Abishai Mulikwa v People (APPEAL No. 02/2019) [2019] ZMCA 417 (22 August 2019)

J l THE COURT OF APPEAL OF ZAMBIA HOLDEN AT LUSAKA APPEAL No. 02/2019 V .\COF ~ ":'~~iOFA? ._.__.,,.... ........ ~--- l 2 f.. UG 2019 --- - TR (Criminal Jurisdiction) BETWEEN: ABISHAI MULIKWA vs THE PEOPLE APPELLANT RESPONDENT CORAM: Chisanga JP, Kondolo and Majula JJA On 23th April, 2019 and 22nd August, 2019 For the Appellant Mr. C. Siatwinda, Legal Aid Counsel For the Respondent Ms. G. Nyalugwe, Deputy Chief State Advocate JUDGMENT MAJULA JA, delivered the J u dgment of the Court. Cases referred to: 1. William Muzala Chipango v The People (1978) ZR. 304 2. Donald Fumbelo v The People (SCZ Appeal No. 476 of2013). 3. DavidZuluvThePeople(1977)ZR.151. 4 . Muvuma Kambanja Situna v The People (1982) ZR 115 5. George Musupi v The People (1978) Z. R. 271 6. Peter Yotamu Haamenda v The People (1977) ZR 184 J2 Legislation Referred to: The Penal Code, Cap 87 ss 200 & 215 1.0 Introduction 1. 1 This is an appeal against the judgment of the High Court which tried and found the appellant guilty of one count of the offence of murder contrary to section 200 of the Penal Code, and one count of attempted murder contrary to section 215 of the Penal Code. 1.2 Particulars of the first count were that the appellant, on 5th November, 2017 in the Mazabuka District of Southern Province did murder Howard Mangaba. 1.3 The particulars of the second count were that the appellant, on 5 th November, 2017 in the Mazabuka District of Southern Province did attempt to cause the death of Tobias Hachiwala. 2. 0 Evidence in the trial Court 2. 1 The prosecutions' case in the lower court was based on six ( 6) witnesses. The evidence led in the Court below was that on 5 th November, 2 017, Tobias Hachiwala (PWl) a Ranger of Namaluba Ranch in Mazabuka District, reported for work at 17.00 hours. He was with other employees of Namaluba Ranch by the names of Howard Mangaba and Child Chilekwa. 2.3 According to Tobias Hachiwala (PWl) , around 20.00 hours as h e was conducting patrols with Howard Mangaba along the road which leads to Katebe Farms, they met a man who was J3 with a bicycle coming from the direction of Katebe Farm. The unknown man they met had with him a bicycle which had a crate on its carrier. When they asked him what he was carrying in the crate, he told PWl and the deceased that he was carrying seeds from Katebe Farms. Howev,er, contrary to his assertions, when the duo searched the crate, they found a dead sheep which was in a sack. The deceased then phoned another Ranger by the name of Child Chilekwa to go and give them backup. 2.4 The stranger shortly thereafter produced a knife and fatally stabbed the deceased on the throat and also stabbed Tobias on the throat and chest. The man then turned and started running in the direction of Katebe Farms. 2. 5 PW 1 and the deceased gave chase and in the process, the crate fell off the bicycle. PWl pulled the knife which was lodged in his chest. Child Chilekwa arrived at the scene and found Howard dying. 2.6 The Police were later called and when they went to the crime scene they picked the body of the deceased and took it to Mazabuka General Hospital Mortuary. PWl was also taken to the Hospital for treatment. 2. 7 PW 1 described the crate which fell from the bicycle as black in color and had the names 'Paul Mulikwa' written on it. It was his evidence that he was able to identify the assailant because there was moonlight and the attack lasted for about 15 J4 minutes. He also stated that the assailant was wearing a black head sock which fell off during the attack but was later picked by the assailant. 2 .8 PW3 was Ocean Mulopa, the Ranch Manager of Namaluba Ranch. His evidence was that on 5 th November, 2007 around 19.30 hours, he was approached by PWl at his home within the Ranch and informed that he had been attacked and that Howard had been stabbed to death. PW3 observed that PWl was wounded and was bleeding, his T-shirt was also soaked with blood. 2.9 PW3 mobilized people and went to the cnme scene where he found the deceased lying in a pool of blood. He also saw a crate which had a dead sheep in it and on the right side of the body of the deceased was a broken knife with no handle. When he checked the crate, he saw the names of Paul Mulikwa and Paul Chikwala written on it. 2. 10 It was his further evidence that the fallowing day after the commission of the offence, the appellant led them to a place 29 metres from the scene of crime where he had thrown the knife handle, which had blood stains on it. 2.11 The court also received evidence from PW4 Paul Mulikwa a 69- year old villager of Nzimba village of Chief Sianjalika. He testified that on 5 th November, 2017, he escorted his dependant by the name of Joseph Mwiya who was sick to the hospital. He explained that before he left, he locked his house which had a J5 crate and a bicycle inside. He left the keys with the appellant's wife Virginia Mwiinga. It was his evidence that the person he escorted died on 6 th November~_ 2017 but he remained in Mazabuka until 8 th November, 2017. 2. 12 According to PW 4, on his return home, he was inf armed by Virginia Mwiinga, that during his absence, the appellant took the keys and picked a crate and a bicycle from the house. PW4 explained that the name Paul Mulikwa is his father's name and Paul Chikwala was his grandfather's name, both deceased. 