:tN T'HE COURT OF .APP-EAL O'F ZAMBIA APP'lUtL/ 1.

0 / 2 018
HOLDENAT LUSAKA
t- J:j l ·f. a _r · a·c 10[

BE '1'WEE ·
KEITH AKEKELD. .MOIOJ£?A APPELLANT

~U .PEOPLE RESPONDENT

CORAM- Mchenga DJP Sichinga and Ma:,ula , JJA

On 25 th September 2018 , 26 · September 2018, '.2B '

8 ,eptember ,2018 and 23 rd May 2019

For the Appel-lan t: M. Mllt:emwa ., SC , Mutemwa Chambers r K.

.Mwansa Kaba.la .ta, Chalwe Kaba..lata L, gal
Practitioners , M. Katol. ,0 1 Milner and Paul
Legal Era.c ti tionsrs 1 .K . Mweemba l<ie t:h
.Mweem:ba Advocates and ·w. Muhanga , Me'ssrs
ARM ~ ,ega1 Practi. ti0aers .

For the .Responden ,t : M. Ch::i..pant:a-Mw-ansar Depu y Chi..ef St::ate

Advocate , M ..K ~ Chi tuodu , Depu ,ty Ch.ie .f
ta te Ad oca te , S. Si:mwaka , Senior & ta t ,e
Advaca t:e . .M ,. H"akasellke-Si.muc.h.imb.a ., Se.n · or
stat ,e -4d oea 1te , M . R !'E!mbo,. State
Advo ,cat:e Na ti.a .natl P;ros ecu t.i.ons 1

..Juth ,ori t y.

JUDGMENT

Mc);:'U!,nga ~ D~. deli 'vered the J udgme~t of tb ·e cou r

l. Subraman.iam Y The Director of PubJ..i .~ Prosecutic,ns I 19 ,55]

.1 W. L ~R . 9'65
 - J2 -
'

2 . S'akalavThePeople [1980,l Z . R . 205

3 . Mwape v The People SCZ Appeal No . 132 of 2010

-4 . J:nutu Etambuyu Suba v rndo Zambia , Bank Limi. te d SJZ No .

52 of 2017

5.Teddy Puta v Ambinwire Fr iday SJZ No . 43 0£ 2017

6.Geojago Robert Musengule and Amon S~bande v The People

scz Judgrnent~o . 19 of 2017

7 . Abel. Mkandawire and Others v The People SCZ Appeals

No.06 , 07,08 ; 09 of 2017

8 .Do nal.d Fumbelo v The People SCZ Appeal No . 476 of 2013

9.Rodgers Kunda v 'The People SCZ Appea 1 No , 18 o~ 2017

10 . Wesley Mul'Ullgushi v Cathrine Bwale Mizi Chomba

[2004) Z. R . 96

11 . Attorney Genera.l v Marcus Kapamba Achiwne (1983)

Z .R. 1

12 . J:musho v The People [19?2,J Z . R . 77

13 . Attorney Gene .ral. v Peter MVuka Ndhlovu [198 :6 J Z , I\ .

12

14 . Nkongolo Farms Limited v Zambia National Oommerc_ia.l

BaM Limited , Kent Choice Limited (:tn receive:t:sh i p)
Charles Haruperi. l2005] ~.R. 78

15 . Mwewa Murono v The Peop l. e l2004J Z , R , 2017

16 . Chahal.a v The People [1976) Z . R . 14

17 . Saluwema v The People ( 19 65) Z.R, 4

 -J3-

18 , S.ai di Banda v The Peopl.~ SJ 30 . of 2015

19. Maseka v ~he People [1972] Z. R . 9

20 , Teddy Mun tanga and Anothe.r v The I>eopl.e CAZ Appeal

No . 159 and 160 of 2017

21 . Phi r .i and Othe r s v '!'he People [1 9 73) Z. R . 4 7

22 . Chansa v The People [ 1 975 ] Z . R . 136

23. Chuba v The ~eople (1976) Z . R . 33 4 (Reprint)

24. Char l es Lukolongo and Ot hers v The People (1986]

Z. R . 115

25 . ialebu Ba nda v The ~eo p le [1977) Z.R . 227 tReprint)

20 . Gilbert Ch ile.ya v The People (1981] Z.R . 33

27 . Pe t er Yotamu HaameAdo v The People [1971J Z . R . 184

.28 . Lipepo and Others v The People (2015] Vol . 2 Z . R ,

29 . Joh n Timothy and Feston Mwamba v The Peo p :Le [1977 ]

Z.R . 39 4

30. Jack. Maul.la and Asukil.e Mwapuki v 'the I>eople

[1<;180] Z . R . 119

31 . Madubul.a V The Peopl.e [ 1993-9 41 Z. R, 91

32. Chimf we?llbe v The People SCZ./9 / J.45/2013

33. Liswaniso v The People [1976] ~ . R . 27 7

3 4 . Sipalo Chibozu and Chi b o~u v. The People (1981]

Z . R . 28
 -J4-

35 , The People v Mateyo Mujumaiz i Jerusalem {2012]

Z . R . 533

36 . Mang orned Gasanalieu v The People (2010] 2 i.R .

132

37 . Lupupa v The People [19771 Z.R . 38

38. Nkhata and FouI others v The Attorney General

[1966] Z. R . J.24

39. Chansa v Lusaka City Council [2007] Z.R . 256

40 . Attorney Gene.ra.l v Peter Mva,ka Ndhlovu t l986] Z .R.

12

~1 . Bri,ght K.atontoka Mambwe v The People SCZ judgme .nt

No . 8 of 201 4

42 . ~alal,uka Musol e v The People [1963 ·-6 4] Z and

NRLR 173

43 , Attorney Genexal. v Roy Clar ke [2008 J Vol. 1

Z. R . 38

44 . Re : Liso (1969] Z.R . 6

45 , Director of Pub.l-ic Prosecu ,t.ions v Lukwosha {19t>ii]

Z . R.14

4 6. '.I'he People v N jobvu [1966] Z,R. 132

47 . R v Forbes [2001] 1 All ER 686

48 . Dorothy MUta le an~ E'h.iri v The People [1995 - 1997)

Z. R. 277

49 , Dav i d Zulu v The People (i977] Z.R. 204 (Repr i nt)

SO . Joseph Mulenga and An other v The People [20081 2

Z. R . 1
 -JS-

Legislation ~eferred to :

1.The P.enal Code Chapter 87 of the Laws of Zambia

2. The Criminal Procedure Co.de , Chapter 88 of the Laws o f

Zambia

Works referred to :

1 . Black's Law Dictionary, 9 ~ Edition , Thomson Reuters

2 . Cross on Evidence, Sixth Edition , Butterworths .

Introduction

1 . This appeal ema n ates f r om °LhE -judgment o[ the High -::c,1,,·. ,

(Wanje l ani. J . ), delivered e n .2&·" February '.:0 "":S. Sy u 1a1

1udgment , the appe l lant was convi-:-ted of the: offEnc1.= oz

l!H.i.tder and .sen t enced to suffer c.api tal pun~ shment .

2 . ln the main , the appeal considerE whether , an infe1 Jt1c,

of gui l ty is the on l y ene t hat could have been 1raw1 ,

the citcumst.a ntial evl.denc,e that wa,s befor~ the tr 1 .. 1

judge .

Charge before the trial court

j.The appellant, was charged with one ::ount o f .:he o ft• •r, (J

of murder contrary to section 200 of the Penal Code . Tin-

 - J6-

particu l ars of the offence all-eg e d that on the 6'•· of Mav

20 17, at Lusaka , in the Lusaka Pistrict of th e Lusa Ka.

Province of the Republic of Zambia , he murdered

Namakambwa Kalilakwe nda .

Evidence before the trial judge

4 . In t.he early hours of 6'"' May 2011, Chola Col l -ins

Kaba.m,ba , a guard at a property close t.o 1c-he appella.nL ' ,;

la w firm , heard 3 - gunshots . Immediately chereafter , ne

heard footsteps of people who appeared to be running

away from the appellant ' s law firm. The 3 - gunshots wer e

also hea r d by Pav an Kumar , who was at his restauran L cu

rhe same road wJth the appellant ' s law firm .

5.When Pavan heard the gunshots, he called the police. J!e

also peeped at the appella nt ' s gate and noticed that i i.

was closed . Not long thereafter, he heard the appellanL

calling o~t tor help , saying his guard, Namakambwu

Kalilakwenda , had been shot . It did rtot take 1ong for

the police to arrive .

 -J7-

6 . One ol the first police officers to arrive was Insp ector

Chi lu fya . He found the gate to the appellant ' s law firn,

open . He also found a group of people, w·ho Wii!-re unruly,

in the premises . Lying in the drive w-ay, inside the ga.t e ,

was the body of the appellant's guaYd . There were alsc

two ca.r s parked i n the driveway, a BMW and a Toyu t ..

.Landcruiser . Close to the BMW, a11d abot1t 18 meters frr,m

where the guard ' s body was, he picked what he descr..1.b ed

as a 9mm cartridge casing . He then attempted to open the

BMW, but he failed . He asked the appellant for the keys

and he was given keys that failed to open it .

7 . He then checked a round the yard, and in a flower bed., hn

found keys that opened the BMW. 'A searc ·h of that car ,

yielded , among other things , a pistol under a basket. !L

belonged to the appellant . He handed over ~he pist o l,

the cartridge casing , 7 cartridges and LWO maga~ines, to

Detective Chief Inspector Moya . The 91.Jard ' s body 1r1

as

then taken to the hospital , while the appeli.ant. 1>1ast.cili.er1

to a police station.
 -JB-

S.Later that morning, Superintendent Shibalatani, a s ee n ~

of crime officer , in the compa1l_y of the appellant. ,

visited the appellant ' s law firm to reconstruct tbe scene

of the crime. Also present, was Detective Chief InspecLo~

Chibesa, a f orensic ballistics office~ .

9 . The reconstruction of the scene i nvolvea the appel lanL

showing them where the guard ' s body w.as found, whet e- he::

parked the BMWand whe r e he was on the two occasions

when he discharged his pistol. He also showed n:im somn

reddish stuff, that appeared c.o be blvod, near where t.he

guard's body is said to have been and. some suspect.ed

bullet marks on t he wall and t~e gate . The superintenden t

also picked 2 cartridges casings . Photographs and

measurements were takeh 0£ the distances in between

various places in Che premises .

10. The point at which the appellant said he W<iS wh~n

be fired the first shot was 19 metres from the gate and

15 . 5 metres from where he sald 'the guards body lay a [ lei:

trte shooting . They also measured the distance betwei?j

-where the appellanc said be. was when he fired ~ht! LW1>
•
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shots fr om where he said he was when he fired the firsl

shot, it was 1 . 5 metres apart. The t wo cartridge casings

where picked 5 ruecres from where the appellanL sald he

was when he fired the two shots, but they were 4.5 metres
from wher e he said he was when he fired t he ficst shot.

11 . After the scene rec onstructlon , superintendenL

Shibalatani handed over the two car t ridge casings he

picked for ballistics examinati on s .

12 . On the same day, that is the 6 th of May 201 ·,·,

0etectlve Chief Insp ector Moya , handed ove~ the pisco L,

2 magazines , a c a rt r idge e asing and 7 cartridges,

recove r ed from the appellant 's law firm by Inspector

Chilufya, to Detective Chief Inspector Chjbe.sa.

Detective Chief Inspector Ch ibes a also recei ve d t o twc

cartridge casing ·s from Superintendent. Shibalatan i .

13 . On 9'" M.ay 2 01 7 , Dex:ee:ti ve Chief Inspector Chibesa

visited the appellant's la w firm and examined the damaq e d

gate and the marks on the wall, He saw blood splatt er an

the on the ground , inside the premises and near the gate .

tte also visited the mortuary, where he exam i ned ~he

 -J10-

guard ~s body. The guns ho w □ uru:i ·· n he e:c m a u c:,-•r:

9.92mm , while hat in the shau l e , was l~ ...4~mru ins .z

He subsequ. ntly prepa.ted ·e or Be . :ng u til

findings.

14 ong- other hin.g.s, h eo nc. 'L e. 1

cartridge casings he r ce · v _

Ins"ecto · Chilufya d scri e s a

10 . 2mm. He o . - n d t a. they were all isch om . 11

appellant ' s isto I addi was h.is v · ew al

he ~ounds an · he guard , consisr.en - wi h - p

wha had been shot wi h a Ei _ a_m lea ..· ng 1 O~ 2..n

Gar ridg . s •.

15. D tee ' ive Chi1z

I-
nsp~~ Chibe El, was a t E V e

h~t t .e n,ar s !l be at a.nd w l we e. c;au -ed y

. '
-ul e s . 1 wa.;:, ol 0 h s V1 w h t t d e .son Wh I - l '

ie u rd was ace ..a wl h h -m, a.n tj n

0 -
~

sho a

. am a dis a.nc ·O betwee a LG -□ e r ....s.

Acco d, . n , 0 h.e arra.sc n g p :-f ice , D cti e h .-

,
nspec 6 -b 01 7 ,
0 Moya .,, 0 Ma ~ .in -- e m □ rn i i1

rac.ei • d
I-
n ·ormatirn - ·a i;-l:~ ha e.1'1 aoti
 -Jll-

the appellant's premises . He confii::med being handed over

a pistol , a cartridge casing , 2 magazines , 7 cartridges

anct a reed basket . Othe r than the reed basket , which he

returned to a relative of the appellants ' acquittance,

he handed over all these artic l es to Detectiv e Chief

Inspector Chibesa.

17. Detectiv-e Chief Inspector Moya submitted tl')C:!

appellant ' s shirt for chemical examination but did noL

present the results to court . He admitted being informed

by the appellant ' s lawyer, that there was word that some

cartridge casinqs were picked outside the yard of the

appallaht 1
s law firm, but denied that it was tne casa _

l8. In his defence, the ,;ippellant -cold the court t hr1I·

c,n 5<i, May 2017 , around midnight I he was at hj s law [1- c m

in the company of a lady he was jointly charged witt, ln

r.he court below _ l'lhilsc there , his guard informed him

that there were 2 intruders at the ser~anc' s quarters .

He called r.he Minister of Home Affairs and he irtform~d

of che presen ce of the intruders.

 - J12 -

19 . Not lo n g thereafter , he decided to leave . The lady

he was with was went ahead c,S be locked up. As he drov1.J

to the gate , he noticed that she was being held by ,an

intruder . He jumped out of his oar and .r:u□ towards her

but retur ned to his car where pi. e ked his pistol . '!'he roan

who was holding the lady ran t o the gate and he fired ~

warning shots in the air . He also noticed that there 1,as

another man holdi ng t he guard.

20. He t hen hea r d 2 shots that were fired from oulside

the gate and the two men ran away . In turn , he Ei .:-eci

another: warning sho~ in the air , after movi ng awa y from

where he had been when he fired the first two shots. He

then hea r d the guard cry out that he was in pain . Ile

found him two metres from the ga~e and discovered lhol

he had been s h ot . He called out tor help and attampt~d

to lift hi'm, but fai l ed .

21 . Pavan Kumar ca.me in and not long · thereafter, t.lH

police arri v ed . At the ti me the police arrived , theri..•

were a number of people in the prem i ses . A man weacL11g

 -Jl.3 -

dread l ock s, demanded his pistol , which he handed over .

