Benedict Musamba v People (Appeal No. 126 of 1981) [1987] ZMSC 95 (14 September 1987)

I ·-· IN THE SUPREME COURT OF ZAMBIA HOLDEN AT LUSAKA Appeal No. 126 of 1981 (Criminal Jurisdiction) BENEDICT MUSAMBA Appellant and THE PEOPLE Respondent CORAM~ Chomba. Gardner and Sakala, JJJ. S., 7th April 1987 and 14th September, 1987 AJ:t,e+lant in person R. R. Balachandran, Assistant Principal State Advocate, for ~ldslt Jr'u D G M E N T Gama-, J. S., delivered the jl. DJIBlt of the aut . The appellant was convicted of theft by public servant by the subordinate court of the first class holden at Mansa. The particulars of the offence alleged that the appellant, who was employed in the public service, namely the Ministry of Health, as a dispensary asslstart. at Mwa Csera~ Hlspital, stole a rmt>er af varlClJS dn,\lS valued at K768.80 the property of the Government of the Republit of Zambria. The fact that the appellant ..awor~ir!gat Mansa General Hospital as a dispensary assistant was not in dispute. The evidence for the prosecution was that ttte·· appellant hlred' ,w~·2• s svehic!le to carry his two bags of me111J~meal to PW.3 1k hou~e. PW~2 took the appellant and his ttwo bags of mealle~meal to PW.2 1s house wber.e the two bags were off-loaded in the presente of the appellant and PW.2 and 3. PW.2 identified the two bags of mealie-rneal at the trial. According 1Dthe prosecution evldenc, PW.3 was to take these bags to somec1ottl!rplace At the trial PH.l gave hls occupation as a bustnes, man. In cross examinatton by-counsel... he testified that in addlt-ton to the business of a shop he transported goods for -ofklpe~pl~. It was this witness 1s evidence that when approached by the appellant and. requested to transport his mealfe-meal. ltwes to him a· nonnal transaction. PW.3 also identified the two bags of mealie-meal at the :lt, trial. 1he further evidence given by PW.3 was to the effect that 2/when •••••• - ffe went to Matonda whf.lN the metU..,.al Of the the 1ppttl l1nt tn'o\liht tile two be.gs of aee. J le-meal his ,ehlcle waen hed broken cfowft. appellant wea te w delivered later but did not ute the 1Dtalle-11eal wtth hill. on return from Mat.ando hi fCMffld thtt the two bigs ef mtalte lDQal had been collectod by th Police, The e-vSdQfi<:e Of the pr6secvtton ttH also that tlle poltee!t iettn1 on 1nfQM!4tlon~ went·to PW. J's house. At tcho house they OAly fouad PW .. 3' a ••'•• Wttt llat PW.4 at the trial. PW.4, after ctaa1tr11 knowledge of the presence at th$¾ two btgs ot nie1lte-raeat to the Police. gave thata peUce cellecttd the t110 Nfl"'~ ·took PW.4 to the police station Where the bags were open~§J In the presence ef PW.4. Tr. ,oUce reeovered. 1ro,a tilt bays the various drugs tM sut. J11ct 'If the ·JellargcK. the two bags bt q~t.ltn. The ' < At the elne·tf the ClM for tbe prosecution the tppcllant elected to M!ilaln silent. • course Whlch h~ was entitled to taJce tn oar lev. The liart1ed tri•l m4gl&trate tr, nls Judgant was mtndtut that In llis judgment the lttarned trial Pll'S Z. J. &nd. having" OM time handled the two bags., •U~eal in wit tdt the drugs hid been ~vered ~mra wl tnessos wl th a pass1:1a.ez · . J interest Of th•tr own ti serve. lllllOistrat.,, bavtng acmsldered the posslbUit, Of tbtt'St witnesses' t,elng aceompUces. Q,)ted ttrat he had no reason to doubt theJr truth. Ha, t however. proceeded to st.ate that, altho~h he waa 10nVl11Ced th.at PW'• i.3 and 4 courutt, be accompltc-es. lf ~ went. tbere was eorrobora t. Jv.e eYi<"'ence in ttle dlscov~r, of the drugs ta, the 1111tUe-ae11J belong ,,. w the appi,lle.nt and tn the condutt of PW .. 