Mwape v People (Appeal 82 of 1986) [1987] ZMSC 51 (28 July 1987)

ON THE SUPREME COURT OF ZAMBIA HOLDEN AT UUSAKA (Criminal Jurisdiction) Appeal No. 82 of 1986 ANDERSON MWAPE Appellant v THE PEOPLE Respondent CORAM! Ngulube, D. C. J., Gardner and Sakala, JJ. S , D. M. Luywa, Messrs Mwisiya and Company, for the appellant N. Sivakumaran, Senior State Advocate, for the respondent 28th July,1987 JUDGMENT Gardner, J. S., delivered the Judgment of the court. The appellant was convicted of theft by public servant;; the particulars of the charge were that he being a person employed in the public service, namely by the Ministry of Home Affairs as a police officer did steal K360.00 cash the property of the Government of the Republic of Zambia. Mr. Sivakumaran on behalf of the State has very properly indicated to us that he does net support this conviction. Mr. Luywa on behalf of the appellant has put forward a number of grounds of appeal, we find it necessary only to deal with one of them. The facts of the case were that the appellant was an officer in charge of Kabwata pbdice station and he was called upon to hand over the station to Chief Inspector Mainza. During the course of the take over Chief Inspector Mainza who was PW.1 gave instructions to the appellant to go out on duty away from the station. On the appellant's return the cash in the safe was checked and it was discovered that the sum of K360.00 was missing. The appellant suggested that PW.1 may have had an opportunity to make a duplicate key to the safe because he had on a previous occasion been the officer in charge of that station. 2 - The learned trial magistrate in his judgment did not appreciate this fact. He ignored the fact that PW.1 had previously been the officer in charge and had therefore had access to the kev to the safe. Instead he said that in the short while that occured during the take jver, PW.1 could not have had the opportunity to have a duplicate key made. This was a middirection of fact and it was the principal fact upon which the appellant was convicted because the learned resident magistrate thought that he was the only one who had access to the key. Because of this misdirection the only way in which the conviction can stand would be If we were able to apply the proviso to section 15(1) of the Supreme Court Act, There being no other evidence against the appellant we cannot apply the proviso. The appeal is allowed, the conviction is quashed and the sentence is set aside. M. S. NguiUbe DEPUTY CHIEF JUSTICE B. T. Gardner SUPREME COURT JUDGE E. L. Sakala SUPREME COURT JUDGE