It was subsequently given to Inspector Chilufya . 'Thu

keys for the BMWwhere recovered from his backpack. Jn

due course , he was ta~en to the police station oy

Detective Chief Inspector Moya.

22. Later that moi:ning 1 he was t.aken back r:o his law

f.itm for the reconstruction of the scene . I n the days

that followed 1 while in detention , he was visited by his

legal assistant, who c.old him that his cousin i1au

overheard police office rs discussing ho,,i they should

deal with the cartridge casings t h ey had pi cked outs1de

his law firm . He said D-etectl ve Chief Inspector Moy:1

confirmed the picking of t he cartriqge ca~ings .

23 . The appellant denied s h ooting t he g uar d . He al~o

denied conceali ng t he pistol ln t he boot: of the BMW

. !i~

.sa id the keys for the BMWwere found ln a backpack t.hoL

he banded ove r to the po l ice.

24 . Bot h Mr. Mutale SC and Mr, Bwalya , confii:med th ~

appellant 's story that Detective Chie f Inspe ctor Moya

t.old the m that he had re ce ived informati o n that Lh0•

 -Jl.4-

police had found cartridge ca.sings outside c.he yard lo

the appellant 's law firm . Mr. Bwalya, who 1,1as pres ent

when Mr. Mutale SC met Detective Chief Inspeccor Moya,

produced notes that he took at the meet ing .

25 . Dr . Musakhanov , the forensic pathologist who

conducted the post-mortem on the guard ' s body, was c,3lJc.,d

as a defence witness . He opined tr,at the cause of death

was cardio respiratory arrest due to a bullet wound. Ue

also observed that t he e ntry point. had a 0,5cm x 0.5cm

wound , with a flame burn on the lower neck. 'The ~xr L

point was a 2cm x l . Sem wound on the lower shoulder. II

was a lso his opinion that. the firearm was bet.ween 1 . :;im

and 2~ from the guard , when it was discharged.

26 . The defence also cal led Thomas Fredrick Herm:inLJ.s

Wolmarans, a South African ballistics expert. He v1.sit~d

the appellant ' s law firm and examined the gate and lhc::

l-'all. He also carried 01.1t a nomber of t'c'sts us1ng a

pietol similar to the appellant ' s. In addition , he wenL

througl1 the reports by the pathol og ist. and Detect iv,·

Chief Inspect.or Chibesa.

 -JlS-

27 . In bis view , the guard was aot face to £a ce wlth tlu

person who shot him ; he was in a crouching position wh~n

he was shot . He was also of che view that flame b u rns

could only be visible on the guard ' s body if the ba.rr c J

of the pistol was between 5cm LO 10cm away , 1,1.hen i)e was

shot, That being the case , the appellant, who was abo uL

19 metres from where the body was , could ~,ot ha,1e

discharged the fatal shots .

28 . Fvrther, it was Mr . Wolmarans 1 view that l t was no~

possib l e , in this case , to conc l 1Jde that the guard wa:o

s hot using a firearm loc:-ding a 10. 2mm cartridge, by

merely looking at the wound. As regards the marks on Lhc

wall and che gate, he ruled out the possibility t.hi>t

th~y were caused by gunshots.

29 . Another w1.crtess called by the appellant was Boniface

Bwembya , an Assistant Registi:ar, ai: the

Professiona l Council of Z~mbia, Hls tesc1mony was on Lho

legal i ty of Detective Chief Inspector Chibesa's

-=xaminat;ion of the guard's body at mor t uary. Ir was hl-.S

 - J16-

view that only a medical officer can sign a mt!dii:.:,, L

report and ascertain the cause of dea cl1.

Trial judge 's findings

30 . The trial judge considered the confliccing evidenca

of Inspector Chilufya anct the appellant, on where the

appellant ' s pistol and the BMWcar keys were found. Sh~

noted that when Inspector Chilufya testified that H':!

recovered the BMW keys from 1:he flower bed an:i the pistol

from the boot of the BMW

, it was not su _qgested to t1nn

that the keys were found in the backpack , while Lhe

pistol was surrendered by the man wearing d.readl oc f;.s.

She considered whether there was any reason why Inspector

Chilufya would have falsely c la i med that the keys were

found in the flower bed and c.be pistol 111 the car , b!.lt

found no ne .

31 . In the absence of evidence f rorn the appel lanl, on

why tee would give false testimony, she found Insp ector

Chilufya' s account c redible a!ld acce!pted it_ She al.so

concluded that the appellant's claim that the keys wh~r ~

 -Jl.7 -

recovered from a backpack and that he hanctsd ove.r Lh"

pistol to a man weari ng dreadlocks, were an afterthoug ht ,

32. The tr •i al judge also f o und t h at it was not in disouL. t'

that the guard died ftom a qunshoc wound . She review ed

the c:i rcumstances leading t 0. h .

.. 15 shootlng . Sh e also

co nsidered the appellant ' s evidence that intruders ca me

lhto his premises , fired 2 shots an<l that he , ln t u,n ,

flred 3 warning shots in the air . She took t he view Lha l

Jf che intruders ha d fired tw o shots , Cho l a Coll1.r.s

Kabamba and Pavan Rumar:, wou ld not have only hei'!rd 3

shots . She fou nd that t he evidence of these t ~a

witnesses , that t hree shots were fired , was confirmed by

the recovery of 3 cartridge casings i n the appella nL' s

premises.

33 . FurLher, having rejected the evidence of the

discovery o f cart r idge casi ngs , outside the law firm , an

being hearsay, she c oncluded thaL the finding of bl ood

sp l atter on the inside of the gate, rule d out the

possibility th~t the pers on who shot the guard wa;;

outside the gaLe . This evidence and the recovery of Lhe

 -Jl 8 -

3 cartr1oge casings , confirmed that the guard was sh ol

from within the yard of the appellant 1 s law firm . She

also found that the co ncealing of the pistol , afte~ IL

~as discharged, raised doubt on the claim that intruders

had vi site q the premises.

34 . The trivl ju dge then considered whether the shol s

fired by the appe ll a n t are the ones that killed th~

guard . First of all I she found that the evidenct'l nf

Detective Chief Inspector Chibe sa and Mr . Wolma.rans, was

i nconclusive on what caused t-he dent on the gate and

wal l . She a lso found that even if it was the case , the

pr€sence of those dents was not of ~ny mat e ri~ l

importance to the case . Simila r ly , she found the failur e

to inc l ude the BMWin the scene reconstruction . as bei ng

immater ia l,

35 . She accepted Detective Chief Inspector Chibesa 's

evidence th a t the 3 cartridge casings picked in c.he

appe ll ant ' s law firm were all discharged from thE

appellant 's pistol . Sne also considered the conflict i nQ

evidence of Deteeti ve Ch ief Inspect or Cl'libesa a.nd [~ .

 -Jl9-

Wol ma cans, on c.he calibre of t:he fi r ea~m that c aus e cJ t ht:

death of the guard . She found that she cou l d nn l.

decermine che issue on the basis of che wounds chat he

had suffered. Notwithstanding this finding , she wa s

satisfied that the q1..1,ard ,~as face to face , with h1 s

assailcint and .iri a crouching position when he was s l1or. .

36 . After reviewing all the evidence before her, 1..:

11<=

trial judge concluded that t.he guarct was t,;il l ed by Ltio

appe ll ant ' s pis-col. She t.hen considered whe t her h e had

mal1.ce eforechought whe n he snot at tbe guard . She fo und

that although the appe l lant. ' s attempt to cake i:he. guar d

to the hospital, suggests that he may not have inc. e nd ed

to kill him , he had malioe afterthought because n~ was

a firearms l icence holder and he knew the consequenc es

of dischargi ng a firearm. He had statutory mal -L~c

aforethought , as is se~ ou t in section 20 4 of the Penai

Code .

37. Th e trial Judge also found tha t there was

de r eliction of duty when the pol1.ce failed i;;o submi t. l ne

appellant ' s T- shirt for cnemical analysis a nd when Lhev

 -J20-

a awed the see e to be co t:.ani n r_,o,d She

~ha h police aced nnprofess on lly ,,.;h~

pho ogra hs to be aken a nl J.:..

No wi hs anding those f~n ings, gha f~n- · ha

a _ pellant suf ered no p j use ~ e ui en

against him ws overwhelming~ I le _o onl-

infe:rence, an infe ehc of

who shot h~ guard, nd e a nalic_ a a e ou It -

the ti me.

G·rounds of appea1

38. Si . teen ou , d~ wexe dvi:: nc.ed in s ppc - t- ~-f . j ~

a p al£ We w:il- not epra .. uc:e h~ I · arba in,1. ut .SU

to 5 y 1Tl05 of · h m e l ' cate otl • W'l

I
h-

a.rgume ts be~ng a \rr;lflC!2d in .$ . p or of Wha b_.a. - L1

1- - I

p esent d as di:_ e -, t gr unds of appea l .

39. A.l hough ther ls .0 p vis an .1.n Qll_ A_c lj_ ~~,

h t;j , limit he n mbe of ro n "'i 1 - h ,w ) q

submiEs, on s ppo of such g s 0 . - pe,;;;l

b_ ,, _ t l.S n help . ul _h_ cou_ llT_ig -

 - J21 ;..

lo split issues and r1 le mul ci.ple- grou11ds -.,, app,,a .L 1 1

!epllcated arguments , on th~ same lssues . ll unit sl A$

down the de-::lsi.c,n m:2h.i!'lo proces.:o , :1s ui-ine,;es~ar l ,

lengthy J\.Jdgmt?nts , ctiv~:;ing th"' rnulliplic::-at.eo ar'e•~i.rr,•~r,1_-;,

nave tG be prepacect _

40 . Beca•.;s,e it is ~onV"eniont. , and to ensur1;, r:l;3rily, W'""

nave recast , witnout stifling the thru5t of the J~p~a J ,

the 16 y.rounds filed ln support of tnis appE:uJ. , ir tci ,.

•rounds . The reformulated gr0unds , a~e as to!! o ~c :

40.l , The erroneous rejectiom of Mr. Mutale SC and Mr .

Bwalya ' s evidence , as being hea.say ;

40 . 2. Findings of the fact that are not supported by

evidence :

a) The concealing of the keys to the BMW and the

pistol by the appellant ;

b)The p:resence of blood splatter on the gate ;

c) The guard being face to face with the person who

.shot him ; and

d) The absence of intrude r s at the appellant 's law

firm at the time the guard was shot .

 J22

10 _3 . Th•e er ·roneous p1acing ,of the burden of pro ,of 0n be

iitppellant;

40. 4. The :failure to ad:Judicate on . importan ss es ·

a) The presen ,c :e of 9mm. c ,artridge casing ' at e s,ce e

of the crime ·

b) The p:resence a bullet. . hales on the wall and the

gate;

c)The contamination of the sce:ne·

d) T e dere1ic:tio .n of duty by the po1 ic ,e ~

e}The do ·wnpl .aying of incons:i.st:ene.i.es in the

proseC11tian evidence ;

f} The fail\lre tg c:,a_ll. medica1 ev en .ce be

di .s·erepancies in the -SJ.~,e 0£ ·tbe gunsh .o w0un -t an

,g) The -failuJ:e to a.djumcate on the demeanour a d

credibility of w·i tnes~es r

40 _5 The rroneous fi .nding that the appell.ant hz zaal1c

,t ; a,n d
afore th,n.zgl:J

40. 6, An infe nee af gu · - , no .being the onl.y · nfe::z::e · .c;:e

at 0ou.ld ha,v ,e been dra .wn on the tha ·_ , as be:(ore ·::n

r .al judg,~.
 -J23

E:r:raneous rejection cf ev i de:1nce all:eged tc be hearsa y

41 . The rs g o~n o ape- i th

,erroneo sly lass'eie h tii:RDrlV 0 M . Mu a 1 ,. ••r·

'

and. Mr .~ Bwalya , on t e C L r g~ a.::i I . q

out ide he appe lan ,s aw iuu , s bein hea

In S ppcr O :E thi S C 01 tl ' ) ii: p l, M .riu_ ,n

to he cas~ o S.ubra:ma.niam . v The D:irector of

Pul:il .ic Pzasec:utions 1 a .d. sub. ·t e, e C

t~ a. he~ repe ted wh .t thry we id nu worran

the class fic-.:tion of he -es ·n y . 1n~ b_ar

L

ay

e.v e C ■

Muhanga -1 - 1 su mi· -,ed h - he ...!

w .iJJp-por e lns p -•~ __

wJ c n ..::i me ere _ t - _ ,__- r ._ri g a.sin . If

tb teferr _ 0 Lhe- G 5 0 i Sakal.a V- i'be !?eo:ple - rJ

u i er _ th t t.. ' ei r t s t iJtmny s 10LJld an i

 - .J2>4-

In ~Sfvnse G -hia

or b i __

or. 1:. __ - ., s

i ·s · r- · s _s r- s ~; ~m. _j _ w_ _!

l-1-::, e~ Lr"=' _o h-· ~- .se f Mwape v !l'h.e Peop1e ,

l . ~u f h___ - r =-u_ ,~nt .

n ,-F Subrama.niam v The D.ire .cto ·r of Pub.lie :

l?J:osecu ·ticns 1 , • t w:as p L _~ 0 - h - the fact that

the statement is made .,. quite apart f.rom i'ts trut , u1ne.ss ,,

i.s f ·requently releva t in considering the menta ·1 sta.t e

and . conduc::t thereafter as the witness Qr of some other

pezscn in wh.ose presenc .e the statemen was made'' . r b

c.our b Wr ?Jnd in tnls cou , t· . Mui.:-1 r· ~ L M1 .

BWalya s ·~st'm Yr 1 r c- L..1.l - ge ·- 1-

0 he. aip_ el an rs

fl 1::c1 m 1:r m ,. ,;:, law l

. - rnI r

in :, Q

- th-: cl a i..m r_h- th J lie r o ,~e-=1

 -a2 s-
f he evide ce, hey _ r::ovs:aed 1 n

· nvestigat~ng th · s case ; p~.r e :: r ,_nce a.s _ - d e

o he pieing of a -rum ca · ~i g_ c-~:n s.

46 . I cannot, :n the c cum ai - _r

appe an, so ghc o produce

wi nes 1
1 on p · c:k.111g of ·_h"' r g C ing.;i,

_Q ,_he _ u poses O- sho _he

ma ,e . They ac ll l l y sou _ t he ev C C

ha 9mm c rtridge as in gs where. · ked . T_ ey -1.so ~nu r -

0 se he evidence top eve that so meone - G

ou side t e appella 's _w r irm ut be .::r, : :i r. t

suppresse that evide ce.

47, Conseque n tly , we ind _he ia ju g y

.
PXclu e the evid . ce or e Jl hear.say . BP aus

50 ' ght to in T O, uce the ev ctiance s pron a wh

sa · d ~ it d□ not fa · l 1n · h~ e - e i □n set c .1 J_ ,

S-ubrama,niam v The Di .rector of Public Prosec u t i. o n.s i L

di tion, the fact that th~ rwa ·i ~- ess ., -r _ p s n~

o goods anding , is imma_er· l -e ad.miss J__il L -,

 -J2 6-

admissib le mere l y because it was repeated by a cred l u 1~

person. This ground of appeal fails.

Findings of fact not supported by evidence

48. The second ground of appeal is ~ ha t the trial jud~ E

made findings of .fact that are not supported by IJ1c.:

evidence .

