Hamuguyu v The People (APPEAL NO.8,9,10/2023) [2023] ZMSC 9 (14 April 2023)

J 1 IN THE SUPREME COURT OF ZAMBIA APPEAL NO.8,9,10/2023 HOLDEN AT KABWE (CRIMINAL JURISDICTION) BETWEEN: KENNETH HAMUGUYU 1 4 APR 2023 APPELLANT AND THE PEOPLE RESPONDENT Coram: Hamaundu, Kabuka and Chisanga, JJS On 4 th April, 2023 and 14 t h April, 2023 For the appellant: Mrs S. C. Lukwesa, Chief Legal Aid Cou nsel For the State: Ms M. G. Kashishi, Principal State Advocate JUDGMENT HAMAUNDU, J S delivered the judgment of the court Cases referred to: 1. Phiri & Others v The People (19 73) ZR 47 2. Mutate & Phiri v The People (1995/ 1997) ZR 227 3. Saluwema v The People (19 6 5 ) ZR 4 4. Kombe v The People (2009) ZR 282 5. Ilunga Kabala and John Masefu v The People (1981) ZR 102 6 . Situna v The People (1982) ZR 115 7. Kape v The People (1977) ZR (Re prin t) 257 8. R v Turnbull (19 7 6 ) 3 All. E. R. 549 9 . Chola v The People (1988/1989) ZR 163 1.0 INTRODUCTION J 2 1.1 This appeal is against conviction. The appellan t was charged with two other people in the High Court with the offence of Murder contrary to Section 200 of the Penal Code, Chapter 87 of the Laws of Zambia. It was alleged that the trio, jointly and whilst acting together, mu rdered Abraham Musowe. 1.2 The two fellow accused named Funwell Musowe and Emmanuel Musowe, who are children of the deceased, have since abandoned their appeals. The appellant has, therefore, proceeded alone with his. 1.3 The appeal is being determined by way of review of the judgment only since the record of the proceedings could n ot be foun d. 2.0 THE FACTS 2.1 The appellant was at the material time a resident of Kabwe District in the Central Province of Zambia. The appellant u sed to keep, and look after, cattle that belonged to Maxon Nkausu, PWl. Some time in December, 2014, the appellant borrowed a shot gun from PW 1 in order to J3 protect the cattle that was being harassed by a hyena: This is what the appellant told PWl. Together with the shot gun, the appellant was given two s hot gun cartridges. 2 .2 On 22nd December 2014, around midnight, in Topolo Village, the deceased was woken up by the constant b arking of dogs. He went outside to investigate the cause of the commotion; he was then shot by an unknown person. He died from the gunshot wound shortly thereafter. When the police came to the scene, later that morning, they picked a plastic wad of a shot gun cartridge. The body of the deceased was subsequently taken for post mortem examination where seventeen shot gun pellets were removed from the body. The plastic wad and the p ellets were submitted for ballistic examination which later confirmed that b oth h a d com e from a shot gun cartridge which had been fired from a shot gun of 12 bore calibre. 2 .3 The d eceased was bu ried on 25th December, 2014. Shortly thereafter, the deceased's son, Christopher Musowe (PW3), d isclosed to his mother (PW2) t hat he had earlier overheard his two elder brothers, Funwell Musowe and J4 Emmanuel Musowe, expressing intentions of kiling their father. This information was relayed to the police, who went and picked the two brothers: Funwell Musowe was picked from the deceased's home, and he then led the police to Kampumba village where Emmanuel Musowe lived. The two were then detained. Emmanuel Musowe later led the police to the appellant's home, but they did not find him on that occasion. Then they went to inquire from PW 1 a bout the whereabouts of the appellant and left PW 1 with an instruction that he should call them when the a ppellant showed up. The police, however, rounded up the appellant's wife and children, whom they detained. 2.4 On 31 st December, 2014, around 01:00 hours, the appellant took b ack the shot gun; this was two weeks after h e h a d borrowed it. The appellant is said not to have returned the two cartridges. In the morning, PW 1 accompanied the appellant to town (presumably Kabwe). Before they left, PWl informed the police that the appellant had shown up. Along the way, they met the police at a place called Likurnbi. The police apprehended the app ellant , while PWl proceeded to town alone. After a JS short while, the police called PWl to ask for his shot gun. PWl called his wife at home to give it to them. The police then picked the shot gun and four live cartridges from PWl 's home. These were then sent for ballistic examination. 2 .5 Upon ballistic examination, PWl's shot gun was found to b e functioning properly, and was of 12 bore calibre, the s ame as the live cartridges. It was found that the plastic wa d and the pellets could have been discharged from PWl 's shot gun. In the end, however, the b allistic expert said that he could not conclusively say that PWl 's shot gun fired the pellets: This was becau se they could have been fired by any other shot gun of the same calibre. 2 .6 On 6 th J a nuary, 20 15, a scenes of crimes officer (PW4), after interviewing the a ppellant and his fellow suspects, and verbally warning and cautioning them, went to the scene of crime with all the three suspects. There, he took photographs of them (presumably giving demonstrations); and later compiled a photographic album. This officer produced the album in court, but the judgment does not J 6 show what explanations he gave about each of the photographs. 