Cosmas Bala Mambwe v People (Appeal No. 11 of 1986; SCZ Judgment No. 17 of 1987) [1987] ZMSC 96 (14 July 1987)

1N TH@ SUPREME CQURT ©F SOLDEN AT LUSAKA , · (. CIUMINAL JURISDICTION.) Apppal No. 11 of 1986 cosMiS BALA MA~D~E vs ~ TiiE PEOPLE _Ngul.ube, D.c.j,, Chomba-and Gardner, J. J. S., ' '11. ' .. , Appellant appeare·d in perso_n. Mr,.. C. K. Chanda, Senior State Advocate, Ior the State ' U D G M E N ' T t.s.,, delivered the· judgment of the cpurt. ' .· • The appellap.t in this. case. was convietod of ti.1e •offenc.e of assault on a police officer •in th:o due t!xe01 . .:.tion of his duty., •ontrlfry to Section' 250(b) Cap. 146 of the Laws e.nd waa L.1 co1{e :i.u.:pce sentenced- to a fine of i100,.bo or, in def'aul t of paying such fin~, to impris,onment for one lul:frEli ciays. He appaa·ls against both conviction a'r1J ·s'll._nt-eric-e. Whe_n he fil,d his .;. •, grounds of appeal·.he raised a number of issues but wh8n _he appeared before , t -us he ~elied on th~ following grounds:- .,. ( that as a p_olice officor himself be ·was not· liab'la ta b.e charged under Section 250( b) . Cap. 146 but that tne charge agai nst h~m should have bean one- of a disciplinary nature under Section· 30( 1)(b) (;iv) o! the Z~mbia. ·Police Aet .~~P, that at the time of ths assault, the co~plainant WM not executing· duties as a police officer. I · , . ., ' •Before de~ling with the submissions made in support• ~£ the grounds '• .,.. , .. ' o f ' a.ppea. , , we /5e o_ut, 1.n aummary, • ~ :· :.,ilc..,. lt th ' d e. evi ence th t a was a-u uce -"d ' d t a ·,,.._ the .appellant ,:·s trial. On 13th December t 1983 the appellant, '.3- constable in thel. Zambia Police, was in _a shift which was· ~U8 ·to CCfiTIB100duty_ at 24.00 ho~s and to knoek ·off~a~ o8.00 nou.rs of the following day. The 2/ practice, J2 praetice was that constables on duty in that shift had to pErade at 23,40 hours so that an inspection could be undertaken before commen~emertt of duty. On that date the appellant was one of three or four other constables \~ho paradBd as indicated. Inspector Julius Jason Banda, P~W.1 arrived before th~ time of commencement of the shift,and pn noticing th~ appellant on the parade, the inspect~r asked him why he did not report for duty the previous day. The appellant's coll1::9g·les at the time, namely, Constable Alexande~ Makumba, P. W.2, and Constable Patson Slulapwa. . . P. W8), said that in.reply the appellant complained tpat Inspector Banda . was being unfair by asking why the appellant did not ~eport for duty. T~~ appellant said that someone ought to have'been sent to -hi: home to wake him up so that he could report on duty as was the case.when other eonstables failed to report on time. Mak~mba and Siulapwa said that in reply • Inspector Banda stated that· it was not his duty to do what the appellant wae suggesting. Tempers flared and a quarrel ensued between the two. ·the process the a_ppellant became abusive, calling the complainant a wizard and stupid person. The complainant ordered the appellant to go I I,n . . home there and then. The appellant left,the parade but only lingered around·contemptµously. Inspector Banda adYanced towards the appellant I ' a.~d ordere~ h_im to dis.appear. There upon tl).e ·appell~nt struck the inspector a blow on the left · ear. The inspe~tor did not hit ba•k• A medieal examina~ion conducted later ~ n the inspector showed that he had suffered a traumatic perforation of tho membrane in that ear. The appellant in arguing his ~ppeal contend~d that,as he wa~·a police officer and was dress~d in police uniform at the material time• he was not liable to be charged under Section 250(b) of the Penal Code, Cap. 146. He ~submitted that that section was intended for the protection of police officers against members of the public when the police officers are executing their duties a~ such. ·He referred the court to the provis'ion·s of SecH'on )0( 1 )(b) (iv) of -the Zambia PoJ.iee Act Cap. 133 and argued that his conduct related to a matter of diecipline in the Zambia Po.lice Force and, therefore,. that he sh_ould have been made· to appear before a dis9i plinary tribunal in accoNiance with that eeetion, In so far as the.