Finding that the appellant concealed the pistol and car keys

49 . The first: finding of facr. that is said not t o be

supported by the ev1.dence , is tr,e t i nding that. t:hc

appellant concealed the pistol ond the car keys .

SO. First of all, Mr . Mutemwa SC, pointed out t hal

Inspector Chil uf ya , the police officer who re c overed th G

articles, told the cour t thac he found the keys f o r t hr-

BMW in the rlower bed and when he opened tbe c ar I Me

found the pistol in the boot . On the other hand, c ht.•

a,ppellant told the c ourt that tJ1e keys where 1n r1

backpack, whi le he handed over the. pist o l to a milu

wearing dreadlocks .
 - J27-

51 . State Counsel then argued that since the recovery

of the keys and pistol was contentious, che trial judge

should have resolved the conflict between che appelJan t

and Inspector Chilufya, on the basis of the:ir

credibility. He referred to the cases of Inutu Eta.mbuyu

4
Suba v Indo Zambia Bank Limi 'bed and Teddy Pu ta v

Ambinwire Frida yS , in support of the argument .

52 . State Counsel also argued that the crial judqe

should have accepted the appellant ' s evide n ce , thac Lhe:

keys where in a backpack and that the pistol was hande d

over to a man wearing dreadlocks, because he was a more

credible wltne:ss than Inspector Chilufya . In,;pe,::l: o ,

Chilufya had acted unprofessioni3lly , w)len he £ailed to

take the dying g~ard to the hospital and allowed membe rs

of the public to take photographs at ttie scency. Tl1c

!ailure to ad~ance reasons on why the appellant•~

explanation was not accepted , let alone, t:.he admiss1of)

of Inspector Chilufye' s c.estimon y , was a rnisdi r-ection.

5 3. Stat€ Counsel then po i ni:.ed o ut that in any case:,

the trial '1udge ' s finding that the keys for the BMWarnJ
 -J28-

the pistol , where hidden , ie not supported by Lne

testimony of any wi t ness . Inspector Chilutya , the poli~c

officer who testified about the recovery of the pis tol ,

did not say that it was concealed .

54 . In r esponse to this ground of appeal , Mrs . M:wa

nsa

referred to the case of Geojago Robert Musengule and

6
Amon Sibande v The People and submitted that since c.he

finding that the ap p e l lant co ncealed the firearm, wus i.l

finding of fact , we can on l y interfere with it in very

limited circumstances . She then pointed ouL that t he

trial judge gave reasons why she found Insp ec Lor

Chi!Ufya 's cestimony more credible tl,an triac of Uv1

appellcant.

55 . Mrs . Mwansa also pointed out thac. when Insp octor

Ch i l1.Jfya was being cross exa m.lned , the s tory or 1 hn

backpack and cha dreadl ack ed man , was not suggastod Ln

r,1m . She referred. to che c asao of Abel Mkandawire and

Others v The People ·7, Donald Fumbelo v The Peop1e 8

,HL l

9
Rodgers Kunda v The People , and suomitted t hr.1t t.hlc':;e-

two issues , ha vlng not been suggested to the w1tnes 5 ,

 -J29-

the trial judge was entitled to concluctE that- \ )111

1
appe ll ant s reference to them, was an afterthowghL.

The ·se 3re the .c:easons why she found his testimony to bf:'.'

c redib le.

56 . Our scrutiny of the reeord of appeal reveals that

the trial judge, in her judgment,. gave r easo ns why sr,(

accepted I r1spector Chilufycl' s account of where Ii,·

recovered ~he pisco l, and not that by the appellanL. She

co nsidered whet her the r e was a n ything that cou.!_d h;.;ve

motivated him to falsely claim chat he found the pest.al

ln the car or the keys in the fl ow~r bed , bul dld n~L

find any. She also found tr rat s1.nce the appellant ' s cla , rn

that the pistol was handed ov er to a cb·eadlocked man w&s

not suggested to I nspector Ch1lufya in cr oss

examination , i~ was an afterthought.

57 . Coming t o the argument th8t Inspector Chllu..£ya ,never

said that the pistol ~as co ncealed , Black ' s Law

Dictionary , 9 t11 Edition, defines a finding · of fa ct as

being "a determination by a judge , jury, or

administrative agency of a fact supported by the evidence

 -J30-

in the record , usu . presented at the trial or hearing ., ,..11

In ocher words , it. is a ci:inclusion c.hat a r.rier of fa cL ,

arrives at, after considering che evidence before he £ .

It is not necessarily what one or another witness , te lls

the COUc't.

58. While we agree with St.a~e Counsel's submission Lhilt.

rnspeccor Chilufya did not use the word ''concealed",

when he gave evidence on the recovery of the BMW key:;

and t he pistol, it is our view thac. the t~ial judg2 was

entitled to come to that conclusion, after consideri11q

the evidence before her. She accepted Inspec lor

Chilufya's testimony that when be asked che appellanL

for the car keys, he gave him keys thac coul d not open

the car,

59 . J..nspector Chllufya eventually found the key5 in tt10.

flower bed and when he opened the car, he f ou nd tha

pistol under a basket . Given chat che appel l ant's cl~lm

that he had J!Jst fired the pist o l, to ward off irttrudei:-~,

placing 1t under a basket , in a car , and throwing away

 - J31 -

the keys, after locking the car, cannot amount ~o

anything, other than hiding or concealing .

60 . We also find that the trial judge gave reasons tor

finding that Inspector Chilufya was a credible witness .

Further , the circumstances set out in the case of Geo ja go

Robert Musengul.e and Amon Sibande v The People 6

, i n whi c11

an appellate court can set aside a finding of fact, n~v e

not been met in this case . The finding that the appellanL

concealed the pistol ls not perverse, any trier of facL ,

properly assessing the evide nce before her, would hav e

arrived at the same conclusion . This argumen~ fails.

Fi nding that there was blood splatter on the gate

61 . The secortd finding o f fact that is said not t:.o be

s\..lpported by the evidence, is the findir1g that t hete was

blood splatter on tne gate .

f;2 . Mr:-, Mu Lemwa SC 1 subrnitced that Det ectlv,e Ch!t ..H

I nspector Chibesa denied the presencm of blood splat ler

on l:he gate , So did Superinte.ndent: 5hibal.atani 1 who eaLiJ

they foond "some reddish substance that l ooke d 11~.e

 -J32-

blood" near the gate . ST.ate Couns6: 1 then referred to t.n c

case of Wesley Mulungushi v Cathrine Swale Mizi Chomba10

and submitted Lhat there was misdirection, when the Lrl al

judge found that there was blood splatter on the gate,

-1n the absence of evidence supportirig i !. •

63 . Io response to this argument, Mrs. Mwansa subm1LL~t1

tha t the finding was arrived at after T.he trial judge

considered the evidence of Superintendent Shlbalataru,

Detective Chief Inspector Chibesa and Inspertor

Chilufya . De.tective Chief .Inspector Ch ibesa ,

particular, mentioned the pres-ence of .blood splatter,

inside the gate .

64 . Mrs. Mwansa then referred to the case of The Attorney

General. v Marcus Kampwnba Achiume 11 and Sllbroittea thuL

the finding can only be set as id e if it is perv~rse; wes

made in the absence of relevant. evidence; there wa.s "'

misapprehension of the facts; or could not have t,or-r,

reasonably made if a proper 111.ew of the ev1.der1c:i h:ld

been taken . It was not th~ c ase, in this matter .

 -J33 ~

65 . We have examined the judgment and the reco.rd ol

appeal . In ner judgmen t , the trial judge sa1d , 11, •

1
following on the issue , ' ...... , I find that the deceased

was inside the gate at the time of the shooting , that he

was shot fro~ inside the gate is evidenced by the blood

splatter on the inside of the gate and further ......" .

66 . Ho~1ever , the testim~my of Inspector C)71J.ufya w;u;

that when he arrived at the appellant's law ti rm, h•.l

found the guard ' s body inside the premises , near U1c

gate . He made no mention of seeing any blood splatter .

ln the case ot Detective. Chief Inspector Chibesa , lw

denied seeing any blood splatter on the gate, buL sa1J

" it was on th.1:: ground but inside the ga Le,'' .

Superinter,dent Shibal ata ni said he saw some re~jdlsL

stuff, that looked like blood , on the ground , at a p1.ir, !

where the body was found,

67 . E'rom the evidence al Lhese thL 'ee pol:i..ce o.f.Eicer.;; 1

it is clea r that t he blood splatter was not on the oat~,

but on the ground. In the case of Imusho v The People 12 ,

the Court of ~ppeal held that:

 -J3 4--

''An a ppellate court will n ot interfere ;,i th a findipg

of fa ct i..f there was reasonable ground .for it , b ut sucn
finding will be s et aside if it was made on a vie w of
th e facts which could no ,t reaS-onably be ente r taine d . 11

The testimo n y of both Superin te ndent Sh il'Ja latanJ and

Detective Chief Inspect OL Chibesa , points at btcud

splatter on the q~ound , but inside tbe appellant's

premises .

68 . In the circ.ums tan ces , we accept State Cc,unsel

Mutemw a ' c submission t.hat the finding t:hat there was

blood splatter on the gate, is not supported by Lh •

evidence . This argument succeeds and the finding 1s ~~L

aside .

69. Notwithstanding, we find that had the trial 1uda•

properly assessed thE:: evidenc~ before her I she ~,ou1•I

hav e come co the conc lus ion that the blood splaLLet seer

by the witnesses 1 was wit.hin the appellant ' s premises ,

on c.he ground and nea.r the gate .

Fi ndi ng that th e gu a r d was f a c e to face with th e s h ooter

• -J35-

70. Tbe third finding of fact , that has been crit1eised

for nol: being supported by evidence, is the finding I hill

the g\Jard was face to faoe with the per.son whn shot tLJm.

71 . Mrs. Kabala ta pointed out that according to Dr .

Musakhanov, the entry point of th e bullet that k.tl !ed

the guard, was in the front of t he neck , while tbe exlL

was at the back . ln the case of Mr:. Wolma.rans, his

evidence was thac. the par.h r.he bullet took is indi ca L1.,,e

of the £act that the guard was in a crouching positl oP

when he was shot ; he disputed Detective Chief Inspector

ch1besa's opin io n that the guard was face t o face with

the person who shot him .

7~ . Mrs . then Kabalata referred r.o the case of Sakala v

The People 2 and submitted that the tr ial judge shoul,J

have given reasons for her preference of Detective Ch 1~l

Inspector Ch1besa's testimony to that of Di:. Musakha rltl'I

and Mr. Wolmar:ans , on r.he pos1 tion in wl1ich the gua cct

was when he was shot, Having failed to do so, we wer ~

1lrged, on the basis of the decision 1.n the case- of

 -J36-

.Atto ,.rney .· General ·v Ma.:cc::us Kariamba

t' Achiume 1 - ,l to rev rs _

h - '.ndi n , e U Se it l S nO. S uppo r ~ t e e 1 en, ;c .

73 . The online d ct.ionary; en. cuc:f0.i:ddicti0naE"ies . com,

describes he hra e nf ce -o face'' as -a lar"' s: 1 ,~(of two

peopl.e) c1cse togethe ,r and facing each ether~'. LJnl s ....

h.e phrase wop op _e h

~sanding an facing echo her, whi h we th · n sh o u 1 -

no be do 110 see any con li t in t e

-estimony o Dee tive Ch'ef Ins ec o ch ' es,

Musakh -no n Mr . Wolm rans, on t~e issue-

Tf a e accept r . W lmara_ s' e i ce r1-- ,_

guard was n a p 1 io l ich · s su p a r e JY

,, :s EIV'ide , f? on th ag n a -i r sh · f-

b twe n - txy n e wo l::ls , th pe -s n who 5

t e guard mus ha·e been n en t. o •, 1• m. _. is 1

L .1:1 •h l'" • , und rn s in he £ - !I n_ f ' he 11 r::k an no it::

a k. .,..,urth~r r ad he- gua th - w- j_ l~- 0 . t_;hLnL

I
pdS _:_ i n b a Ling □ wn pr trai n, rL _

oint wovld na h e b e, in be rJt=>C::t: , lJ D 7 _, 't ,...

h@ad . is tbe:re ~ore

 J.37-

oa 1n u a tn pe 5 n wash hi I rl OU - • V .n

i he wa:s 11 a ro c _ ing ;
pos1
J l
1..on ~ h.

75 . I 2"oll ws ha . t t 1al ju.dg~• r;;:; inding (.hac t.:[i ~

l-lP -d was ace 0 -ace with ~h....: ersa 1 who .9 h m

,
no per el: e. I ur vie f t e _in. d ng ~ I
s fl_ h If:;

s uppo. y the evide ce w~ u hold 1

1 . T .1 s c.t.rq m- , L

:l"in,ding that thez- ,e were n ,o intruders at appe .llant ' s offj.ce

'7 The our · b f · d, . l_

sup , or ed .by

w~r~ no in ru a the 11 - ~ s 1 av. _ i rm on 1i -

is gu as '10: .

7'1 . 'Mr, Mu emw"' SC, :rc.f ,e rrl:il, a L- e e i ~ a

~o 1 · ab:J.n who s - id h~ h _ar a j..lrso sa ·o -~l th

a e' efo - he hea d t.he ap a 1 n r.:::a

1ll out

.. \J r ad been s 0 . Ac-a tlin Sta e Coun e.1 , Lt a~

_.v iden ce su ggests h - ha . 1.-he ,:r pell 3n r r s·· m-=-

o e e son ( ) was res nt ~ I n add l l - on~ h p , ·te ~,ul

 JJ .s-

h he wi ne ~ als s d _e be rci oo st-

unnin~ aw~) ~nd _he n ly infe _ ce 1a Q. I! I

_ha r e r-i ds ,"J.e~ ' ha _h...., were l1e .n rut:1 r -

7 . St-a e Co n el 1 :n ref re . o h ::-. ,...a s t:-=Atto;cney

Genel."al v- Pete:c MV1.1ka Mdhlovu ,1 3 and Nk .on ,golc Fa.rJJL.s-

L mited v Zamb.ia National Commercia1 Bank Limited Kent

Choi .ce .Linu. ted ( .In Racei vershi .p) Charles Baru ,peri .-.r d

.mi _ e t.ho t 1 h h w_ ar an app e.J l I: e c al'.tr _ ~ ~1

can SA"\: a ide- th s .f · n• ng b call se L C

V ti. e de c~~

In res-po 1 e t t h1 s grou
subm · t ed tha he r ial ju ge · h ly fa nd tha h

were no intrudes . T_~ conceali go -1e istal , ~ft_r

1 e shoat · - gr aise · o 1... an t h.e cl a ' m . H d h y b_ 1

present , the .. ell ant oul not hav'=!' h 1 dd~r 1 t -5 ,-

the shooting.

The r'a judge's finding tha

in ruder~ in he app llant ~s premiss , t c he t ·m .h.1 s

uard w s s_ o , mus e consi eted in con ex T

 J39

__em ed on the appel lan \,.:1 · m th _ ch u w -

ho also

ire.arm

81 . The appel ant's evid n l'1:! was hat whan n

driving Ollt r he saw the ady w s with he 7 a y,i- ti_

being hel by man He earn~ OLJ 0 h_ ' ti r~

he a.1 I thra man fledt an $ he .r - n be .s w J.

guar being he d by ana L.h r man. rte f -f d a a L.he. hoL

82 . Altho gh & pe l 1 a t ' ;;')

evidence tha' the guard crie_ c

fro:m auts~de,. suggested ha J. w-as h n_ :Jd:ers iH\

not h m,
I
who sho the g d. r ol ' - al .

ev · dence that he . heard people .r nning po

r.he appellan ' s t s irriony _ at · he.r ll.1 e e L t .ru r:: s.