2. 7 The appellant and his fellow suspects were then charged with the offence of murder. 2.8 In their defence, all the three accused denied killing the deceased. Funwell Musowe said that, on the night that his father was killed, he was at his home in Kampumba village. He agreed that he led the police to his brother's h ouse, but said that he did not know where the appellant lived. He denied giving the appellant K2,000 to kill his father. 2.9 Emmanuel Musowe also said that h e was at home on the n ight that his father was killed. He denied paying money to the appellant. He also denied receiving a sum of K2,000 from h is brother, Funwell, to pay anyone. He said that he had never m et the appellant before. 2 .10 The a ppellant said that, on the night that the deceased was killed, h e was a t his home. He said that the police came to his h ome and, having not found him, they picked his wife and children. He heard from PWl a nd also from a n eighbour's ch ild that the police had been to his home, J7 looking for him. He agreed that he had been in possession of PW 1 's shot gun for two weeks. He said that he returned the shot gun, together with the two cartridges that PWl had given him. In cross-examination, he admitted that PW 1 had told the court that he did not return the two cartridges. The judgment does not state what comment, if any, the appellant made in reaction to that discrepancy. He said, however, that after taking back the shot gun to PWl, he stayed on up to 03:00 hours, after which time he and PW 1 started off for Kabwe (presumably for the appella nt to follow up his wife and children who were detained by the police in Kabwe). However, they met the police at Likumbi. The appellant said that he never knew the deceased, his co-accused or their family. He denied receiving th e sum of K2000, or having any agreement with the Musowe brothers, to kill their father. He finally said that h e did not know how the police got to know where his house was. 3.0 THE TRIAL COURT'S DECISION 3.1 The trial judge (Sichinga, J , as he then was) convicted the app ellant and the two Musowe brothers on the foregoing evidence. With particular reference to the appellant, the judge found it to be an odd coincidence that the plastic wad that was found at the deceased's home was discharged from the same type of shot gun as the one that had been in the possession of the appellant at the material time. However, the evidence on which the learned judge really relied on to convict the appellant was the testimony of the arresting officer (PW6). This witness had told the court tha t h e had investigated the deceased 's murder, and that h is investigations had revealed that the appellant was the gunman that was hired by the two Musowe brothers to kill the deceased. In his judgment, the learned trial judge said that h e accepted that evidence as there was no other evidence to dispel the notion that the gunman was the a ppellant, as hired by the two Musowe brothers. The judge, therefore, found that the appellant and the two Musowe brothers had collectively plotted to kill the deceased. 3 .2 The judge, however, found that in the case of the Musowe brothers, there were extenuatin g circumstances because of their belief that their father was practicing w itchcraft on them. But, in the case of the app ellant, the judge foun d no extenuating circumstances; and so, the judge sentenced him to death. 4.0 THE APPEAL 4.1 The appeal is only on one grou nd, which reads as follows: "The c ourt below erred in law and in fact when it convicted the appellant in the face of evidence on record which raised doubt as to the guilt of the appellant". 4 .2 The main argument by the appellant in th is appeal is directed at the lear ned trial judge's reliance on the testimony of PW6 in order to convict the appellant. 4.3 Mrs Lukwesa, learned counsel for the appellant, submits that t hat piece of evidence should not have been taken into account by t he trial judge because, to use her own words, it was a misapplication of t he law and a m isapprehension of facts . She argues that that piece of evidence should have come from a witness of fact, who should have attested that they s a w or heard the Musowe b rothers hire the appellant JIO to kill their father or that they even saw them paying money to him. Counsel argues that the evidence, to the extent that it was given by PW6, was hearsay, and should therefore not have been used to connect the appellant to the offence; and neither should it have been used to corroborate the testimony of PW 1. 4.3 Learned counsel goes on to argue that, in the a bsence of PW6's testimony, there was a gap in the prosecution evidence; and that the trial judge was wrong to fill that gap by relying on PW6's testimony to the detriment of the appellant. We have been referred to the case of Phiri & Others v The People111 for that subm ission. 