4 of first denying tho pre"nco Qf uae t.wo bits 1a it.1 hOtlse and later aclfflittl~ then pressed by the police. We are s1tl1fted thatJ Sn .as far as PW.twas concerned. the question et his Ming an ~uOIIJ)llce or a wttnsss wttft a ponta.le lnt~st of bis oi,n to serv«r"eannot In the c.1rcuMSt&nces of tflls case .,.11, as he wu merely Ill~ wiatte ttm bags to PW.3'1 house! Ve are 11ao u1isfse.i that to the extQAt that ttNJ learned trs.11 maglstrtte relied en the discovery of tile drugs and the dental by PW.4 a corrobor• etift QIJidenca .. there w11 • rat::dl~OJ'h on appeal to the Mtott Court the apoe111te Judge faand t.hat the cwneraft1p of drup had not been proved. HI acquitted the appellant of Otte off.net Of theft by ,ut,1 le servant aftd substt tuted • aon,tctlon of bai119 in poss.esslcm or property unlawfully obtalMtt. we notice from the Judg1Mnt that tbt1 offence was sud to be ecmtrary to section 38t. • \ ' 3/ .and ...... . • .. and•• assume that. that was• ~ping error as thert ts no such offence utyjtr Section 381 of the Pentl Code which ta any event refers to t totally different offence .. GA the other hand• the f11Qts of this case tl\e corNCt section to us appears to be section 119(1) Of tbe Pen•l COdl tffllCII provides tor tbe offence of hlvln9 ta poss•sston propert., w9'f-ch-, reasonably bt suspected of htvtnv been stolen• unlmull1 obtatned. 111• eppellent flled three wrltt«ft grounds or GPNI. He also fftMI tllrae lddJIIOAll grounds of IS)P4MI. 1M 1t1t of tMH ;l'Olfflds 11 that. •!though M wu or&9lnall1 charged wltb the off~ of thltt 1>1 pwllc ·••"ant. the evtdence ffGII hie employers •• that no dn,gs had been stolen fro11 KIWI aos,1ta1, Ind that. although on apptal Ult conviction of theft by public servant Wts SUbstJtvted t,y • • of btlng 111 possession of property un-J1wfull1 obtalMd, the evidence was to the effect that the property Ult SUbJ_tet. of tbe offence was not found 1• •t• i,osseutan. One of a.. grounds-. holtlver. was to the effect \bat the whole evtdlftc• vtl a consptr•cy •a•&ns, ht• tnd thlt beense of 111, J)OJ)V.,._-u • G004" footul ler in Mansa dlStf'ICtl SOM people being Jealous took lfllfttlge of hll being a ttospttal t11Pl0yte «nd l,apUcated .... II this C.,SI of drug tMR. le ha•• v.ry C1refull1 considered the ,roWlds of IJ)l)t!ll. The evldance on tte.onl llblch •• not Challenged was that two ... u ..... 1 bags belonglng to the 19peU1nt. wre tF1nsporttd r,y PW. I la tb1t QOIIPIAJ of the 1PPtll1nt IO Ute bOuM Of Pit. I 8 business NII llfto dull 11 trlftl,oruUon of Y-IJ'f(IUS ltllll ·11¥3udlng Mlll .... al, for the P"l'PO••· of U'IASportlng the,., bap Oft beflalf or tbe IJ),l)elltnt to. plaet known•• Matudl. These bqt were not transported bteluse the vlhtcl• ••• brona doWn. SC.. days later PV.3 travelled to Matudl wl~ut ,arrytno wit.ii hi• u.e IJ)ptllant•s ,ep. Wfllft PW. I returned he found 'that the bigs bid betft collct. S bJ the police. The tvldtnee on record 11 \bit the Police. actlftl on l1tforatton reethld. ,ouecitd tne two blos o, 1Ult....-1 ,,_ Pl. S's houa end t~ PV.111 wtte to ua police sutlon wbtre t.be bags were opentd and drugs t found. We are st\llfted that. PV.s 3 and 4 .~tng wltntues ln whose hOvs• the ,ollee collected the bags lQ wbl• the drugs were found. _,.. wltnessas wttb • pos.slble Interest., thetii- own to sane. A.ti already stated. tot he extent that te. leamed trial aaolstrate found that these wttnessea• wlct.nce was cqrroborattd by ttte fact et the 4/dlscoyery ••••••..• In vtew of this mt1directtcm discovery of the dr~gs and PW.4 1s earlier denials of the presence of the two begs of mealte-meal In her house, there was a m14'4lrection on the part of the learned trfal magistrate. thi$ conviction can only stand lf thl,sdcourt ls able to apply the proviso to section 15(1) of the Supr• Court Act. 19.lnst the appellant was possession the stolen goods were found, coupled with the coin~1dence that the appellant was employed as a dispensary assistant, who may have handled drugs similar to the ones discovered. We cannot say that. had the magistrate properly directed himself, ha could notl have properly come to any cofl\llusion other than that the appellant was guilty. It follaws, therefore, that t~ts Is not an appropriate case for us to apply the pro,lse. that of the two witnesses in whose The only evidence The appeal ls allowed, the conviction ls quashed and the sentence ta sat aslde. . ................................ ~. F. M. Cholllba SUPREME COURT JUDIE B. T. Gar~er SUPREME COURT JUDGE .................................... E. L. Sakala SUPREME COURT JUDBE