8.3 . However , Chola Colli g a amba 0.- p a ~ m

test mo:ny wa tha - only sha fj_ Fll L

De ec ive C ief nspec or a'B V denc _1, :.,

ca . ridge '
casings r: cove d m he ap~e ;::;i_n J_ - ·~

fi m were ired from his pis 'o l, re ere '=h~ appe an7 1
• -J 4 0-

claim that two shots were fired by i ntru ders

questionable . If the intruders also fired , Chola Collins

Kabamba and Pavan Kumar would have heard 5 shots and noL

the 3 shots they both heard . Further, Chol a Coll ins

Kabamba did not see the people he heard running and there

is nothing to confirm that they ...ere actually running

out of the appellant ' s premises .

84 . When discounting the appellants claim that the.r,?

where intruders , the trial judge considered

concealing of the pistol. If he is to be believed thaL

there were intruders , the appellant not only placed the

piStol back in the car, he l acked the car and threw away

the keys, after firing waring shots. That conducL t!i

1nos t unusual given c.he pistol was licenced and according

1.0 the appellant, the la1 'f firm had been t:he subject. o!

a recent intr~sion.

85 . In the face of ~his evidence, we find that the triel

Judge was entitled to doubt the appellant's c laim Lhal

.
h.is 7-aw f 1
-2?:lll was 1nva d e d b y intru
• ' d ers - . d th ac
ana . r1n it

was not the case. The finding is not perverse beca us ~ it

 -J41-

I s one th~ t can reasonably pe made o n the ev 1.dence d!i..lL

1~as before her. l\le uphold it.. '!'his argument. there tor, .

fails .

The placing o~ the burden of proof on the appellant

86 . The third ground of appeal .1.s that the trial Juci-,1·1 1

erred when she pl.aced the burden of proof 011 Lll•-=

3ppellant .

87. M:r. Muhanga r eferred c.o the c:as~ of M"ewa Mur.ono v

The Peop l e i 0 and submitted tbat .1t was wrong for. t h e tria l

judge lO find th.<1t the appellant did not le~d an 11

evidenc~ suggescing that chol::1_ Collins Kaba11da 1 ~f.lV:lll

Kumar and I rispec!!:.or Ch i 11.lfya, had a ma ti ve to tal S"' 1 y

i mplicate him .

88 . Mr. Muh anga also referred to the cases of Chabala v

16 17
The People , Salu wema v rhe People 1 Saidi Ban d a v The

18 19
People , Maseka v The People and Teddy Muntanga and

Another v The People i 0 and subm i :red that where an dt.:cuseu

person gives evidence, it is sufficient thal Jtls

explanacion is probable . 'l'he:re is, no need for tJ1'!

 -J42-

explanation to be proved beyond all reasonable doubl, ll'~

further argued .

139. In addition , Mr . Mt:hanga referred to Lhe case 01

Phiri and Others v The People 21 anci submitted tha:. tn~

prosecution , having failed to escablish tha t the

witnesses had no morlve co falsely impli cate the

appellant, the trial ju dge should have 1:esolved t l,e 1 s sue.:

in the appe l lant 's favour . She shou l d have foun d tha

t hey had a motive t o falsely implicate hlrn .

90. Cross on Evidence, Sixth Edition, at page l 07 , ma.ke:::1

reference to the evidential burden , whi ~h js d a fin e d ~5

follows :

"Th e evidential burden is the obligation to show ,, if

called upon to do so , that there is sufficient evidence
to raise an issue as to the existence or none existence
of a fact in issue , due reg~d be i ng bad to the standard
of proof demat)ded of the party Wlde.r such obl "igation ",

The burden of proof (evident i al bur<len ) oa!"ldstandar o of

proof where c o nsidered in the case Mwewa Murono v ~he

15
People , and it was held , int e r alia , that:

(i) In criminal cases , the rule is that the legal

burden of proving every element of the offence
charged, and consequently the gui lt of the
 -J43-

accused lies fro111 begion2aog to end on t.he

prosecution .
(ii) The standard of proof must be beyond all
reasonable doubt .
(iii) Th e a cau sed bears the burden of adduc.:in .g
evidence in support of an¥ de£ence after he bas
been found witb a case to answer.

91. From the forgoi11g , it is clear that in a cr1 n1~nal

case , the burden p l atCed o n the prosecution is tio pr1 1v~

all the ingredients of t he offence beyond a11 reasonabl ~

doµbt . However , wt,en it c::otnes ta evide nce in supporL or

an accused person 's defence or any o ther asse~ tion

adv a nc ed by h ill\, he bears the burden of lee1di ng ev id e n r.1.,

in support of such defence or assertion.

92 . E;vidence in support of an accused person ' s def-en cc

or asser&ion, can be led through the cross examina ~ion

of prosec uti on witnesses or by calling of aefe!' ,cr.

w1cnes3es in support of it . The accused pers on 1 is noL

required to pr ove the defence or asser .. ion beyond ~ 11

r easo n able doubt, it is suf fi cie n t chat he p l aces oeL 0 10

t he court , evide n ce that is enough for t he col.rt Lo

 - J 44 -

consider the availability of th~ tletence or accepl th E

assertion .

93 . Other tha n when pi;obably dea l ing with the testimony

of a witness with a mental disability, accomplices a.'1d

other wi t nesses with a possible interest of their own vo

serve, we are not aware of any r ule of law thaL

presupposes t hat a witness is untcuthfu l or not credible,

and consequently requi r es c.he- prosecution to prove their

credibility . It is our view , chat witnesses are presumeo

to be cred ible un t il the contrary is proved. , through

either cross examination or the i n troduction of evidence

that discredits their testimony .

94 . Hence , 'vre do not accept the appellant ' s subnti.ss ion

that the prosecution should have estab l ished that Cholu

Collins Kabanda, Pavan Kumar and Inspect or Chilu £ya , had

no motive to falsely implicate the appellant and Lhal

having failed to do so, the tr ial judge should have foun~

t hem not to be credible witn esses. Si nee it Ls tho

appe l lant who c laims that they are not credible

 -J45-
.r
j

'fl -C"H:?s
ses, _ e - i:tde. 1 y i him , t c., p 1 a c...:. _J ~ r e

- i l cou _t, e ,i eoce ins~ or o_ at claim .

9 .in f t I he j ul e r~on s e e

ta iri o 10 o _ -aph.s t es ene 1:1 d lr adi n ~, i'lem

1 .me ia , di

Ch LI ya' .s est i -on 1 • Sh · ~Dllncl th ~t ill ..

Conssq u n tl r We f . rt he .i a 7 J Q.e can n

at h~ . pell an f ~i led ~o _ d u - ~

e id~ ce.,. Q which he ou l ci nave .o n.ti thiL Ip I

- nes BP •8 whe. e no C e ble T-

>
1.8 roun 0 - ap ::.a_

,. -±ls .

~orta:nt issues not detecnined by the t,r:ial judge

1he ourth g·oun_ o ·P ,eal is ha t the tLi

ai ed o a.et.ermine a n.umb r of _import t issues.

The p:cesence 0£ 9mm c~.ctridges at the scene

The I
.1.rs 0 e Lm or a issues he i 1 j

is said to have a~le t□ e er ine a h presenr o

;:1:m
m c rt_ idg ca_· ng a the see ;>F; e , rin e.
 - J46 -

98 . Mr . Muhanga point:ed out that Insp ector Chilufyu

testified that when he arrived at the appellant' s

pre mises, soon after he received informa t ion of th e

shooting , he picked a 9mm cartridge casing whl ch he gav e

to Detective Chief Inspector Moya . iie argued that froln

Detective Chief Inspector Chibesa ' s evidence , it 1~

clear that the 9mm cartridge casing was not subjected t.n

3ny exa min ation , because all that he examined , wer e

10 . 2mm ca r t r idge casings.

99 . Mr. Muhanga then submitted that the tc-ia l j udg !!

shou ld have resolved the pr~sence of 9mm ca.rt:.c-idge

cosings , because it is supported by Mr . Mutale SC and Mr

Bwalya ' s testimony , that ca ,rtridge casings whece pir.k oa

outside the appe llan t ' s premises. Tri add.1t.1on 1 we were

invited to take judicial notice of ~he fact Lha t

Inspector Chi.lufya , be l ng a serJior police off:..ce~ and an

officer - ln-chal:ge of a police station, was tt'ained i.r11

a nd famil i ar with the calibre of the cartrldge c.a1;1 n4

that he picked .
 -J47-

100. Counsel als-o referred to c.he case Cnansa v The

22
Peop:le and submitted chat since the ballistics exp c r L

did not examine the 9mm care.ridge caslr1g , his op i ni on

that c.he fatal bu llet was discha~ged from the appellan t's

piscol , should not hav e b een accepted . On the authorjl y

of Inutu Etambuyu Suba v Indo Zambia Bank Lim.ited 4 , he

argued that there was mi sdirection when the trial 1 udg t:

failed to resolve the presence of the 9rnrn cart r id ql.".

casing.

101 . In response to t:he argume nt chat che p o l 1,.;r•

concealed the p r ese nce of 9mm cart r idge c asings, cand l:he

c.r ia l j bd ge did not deal with t:he issue , Mrs. Mwansa

submitted t hat she did . The trial judge considered l b~

ela irn that the ca r tridge casings were casings fr om

outside t he law firm bu t round the evidence to bo

hearsay . She poin t ed ou t that t he soctrce of t he

infonnation that cartridge casings were picked, was a

r e1ative of the appe l lant , who was not cal l ed as a

witness .
 -J48-

102 . M.rs. Mwansa referred to t.he cases of Subramanian v

1
Director of Public Prosecutions , .Abel Mkandaw i re and

Others v 'l'he People 7 and Mwape v The People 3 and submittc::,;i

that since the appellant intended to rely ari t hr.1

truth f ulness of t h e c l ai m that :::artridge c asings we:rc

p icked outside his law f1.rm , without calling the mak e ·

ot the st.atement , the avidence was corr~ctly excltH:lr •d

for being hearsay.

103. The two prosecution witnesses who talkect about rn ~

picking of cart ridg e casin~s are, Inspector Chilufya tind

Superin t ende n t Shibalaca ni. Superintendent Shibalatnn 1

did not mention the calibre of the two cart~idge casJng~

that he picked, suf f ice tc say that he handed them ovD1

to D~tective Chief Inspector Chib~sa .

104. In [he case of I n spector Chi luf ya , he said s oon

after he 11ea rd of t.he shooting, he went int o t h,;,

appellon t' s premises , where he pi.eked a 9rom carL.ricttie

casing . He handed it ove r to Detec~ive Chief Inspect or

Moya, who in turn ha nd e d it to Det ective Chief Insp ecLor

Chibesa . Detective Chief Inspeccor Chibesa ' s eviden c~

 -J49 -

was that when he examined the 3 c a r tridge c asings, Lh,.il

is, two from Superini:endent Shibalatani and o ne fruw

Inspector Chi 1ufya , he found that they were alJ oi c1

10 . 2mm c alibre.

105. We wer e i nv i ted LO take judicial noti ce of the fa ~L

t hat Inspector Chilufya , who was an officer in charge <11

a police st.at.ion, was trained and fami l i ar wit h t1 1n

calibre of ammunition . In other words, we are being

inv.ited to find that the cartridge casing that lnsp ectoi

Chi l ufya described as being a 9mm cartridge casing, W3S

-1ndeed a 9mm cartridge casi n g , because he knew what iL

was and cou l d not have been mis,:;aken .

106 . The ecli tors of Ha.lsQury 's Laws of Engl.and, Third

Edition , Volume 15, at pa r agraph 615 1 have said tht "

following on wh en a court can ta~e judicial noti~e of LJ

fact :

' 1 J\lclicia.l notice :is taken of various facts which are familia r
t:o any judici al tribunal by the Lr uni v ersal n o toriety or
.rE!gu.lar recn,rrence ln the ord i nary course of natiue or
business,. 11
 -JS0-

107 . From the foregoing, it is cl1=.ar that for us t.o La1'.e

judicial notice of the fact that. Ins pector Chilufya was

.trained in, a nd is conversant. with the cali bre oi

arumunitio111 we must. be fa miliar with tliat fact or 1l

int.1st be a fact. of universal notoriety. Other than kn owin g

that there are some police officers who are trained ln

ballistics , because they regularly appear before ou .r

courts , we are not aware of the exte .nt or level ot

training that police officer.s 1 r eceive in that area.

Neither is -r.he level of training t~t: police officers

rece i ve on f i rearms, a matter of public .riot.oriely. w~

are therefore not ln a position c:o Lake judicial notl c'-'

~f the fact that Inspector Chilufya was possessed of any

expertise in ballistics .

108 . Detective Chief Inspector Chibesa 1

s evidence thal

che 3 ca rt ridge casings he exarn:.ned werB all 10 . 2mm, wa:c

unchallenged. Given his expertise , we are satisfied lha l

c.here was evictence before the r.rial judge that U,t>

cartridge ca.sing that Inspector Chilufy.a described ;:;s

9mm was 111 £act a l O. 2mm cartridge casing .

 -J51

09 F rt .r.e ~ we hav 1 ' d n 1 te _ tha - r

C an Mr. Bw ya's on t l
I
p.lC;,J..fl
I •
~ J ci ·Lh :.er
I
ca_ r1. ge c:::.as -s , w s rrec · - Y xc.luded f r -"==~rlJ

ea -s-y. - 1 hough r.he :t • al judg l w

.
- l. l'l -· - h-

cal ' b _e D h ca.t t.ri e ca ng pi ea y

C.h11 f a, it i 01.) 1 vi w tha aci l1:L1 o ne s. 0 t. -,A

i enc a w s b _o ~ sh wau d h ve st ' l1 f

·_ha o 9rnm artr ~dqe :sing a_ t

,pp llan s p · m · ses. Th I..s arqum_ I ,..'..

1-

Cause of dents on the gat:e and "w

.all

1 o. Th e econ hi:iit th tr ia dg - s - ' r1

t l Ve a J · - i cat e UL

t le en s o _he - e nd oll wE!r _ not. 'J

'

1 . Th is e .e . ce ten ed to s 0 r h r;1pp l l~n j s

evidence .a he f ' ed ri the a ' r .. Mrs , . K bala ~nL ]:

' ha Mr. w 1.rrtara.ns on C e mp1 g ......

r=t ~

aise doub s an le 0 t -- y i:! Chi

Ch i u y . ' at he g t an [ w 1 1 wer-
•
-J52-

uullet . Ehe argued t.hat 9P1en that Mr. Wol.rnarans' t l 11t111,1

that it was not the c~se, was rtot rebutted, and 1q , lJ, 1

~osenc~ of any ctamt1gE to ihe gac~ i'lnd wall , t:b,. t r L·JI

judge should have found i:.hat th1=- appellant. dJd no L 1,1_

£•

into lhe wall or at the gate, uut in the air.

l!t . In t he Ca5e of Chuba v The People 23 , Gardner , J . ~ ..

ctimrnenting on how the court should treat tr.e evider. ce <:.)!

a handwriting expErt, said t:.he Eollowlng at p.:ige , J1. :

'' The principle is that the opinion of a handwriting

expert must not be suhst ,i tuted for the judgment of the
court . It can only be a guide , a1.be~t a veey strong
gu,i.d.e , to the court in .arriving at ,i.t,s own cono.li.ision
on the ev idence before it, and ;ii, this respect we w·ou.ld
criti.ci.se t he use of the wo.raing by tbe handwr i ting
expert that ''thase similarities indicate with a strong
degree of certainty that the writer of t1,e speci.n\en
writings in. col:umn (b) is one and the same person who
wrote the disputed endorsements on the disputed cheque
rt wou ld be wrong to a s sume other,.ise ."

ll~. IL i~ ou.t view , that the po;;ition t.ai-:en by .l.h•

Supreme C:ourt .111 the case of Chuba v The People 23 , w I LI,

!"egard i: o handwriting e,cperts, ~s app.Llc3.ble LO Lh

test.ic nony of any ~11.tness whc is an expert . :'i In• ~'-' 't h
 -J !,3-.

evidence of a ballistics expert is art opird .ori, l:..he cou1 !.

is still required to assess it, .1t cannot. be receivecd

without reservation, aE was sugge sted by Mrs. KabalaLa.