4 .4 Learned counsel, also, goes on to discount the other pieces of evidence. She points out that, to start with, the firearm was given to the appellant for th e purpose of protecting PW 1 's cattle against hyenas. She argues that there was n othing suspicious about the awkward hour at which the appellant returned the shot gun because he gave an explanation that he was intending to leave for Kabwe very early the same morning. Counsel adds that, in any case, the appellant was not even aware that there were people Jll who were looking for him in connection with th e death of the deceased, for him to want to get rid of the shot gun. 4.5 Comin g to the ballistic examination, counsel points out that the b allistic expert (PWS) actu a lly admitted that he could not conclusively say that PW l's shot gun fired the pellets that were removed from the body of the deceased . It is counsel's argument that it is also possible to draw an inference that the pellets were not fired from PW l's shot gun, in which case our decision in the case of Mutale & Phiri v The Pe ople121 should apply, namely that the in ference which is more favourable to the appellant should be the on e adopted . 4. 6 In con clusion, Mrs Lukwesa argues that there was no evidence to prove beyond reasonable doubt that the appellant was h ired by the Musowe brothers to kill their fath er ; and that, b ecause there were lingering doubts, the cas e of Saluwema v The People131 applied. She has urged u s to a llow this appea l. 4 . 7 Ms Kas hishi, on behalf of the State, s upports the conviction and argues that the circumstantial evidence in this case h ad taken the case out of the realm of J12 conjencture. She submits that the strength of the prosecution's case lay in the several odd coincidences that were p resent in the facts. 4.8 Counsel submits that there were odd coincidences that ren dered the explanation by the appellant that he had borrowed the shot gun to protect PWl 's cattle from a hyena as not being reasonably true. She also points out that even the a ppellant's own inconsistencies in his evidence discounted that explanation. We have been referred to the case of Kombe v The People14 1 and that of Ilunga Kabala an d John Masefu v The Peoplel51 on the submission that odd coincidences m ay point to the guilt of an a ccused person. Ms Kashishi points out that the appellant's return of the shot gun to PWl at such an awkward hour as 01 :00 h ours was suspicious because this was after he had heard from a neighbou r's child that some people had come look ing for h im. 4.9 She also points at the discrepancy between PWl's and the appellant's testimony as to whether or not the two cartridges th at were given to the appellant were returned. J13 She submits that the appellant said that he returned them and yet PW 1 said that he did not. 4 .10 On the ballistic examination, it is Ms Kashishi's position that although the ballistic expert selected his words carefully when he said, under cross-examination, that any similar firearm could have fired the pellets it was still a very odd coincidence that the appellant was in p ossession of a shot gun during the same period that the deceased was killed, and that the plastic wad that was picked from the scene was fired from the type of cartridges that were given to the appellant, and which he did n ot return. Counsel argues that all these odd coincidences led to only one logical inference, and that is that the pellets were discharged from the shot gun which the a p pellant had, and not from any other similar firearm. 4.11 On the testimony of the arresting officer (PW6), it is Ms Kashishi's submission that the court did not consider PW6's testimony in isolation, but considered it together with the evidence of other witnesses. 4.12 All in all, Ms Kashishi submits that the prosecution's J 14 case was proved conclusively without any gaps left. She, therefore, urges us to dismiss the appeal. 5.0 OUR DECISION 5.1 We agree, without hesitation, with the appellant's conten tion that the aspect of PW6's testimony where he told the court th at his investigations had r evealed that the two Mu sowe brothers had h ired the appellant to kill their father was inadmissible in evidence. In the case of Situna v The Peoplel6 1 a similar situation arose: A police officer was allowed to tell the court what two witn esses, who were not b r ought before court, had allegedly told h im. This is what we said : "The learned trial Commissioner also considered that he could rely on the evidence of Detective Sergeant Sitaka as to what the two prospective witnesses had told him concerning the appellant on 26th November, 1979, when they allegedly led the police officer to Kamatipa c ompound where they allegedly identified the appellant to be one o f the four men who were in the s tolen c ar which was use d in t he robbery at Kalulushi on 25th October, 1979. Evidence of a statement made to a witness by a person who is not himself called is hearsay and inadmissible where the objec t of the evidence is to establis h the t ruth of what is contained in the statement". 