2.13 According to PW5, Inspector Landson Machiko, the appellant was apprehended on 6 th Novemb~r, 2017 and charged with the two offences. 2.14 In his defence, the appellant testified that his father, PW4 travelled to Mazabuka General Hospital to visit Joseph Mwiinga who was sick at the time. He went on to testify that on 5 th November, 2017, he was at home with his wife when the offences in issue were allegedly committed. He confirmed being apprehended on 6 th November, 2017 at the funeral of Joseph Mwiya. He denied leading the police to the crime scene or the spot where the knife handle was found. He further testified that his relationship with his father was not good to the extent that his father would say that he was not his son. He denied using his father's property. J6 3.0 Findings and decision of the trial Court 3.1 Upon considering the evidence adduced before him, the trial Judge found that the evidence connecting the appellant to the offence was largely circumstantial and warned himself of the dangers of relying on such evidence. The circumstantial evidence being that the appellant had on his bicycle a crate which contained a carcass of a sheep. The crate had writings on it which led to the identification of the crate as belonging to PW4, who is the father to the appellant. PW4 testified that the crate belonged to him and that he also owned a bicycle. In addition, PW4 was informed by the appellant's wife that the appellant got the bicycle and crate from his house. 3.2 The trial Judge further considered the evidence of PW3 and PW6 that the appellant led them·· to the scene of crime where they recovered the knife handle. This confirmed the evidence of PW 1 that when he was stabbed, the blade was plunged in his chest but the handle broke off and it was not found at the scene. The court believed the evidence of PW3 and PW6, and found that they had no reason to falsely implicate the appellant. Regarding PW 4, the trial court found that he was a credible witness a nd disbelieved the evidence of the appellant. 3.3 The trial Judge found that based on the circumstantial evidence, the only inference that could be drawn is that the appellant was guilty of the offence of murder and attempted J7 murder, he was satisfied that the prosecution had discharged its burden of proof and convicted ._the appellant accordingly and sentenced him to suffer the death penalty. 3.4 He sentenced the appellant to death by hanging in count one and to 30 years imprisonment with hard labour in respect of count two. 4. 0 Grounds of Appeal The appellant is dissatisfied with the judgment of the lower court and has canvassed two grounds of appeal before us . These are as follows: 1. The court below misdirected itself in both law and fact by failing to treat PW4, Paul Mulikwa, as a suspect witness whose evidence required corroboration. 2. The trial court erred in both law and fact by convicting the appellant on circumstantial evidence that was not cogent and when the inference of guilt was not the only inference that may be drawn from the facts. 5 .0 Appellant's arguements 5.1 In support of ground one, it was submitted that the trial court properly accepted the evidence that the ownership of the crate was traced to PW4 , Paul Mulikwa who was placed in a position of a prime suspect but not treated as such. It was contended that since there was nothing on the record that placed PW4 in a J8 better position than that of a pnme suspect, his evidence should not have been accepted without corroboration. 5.2 The case of William Muzala Chipango vs The People1 was cited where it was held that once a witness may be an accomplice or have an interest, there must be corroboration or support for his evidence before the danger of false implication can be said to be excluded. It was contended that the lower court therefore misdirected itself for not treating PW 4 as a suspect witness. 5.3 In support of ground two, it was submitted that the question of who had the crate and the bicycle on the material night was not properly resolved by the trial court. Counsel vehemently argued that PW 4 's absence from home on the date of the commission of the offences is an odd coincidence that required to be sufficiently explained. 5.4 He pointed out that the wife to the appellant was not called to confirm the issue and further the arresting officer did not go to Mazabuka General Hospital to investigate whether indeed PW 4 had escorted a relative to that hospital. It was argued that it is therefore possible that PW 4 is the one who had the crate and the bicycle on the material night and not the appellant. It was contended that an inference of guilt should not have been made against the appellant as it was not the only possible one as demonstrated above. J9 5. 5 As regards the alleged "leading" ta the scene and the recovery of the knife handle, Counsel for the appellant argued that the appellant denied leading the police to the crime scene and to the recovery of the knife handle. He pointed out that the appellant's version was that he was taken to the crime scene by the police and that it was them who discovered the knife handle. Counsel argued that this position was raised both in cross-examination of prosecution witnesses and 1n the appellant's defence 1n line with the holding of the Supreme Court in the case of Donald Fumbelo vs The People 2 • In that case, it was held that the accused person must cross-examine prosecution witnesses whose testimony contradicts his version on particular issues, instead of raising his version for the first time only during defence. 