114 . We have exarnlned the judgmenr and find that conlrary

to ~r s Kabala ta ' s claim , the i;.rial Ju dge did in tact.

consider the question whether the damage seen on th{)

wall and gate , was caused by gunshots . She found Lh !:

evidence to be inconclusive. Since it was the pr osecution

who were claiming that t he damage was caused by hulle t,s 1

Ln effect, she found that chey had failed to prove tnoL

i.t was the c.ase.

115 . Further, in the face of evidence t:..hat i:he guard. Wi>S

with-in the premises of che a.ppellant' s low firm when he

was shot., and t hat only the appe lla, nt' s pistol ;.iai.

discharged, we do not find any basis on which the tt ia1

judge wo0ld have co nclud ed that the guard could not havH

been shot by th e appellant, because he ficed in the alr .

The pathologists evidence points at a downward diagonal

krajecto ry of the bullet that killed the guard and t h1s

is i ndi cat.ive thac the firearm was aimed downwards . 'l'hdl-

 - J54-

evidence renders que-st.lonable , the appel lant. ' s c:I aim

that he £ired in the ait, in an upward direction. WF.

find no merit in this argument .

Contamination of the scene

116. The third argument in support of the claim that t he

trial judge failed to adjudicate on contentions issues

relates to the contamination of the scene .

117. M.r. Katolo pointed out that although ttte trial

Judge found that t)le police acted unprofessionally Wl'lt:11

they failed to stop membe~s of cne public from

contaminating the scene , she did not go further t o mak e

a fipding on the effect of that cont:arnination . Had .slH2

done so , s he would have found thq.t the contamini.l t lo11

raised doubts on the appellant's guilt .

118. In response to this argument , it was submitt ed tbat

the ~rial j udge did add~ess her mind to the issue. Mrs.

Mwansa submit.t.ed i:hat contamination of the scene, whi_11

borders on derellccior1 of dut:.y, will o nly operate JJ i

favour of an ~ccused person and entitle him to an

 - JSS-

acquittal , if the prosecution evidence is HO(:

overwhelming and fails to offset the piesumptions Lha l

may be arrived at in favou r of an accused person . sh e

referred to the case of Charles Lukolongo and Others v

The People ll4 and sub mitted t hat after considering Lh c

evidence before her , the trial judge correctly fovnd

that the presumption was displaced by the overwhelm i no

evidence .

119 . The online dictionary , en . oxforddictionaries . com ,

defines conta minai:ion as , "the action or state of making

or being made impure by polluting or poisoning' ' ., rn th e

case of a crirne scene, eontaminatio~ c an be said t o ~~

the disturbance of tl'le scene which results 1n LhL

introduction o r r emoval of evidence . It may jeopard iSJu

an accused person ' s case, by either introducirtg ev1d ~nc~

that tends t o incriminate hi m or removing evidenc~ t hal

could hQve exonerated him.

120 . lri this Ci.:\se, the trial j udge found that tn~ s cenn

was contami 11ated because the police did not co r don off

the prem i ses . It enabled members of the pub l ic to en t 01

 -J56-

the pliice and some of them took photographs . Other Lhan

enter the premises , there .is no evidence of any thing

that may have been introduced or removed, but the IacL

that their presence amounted to contamination , ls common

ca use.

121 . Contrary to Mr. Katolo ' s submission , the trial judge

did actually address her mind to the effecc_ of Lhe

conta mination . She found that since i:he evidence against.

Lhe appellant was overwhelming , he W<iS not: in '<lilY

prejudiced .

122. As r egards Mrs. Mwansa's submission t !laL

conlaminat ion of a c rime scene borders on dereliction oL

duty 1 in rhe c ase of Kalebu Banda v The People is flt pac, n

233 , Baron , 0CJ 1 said the following on r.1 derelict101, ,;I

duty;

" when evidence has not been obtained in

circumstances wh~e there waa ·" duty to do so - and a
fortio r i. when it bas been i;,bt a ined and not .laid before
the oourt - and possible pre j udice bas resu.lted , then
an assumptiori favourable to the accused must be inacie. ''
 -J57-

Having just said contamination of a '

cr1.me scene ,

concerned with the introdUC'tion or removal of e'{i dencG ,

we do not think it borders or1 der.:eliction of duty , a~

suggested by Mrs Mwansa. However , we agree with her v'e w

thar;. its effect o n a case , is dependent o n the pre jucllcei

chat an accused person suffers.

123. In this matter, the case againsc the appellant was

anchored on ballistics evidence, while his defence wa;;

centred on the claim he f ired in the air and the fat~!

shot was fired by intruders . While it is possible Lhd l

the c r;owd cou l d hc;1ve t:.amper:ed with r;:a.i;t,i;icige casl nge

d i scharges by the intruders , t hat presu.rnpti0n ls oCfscl.

b y the uncohtroverted evidence of thole Collins Kabart11:la

and E'avan Kumar, that. only 3 shots were l':irl:>d. ll ls

improb able that the members of tbe publ i o could hav2

picked the cartridge c asing s discharged by

intruders, because t:he ev i dence tr1at we hove:< j•.;sl.

reviewed ru l es out the possibility that if t he.y we:.:e a11v

intruders, they discharged a firearm.

 -JSB-

124, We are satisfied with the trial judge's find i ng

that the appellant syffar~d no pre jud ice £com cha

contamination of c.he scene . We find no tnerit in t ho

argument .

Failure to £ind that there was dereliction of duty

125 . The fourth a~gurnent in support of the e l aim Lhal ~h~

tria l judge fai l ed co adjudicate on contentio us issu ~s

relates t0 the fail ure to find that there was derelict ion

0f duty when the police failed to investigace o r pr oduce

in coart , evidence on a number of specified issues.

126. 'I'he issues were listed as , when c.he police fal locJ

to investigate the presence of intruders; whe n the po l ic~

failed to investigate who shot the guard ; when the pol icu

failed to as c~:rt ain who was driving the BMW and r.hQ

Toyota Landc n 1iser that where f ound in c.he drJ.ve wr.y ;

when t.he police fai1ed to p.roperl.y reco11sr.ruct c.he s cE?nc;-,;

and when the police failed to br i ng cr ucial evide n ce LO

court, in part ic ular tbe cartridge ca sings pir.!kr::- Ll

outside Lhe appellant's premises.

• -J59-

127 . The other instances pointing at dereliction of d uly

were identif i ed as when the police- failed to ment.1on 1.h <·:

BMW vehicle '

1n scene reconstruction reporL by

Superintendent Shibalatani; when the police- failed to

mention in the report by Superintendent Shibalatani Lhal

t he appellant's shi ct was taken for ballis tics

exa mination; when the police failed to present t hQ

appellant ' s shirt in court; when the po l ice fai.led t.o

take the guard to the hospital; and when the p o l l ce

failed to secure t.he scene and obtain evidence from 1hr'

persons who were on the pre.mises.

128 . In a dditi on , it was also pointed out that there was

der el iction of duty whe n t he police failed to conau cL

concl usi ve and tho r ough tests on the gate , the wall, an d

bulle t holes; when the police failed to provide hando ver

notes of exhibits by Inspector Chi.lufya ; when the polic e

failed to uplift any finger prints; when the poi ice

fai led to tak e photographs from the BMWwhere the pist ol

was allegedly d is cover ed; when the police failed to

adm in ister a warn and caution on the appellant. ; and when

• -J60~

~he police only tendering 1 oi tbs J photg albums o! I lb

.a-cene .

1~9 . ML, M~hanga r e f er red to tbe cases of Teddy Muntan g a

and Enock M_pelembe v The People ~0 , Phiri and Others V The

21 26
People , Gilbert Chileya v The People , Peter Yotamu

Haamenda v The People 27 and Lipepo and Others v 'I'he

.Peopl.e 28
and subtflitted that t:he derelict.ion of ·:lu • v,

leads to a presumption in f:1vour oi the appell3n t: . lf/r.

•,;e.re urged to acqi,i t t.he eppellanc .

130, .rn response to ttu.s ground of appeal , Mrs . Mwans .;;

submitted that the c.rial judq6 dld address hF:::r m111d

t.lLe issue of dereliction 0£ dut:.y . She referred t n I 111

case of Charles l..ukolongo and Others v The People 24 ,.,r1t;

subm1 tted that. dereliction of duc:.y wi 11 operate in f.; v,~u

o f an accused person and entitl~ him to an acqu~L t u l ,

u.nless the pros<acution Ecviden~e offsets su ch

r,resumptlon.

131. Mrs, Mwansa also r.efected c.o rhe ca s es ot Ka l.ebu

Banda v The People ~5 and Lipepo and Others v The Peopl e ' 8

a nd submitted that the extent of c.he r-iresumption w I J

 - J6l-

depend on the evi d.ence before t.ne ~ourt and where U1,;;re

is oven✓helrning evidence, the court r::an st-111 co nv _icr

notwithstanding the dereliction of duty . She submit t ea

that atce.r cortsidering the evidence before her, U1e tr1 a I

judge rightly found that. che presumption was dtsplc0 ,.:e d

by the overwhelming evidence.

132. Mrs . Mwansa distinguished the case of Ph i .r i and

Othe~s v The People ~1 , that the appellant referred Lo 11

support oi the argument triat. statements shou l d have b1?on

recorde d from the persons the police found at the sce ne .

She argued that in this easer there were no eye witness es

and the police i:;eoorded statements from t.hose presen t al

the tirne, Chola Collins I<abanda and Pavan Ku mar. ['h e

other people four1d <1t the scene , came after the inc:id ru 1t.

133 . As we said earlier on 1 when w.e. referred to the ca s.1..;

of ~alebu Banda v The People ~, derellcLion of dut y IS

cohcerned with the failure to investi(jac.e or to p.re s en l

[0 cou r:t ' evidence collected cours e ,;:ii

inlfest:igati .ons . In the case of Charl.es Lukolongo and

24
Other s v The People , Chornba J.S., deliverJng J.1 1
 -J62-

1udgme nt of the Supreme CourL , :i.t page !.2£ , ob5ervo:>ti •• ~

follows :
"Decided cases on the question 0£ dereliction 0£ dut>y
show, inter aJ.ia , that where ev idenc e available onJ'.y to
the police is not placed bef ,ore the court, the court
must presume that had such evidence been produced .J:t
would bave favourable to the accused. The presumption
is not necessarily fatal to tbe prosecutio_n case because
the word " favourable" has been construed to mean " in
favour of: " and nor to mean '' concl1.1si va' ' . (See the case
of Kalebu Banda v The People (6). ~n the case of John
Timot ,hy and Feston Mwaba v 'I'he People (6) it weas also
held that in case!! of fail1,).J:'.e to take finger prints the
presumption i n favour of the accused wili on ly be made
if the article from which finger prints ou gh ,t to bave
been taken had a surface on wb.i,:,1, fi.µge.r prints ,;,ould

be detected . In the case of Kapulosbi and Oth eTs v The

People (7) it was held that the presumption capable of
being , d.ra,,n in de ,reJ. i ction ,of duty cases is d.i:splaceable
by a strong evidence tq the ce11tra:ry . ''

134 .. Jt foll o~ts , t.t1ar where L1.- i~ pcop,:.> 1 Ly fauna lJ 1,11

t:hel"e wa ::; detel~o::ticrn of duly , c.he r::o..:rt mu.;iL -ont'\ 1ti••:

t:.he presumptions that ar'c' :a vr..ur~ t !~ to t r,e accuo.off

person as ,, 1es111 t of tn~ fai l ure. 'J''.'le ::iourt •"11ru,c

; nv e a c igat';!d or some o t t:1e ~111de,r;c,;, co lle: ct1::d '-.a 1,1

 -J63-

presented to it. Much as there may be some failings in

an investigation , it does happen that a case can stil 1

proved beyond all reasonab l e doubt.

135. In this case , the dereliction of duty complained of

can be divided into two groups , matters not in vestigated

and evidence collected during i nvestigati ons , bu l not

prese nted to cour t .

Issues not invest1gated

136 . From the lisc set. out. by tn e appe l lanc , LhG

derelict i on o f duty , that ha s been associated with Lhe

failure to investigate , in cludes not investigating Lhi:-

presence of intr\lde r s; who shot t he guard ; who wa1;

dr iv ing the BMW and the Toyota Landcruisei that. w0r!i

found in the drive way; nae properly re co nstructing Lh~

scene; the failure to take the ~uard to the hospita l ;

t h e failure to ob~a1n evidence from the persons who wer~

on tne pr emises ; the failure t o conduct conclusi ve ana

thorough tests on the gate and the wall for bullet h o l es;

the f ai l ure to Uplift finger prints ; the failure to cake

 - J64--

photographs from the EMWwhere thei::e pistol was alleg~..:ll v

discovered; and the fai l ure to administer a w=1rn and

caution on the appellant.

137. We are at pains to understand t.he claim that LJ1.C!rl3

was dereliction of duty when the presence of intrud~rs

and the shooting of the guard were not i111vestigated. Our

unde-rstanding is that this is what this case 1s a.l. l

abouc . It would appear tti:;1t as far as the police a r:~

concerned , it 1s r.he appellant who shot tbe guard ano

there were no intruders. Whether they 2tre- right or wrcin,11

is an issue that will be resolved when we deal with th~

question whether an infer€nce of guilty is the only on~

that can be drawn on tbe evidence that was be.f.ore tha

trial ju dge.

138 . Coming to the fai l ure to investigate who was driving

the BMWand the Toyota Landcruiser that were found ln

the drive way; we agree with Mrs . Mwansa t:hat all the

prosecution wa.s required t o prove, are faci:s that are

matE:rial to the Cose. The saici motor vehicles belong 1.0

either the appellant or hi~ 9CquainEance . There 1s

 -J65-

oot hin g ta suggest chat knowing Who was driving e1l he~

of the m1 was material to proving the cha:r::ge the appel la nl

was fa c i ng . As a result , we find that the fai l ure re ise~

no dereliction of duty .

139. We ta)<e the same view on the t:laim t.ha t t he re wa;;

dereliction of duty when the police failed to take Lhe

guard to the hospiLal . We do not see how it could nave

impacted on the investigations . The evidenc e oI

Inspector Chilufya establishes that guard was dead when

he got to the appellant 1s law firm . Neith~r ce-.11 we

conceiv e any presumption that may be drawn in favour o I·

the appe l lant as a result of t h_e fa i lure . It is not c le :H

what would have bee n achieved or discovered, if he hud

been taken to the hospital immediate l y .

