Mutemba v The People (Appeal No. 100 of 1986) [1991] ZMSC 58 (3 April 1991)

IN THE SUPREME COURT OF ZAMBIA Appeal No. 100 of 1986 HOLDEN AT LUSAKA (Criminal Jurisdiction) ' • . ■ JEAN PIERE MUTEMBA 1 Appellant v / ■ £ •. K THE PEOPLE . \ Respondent CORAM; Gardner, J. S., Bweupe and Chaita, AJJS., 3rd February, 1989 and 3rd April, 1991 , • * »■ ■ J. N. Naik of Solly Patel, Hamir and Lawrence for the appellant F. N. Nwiinga, Director of Public Prosecutions for the respondent - • • JUDGMENT' Gardner, J. S., delivered the judgment of the court. Cases referred to; (1) Raymond Mwitwa Banda SCZ. Judgment Nd. 70 (1980) (2) Lungu v The People, (1972) ZR 95. The appellant was convicted of murder. The particulars of the charge were that he on the 20th.of July, 1985 at Namwala did murder , Stanley Mtonga. The prosecution evidence was to the effect that on the. 12th of July, 1985, PW2, an immigration officer, and the deceased who was an immigration officer together with three other immigration officers were checking documents of suspected illegal Immigrants. : They went to Namwala clinic were they met the appellant who was told to wait whilst they dealt with another man. Instead of waiting the appellant ran away and the witness and the deceased chased him to a village where the appellant armed himself with a spear. The . Immigration officers continued to follow the appellant until he met his wife’and another man to whom he gave a pounding stick. The appellant and the . other two then started coming towards the immigration officers who retreated. Later that evening the witness and another immigration officer reported to the police station and a police officer accompanied, them'i to Munyinda’s bar where it was suspected that the appellant ‘ could be found. On arriving at the bar they were informed that the appellant was inside, and, with the deceased leading thej entered the bar,where the deceased approached the appellant who took a knife from his pocket and stabbed the deceased in the stomach. The appellant then threatened the other two with a knife and ran out of the place. Two days later, after a search, the appellant was found hiding in the top of a tree. He was arrested^ When searched he was :,../J2 found to be in possession of a long knife with a wooden handle . was identified by the prosecution witnesses as being the one used to injure the deceased. There was evidence that, after the stabbing on the night of 12th July, 1985, the deceased was taken to Namwala ' • district hospital where a clinical officer examined, him and found / one wound in the abdomen about four cm deep. The. .clinical officer stitched the wound and gave pain killers but no other treatment. This witness said that he knew very well that the would wound ' . become septic. He also said that there was no transport to take the deceased to Macha hospital until the 17th of July, when he was transported in a helicopter. The date of death was the 20th or •: 21st of July, 1985. The doctor who performed, the: postinhorte^ examination gave evidence that he examined the body of the deceased on the 23rd of July and he also examined the record of the treatment / recflved by the deceased. He said that there was an incised wound ; in the deceased*s stomach which had been caused by the operation received by the deceased and the doctor formed the opinion that the deceased had died of shock, peritonitis and inftarnation due to a ■ wound. He said in his evidence that from his investigations,: <, '• whatever treatment had been given to the deceased had beeri given. '. properly and he had been, properly cared for in the intensive Care . , V unit of the hospital. He was satisfied that those who had treated the deceased had tried their best* , ,. The appellant gave evidence in his owh defence and said that ' Av & r । .j. on the night of the stabbing he had been in charge of taking the money for a dance that was being held in the.bar and. that when he t was approached by the deceased and the others with him, he thought -’W. ? they were going to try to 'steal the takings which he had collected.- ’ When questioned about'this money he at first said, th^>he had no ' money at the time of the attack on him but later he said that in . fact he had K85.00 on him at the time of the assumed attack. The learned trial judge found the appellant to be an untruthful witness and did not believe him having regard to the answers concern^S money which he alleged he had at the time of the suggested attack . on him. The learned trial judge further came to the.conclusion that having seen the deceased and his fellow immigration officer/ . • - earlier in the day the appellant should have known who they were • , . when they came to the bar. . . ’ There was a controvercy as to whether the appellant had used a knife or a screw dr/ver as he said. In this connection three eye witnesses alleged that the appellant used a knife, and the appellant was later found to be in possession of a knife which was indentified as having beerHWe one used. The learned trial judge, properly in our view, disbelieved the appellant’s evidence that he had used a screw driver. Mr. Naik put forward two main grounds of appeal. Firstly', he argued that the prosecution had not proved that the treatment that the deceased had received had been given in good faith and with , common knowledge and skill in accordance with section 207 (a) of^ the Penal Code. In this connection he referred us to our own judgment in the case of Raymongi Mwitwa Banda (1) in which we. said