day of April, 1091 at Hdola to the Kdola District of the Copperbelt Province of the Republic of Mbit did murder ELIKO PELE^E and on count 2 were that Edward Km&i Klbango with other persons unknown, on the 18th day of April, 1991 at Adela in the Hdola district of the Copparbeit Province of the Republic of Zambia Jointly and whilst acting together with other persons unknown, whilst amed with a pistol did rob El Ito Peletee of his one motor vehicle registration Ho. ACC. U91 Toyota Hllux valued st 13 aHUte and at or lEmdlately before or toned lately after the Ute of such robbery dtd use or threatens to um actual violence to the Mid Elite Palate* to order to obtain or retain the said property. ' ■ ’.. : ■ ■$ . ■ He has now appealed to this cwt against conviction only. Briefly the prosecution case was the the deceased was cloyed by Zambia Flying Doctor Service as a driver. On 10th April, W ho was on night shift. Around 09.30 hours he and PW.h Cosmas Oiyela drove to Pasodzl Compound, to fWola and collected a relief worker PU.2» Mr. Ezron Kwppa. frti» there they drove to Kawate Compound to collect « Hr. Edward Husonda, At Musonda’s house the deceased was shot as he I 42 I reversed the cotor vehicle* a Toyota HI lux Vanette Sts* Ko. ACC.1291. RM and 2 jumped out of the vehicle and ran away. The robbers then dulled the deemed out of the vehicle* got into the vehicle and drove away. Around 04.30 hours or thereabouts the appellant was caught in Chichele Plantation near the border with Zaire by PW.3, tt, Ronald Caleb Zulu and PU.4» a private soldier by the name of Victor tiuta. At the . tine the appellant had a pistol* The appellant then led fW«3 and 4 across a railway line within Chichele plantation to the stolen motor vehicle* He later led PW.7 Patrick Mangoiwa* the arresting officer to the scene of crime* Under warn and caution the appellant «ade a statement which was objected to on the ground of duress but admitted in evidence after a trial within trial was hold* In his defence on oath the appellant denied both charges* He said he had come to KanIkI border to buy essential coocodities. That about 500 retires from the border while still in Zaire PW*3 apprehended him and took him to Paramilitary Police la Chichele Plantation and later to Chlfubu Police Station* The appeal was argued on three additional grounds* We will first deal with ground f then 3 and 2 The first ground was that the then learned trial Cwaolssloner failed to use his discretion to exclude the alleged confession which operated prejudicially against the appellant* In support of this ground* it was argued by Mr* Kabonga that although the appellant was not subjected to physical torture yet the fact that he wasneld In custody for five days before he signed the alleged confessIon must have induced him to Mi the confession and therefore that the learned trial ComIs* sionar should have exercised bls discretion and exclude the confession* That failure to do so amounted to a misdirection* In considering this ground of appeal and argument wa have examined the evidence on record* the ruling In the trial within trial and the Judgment of the than learned trial Cowilssioner. The alleged confession was objected to on the ground that the appellant was premised that If he signed the statement he would be taken to court and released from custody* Xu bls ruling the learned trial Comlasioner did not consider this ground* instead be found and held at page 14 of the record that the confession statement objected to by the appellant was a different statement and not the subject of the proceedings before him and on that ground admitted the confession* There is no doubt therefore that he misdirected himself* Had ha considered the objection he might have coma to a different conclusion* However * it Is J3/»«* : Ji t quite clear from his Judgcim that the learntd trial Cocaissioner did not rely on the confession to come to his conclusions. The appall*** was therefore not prejudiced In any way by the aviation of the alleged confession. This gramd theraforo fails* The third ground was that no finger prints wore raised fra* the fiream and the rotor vehicle to connect the appellant to the charges. Arguing thia ground Hr. mongo said that the Police should have raised finger prints from the pistol and steering wheel of th* stolen rotor vehicle* That failure to do to amounted to dereliction of duty on their part. In considering this ground and argument we note that this issue was never raised tn the court below* It it being raised before us for the first time. This waapteproper and we would draw counsel’s attention to this court’s decision in the case of Kaposa Mute and Another (1)* at page 95. that before there can tea duty upon tte Police to test for finger prints there must be evidence that the article in question had surfaces receptive to finger prints* Ho such evidence was established in this case* h wy event* the appellant was seen dropping the pistol by PO and 4. There was therefore no need to lift finger prints from the pistol* This ground therefore also falls* The second ground was that there was no direct lint - * connecting the appellant to the two charges* The arguaent on this ground was that the evidence against Cha appellant was clrcuwtantial. That no one saw th* appellant shoot the deceased or tHw away the stolen rotor vehicle. That possession of tte pistol and being found within the vicinity of the stolen motor vehicle was not sufficient to connect^ the appellant to th* charges* Moreover* that the bullet which tilled the deceased was never recovered and therefore not proved that It was fired fra* the pistol allegedly found on the appellant* Wo agree that there was no direct evidence against the appellant* That the evidence against him was mainly circumstantial* In his Judgment the learned trial Coaalwlw found that the appellant was found with the stolen rotor vehicle a few minutes after it bad been stolen and then applied the doctrine of recent possession to arrive al his conclusions* We have examined the evidence on record and It shows that the robbery tooK place around 04.00 tours on into April. 1991 and to olnutes or so later the appellant was apprehended tn Chichele Plantation* He had a pistol and led PM.3 and 4 to the vehicle across tte railway line within Chichele Plantation. On these facts we cannot say that th* learned trial Commissioner misdirects; himself In applying the doctrine of recent possession* This ground also fails* t M S For the foregoing reasons we would dismiss the appeal against conviction and there being no extenuating circumstances we confirm the sentences of death on each count. •v ■Y ■■ ' H* L: ■■I . ,A J y ■ ■ ■ f - - - ■':' -, - ■ 1 S. T. GAWK# W2£KE COURT JVPGE ■ /M. CHAIU sggg^^ ■ . ‘-'Vi — ft • :■ . ; ‘ '■ •’ ' • ■’ . Haarwe* \ ’ 4: ’ ..u, ? ’f ' . .. * ■ •' VfV ■ ■ r. ■' ■; -. - •<{O 1 ‘-Jr ■ V' • r V H; Tift??.' . ' ’W ■ -■;ri *?:<■«■