Mwanza v People (Appeal 148 of 1985) [1987] ZMSC 36 (6 October 1987)

IN THE SUPREME COURT OF ZAMBIA HOLDEN AT LUSAKA ' Awwtl Mor 44G nd 4965 (Criminal Jurisdiction) ACKSON MWANZA v V THE PEOPLE Appellant Respondent CORAM! Mgulube, D. C. J., Gardner and Sakaia, JJ. S., 6th October, 1987 H. T. Mbaluku, Messrs Mbaluku, SikAM and Co., for the appellant K. C. Chanda, Senior State Advocate, for the respondent JUDGMENT Gardner, J. S., delivered the judgment of the court. The appellant was convicted of murder;; the particulars of the Hl charge being that on the 1st day of November, 1983, at Nyapinga Bus stop In the Petauke district, he did murder Steven Banda. The facts of the case were that the appellant and the deceased quarrelled at a football match. The following day, according to a number of prosecution witnesses, they met again, and, as they ware walking along, a fight started between them in the course of which the appellant drew a knife and stabbed the deceased once on the chest as a result of which death ensued. There was evidence from one witness that the deceased struck the first blow. The learned trial commissioner found, correctly in our view* that, on the evidence of all of the witnesses, there was ne evidence that could possibly support a finding that the appellant acted in self- defence.. At first Mr. Mbaluku on behalf of the appellant put forward a ground of appeal that there was a possibility of a finding of self defence. However, he properly abandoned this argument on the grounds that the learned trial commissioner did not misdirect himself on this point. As to provocation however, the learned trial commissioner held that, although there had been provocation, the fact that the appellant had time to take a knife from his back pocket after he had been struck 2/a................ a blow and returned blows to the deceased meant that there was time for passim to cool and he likened the circumstances to the case where a man went back to his house to fetch a spear before retaliating to an assault. Mr. Chanda on behalf of the State has properly Indicated that the State does not support a conviction for murder, and we agree with Mr. Mbaluku's argument that in respect of provocation the learned trial commissioner misdirected himself. The facts of this case were a great deal different from the cases where provoked persons go purposely to fetch weapons from some other place. In this particular case we accept that after the provocation theeappellant took the nearest weapon to hand which was a knife tn his pocket and in the circumstances >ls action did not go beyond that which was colled for in retaliation. For flui its the appeal against conviction for murder Is allowed. That conviction is quashed and the sentence Is set aside. In its plaae we substitute a conviction for manslaughter. As to sentence this is a case in which a knife was used, and, although the charge has been reduced to one Of manslaughter, the use of weapons must be condemned in the strongest terms. The appellant Is sentenced to six years imprisonment with hard labour with effect from the 1st of November, 1983. M. S. Ngulube DEPUTY CHIEF JUSTICE E. L. safala SUPREME COURT JUDGE B. T. Gardner SUPREME COURT JUDGE