140. In his testimony , Superintendent Shibalatan.1 told

the trial judge that the scene reconstruction involved

the appe l lant te l ling them where he was When he

diseha-r:ged his pistol, where the gua.i:d was at the Li m•~

the intruders discharged their firearm and where t he

 -J66 -

cars were parked . They then took rn~asw:,;;rnen ts an d

pictures .

141. Superintendent Shiba l ar:ani, Detective

I nspector Chilufya a nd the appellar1c., who were t he milli'

players in the scene reconstruction, all gave eviaan cQ

du ring the trial and were cross examined at lengLh. ln

t.he circu.mstances, we do not see the prejucH ce l!he

.appe l lant suffered , £torn what is being described as an

"im pr operly conducted scene .reconstru t:tLon'' .

1 Q2 . In support r
o_ the argument that the-re was

[email protected]@
l ic ti on of duty when the po l ice failed to ob La 111
evidence from the persons who were on the p.cemises, Mt .

Muhanga refe rr ed to the case Phiri. and Others V The

21
People . We agree with Mrs , Mwansa tha t the facts in

Lhat case, can be dist i nguis he d from the current ca &e .

rn this case 1 the on l y persons known to have perc e 1 ve d

what happened wer~ Chol a Collins Kaba mba and Pavan Kumar .

They heard and s.:,w what happened after the gunshots , 11nci

we~e interviewed and testified in cou r t .

 -J67-

i43, There is nothing to suggest chaL the per5t.i!li'l

Inspector Chilufya found in the appellant's law I l tm

ei t)1er sa~1 or perceived anything_ Even if they did, t l1is

case is anchored so much on the ballistics evidence nn

the numbers cf shots fired and the source ~I tl,~

cartridge casings picked .

144 . As rega rd s the failure t.o c ondu ct conclus .ive and

thorough tests on t he gate and the wall f or bullet h oJ~N .

As we understand 1t, che argument is that such test would

have established th a t the dents on the gate and wed I

were not ca used by bu l lei::s . We have already indi c;,t.-:)cJ

that s ince r.he trial judge found the ev id ence l Q l:J~

inconclusive, •
1n effect , s he found thal Lhe da mag ~ W3 8

not ca useq by bullets .

145 . On the question of de r eliction of duty on acc-011nt;.

of fa iling to lift fingerprints, the Supreme Court , .tn

Lhe ca se of John Timothy and Feston Mwamba v The People ~9 ,

held 1 i nter alia , that:

•
1
r.f t.here is a dereliction of dut)i' on the part of t.he
polLce in not testing an art i cle for fingarprints there
will , if the article has surface on which fingerpr i nts
 -J68-

could be det ect ed, be a. presumption in favour of \:.)le

accu se d that there were fiQge.rprints on the art i,c_le
which did not match the £ing ei;pr ints of the accused . '1

14\5 . In this case , the appellant does not dispute be inq

at his law firm at the time of the shooting . ructh er ,

the trial judge found that: the scene was contaminated by

members of the public who were given access to the sc ene .

In the circumstances , the lifting of fingerpcints would

no.: have advanced this case in any way , because tho.

possibi l ity of finding fingerp ri nts belongin g 1 ~

stra ngers , was more than probable.

147 . :rhe failt.l!::e to take photographs from ~he BMW wh,~lf!

t he appellan L1 s pistol ~as alEo sa1d to have amounted Lo

a de.rel it:ti on of duty . In tr1e ca s~ of Jack Maulla and

AsUkile MwapUJci v 't}le People 30 , th'= Sup:rl}ma Co1.,r t h G ~rJ,

_nter alia , th~t :

" There is no hard and fa.st: rule that the police should
al wi\Ys bave the sce ne of ori..me and inc rimioating objects
photograph _ed although such photographs can at t im"'s be
Qf -imznense help to a triaJ. oou-rt."
 -J69 -

148 . Ii' follows , that it cannot. be said that the.re was

dereliction of duty , merely because pllot.ographs were n ot

taken. We do acknowledge that in some cases, the fai l u re

to take photographs can affect the credibility or ;,

witness ' s testimony . ln this case 1 Inspector ChjJ.ury a

was cross examined at length on the circumstances lead ing

to the discovery of the pistol in the car. His test i mony

was also the subject of credibility consideration b y th~

trial judge , who found it to be credible . We do not £1nd

any dereliction of du,:y i!"l the circumstances.

14 9. Coming to the failure to ad.minister a warh an d

caution on the appellant, ther:e is no doubc thal l l' i ;;

a good practice for the police to interview a person w/ 10

is in their custody on suspicion that he has comm1tt od

an offence . Such inrerview , may prove useful co ~he

investigation as evidence exonerating him may b0

discovered at a very early stage. In t.his case , t he

appellant ' s explanat.ion of what happened was rev e al ea

during the scene reconstruction. We therefore find Lha 1

 -J70-

he suffered no prejudice when no warn and cawLlon

statement was recorded frore him.

F-ailure to present to court evidence collected

150 . As regards dereliction of duty as a result of Lhe

failure to prese n t evidence collected during the course

of inve stigati o ns, reference was made to the failure to

present the cartridge casings picked outsid e th e

appellanc ' s premises ; the failure to presenl t he results

o f the e:<amination of the appel lant ' s shirt ; the failure-

to provide ha ndover notes of exhibits by Inspecco~

Cbilufya and when the police only tenderi~g l of the J

phoco albums of the SGene.

151 . On the failure to presenr. the c artr1dqe ca.sin~-;

picked o uts ide the appellant's prem ~ses . we have already

held that the trial judge correctly found th;;t tno

evidence pointjng at the picking of cat'trioge ca~!nos

our.side the appellant's law fir m was hearsay . As Lile:!

record stands, the t e is no evide nce that c arLr idg~

casings were picked eutsicle the appellant's law firm and

dereliction of duty, on that score, does not aris e.

 -J71 -

152 . In his testimony , Detective Chief Inspec t or Moya,

confirmed subrni ct i ng the appellant 's 'I'-Sh1rt f or

ballistics examination . He did not give any pla,1s lb l ("'

~eason for the failure to present the results or t l'lf"

exc;Jmination to court. The trial judge accepted. t.har Lhc

failure amounted to dereliction of duty b1Jt i,;ent o n r.o

find that che appellant suffered no preJudice becaus e ~e

accepted discharging a pistol and attempting to 11ft Lhe

guard, who was bleeding.

1 53. In our view , the trial judge's finding tha t th o

appellant was not prejudiced was correc1:. S:in c e Lha

p u rpose of the examination was to find out if the 'l'-

Shirt had gunpowder residue and blood was on it, Lh~

appellant's admission that he discharged a pist ol a nd

attempted to lift che guard , takes the issue o ut of

eont.ention. In effect , the appellant does no~ d1spu l.Q

that there could have been gunpow~er residue or bl o o d on

his T- Shirt, he. gave an explanation of how t ho s e

substances could have found themselves on bis T-Sh 1r t .

 -J72 -

15q . Coming to the Eoilure ta provide hand over not es ,:.t

exhibits by Inspector Chilufya and the pol1c e only

tendering l of the 3 photo albllilts of the scene , as wa.,

.held in the case of John Ti.Jno.thy and Feston Mwamba v The

29
1?eopl.e , derelict.ion of ducy 011ly leads t.O a presurnp t.1on

favourable to an accused person, but such prest.nnpl. j ou

can .be offset by overwhelming evidenc'? . The eviderc e

col lec.ted by t.he police , which incriminated LT1e

appellant , was t'rle cartridge casing s picked at the sc-enr:,

and the ball is L 1.t:s ex ·ami n at ion conduc ted by D<=Lc~cL 11~

Chief Inspec tor Chlbesa . This evidence was overwh~l1n1ng ,

and we believe it offsets a!'ly presumption 1.n nis ti!V"!J r. .

Downplaying of the inconsistencie .s in prosecut ion evidence

155. The fifth argull:lent in support of the ground of appe<'! l

t hat. t.he r.ria.l judge failed to adJud1car.e on contentiou s

Lssues was that she downplayed the inconsis~enc1 es n

the prosecution evidence.

156 . Mr. Muhanga pointed out chat the trial j udge do wr,

played the importance et the scene rel'::ons tru e!.!l or,

 _,J'J3

e pi~
.
.1. ein irnpar n 0 de
j

ion

h_ h r t_ e ap ell :nt h d malic f oretJ'lcugl"lt. '('I I

i tL e 0 De _ec '-i 'iie C ' I=! I s _c

Supe in -n'e t -,_ibala fJ l' - d Mr Wal -ralS t on h - -,-I

""h
1- . e appe 11 n wa wh en • ,e I sc h .a ge d ... p ~s
u _ . _-__:._
1 t 1 (_

rns _se -, ·ed on :.he guaxd ~s o y~ WGS - .... n "-

conai e e .

157 ~ Tbe athe di.sere anc.i ... t re sai ha - _.=_I I

d n l aye wa - the arr s t e. ap 1 nt befo

rec 1-pt 0 the po - ..1ortem ~n l 0 ho

wounds ob er- d o- e .booy D th l the

e d ,1? C that C ,e Cr1ie - In:spe Lo

,~ibes -·

t e au hor1_y infe c:e "ha h

amper l• h the body,. s . .oul ha 5!W1 , t -r Li.'- .

5 . M. uh nga th n su if1'1ited t a · th ~~ s a Madu.bu.la

V Tbe People 3• , .er the

wh.1, : .a1 j lJdg - r.::
e fer _d t. , Wh_Il

ealin wi_ o· s~s : enci l e. pr os u i

~idence~ was only a · licabl t - .1.ns:te ,11 .:l whe e Lh~

-t
d --"- repa -_c es I
1n he rasecu~ion ev r_e m1!! _r,
 - J74. -

159 . I n response to this ground of appeal , Mrs . Mwans c:;

referred to the case of Chimfwembe v The People 32 a nd

subm i tted there is no n eed for the prosecutor to prove

each and evety detail on t he circumstances surroundi ng

the commission of the offence . She also submitted t hal

the cred i bility of the prosecution evidence cannot n ot

be af f ected by minor discrepancies . What the prosecut io~

is requ i red to prove , is evidence that goes to estab l is L

the particulars of offence.

160 . Mr s . Mwa nsa then a r gued tnat the flawed scen e of

crime reconstruction an d the arrest of the appella nl

before t h e receipt of t he post-mortem report , had no

bearing on the proof of the charges againsL rh~

appel l ant . As .rega r ds Detective Chief Inspector

Chlbesa ' s e~aminatio n of t~e body wi~hout auchori ty , she

referre d to the cases of Madu.buLa v The People 31 a.nu

Chimfwembe v The Peop l e 32 and submitted chat the accus ed

person was not prejudiced in anyway , because other Lhan

measuri ng , there is no evidence that they actual _y

tampered wit h che body .

 -J75-

1e1 . The first issue we will deal wi th 1s the arresl. 01

the appellant before c.he receipt of the post. mo t L~m

report. We do not see the signi f.1c.arice o-E t.h ti:;

irregularity, if one rnay call it t hat , giver\ t ile

provisions of section 26 (a) of the Criminal Procedu.i::e

Code . It allows a police officer to arrest any pe rs on

whom he suspects , upon reasonable grounds, has c::otnmlLLed

a cognizable offence .

l.. ·2
Ii) • Other than point. out that the offence of muro et , c111

offence for whi c h the appellant was arres~ed. a 11d

subsequently charged with , i~ a cognisable offenc ~, w~

do not see t.he need for considering whet:her it was pr o per

or desirable for the appellanc to be arrested before t he

post-mortem report . Th1s is be c ause a charge that ha~

been proved beyond reasonabie doubt 1 cannot, on ap peal ,

be assailed on the ~round that at the time the c o n vJcl

was arrested, the police did not have all the eviden c~

that was subsequently used to pr ove the charg~.

 -J7 6-

163 . The same can be sa id about Detecti11e Chief In $p ec l o c

Chi b esa ' s examination of the guard ' s body with ol il

authority . Giveti t ha t t he trial j ud ge found tha t thG

e-v.id~nce on the calibr!? of the f ire a rm that caused u,~

injuries that were observed on the guard ' s bod y was

inconc lu sive , we see no neect to deal with the issu e in

any detail . Suf fic e to say that the rnere f act Dete c LLve

Chief Inspec t or Chibesa ' s examined the body was w1t.h o u l

aut hori t y , would not have rendered his evidence o n l hc

test lnac.in,issible . In rhe case of Liswaniso v The

33
People , the Supreme Court held t hat .illegally ob t a 1n ed

evidence, can , :in cerr.ain circw:ns 'Lances, be ad.missln lt:~.

164 . Examina tio:rt of th<? reports and the test i rnoni e s t, f

Superi n te ndent Sh ibalatani and Detective thief TTispecto~

Chibesa, establish that what has been described as .;;

''scene 1:econstr u c ti on 1' 1.n chis case , Was !'lo mor-1':! Lhdn

obt aini ng piccor1.al evidence o f whe r e the appellan t wa s

when he discharged his pisto l, relative r.o ,..,here L11u

body and cartridge casings wer~ discovered .

 -J77-

163. As we see i~, the scene reconstruction was all ab c ul

giving picto1·ial support c.o the testimony of I hr,

witnesses . rt al so gave d.ist.an.ces between where tho

various pieces of evidence were discove,red or se en al:.

the crime scene . Of importance, was the distance betw ee n

c.he guard's body and where t.he appellant said h e w;is

when 11e disch,,n:ged his firearm .

166. From the scene recons[ruction, the appellar,t Lo l d

c.he police that he was at poirtts that where b et we~n 1~

metres and 19 mecres from where the guard was when h•

discharged his pistol . Mr. Wolmarans ' opinion was Lhal

at thac distan~e, the appellant's pistol could rto L hav~

caused the flame burns that Dr . Musakhanov obser v.ed 011

the guard's bocty . Such flame burns could only hav e b~en

caused if the pistol was discharged from a dista nc e Ll

:between 5 and 10 cm . But according to Det:ecti ve Ch .i.e [

Inspector Chibesa, the shooter was between O and ·~u

metres. The importance of this evidence is that jt wou . a

have established whether the appellant could have f 1r oa

the fata l bullet form where he said he was .

 -J78 -

167 . We have e xami n ed t h e judgment of tne trial judige cllld

note t.hat she did not dea1 with the conflict in the

ev i dence of Detective Chief Inspector Chibesa and L'r'.~L

of Mr . Wol ma r ans on whether tb1; appellant. ' s pistol could

have caused the flame burns that Or. Musakhano,v observr.:a .

She only dealt with t h e question whether Lhe pist o l could

have caused the injury o.bserved by Dr . Musakhano v and

Detective Chief I nspector Chibesa.

168 . The question that must now be answered is what 1s

the effect of that failure? We will deal witl1 the issll~

when we consider the ground of appeal dealing w1 t b

whet h e r an inference of guilty is the only one that couJ.o

have been drawn on the evidence that. was before the trial

judge . This is because the issue cannot be ~esolveo 1n

isolation , it goes to the root of the charge .

Discrepancies i n evidence on extent guard ' s gunshot wounds

169 . The si x tb argument .in support of ~his gron11rt .:it

appeal that the trial judge failed to adjudi ca t e on Lh€

discrepancies between Dr. Musak ,11anov and Detective Chie[

 -J79-

Inspector Chihesa's evidence on che wounds su£fer~d Ly

t he guard .