5.2 In this case, the arresting officer (PW6), did not disclose JlS who had given him the information; but that is immaterial because in so far as the arresting officer received it from somebody else, and he was giving that information as the truth of its contents, it was hearsay. And so, the learned trial judge should not even have admitted it in evidence; let alone rely on it. 5.3 Now, when t hat part of the arresting officer's testimony is exclu ded, the conviction of the appellant depends on whether or not the rest of the evidence points to his guilt. It is t he prosecution's argument that, in fact, that is the case. 5.4 We would like to look at what the prosecution have pointed out as odd coincidences. There is first the discrepancy as to whether the appellant returned the cartridges that he was given by PWl or not. It is probable that the appellant lied when h e said that he returned them. In the case of Kape v The People171 we said that whatever the r eason, the lie by an accused in court does not inevitably lead to an inference of his guilt. We would like particularly to J 16 quote from a p assage in the case of R v Turnbuu1s1, which we had quoted in the case of Kape. It reads: "Care should be taken by the judge when dire cting the jury about the support for an identification which may be derived from the fact that they have rejected an alibi. False alibis may be put forward for many reasons: an accused, for example, who has only his own truthful evidence to rely on may stupidly fabricate an alibi and get lying witnesses to support it out of fear that his evidence will not be enough" ( underlining ours for emphasis) 5.5 The underlined words in the passage above can apply to the suspiciously a wkward h our at which the appellant returned the shot gun to PWl: It was clear from the evidence that the police, at that time, were looking for him, and th ey h a d even picked u p his wife and children . It was also clear, even to the appellant, that he was b eing sus pected of involvement in a murder that involved a shooting; and so, as stupid, or su s picious, as the course of a ction th a t the a ppellant took might a ppear to b e, he could well h ave been trying to distance himself from the susp icion as m uch as possible for fear that he might not b e able to convin ce the police as to the reason for his possession of PW 1 's s hot gun. J17 5.6 As for the ballistics evidence, it is clear that, although PWS at first a ttempted to show th a t the plastic wad and the pellets were fired from PWl 's shot gun , he admitted in the end that they could have been discharged from any other shot gun of the same calibre. Therefore, it cannot seriou sly be argued that ballistic exam ination proved that it was definitely PWl 's sh ot gun that fired the plastic wad and the pellets. 5.7 We have then considered a nother piece of evidence. This ca me from PW4, the scenes of crime officer, who s aid that he took photograp hs of the appellant a nd h is fellow suspects at the scene of crime. In the case of Chola v The Pe o ple 19l, the following is wha t we said about still photographs of accused persons which are taken at the s cene of crim e: "In t he ins tant c ase , there was, of c ourse, no video film but st ill photographs, the incriminati ng purport of which had to be supplied verbally by t he police offic er .... The result ing photographs we re meaningless unless accom panied by t he oral explanatio n of the polic e , s uch as, that t he accused then s aid 'This is where I stood and that is where the vehicle was parked when I committed the offence' a nd son o n". 5.8 In this case, as we have said, the judgment does not reveal J18 whether PW4 adduced such kind of evidence. If indeed he did, then we are surprised that the learned trial judge could have overlooked such vital piece of incriminating eviden ce. Otherwise, as the evidence stand s on this record, those photographs were meaningless. 5.9 Finally, we have considered PW6's testimony that Emmanuel Musowe (who was 2 nd accused at the trial), u pon b eing a pprehended, led the police to the h ouse of the a ppellant. First, it was not clear in what context E mmanuel Musowe was leading the police to the house of the a p pellant since the witness did not produce Emmanuel Musowe's confession statement in court. Secondly, it cannot be assumed that because Emmanuel Musowe led t he police to the appellant then that meant that the appellant killed the decea sed; th is is because Emmanuel Mu sowe could well have shot the deceased himself, and h ad only borrowed the shot gun from the a ppellant (with the appellant n ot being given the true reason why it was being borrowed). So, the leading by Emmanuel Musowe to J19 the appellant's house could well have been in the context that he was leading the police to the person from whom he had borrowed the gun to kill his father. That inferen ce cannot be ruled out: And as we held in th e case of Mutale & Phiri v The People, which the appellant has cited above, where there are two or more inferences that can be drawn, the court should adopt the one th at is more favourable to the accused. 5.10 And so, having discou nted the other pieces of evidence, for one reason or the other, we are of the view that, once that particular testimony of PW6 was excluded, there was no evidence that proved beyond reasonable doubt that the appellant killed the deceased. For that reason, we allow the appeal. We hereby quash the conviction and sentence of death. Instead, the appellant stands acquitted . ............... .<Jj).t. CL ..... E. M. Hama~ ndu SUPREME COURT JUDGE J. K. Kabuka SUPREME COURT JUDGE C'. ............ ... ~ ... ......... . F. M. Chisanga SUPREME COURT JUDGE