·second ground is concerned,, the appellant' e eontention was that. as the sh~ft was due to commence at 24.,oo hours, .and• since the assault complained of took place before that hour, the complainant. , Inspeetor Banda, ~as not at that time exeeuting. duties as police _ a I - offieer. 3/Mr. c·. K'~ Chanda \ . . I \ ' I ,; . I (120) , ( I Mr. C . K·• Chanda.' app.ear-ing · for the State. intimated tlu,t lie . did suppo:,,t the con\l'i,ctiop bocause hc _conced:d, th~ appellant's sub.mission t.hat at the matarirl time t~~ c~~plainant was , not on duty~ He ~further oon~eded that Section ~50(b) of 'the Penal ·code waa ~ntended for the protection of p,olie~ otfi.ce~s against members 'olithe ' pubiic so ' that a •~ . •1 ·~ ,1 • t ·poJ.iee officel" who' assauJ.te anoth.er, even \ h9ugh that other - . ia executing his du~y, is riot liable to be charged urider ~that seetion. Mr. Chand.a submitted that he ~would have supported the conviction iI the . . . charge was either ~ne of aS£.a.ult.or unl~w~ul wounding~ H~ ~ai~ ~ · -did no,i. · agi-ee with t'he a~pella~t' s co,~_tention that, oecause Ce.p. 133 contained a p r~ o : . ~ling w:i,th di.scil'li n'iir:, ma tt:er& 'alllong polic'e officers, that . ~ that all other perl~l -laws -were ' ousted when. a poli. C~ 'l>f:Ci.o.e:- oomm.i,.tted an,~assa.ul.t agait;tst another polico officer. When given the right of reply after Mr. 'Chanda's . eubmissions, the ', . appellant Gtated that tf the court was minded to convict him of the eh8.l'ge of common assaµlt, he would' submit that the court was -incompetent so convict him 3S ~e was not al~rt ed at the . time of hie irial of the , po~5ibilij..;y' or B™'h. ~t0~j;v~ ·•~"11<:.tion• ~al;li;;e -.'of.. that.·. he .,,di.d not ,.-: ' . .__ ~ . ad~ce:evidence which mig~t . hav~ . beena d~t~nea ~ auc.h_11rt,;:tn>aC.i¥e~~ . · ,: , , ln ') lieJ, light .of; the }31-':bmiseions inade on both I aides,· it is '·neeessa.ry to .reprodl'.iee:i" the p rcrir.is:to'~ s ·of . Section 30(1 )(b)C'iv) of Cap• '.'133 and Sec.ti on Z50(b)' of Cap. 146~ : 'The former str3.tes ·"Any· police ·offi<;e:: bel~- the i-ank. ot··Ass4stani . Superint"'n0.:.:nt commits an offepee· agih nst dis~illline "if 'he is ·guilty of insuborC.i«J.tiOll. o;' dppres~~.vonduc.t., that iei' to· ~ay, if· he. assaults a.hy' oth8r police officer." . The iatter . providee "Any ' perfion' who assaults' ' resists. or t wilfully 'obetruct& ariy;'·pol'i·ce bffiee'r in' the ' due execution .:. of 'his, duty; . or any persoi:i ab ting in 'a.id' of sueh ofi'i'eei' · i'~ •'guilty of "a mi stlemeanour and is "liable to · imp:risoninent · for five ·years." ..... ,_ l\.. :,~~ '· ,, ... _ . . ·. ' --~ t. J : i • ,. ~ . ' 'l ~ "'I\ . · c · •l ~ '": t~ ,. I I . -., l '. ~ - · • • ·• • • . - · ' \ , . • . '. • • • • • • ' . . . • • ' - It is interesting to n.ot'e ,th'.:).t the Zambia Police Act, Cap• 133, hns a , • I 1 of Cap~ ~146~· ·section }'rovisi'on •·soroewhat similar to that of · Soction• 250(b) 2_6( 1 r• (g') , ~tates 11Any . police oi'ficei w110 strikes or ;ff~rs ,-riolenife to ' hj;s sup~rio'r~ such , officer being in•· tll~ execution of duty. ··shall be . guiJ.ty . c;if an offence and sh.:i.11 be .. li n.ble on c onv~c tion be fore a eourt of· criminal juri·saict.fc..n ·to· ~irirpriso:ri;,6r.t for i:>ne year.-'' ·I.t ~ppear:s to us ·r46~ waa ', ' that'(, intended ' oy the !egielature I to 'i'nc lude 1pOlice O £fie G;',S ,' ~th<;:re , wotild have · been· ~0•1 need to ·m~~e, •.a: simil~r -.p.rovision ' unde:r / Cap. : J33 ·~o~i d'ea.l'with :i:f the e'xpre'ssion· ''any pcrs~h11 in "' section 2,50(b )'\)r Capf "J _/ ' I ' " ·· -' 4/ a 11o lice J4 t (121) a police officGr who assaults another police officor when the later officer is executing duty. Th~ fact ·th-:1 t .. Cap. 133 .t.o cater f?r c'.lses of polic0 offic0rs assaulting othGr tit.::re i-D this provision in , police officers who are executihg duties tends to support th<: contention of the appellant th~t Section 250(b) of th8 Penal Code was designed to . . I •• pr6tect police officers aga~nst members of the public. We accept this contention and, therefore·, find that the terr:1. 