1 70 . Mr . Muhanga .refei;-red to 1:he caae mf Sipal.o Cbibozu

and Chibozu v The People J• and pointed ovt t:hat iL WcJ:i

desirable to call the docto~, Whexe medical evidence I~

concerned. He a 1 so referred 1:0 tha case of Cha,:le s

Lukolongo and Others v The People i4 and The People v

Mateyo Mujµma i zi Jerusalem 36 and submitt ed Ltiat. desp1. Le

this being a compl1cat,ed case , the prosecution ol}oce r,Ol

to cell the pathologist . They left it to ,::h,;, appel I i;l'll:.

to do s o .

171 . In response to these a.rgu ments 1 Mrs . Mwansa

re fer red t.O the c-ase:s of Madubula v The People 31

<lJL<J

Chimfwembe v The People 32 and submi 1:ted that l,l1~

discxepancies in the evidence , on the size of the woi.:ndH

suffered by the guard , tall in what can be classified as

l'lnnor discrepancies . It is not in dispute that the qu anJ

was shot and, in any case , the trial judge did not mc1k1·
 -JSO-

any find i ng to the detr i ment of the appellant on 1-be

basls of the discrepancies .

11 2 . Mrs . Mwansa also refe r red to tbe case of Lipe.po and

Others v The People 28 a n(l submitted thac in a quest tu

g r a nt the appe l lant a speedy trial , the state decided t0

close the case wi thout calling the pathologist be c a use

he was outside the coun t ry , on leave . She also referrc a

36
to the case of Mang omed Gasanalieu v The People ant.I

sub mitted that even if .:he pathologisL had not been

called , the trial judge woul d not have been bound by 1.hB

pathologist ' s opinion i n the post - mortem report . Shewn~

enti lled t o come l~o her own 1:on cl us1on , wh1ch sh!:! .t111,
when she found th at some of the evidence he gave, w~~

~ontradicted by What the other wltnesses said .

113 . The first issue we w.111 deal ~,11:n ls the i:iJ~ lut~ 1

ty the ptosecut1on , to co.1.1 c:he pathologist . Sect i on

191A (1 ) of t he C;riminal P;roc edure Code provides ss

fol lc,~✓1; :

11 (l ) The oontants of an y document p~rporl i ng to be a

rep o rt ~nder the hand of a medical o f ficer e~ployed in
t:he pubiio service llpon any matter relevant to th.e i ssue
 -J81-

i ·n any crinu.naJ. proceedings sbal1 be adm itte d .i n

evi,dence :l.n such proceedings to prove t he matters stated
t herein :

Provided t hat -
(i) th.,, court in wbicb any such report is adduced
i.n evidence may • .in its discretion, cause the
medical o fficer to be summoned to give ora 1
evidence .i ,n such proceedings o r t11ay cause wr itten
i.nterrogatorias approved by tbe court to be
submitted to him for reply, and such
i nterrogatories and any reply t hei:;eto purpor ting
to be a reply fr om such person shall likewise be
admissible in evidence in such proceedings r

(ii) at the request of the aoc us .ed , made not less

tban seven day s be.fore the trial I such witne ,ss
sh&11 be summoned to gi ve oral evidence -

l,11 tt>s., ~SE ot 1:.upupa v 'l't\e People :n, i C we.I! '"wlu , ,,.

JJ!"i cc!fl 1 1:h:lf !

' 'S . 191 A of the Crinu.nai. Procedure Code w&s intended

to obviate the nece-ss"' ty to oal.1 ecxperts to prov e
pure !. y- formal, matters , but Sho-u1d not be 'Used as a

substitute for v erba,.l ev .id,ence 11hen th,;, actual con .tent.

of t;he report g <;>
e;; to the very r oot of t:lle c h arqe ; ;i n
a _ny case where the. evidence is more than purely fo.rmaJ
t he e~er i: .shou.ld bta c al. le d . "
 -J82-

Further , in the case of Sipalo Chibo z u and Chibozu v The

34
People , the desirabil i ty of calling the do.:::co-r wh,:

prepared t he medical report was considered . The cc~rL

held os follows :

" Med.Leal teports usually require explanation not only

of the terms used bu ,t aJ.so of the conclusions to be
drawn from the facts and opinions stated in the .repor t .
It is therefore h1ghly desirable for the person who
carried out the examination in question and pi:ei:,ared
the report to give verbc1l evi~nc,e "

31
Going by c.he decision in Lupupa v The ?eopl~ , H.

1s c l ear that it is acceptable , in c1:.rtain situa t 1011."',

f or a trial court to receive medi c,31 eviden ce w1 t hou r

=ail ing the doc~ar who prepared it . I t is part icu larl y

the case, if the medical evidence is riot c 0 C1t.er1t i ous .

That being t he ca se, t he mer~ fact that the pr cscc utor

does not eal l th~ docto r, cannot be co nd emne d as bel nq

mala tide.

175 . In any case , the record of proceedlngs shows lll 11

et tbe t i m~ ~e was scheduled t o testify, the patn o l oc1l~1,

 -J83-

Dr . Musakhnov , was out of the country ; on leave . Further,

we do no t see why issue is being raised with the mal.1.or

because the appel l ant Was allowed to call tne Dr.

Mt1sakhanov and he tur-ned up and testified . During his

testimony , the appellanc. was allowed auffi.c1enL

opport unity to examine the doctor . That being tne case ,

we agree with Mrs . Mwansa that the prosecat io ns fa11u~r:

to call the pathologist is a non - isa11e because tlie

3ppellant suffered no prejudice .

176. Comihg to the failure by the trial judge to resolv~

the difference in the evidence of Dr. Musakhanov and

Detective Chief Inspector Chibesa , on the extent or Bi~Q

of gunshot wou~ds the guard suffered , we equally agree

with Mrs. Mwansa that the trial judge was not bound Lo

agree wiLh either or both of them. These two wic.n ess~s

observed the wounds in different circu1nstanc es and

measured them using different instruments . lt was the11

open for the judge to decide 1;1,hoc.o be lie ve . In o u.r view ,

there mere fact that she did not q.ccept the 1/iew or
 ·-J84-

either 0£ them, does not rnean that she failed to resc..lv r.:

t h e issue.

117. The evidence on the wound sizes ,-,as tendered ln

support of the clai m, by Detect.i ve Chie f Inspect :Jr:

Chibesa that it was caused by a lO . 2mm cari:ridge . Mr .

Wolmarans told the court:. t.hat:. the size of the wound

c annot- be ordinarily used t o dee.ermine the ca l ibre of

the bullet t h at caused it. . Our undersi:.anding of tn e

effect of the finding that the evidence was inconclusi 1,r2 ,

is t hac. the trial judge found iL impossible to attrlbute

the wounds to a 10 . 2mmbullet , We find nc merit in lh1g

erguement,

Demeanour and credib~lity of prosecution witnesses

178. The seventh argument 1n support of th1s ground or

appeal 1s that the trial judge failed to pr0):,er1,.

adjudicate on t he: demea,nou r and c:i;edibi.li ty of i:.n,··

prosecution ' ' t

w1·oesses .

179 . Mr. ~1utemwa SC, pointed out that having founct L.ha l

Inspector Chilufya had not acted prDfesslonally ~hen ~c

 -JBS-

took photographs of the dying guard and tbe eppellanL 1s

ident.ity c ard, and did not praduco hc1ndover note~ 1 1, ,

exhibits , the trial judg ·e. should have ai:tached L1ltl l\

credibility to his te5t1mQny . Re r~ferred t o the easer

38
of Nkhata and Four others v The Attorney General , Chansa

39
v tusaka City Council 1 Attorney General v Peter Mvaka

40
Ndhlovu and Nkongolo Fa=s Li.mi ted v Zambia Nati o na i

Conuuercial Bank Liini ted , Kent Choice Limited ( In

14
rec eiv ership) Charles Baruperi and s ubmitt ~d tJ1a c th~r; e

was misdirection when the tria l Judge failed to ass ~s~

the demeanour of Inspector ChllUfya , whose evidence w~s

eon tradicced by that of Det~ccive Chief Inspect or

Ch.ibes:a.

180 . In response to chis ground o f. appeal , Mrs . Mw;;ns.:.1

submitted that the trial judge , wh en d eai1ng

' · . r
w1t.1 t!i '

t:.est.imony of prosec1 .n.ion witnesses that: 1ncrltninated tllf~

appellant , considered t l-te ppssibility of them tali; , IV

implicating him , but ruled it 01.1t. Stle 1:.herefor e Jt,1

assess the c;r;edibil iry ;:,£ t.he prosecution w1cn ess~s .

 -J86-

181. ln th.is case, t he appellant was in the main,

!.:mplicated by the testimony of Chola Collins K.;.bamba,

Pavan Kumar and Insp ec~or Chilufya . Following th~

appellant ' s testimony, which was materially in confl.icL

with these witnesses, the ,:rial judge considered why

these witnesses may have falsely imp l icated him. Hav1nq

found no reason , she found th~i.c: testimo ny on how many

shots were fired that evening, and where the pistol w~~

recovered from, credi ble, and accepted it .

182 . The trial judge, having conside r ed I □ s_pr,cL oJ·

Chilufya 's wrong doing , in th e contexr_ of tne othet

evidence that was l::)efore her , it is our view that sll~

c annot be condemned for failing to properly eval uat ~ t h ~

credibility of the witness. The ~ame can be said ~b □ U L

the oth er prosecution witnesses , she did evaluate the

credibility of their testimony .

183. We- heve examined all the arguments in support 9£ tht!

claim ,:hat the trial judge did not adjudicate on u 11

~ontentio us issues and find that it was not the c~se .

 -J87-

With the exception of her no~ dealing the guest 10n

whether bad the appellant disc h a rged the pistol from the

position where he said he was, the guard would ha ve

suffered the flame burns seen by the pathologisc , she

dealt with all the et her issues. We will deai wilh Lliat

failure when we deal with the question of whether 'in

inference of guilty is the only one that can be drawn on

the evidence that was before her .

E~roneous finding that appellant had malice aforethought

184 . The sixth ground of appeal was chat che trial i~ctrre

e rred when $he tovnd that malice a forethought was provr,!d .

185 . Mr, Muhanga referred to che cases oE Brigh t

41
Katontolta Mambwe v The ~eople and Kalalulta Musole v The.

47
Pe opl.e , and submitc.ed t.hat murder being an o ffen eri ,::,I

spe ~ ific .i ntern:., malice aforethought should have bt1e:;

pr:oved. He argued that malice aforethought, ar, essenl ial

ingredient of a cha rge of tnurdei; , was not: prow e,;i .

Instead 1 the trial judge. relied on the appellant ' s "p o'il

incident" contiucl:. to impute malice. Sh e fcund tha r )1e

 -.188-

had malice aforethought on che bas-is tha t b1= was 3

l icenced firearm owner, who should have known Ll~-

co nsequ ences of firing the pistol and that he hld Lli•~

pistol after (he shooting .

18ti . Mr . Muha n ga also r ,aLsed issue wlLh the trial ju d g e ' ti

use of t.he term ''sta tutory malice aforethoUghL' '. tle

r efei:red to the cases of the Attorney General v ttoy

Cla-i;:ke ' 3 and In Re : Lisou , and submitted tha~ it was

wrong for the trial judge to find that "statutory mali ce

aforet hought '; had bee.n established, beca us e th e la w

makes no reference t:o such a terln, . ln relation to a

c harge of murder.

187 . In response to the argumenL chat malice af o reth o ugh t

was not proved, M:r:s. Mwansa refer:red to the coses oI

45
Direc tor of Public Prosecutions v Lukwosha and The

46
People v Njobvu and submict.ed that on a cha l'ge ol

murder, the prosecution c an either prove actual i.nt ~ r1l

to kill or the intention to c ause grievous harm . Sine~

direct evidence of intention is rarely available, co1.1rl s

• -J89-

ISUdlly c1raw lnf~rerices of a G :::•_:S ~ ::1 p •J f :I l fl I

intentions, fcom the evidence before 1r. The Lr i al 1JU rf1

~,as, an tha evidence bef<J.r':' ti<.:r, entitled r.o come to ~ni::

::onclusion tl1a.t t.he aopel lant h,:td msl i .;:e i3forethoa1111t 1

when he shol che quard .

188 . 'T'1Je r.,f fence of murder 1.s set iJut J n section 200 'o f

the Penal Code , whJ.ch provides as to!lows :

" Any 'person who of mal.ice aforethough t c auses the dea th

of another person by an unJ.awf ':ltl "ct or- omi .ssion is

guil. t.y of murder ,"

Mal 1.ce aiorethoughc.; is defined in section 204 of the

Penal Code. The section p1"Dvi0es ':bat :

" Mal i, ce a.forethought shall. be deemed t:,o be established

by e.vidence pro vi ng .,_,ry one or more of the fo .i lo•ting
circun,stances ~
(a ) an i ntent ,i on to cause the death of or to do
grievous h,arm to any person , whethe1, such pe,rson is the
person actual.l.y xill.ed or not ;
,(b l knowledge tbat bhe act or omi,ssi,on causi,ng death
will. probably cause the death of or grievous harm to
some person , whether such person is the person a o tuai ly
k i 1led or not , al. though such k~owl.edge is acc,0mpa.nied
by indifference whether deiith or g·r i evo\l,!; bodily ha.rm
 -J90-

is caused or not , or by a wu1h that :i t may not be

caused ;
(c) an intent to commit a felony ;
(d) an intention by the act or o~ission to fac il itate
the flight or escape from O\lstody of any person wbo has
committed or attempted to commit a felony ."

189 . While we ag re e with Mr . Muhanga that The Penal Code,

in rel,;1t.ion to the offence o f murder, makes 110 meI1LL C•tt

of the term " statutory malice: aforethought'', we have !1..,

difficul t y wit h the tria l judge usi n g the term . Section

204 of the Penal Code , whi ch definss what mal1 c'

afo r eth o ught is , is 1n two pa!"t.3 . Part of stJb.sec:t .1.011

2 (a\ of that pr ovisio n , deals with malice aforet ho1,;gl 1l

rhat 1.s p ro ved by direct evidence of the act ua l. im:.er,c-i\'.ln

co ki ll. The r-ema1nder of subsection 2 ( a1 and suose ct. l on:;

(ti} (cl (d) , de al s with situations Whe:re in Lhe abs.e ll.:~

of d i rect evidence of the in tention t.o l-:11 1, 1,;,,;.

in t ention to kil l can be i nferred .

190 . In effect, even i f mur der is an offence or spe ctti

lnt:ent , that is , the intention Lo ~ill , the; ':? i :1

staluto r y provision , ln section 204 o~ the Penal Code ,

1J£ t li e circumstanc es when the intention to ki-11 1 -1:1 1 l1t:

 -.191-

absence of direct ev.1dEnce , can be inferred . In our "i ew ,

there was nothing wrong with the trial judge referrlo q

c.o such intention , as "statutory malice afo1·etn ou9,hL" ,

because being a creature of statute , that is what it is .

As it turned out the appellant was found to have mali.: -a

afoz·etnought on the basis of section 204 (a) of the Penal

Code ; he was f ou.nd to have i ntended to cause grievo us

harm.