5.6 Counsel forcefully submitted that there was dereliction of duty on the part of the police for failing to subject the stains of blood found on the knife handle to forensic examination to determine conclusively whose blood was on it. We were the ref ore urged to allow the appeal and quash the conviction of the appellant. 6.0 Respondent's arguments 6.1 In the respondent's heads of argument, Ms Nyalugwe begun by stating that the learned trial Judge was on firm ground when it relied on the evidence of the prosecution witnesses and discounted the appellant's evidence. She cited the alibi that the appellant sought to introduce 1n cross examination which the JlO court below rejected as being an afterthought. To buttress this argument we were referred to the case of Donald Fumbelo vs The People2 where it was held that little weight will be attached to an alibi raised by an accused person for the first time in his defence. 6.2 With regard to the reliability of the evidence of PW4, Ms. Nyalugwe submitted that the learned trial Judge did address his mind to the question of whether PW 4, being the father to the appellant, could h ave been motivated to fabricate the evidence against the appellant. She observed that the Court rightly ruled out this danger when it relied on the odd coincidence of the appellant leading PW3 and PW6 to the exact spot where the knife handle was found. On this basis we were implored to uphold the conviction and dismiss the appeal. 6.3 Submission at the hearing of the appeal 6.4 At the hearing, Counsel for the appellant Mr. Siatwinda sought to augment the heads of argument with oral submissions. The gist of his submissions were that the trial court relied on the statement given to PW4 by the appellant's wife to the effect that the appellant had forcibly grabbed PW4's house keys and took a crate and bicycle therefrom. That it was the same crate that was found at the crime scene and this was found to be an odd coincidence. Jl 1 6.5 According to Counsel, the statement given to PW4 by the appellant's wife was hearsay and should not have therefore been relied upon. 6 .6 It was further submitted that notwithstanding the fact that the trial court found PW4 to be a witness with a possible interest to serve, his evidence was accepted without any corroboration. 6. 7 It was further argued in relation to the knife handle that was recovered that there was no evidence led which could conclusively establish that it was connected. The reason being that the knife handle and the blade both had blood stains on them. However, the same were not subjected to forensic investigation in order to confirm that the handle that was recovered came from the knife blade. In this regard, it was argued that there was a dereliction of duty on the part of the police as they failed to properly investigate the matter. In concluding the oral submissions;- Counsel contended that the two odd coincidences relied upon by the trial court namely: the evidence of PW 4 and the recovery of the knife handle , did not meet the required standard as laid down in the case of David Zulu vs The People3 • 6.8 In reaction, Ms. Nyalugwe also sought to rely on her written heads of argument and responded to the oral submissions. Regarding the evidence of PW 4 , Ms. Nyalugwe conceded that the trial court fell in error by accepting evidence of information obtained from the appellant's wife by PW4. This is because this Jl2 particular evidence was indeed hearsay. She went on to strongly argue that notwithstanding the fact that this evidence falls away, the other evidence of PW4 is credible. That the trial court had looked at the evidence placed before it in its entirety and found that the evidence of PW3 and PW4 was credible. On the other hand, the evidence of the appellant was discredited on the basis of the alibi that he put forward only during cross examination. This alibi was never put across at the time of his apprehension. 6 . 9 Learned counsel argued that significantly, the appellant, did confirm that on the material day PW 4 had left home for Mazabuka. She went on to argue that there was no motive for PW4 to falsely implicate the appellant. As regards the issue of credibility of the prosecution witnesses it was her view that the trial court could not be faulted for finding the prosecution witnesses as being credible. 6.10 Turning to the issue of the knife handle, she submitted that although, there was dereliction of duty on the part of the police by not referring the same for testing as to whether it corresponded to the blood stains on the blade, there 1s sufficient corroborative evidence which places the appellant at the scene. According to Ms. Nyalugwe, PW4 had no motive to falsely implicate the appellant and the knife handle was sufficiently r eferred to by PW 1 whose evidence is to the effect that he was stabbed and after the attack the assailant fled the J13 scene of crime leaving the crate and carrying the knife handle. That there were two scenes of crime, namely: a) where the attack took place; and b) where the knife handle was recovered. On the basis of the foregoing arguments, she urged it upon us to uphold the conviction and dism._iss the appeal. 