11 any person11 iD. Section 250(b) Cap. 146 does not include police officers. i-Je. therefore, ' accept the appell~nt's contention th~+- since he was at the material time a police officer,, ,just a·s the complainant was, thv appallont was not. liable to be prosecuted under Section 250(b) of the Penal Co.de. We consequently hold that it was not ' competent for the l~:c.rned trial magistrate' to convict the appellant as charged.. We quash that conviction· and set the se'ntence aside. . • In regard to the contention by the appellant that, as a , person subject· to the provisions of the ;~n.mbia Police Act,C'ap. 133. in reference to .the offence reviewed, he was not liable to be charg;:;d und;3r any other ~tatut~, ~e -hold that thst view is unaccoptable. Section 41(i) of the Interpretation ·and Gen..::rcLl Provisions Act, C<",P.• 2 of th,J Laws of Zambia,· provid~s:- 11 Wherc an nc·t or. omission c onsti tu t .:-, s :.i..!l offence against any two or more st::i.tutor·y enactm8nts or ·'voth unL:~r a statutory enactment and the Common·L~w or any customery ' law, thv off8ndcr ahall be liable to be prosecuted and punish•:Jd undor ci th,:;,r or r.tny such st::i.tutory enactment or .:i.n~~ Couimon Lnv.' or under cust.omary law, bu.t sh::i.11 not be liable to be punished twice for the samq offenct:. 11 T:i.e· act of J,:;i1e app-,llant ·giving rise to this case w~s cle~rly an ~ssault. Th~ Pppellant, , in making I his submission before us c~id not make any atteu:pt to de~y t11ut he assaulted the comp lainant. He, ~owever, sougllt to plea.ct s~lf-defence, · but that plea was made feebly. applicable 1 to. jus~:i 'i.'y conduct which would oth"rwi•se· be an offence. In this case the evidence against the app~llant was overwhelming. It consists The defence of self-defence is used, wh0re it is ,,, ... . .,. of not only the .complainant's assertions, but also thos8" of Constables Makumba aud Siulapwa, P. W.2 and P. W.j respectivolyo That ~vidence clearly showed the appellant as the aggressor. The purported de.fence of self- d:efence appellant was making _submissions before us, cannot bG 5Ustair,ed. sought to be put fcrw~rd at thi.; bela t'"d stage, nnm0ly 1 when the , 5/Ths:: J5 ( 122). / The question is whether it is compe t cmt for this court to substitute a conviction for common assault in pl.4C.:) of one for which we have acquitted the appellant. Section 15(3) of the Supreme Court of Zambia Act, Cap. 52, provides as follows;,_ 110n any appeal whether against convicti0n or sen to nee, the court may subs ti ·:.ute a judgment . . of guilty of such othor offence as bhe fri~l court 1ould have entered, ' and, in the case of an · appeal from a appellate jurisdicticn, the court shall in addition lrn.ve power to. restore tie conviction of th~ trial ' court.11 By the provisions bf Seciion 181(i) the Criminal Procedure Code Cap. 160, it was c ompetent for the trial judgment of tho High Court in its I court in this case to have convicted the appellant of t he offence of ,common assault, contrary to Section 247 of the Penal Code. Section 181(i) stptes "When~ person is charged w~th an offence consisting of several particulars, a. combination of some · onl:y of which consti tut.es a complete minor offence, and such combinntion is p~ov0d but tne rem~ining particulars are not proved, he may -be convict(:)d of the minor offence although he was not charged with it." In th~ insti:::nt case, the facts relating to common assau lt we re clea rly prov0d, but as we have ' determined <s-arlier in this judcruent that police o fficers c\re not in the term 11 any person" occurring in S0ction' 250(b) of Cap. 146, there wa.s a. failure to prove t11::t -'\Sp.act of the offenc0 c :Hll'gc,d. Therefore, in accordance with the :provisions of s~ction 15(3) of'C. J.p. 52· it is compet ent for this court· to s~bsti tuto s convi ct{on under Section 247 ,) f Cap. 146 in place of the.: c-onviction on the charge us criginally We, accordingly, substitute that conv.iction., In the light of this outcome i ·t becomas a matt~r only of academic interest to discuss the ground r e lating to the qu_r:stio.n wheth1;r or not the complainant, namely Inspector Banda, was at the m.3.terial time in due execution of his duty. As r egards the .sente.ac e ',ve ure of the -view that a prope r sentence 1'lil0" in this case is one of K50/.or in default one mo?1th simple imprisonment. 6/ ......... J6 (123) c,cic,••••••e•o.••o•••••••~t1•111• .. ••" ~;. M. S .. NGULUBE DEPUTY CHIEF JUSTIC~ F. N. CHOMBl1 SUPH.8ME COURT JUDGE G • 1111 • • • • • • • e e e B. T. G.4. RDNER SUPREME COURT JtrDGE • I