191. Reverting t.o the question whether maL1ce

aforethought was proved, some of the evidence the trial

j ud,ge too}; into accou rit was the fac;,t chat the appel la: ·,t.

was the holder a firearrns licence and t:herefore farnil ia r

1Vitn its use and the injury it cou l d ca1,1.se, Sbe also

i::ook into acc:ouht of the fc:1ct t.hat he concea le d Lhe

firearm after the shooting . These two facts wher~

labelled as being extraneous by Mr . Muhanga_

19 2 . As Mrs. Mwansa rightly s ubmiti::ect , direcc. eviden co ,

of mal ice aforei::hought, 1s seldorn avai lable and i n mosr

c ases , the court draws an inference of it, on the basis

 -J9 2-

of the evidence before it . rn this case, although t.J,c

guacd was shot in the . neck , there is no direct ev1d eucc.-

that the appellant intended co kill him. The judg e wa~

therefore entitled to consider the question whether th r

appellant rnay have d.ischarger.l the pisr.ol, not i.:now1ng

that i t could cause i nj ury and subsequently dearh.

193 . The fact that the appella~t had a licence for t ha L

pistol, was evidance that pointed at hlm knowing whal a

firearm can do . I t. was therefore not extraneous.

Similarly , the concealing of ~e firearm w,as 1mpoc-L ,:u1t

to the questio n whether he discharged the firearm in tt G

circ umstances that he claimed . Would a ITTan who h~d Ju a r

fired a licenced pistol in the air , to scare awa y

intruders from his prem ises , hide such a firearm? '1''1.-;t.

evide nc e c ann ot be looked at in iso lat ion and labell ed

a s ''post i ncident '' , it must be considered in t.he 1 i gnL

of all the oth e r evidence .

194 . Havil'lg f ound that the possession ot a tJrear-111' s

licence and the co nceoling of the firearm, wei:e not.

e xt raneous to the question of whe~her t he appellant bad

 '
-J93-

malice aforethoughr:, we will deal w:i ch the ,quest io ri I'.:'l

whether malir=e aforethought was provP-d ~1hen we deaJ wl Lil

the next ground of appeal , which i.s on whether ar ,

inference of g·u il ty , is the only one that could be drawn .

This is beo.ause j n a charge of murder, an lr-,fe:.ren ce ol

guilty can only be drawn if malice aforethought has also

been proved .

Inference of g,,.ilty not being the on.ly inference

195 . The last ground of appea:l was that an in.fe.renc1:1 of

guilty, 1s not the o nl y one that cou ld have been d.ra.,, r,

on the evidence that was be f ore the t i::1.al judge .

196 . Mr MUhanga argued that the trial judge having found

that the guard was shot with a firearm whose calibre was

unkno~n , the appe l lant should not have been co~vicc ed o!

Lhe offe nce of murder. He referred to the case of R v

Forbes ,41 and submitted that s inc e the appellant was

linked to tbe offe nce by b is pistol, a finding that th~

guard was killed by a firearm of an unknown calibre,

should haye led to an acquictal .

197, Mr. Muhanga also argued that the flame bur ns

suffeLed by the guard, placed the appellant far beyono

the distance from which he would have inflicted triCl

gu.nshot wounds suffered by the guard . He pointed 0L1 t_

thac. acco r ding to Dr. Musakhanov, the person who shol

the guard was between 1. 2 and 2 meters, whi le Mr .

Wo lmar:ans said i:.he gun must ha ve been between 5 Lo 10

c m.

198 . Fure.her, rhe evidence of Super i hc.endent Shibalata n1

artd Detective Chief Inspector Chibesa, pla ced tnc

appellant between 15 . 5 and l 9 meters from where the guard

was when he discharged the pistol.

199. ~r. r-t-uhanga submitted chat in the face of eviden c1.~

that the appellant was at a distance beyond which hls

p isto l cou l d have caused flame borns , it is possible

that someone aloe shot the guard. He re fe..r.ted i:o U 1u

48
c ase of Dorothy Mutale and Pbiri v The People and

submitted that i:he c ourr should have drawn an inferenr ••

 -J95-

Lavou able to -heap ellant a £0 1'l a s rzi eo _ _ I __,_

to t e gua .rd.

200. in~ ly, Mr. Muban a r u d h b_ _e11 ~

je, lani:;;tt ' on _at h y we e att C ~ ~

ca - ea onably b

r-ue. He r e_red 0 th cas - f D,avi.d Zulu.v ne Peop1e .

. ~

a d submit ed th t ih he fa~ 0 at e~ pl- wn - I

1.._.. reasona.b y ti ru_., an in er _n ee. f ui. ty 1.f:l ,.::~

he on yo e a could be d ~wn a he e.vi E.- c

was befor - r · 1 j ud He ain u :.H Lha

evidenc 0 liola ol lins Ka . rub , who he

'
ing -way ra m t _ see imme 1 -

gunsho h uncba Lle-ng d

ha L th re wa~ n-0 1
.e s o □ Le ~ .n ic ng !:Jf ~m,

ar 1d e casings s u_ppo_

. plan ti n.

20 1. In spanse t ht an
I
1n.re
r

U,.J. t: y - 6 t e or, o ne ha een 0

_he e 1 en e wa efo , r1' a JU g

suom L -ed tha h - ri 1 J i h. I

mind owl n a co nvic on on - Vi 11 •

• -J96-

.::ornpetent . She correctly came to the conclusion that t bf:'

only inference that could be drawn on tbe evid~IJce Uia t

was before her , was c.hat it was the appe l lant 1,/ho sh oL

his guard and that he had malice aforethought .

202 . Mrs . Mwansa also referred to the cases of Joseph

Mulenga and Another v The People 50 and Do na ld FUmbeJ..o v

8
The People , and submitted that since Chola Collins

Kabamba and Pavan Kumar ' s testimony on the number ot

gunshots that they heard was not contested , and there is

evidence t:hat the three cartridge casings that w,ar o

picked, were discharged from the appellant's plsto l , LhQ

•:Jnly infe ,rence that ,:;an be drawn is that he is the o m.•

Who shot the guard.

203 . It is common cause , that the c a:;;e agains t \h .

appellant, is anchored OJl circumstantial evidence . , 1,

the case of David Zu,lu v The People 4 ~, Chomba dS ,

delivering the Judgment of the Supreme Court , obser\ ,ej

as follows at page 204 :

" It ,i s pal.,p!ll>ly clear that tha evidence ava i ;Lab.le at

th e tr~al. was circU111sta.nt ,i .aJ ev id ence . It is competent
• -J97 ·-

for a court to convict on such ev.idence as it .is to

convict on any other types of admis-si.J:,J.e evidence .
However, t:.here is one weakness pe=1i.ar to
circumstantial evidence; that weakness is that by i ts
very nature circumstantial avidert.ce .is not nrect proof
0£ a matter at issue but rather is proof of facts not
in issue but relevant to the £act in issue and from
which an inference of the fact in issue may be drawn -"

Tbe court went on to hold Lhac. :

"It is therefore inctll!lheot on a trial. judge tnat he
should guard ag .ainst draw.ing -wrong inferences fto m the
circumstantial evidence at his cU sposal before he can
feel. safe to convict. The judge :in o-ur -v:iew must, :in ,
order to feel. safe to convict , be satisfied that tbe
circumstantial evidence bas taken the case out of' the
real.m of conjecture so that it attain '$ ·suc,4 a deg,i::ee
of eoge.ncy whieh can permit only o,f an :inferanoe of
guilt ,' '

.20-! . It follows , chac when ~saess1ng w~etner an inferenc•

')f 91.1.ill:y is thcz only one tr,,at. ,:;an be

"
~ircumstantial evidenc~, one n1ust 1~u} al all che pla~_s

i, t evidence that p rove the relevanc Sil.TH.;:•

1.nter~nces are ctrawn OT1 .s-uch pr~v~ri iocs.s , th~ :1t'dr1 ,,,i
in t 111
? t:p5e '[)[ Dorothy Mu tale and Another v The People' 6,

mu.at be borne 1.n m1nc1. In chat •.ase, Si.,pr-"'mr> co ,rrr

u·.; i::
 -J98-

" Where two or ·more inferences are poss i b.le , it bas

al.ways been a cardinal principle of the criminal la~
that the Court will adopt the one , whic::h i!'I more
£avourable to an accused if the,re i,s nothing in the
case to exclude such infe rence"

205 . Whether or not two or more inferences can be draw n

from t he evidence , can only be determined afler

evaluating all the evidence that wa.s presented dur l ng

the trial and the findings of fact made therefrom . It

cannot be decided , by looki ng at a single proven o-c

unproven fa ct .

206 . Before ~e set out the faces proved by che evidenc ~,

it is nec es~a.y to comment on the picking of "1f11l~

r:,artridge cas ings, t.hat ha s repeatedly been referred L•J

1,n chis case, We bave a l ready indicated that t he 1:r .ial

judge rightly found that the eviden ce cif Mr, Mutal e SC

and Mr . Bwalya on the isaue , was hearsay . We h av9 a ls~

foLJnd that the cartridge c asing describeo as 9mm by

In3pector Chilufya, was a~tually a 10 . 2mm cartridq ~

e esJ.ng . As the tact.s proved s land , no 9mm cal' cr idq•:;

c asi ng WqS picked 1n ~hls ca se.

• -J99-

207 . Reverting to the releva nt facts that were prov ed,

it was proved that jn the early hours of 6tn May 2017 , J

shots were fired from with i n the appellant's premises.

Soon after the shots were fired, the sound o f people,

who appeared to be running away frcm tbe appellant ' s law

firm , was heacd . No one saw those people , but not lo ng

thereafter, the appellant called out indicating tha t hls

guard had been shot . '!'he guard was found dead and a pos I.-

mortem found that he had died from a gunshot wound.

208 . The other facr.s proved are that scon after Lhe

shooting , the appe l lant's pistol was recovered from c1

motor vehicle, where it had been concealed. 'I'hruc

cartridge casings were also picked frorn the appe llan L' .s

prem ises and ballistics examinat i ons confirmed t h at Lh~y

were all discharged his , pistol. It 1.s on this 1;;viden<::~

that r.he trial judge found that the only inferen c e th at

coulct be drawn , was the appellant shot. and killed l he

guard , and was therefore guilty of the offence o f murder.

 - ·JlOO-

09 . I was ar ued ha- □ l loi:-11 n thea C l,l

firea m ·ha ~au_ed

h ed was 1 ri conclus.1 ve r n in ~er _nee of

oil y was riot t 1e onl one ha· co l be d "awn on n __

tridence. More so, in t.he. at;e of ti .e v..:ctence ';"ron1 t 1 ,

scene re o st-u ion r tba he wa a.L a

distance rom w1 ch his istol (;OU l d not hav

lame u rn o ..:1erve

has been crit c · sed o - n t consi erio is evi n e.

_10 . Tne ev· enc ~ t ~ distance t whic the appellan _

was w en h is i - a have d'scbarge h's ist o l as

not a 1ve a by any i es igat've process . lt wa~

by the appel l an ; it shou d t h eref r e cons i • ..:. ed l

the 1 g·h o th~ o th r e·1id ce t at

..;JJ a:s b fore · 11.e t J. a

J d e As we see i t"" he W=:!S J. n is whe he.r __ad L hP

ria .l ju ge co ·nsi -e.red i L s.he wo• ld ha ,ve arrive

di - e - ent cone usion on whethe~ the gua d was · nJure y

_ull . isch ~g by the app l nt's pis •a1

~ l. A the admi ttea 1:nridence stands, th .p llan w ~

n t e p mi 5 es a: _i s 1 w .E1 _m st J. e _n1_
 •
• - Jl Ol -

sustained fatal gunshot wounds. He is the only pee sol

who discharged a firearm shortly befor e the guaro Wa!::

round dead . Can ic be said be said thaL tbe appellanl

could not have caused the fatal l h jo ries the yuord

suffered because he was 19 meters a.way? We don't thinJ<

so. Si nce no one else d ischarged a firearm, no one else

other than ~he appellant c9uld have sho~ the guard,

.I\ review of tbe evidence establishes that no one

else oc.her than t he appellar ,t discharged a firearm J n

the premises where his guard was found fatally injured

by a gunshot . Even if people were heard running away

from the premises , those individuals did not dischar gi:,

any firearm. Only the appellant discharged his pls Lc1

three times and tr1is is co nfir med by the t.hree car-tr idg0

,;::asings picked. What thiE evidence points at, is t.hal

eve n if one where to accept. Mr . Wolmarans ' ev.id.ence thn'

t he person who shot the guard could not have been more

that. 10cm away from him, is i:.hat the appellanc.'s cl a im

t.hat he was 19 meters away, when he dischargea h is

pistol, ca nnot be true.

 -J102-

213. We find i:hat even. if the trial judge dld not. d!:"<;J

with evidence on the distance al. v1hich the appella nt

claims he was when ne fired his pistol, the qthor

evidence before her still points at the appellant be1n y

the shootex-. The ocher ,evidence actually points al 1.:11,

fact that he cou l d not have been where he cla ims hew.is .

The appellartt was not in any way prejudiced by the trial

judge ' s failure to deal with evidence of wh'::!te he wa::

because the other evidence before her totally exc lu des

the possibility that someone, ot her than h im discharq Ed

Lhe fatal shot .

1
214 . 1t is our view that the trial j\ldge s finding th;,L

it LS the appe ll ant who shot the guard is unassallabl ~.

The question is 1 did he have nialice aforethought ? Thu

sppell -a nt denied aim i ng at the guard, he claimed tl 1at he>

f.ired in thia air . As we have previously indicated In

this jud gment, malice aforethough t c an be proved by

direct evidence of the lntent:ion to kill or an intent Hlll

;:o cause grievous tiarm; see section 204 of the Pena l

Code. In this c ase, . there is no direct evide .nce of t h,~

 ..
• -Jl03-

intention to kill and the tria l judge reli~d on the f acL

that the appellaJ"lt. , a holder of a fiteprm' s Ucer1ce ,

should have known the effect of firing a .9istol at ;i

person.

2 15. We f:i.nd that she canoot be faulted for .an:iving a t.

that conclusion. E'rom the evidence on reco,d, il j i:;

apparent that the appellant was aware that the effect of

firing a pistol at a pecson was that ic could caDse deat n

or grievous harm. In our: view , th,;1t is why he mainLair1e:-d

that he £ired in the a.1r 1 even though the evide[l e1·

indic~t~s th~t it was not the case.

216. This being the case , we find thac an inference of

guilty is the on l y one that could have been ~rawn on th~

evidence that was befo~e the tria l judge. The last ground

of appeal cherefore fails .

Verd i ct

217 . The on l y ground of appeal we have allowed 1s the on~

relating to the finding that there waa blood splatter 0 11

• -J104-

the gate . Even though we allowed that ground of appeal,

we find that it is of n o effect on the r:rial juctye ' s

finding that an inference of guilty is only one Lhat_

could have been drawn on the evid~nce that was b~loc~

her.

2 1 8. Cons equently, we upho l d the appellant's conv iction

o n the charge of murder . We have also looked at: Lhc

sentence , in the light of the evidence that was before

the t ria l judge and we equa I ly uphold the sen tsnce . '!'he

evidence before the trial judge did nor: disclose ar.y

extenuating circumstances to warrant the irnposicion ,.,,

a sentenc;;; othet" than the one "Chat ~he i r11p

osed .

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D , L.Y . Sichin~a
COURT OF APPEAL JUDGE COURT OF APPEAL JUDGE