6.11 Mr. Siatwinda counteracted the assertion that the dereliction of duty by the police was off-set by the evidence on record. He was of the firm view that only overwhelming evidence can off-set dereliction of duty. That in this particular case there was no overwhelming evidence. That the only evidence is that of the knife handle which leaves a lot of doubt as to whether it is the same one for the knife blade. On this score he was of the persuasion that the conviction should therefore not stand. 7. 0 Issues for determination and analysis of evidence 7. 1 After considering the grounds of appeal and the submissions of counsel, we find that the issues that gravitate this appeal are as follows: a) whether the trial court properly accepted evidence from PW 4 who could classified as a suspect witness; and b) whether there was strong circumstantial evidence upon which the appellant could be ,convicted and the conviction safely upheld by this Court. Jl4 7.2 It is not in dispute that the trial court in arriving at its decision took into account the evidence of pw4 including what had been narrated to him by his daughter in law with regard to how the appellant came into possession of his bicycle and the crate. The court also based its findings on the knife handle that was subsequently recovered after the commission of the offence. 7. 3 The lower court declined to accept the evidence of PW 1 regarding the identification of the a ppellant on account of the fact that the offence occurred during the night and that even though PWl stated that there was moonlight, this evidence contradicted that of PW2, PW3 and PW6 who stated that it was dark and there was no moonlight. Further that the appellant, who was not known to PW 1, wore a head sock which covered both his ears. Lastly that the circumstances under which PWl and the deceased were attacked at the material time were traumatic. 7. 4 The Supreme Court in the case of Muvuma Kambanja Situna vs The People4 discussed the need to subject an identifying witness to searching questions•. in order to rule out the possibility of an honest mistake. In the said case, the Supreme Court held that: a) The evidence of a single identifying witness must be tested and evaluated with the greatest care to exclude the dangers of an honest mistake; the witness should be subjected to searching questions and careful note taken of all the prevailing J15 conditions and the basis upon which the witness claims to recognise the accused. b) If the opportunity for a positive and reliable identification is poor, then it follows that, the possibility of an honest mistake has not been ruled out unless there is some other connecting link between the accused and the offence which would render mistaken identification too much of a coincidence. 7.5 We note the evidence of PWl regarding the identification of the appellant and we are of the opinion that the trial court was on firm ground when it declined to accept such evidence. The offence occurred during the night time and PWl 's evidence regarding the moonlight was contradicted by PWs 2,3 and 6. In addition, the appellant had a head sock which covered his ears, this hindered a proper observation of the appellant's features. 7.6 Further, during cross examination, PWl conceded that he did not give a full description of the appellant to the police, which is attributed to the fact that there was insufficient lighting to enable a positive identification. On the strength of the above cited authority, we are of the view that PWl did not have a clear impression of the appellant during the incident; as such the prevailing conditions at the scene were not favourable for a positive identification. 7. 7 We shall now address the issue of whether PW 4 was a suspect witness whose evidence require~ to be corroborated. In his evidence PW4 testified that on the 5 th November 2017, he accompanied his dependant who was sick to Mazabuka hospital. Before leaving, he locked his house and handed over J16 the keys to the appellant's wife . !he following day the patient passed away. When PW4 returned home, he was informed b y the appellant's wife that the appellant picked a crate and bicycle from his house. 7 .8 PW4 identified the crate found at the crime scene and confirmed that it belonged to him and that he also owned a bicycle. The Court found that the person who had the bicycle and crate on 5 th November 2017 stabbed the deceased and PWl. He opined that for that reason, PW4 was in a position of a prime suspect. However, he went further to con.sider PW4 's evidence that he left for Mazabuka on 5 th November 2017 to escort his dependant to Mazabuka hospital, which was corroborated by PW5 and the appellant's evidence in cross examination when he admitted that PW4 travelled on 5 th November 2017. 7.9 The trial Court found that PW4 was a credible witness. The court was of the view that the above pieces of evidence, coupled with the evidence of the appellant leading the police to the r ecovery of the knife handle ruled out the possibility that PW 4 had an interest of his own to serve. 