that it was necessary for the prosecution to.prove that the treatment given to the deceased was within the terms of section 207 (a).. Mr. Naik argued that death occurred so many days after the stab wound ' that there was sufficient evidence to establish that the deceased CYV » had received proper treatment;"’'Secondly, Mr. Naik argued that there was no evidence of intention to kill and that the learned trial judge had misdirected himself in finding that the appellant’ had the necessary mens rea. In particular Mr. Naik argued that it’ was unfair for the learned trial judge to say, as he did in his judgment, that the appellant armed himself with a knife in order to prevent his apprehension at any cost arid to have said, ,"I hold that the accused ought to have appreciated that death or real serious harm was likely to result from his act, then I.would conclude that < he intended to kill or do serious bodily harm even though he might not have had any desire to achieve that result". In reply Mr. Mwiinga argued that there was in fact evidence ■ ■ ■ ■■ ■' - . .. • . of the treatment received by the deceased and the learned trial judge had been right in convicting the appellant. ' , " . ' , In considering the first ground of appeal we have taken into account the fact that there was no direct evidence as to what treatment was given to the deceased between the time of the stabbing and the time of his actual death, however, we would distinguish this case from Raymond Mwitwa Banda because there-was a history of what treatment had been received by the deceased and an Opinion by a medical witness that such treatment had been givenPin good faith and with common knowledge and skill.. We would agree with Mr. Naik that the medkatevidence was not direct evidence and in-cases such as this it would be far preferable for the prosecution to call direct evidence as to what treatment was given. However, we are satisfied that the prosecution sufficiently discharged the duty imposed by section 207 (a) of the Penal Code. ■ Turning to the second ground of appeal, we note that the learned trial judge made contradictory comments in his consideration of the evidence relating to the intention of t.he appellant. As to the earlier evidence of what transpired when a number of immigration officers wished to question the appellant, there was evidence from PW3, the man who was given a stick by the appellant, that he was told by the appellant to threaten the immigration oficers* The learned trial judge himself found at one stage in his judgment that the intention was to scar^away the immigration officers but later he commented that the appellant's conduct on that earlier'occasion indicated that he was not prepared to be apprehended and so he •armed himself with a knife to prevent the apprehension at any cost. The learned trial judge also found that the appellant intended to stab the other witnesses in the bar, whereas the evidence in this connection was that the appellant raised the knife and the two witnesses him. There was no evidence that the appellant used. the knife in an attempt to stab those witnesses. We have also taken note of the fact that the wound inflicted on the deceased in the stomach was said to be four cm deep. There was/e^idence that the.knife used was a long knife and, in deciding the intention qf the appellant the learned trialjudge failed to take into account that, had there been an intention to kill or do grievous bodily harm, the knife could have been to inflict a much deeper wound. The learned trial judge appears to have accepted that the appellant might not have had any desire to. achieve the result of- killing or doing serious bodily harm. This latter .comment by the learned trial judge was in apparent contradiction of the earlier finding as to the appellant's intention. The circumstances of this case are in some ways similar to those of the case ofLLungu v The People, in which this court upheld the finding of the trial judge in that case that when a man had inflicted a two cm deep wound with a spear his intention was not to do grievous bodily harm but no more/than to commit'the unlawful wounding. This court held in that case that the offence was one of manslaughter. In this case the apparent contradictions in the learned judge's findings as to intent indicate that there must be some doubt as to the intention of the appellant who inflicted a relatively minor wound with a knife which was capable of causing a very much more serious wound. It is clear from the medical evidence that the death of the deceased' resulted from the fact that his wound became . septic because Namwala hospital was unable to supply anything other than pain killers and because there was a delay before the deceased could receive proper treatment. As we have said earlier we accept that^ medical evidence was sufficient- to prove that the appellant was responsible for causing the death of the deceased, but, because'' of the doubt which we have mentioned as to mens rea it would.be unsafe to allow the convection for murder to stand. The appeal against conviction for murder .is allowed. That conviction is quashed and the sentence, therefore, set aside. We substitute a conviction for manslaughter, and, having regard to the fact that the deceased was assaulted in the performance of his . duty, we impose a sentence of seven years imprisonment with hard labour with effect from 14th July, 1985 B. T. Gardner SUPREME COURT JUDGE B. K. Bweupe ACTING SUPREME COURT JUDGE M. S. Chaila ACTING SUPREME COURT JUDGE