Chibolela and anor v The People (SCZ Appeal Nos. 151 &152 of 1992) [1993] ZMSC 142 (16 February 1993)

IM THE SUPREME COURT OF ZAMBIA SCZ Appeal Nos. 151 &152 of 1992 HOLDEM AT LUSAKA (Criminal Jurisdiction) ABRAHAM CHIBOLELA AARON CHOLOMBO 1st Appellant 2nd Appellant v THE PEOPLE Respondent CORAM: Sakala. Chai la and Chirwa JJJ. S. 16th February, 1993. For the State Mr. L. Muuka, State Advocate. For the Appellants, Mr, M. H. A. Samad, Senior Legal Aid Counsel. Chaila, J. S. delivered the judgment of the Court. Case referred to: (1). Boniface Kalota vs The People SCZ Appeal No. 110 of 1984. The appellants were charged with two counts, namely murder and aggravated robbery. The particulars of the offence In respect of murder charge were that, the two on the 1st day of June 1991, at Mufulira, in the Mufulira District of the Copperbelt Province of the Republic of Zambia, jointly and whilst acting together did murder Westons Mfune. The particulars of the second count were that the appellants, during the night of 1st June, 1991 at Mufulira in the Mufulira District of the Copperbelt Province of the Republic of Zambia, jointly and whilst acting together did rob Benard Mambwe, 164 shirts, 6 pairs of shoes, 5 long trousers, 40 belts, 20 cassette tapes, 15 record tapes, 15 bombers and 10 neck ties altogether valued at K542,634.00 the property of the said Bernard Mambwe and at or immediately before or after the said robbery, did use actual violence in order to obtain or retain the said property. The appellants were convicted on both counts. On the first count the first appellant was sentenced to death and the second appellant was detained during the President’s pleasure. On the second count the first appellant was sentenced to 15 years imprisonment with hard labour and /2...the second .... - J2 - the second appellant was sent to Reformatory. Briefly the facts of the case were that a Mr. Bishop Mambwe a business man in Mufulira on 31st May 1991 at about 1730 hours closed the shop and left three watchmen guarding the shop. The next day in the morning he received information from a taxi driver that his shop had been burgled into and that two men were lying down at the back of the shop. He rushed to the shop where he found Mine Security Personnel and one Zambia Police officer. He also found his two watchmen, Mr. Aaron Ngulube and Mr. Heston Mfune who appeared to have been badly beaten. The two watchmen were then rushed to Ronald Ross Hospital where Mr. Mfune was declared dead. Mr. Mambwe took the body of the late Mfune to the mortuary before returning to his shop. The other watchman Mr. Ngulube was admitted In the hospital. When he got back to the shop Mr. Mambwe discovered that the thieves had gained entry into his shop through the roof. He conducted inspection of the shop and discovered that the goods worth about K545,000.00 had been stolen. He also observed some roofing sheets had been removed. He explained that goods stolen included men's trousers, ladies suits, shirts, bed sheets, children's wear, shoes, ladles belts and dresses. Later Mr. Mambwe found some of the stolen goods at the police station. He identified some of the property stolen as having been stolen from his shop. The police made further investigations and apprehended the two appellants who according to the police gave warn and caution statements. The appellants thereafter led the police to various people where properties had been sold. The learned State Advocate in answer to the question by the Court as to whether or not the State would support the conviction in respect of the first appellant without confession statements, Mr. Muuka informed the court that he would not support the conviction for murder. He referred the court to the case of Boniface Kalota vs The People (1). As regards the conviction In respect of aggravated robbery the learned counsel was unable to support the conviction but he would support conviction for receiving stolen property. As regards the second appellant Mr. Muuka informed the court that he was unable to support the convictions on both counts because the appellant was 11 years at trial and according to Section 14 (2) of the Penal Code the appellant was not criminally responsible. /3.... Mr. Samad...... - J3 - Mr. Samad, counsel for trie appellants had submitted that he was not in position to accept convictions even in respect of receiving the stolen property because the owners of the goods did not identify the goods as their goods. In the court below the learned trial judge relied mainly on the confession statements made by Al and A2. A trial within trial was held and the learned trial judge ruled that the two statements given by A1 and A2 were admissible. In his view as regards A1 the learned trial judge said; "In my considered view the other claims by this accused of assault by the police are not supported by medical evidence or otherwise. Why would the police beat up a suspect in order to induce him to sign a blank piece of paper, I am not impressed with the Accused's account on this issue. I would accept the state version that the Accused did in fact give a free and voluntary statement to Inspector Kabaso. I would therefore rule that this statement is admissible in evidence." It is trite law that lack of medical evidence to support the accused's story should not be used as a reason for rejecting the accused's story. This was a bad reason given and it would be dangerous to rely on the confession statement. The learned trial judge misdirected himself and it would be unsafe to allow the conviction to stand. The learned State Advocate has rightly decided not to support the conviction, if the con­ fession statement by Al is ignored. The evidence available on record as against Al is that he led the police to various people where goods were recovered. Mr. Samad argued that the owners of the goods did not identify those goods. The evidence on record points to the contrary; the owner of the shop identified the goods recovered from the persons who bought them from A1. The evidence shows that at one time or another A1 had received goods stolen from Mr. Mambwe's shop. After the confession statement has been ignored, there remains no evidence against Al in respect of murder. The appeal by Ai on count one is allowed, the conviction is quashed and tne sentence is set aside. As regards the second count there is evidence that Al had received stolen property, the conviction for aggravated robbery is quashed and the sentence of 15 years is set aside and in substitution Al is convicted /4...of receiving.. - J4 - of receiving stolen goods. The appellant is sentenced to 6 years imprisonment with hard labour with effect from the date of arrest. We now deal with A2. Section 14 (2) of the Penal Code reads: "A person under the age of twelve years is not criminally responsible for an act or omission, unless it is proved that at the time of doing the act or making the omission he had capacity to know that hea^tnot to do the act or make the omission." Mr. Muuka has decided not to support the conviction in respect of A2 on both counts. The record does not show that the prosecution proved that A2 knew what he was doing. It was incumbent upon the State to satisfy the requirements of Section 14 (2) of the Penal Code. The appeal by A2 on both counts is allowed. The convictions are quashed and the sentences are set aside. E. L. Sakala SUPREME COURT JUDGE M. S. Chaila SUPREME COURT JUDGE D. K. Chirwa SUPREME COURT JUDGE