7.10 We are of the view that the fact that PW4 owned the crate that was found at the crime scene and that he also owned a bicycle placed him in the category of suspect witnesses with an interest of their own to serve. In the case of George Musupi vs The People5 , the Supreme Court held as follows: Jl7 Although there is a distinction between a witness with a (i) purpose of his own to serve and an accomplice, such distinction is irrelevant s o far as the court's approach to their evidence is concerned; the question in every case is whether the danger of relying on the evidence of the suspect witness has been excluded. The tendency to use the expression "witness with an (ii) interest (or purpose) of his own to serve" carries with it the danger of losing sight of the real issue. The critical consideration is not whether the witness does in fact have an interest or a purpose of his own to serve, but whether he is a witness who, because of the category into which he falls or because of the particular circumstances of the case, may have a motive to give false evidence. (iii) Once in the circumstances of the case it is reasonably possible that the witness has motive to give false evidence, the danger of false implication is present and must be excluded before a conviction can be held to be safe. 7. 11 Having considered the pieces of evidence relied upon by the trial Judge, his finding that they corroborated PW4's evidence that he had travelled on 5 th November, 2017, we are of the view that they have sufficiently excluded the danger of false implication. 7.12 We however agree that relying on the evidence of the appellant's wife regarding what the appellant allegedly did was a misdirection and offends the rule on admissibility of h earsay evidence. Therefore it behoves us to state that the trial court did fall in error by relying on this evidence. 7. 13 We now turn to consider the aspect in relation to the knife handle . This is the piece of evidence that connects the appellant to commission of the offence. The knife handle was J18 never subjected to forensic examination in order to conclusively determine that it was the same one for the knife blade used in the savage attack on PWl and on the deceased. 7.14 On the other hand, the state has stoutly argued that it is one and the same blade . We have exercised our minds over these two positions. We have perused the evidence on record and note that the police did not uplift any fingerprints from the knife blade, crate or bicycle that would be subjected to fingerprint analysis. However, we are of the considered view that the circumstantial evidence on record 1s so overwhelmingly convincing as to displace any prejudice that may have been occasioned. We place reliance on the position taken by the Supreme Court in the case of Peter Yotamu Haamenda vs The People7 , where it was held inter alia that: "(i} Where the nature of a given criminal case necessitates that a relevant matter must be investigated but the Investigating Agency Jails to investigate it in circumstances amounting to a dereliction of duty and in consequence of that dereliction of duty the accused is seriously prejudiced because evidence which might have been favourable to him has not been adduced, the dereliction of duty will operate in favour of the accused and result; in an acquittal unless the evidence given on behalf of the prosecution is so overwhelming as to offset the prejudice which might have arisen from the dereliction of duty." 7. 16 We are of the firm view that the recovery of the knife is an odd coincidence linking the appellant to the crimes committed. We say so because we find it too muyh of a coincidence that a day J19 after the cnme was committed the appellant led the police to the exact place where the knife handle was found. This also corroborates the evidence of PWl in a material particular to the effect that after he was stabbed, 'the perpetrator of the offence fled with the handle leaving the blade lodged in his chest. How then can a person with no knowledge of where the crime took place lead the police to the recovery of the knife handle, unless they were aware of where it had been placed. It is too much of an odd coincidence. The handle having had blood stains as well as the blade. The only inference that can be drawn from these pieces of evidence i.e. the attack on two p ersons, the recovery of the knife handle thereafter with blood stains lead us to only one inescapable inference. That it was in fact the orchestrator of the heinous act that knew where to find the knife handle and led the police to its recovery. The seminal case of David Zulu vs The People3 illustrates in what circumstances reliance can be placed on circumstantial evidence. In that case the Supreme Court stated inter-alia that:- "The Judge in our view must, in order to feel safe to convict, be satisfied that the circumstantial evidence has taken the case out of the realm of conjecture so that it attains such a degree of cogency which can permit only an inference of guilt." 8.0 Conclusion 8.1 It is our well-considered view that the circumstantial evidence given by the prosecution witnesses took the case outside the J20 realm of conjecture and permitted only an inference of guilt. The appellant's explanation attempted to affect the cogency of the prosecution's evidence. But on grounds of credibility the trial Court did not accept the appellant's explanation . Having rejected the appellant's explanation, the only inference left in the evidence before the trial Court was that of the appellant's guilt. In the circumstances of this case, it was safe for the trial Court to convict the appellant on the strength of circumstantial evidence. 8 .2 We therefore find that the appeal 1s bereft of merit and we dismiss it accordingly . ... ......... :~ ... . ...... . F. M. Chis~ga JUDGE PRESIDENT M. M. Kondolo, SC ...... .... ~ ···· B. - . aJula · .... ...... .... . COURT OF APPEAL JUDGE COURT OF APPEAL JUDGE