David Hambulo and Anor v People (Appeal nos. 2 & 3 of 1991) [1991] ZMSC 80 (23 July 1991)

.. -</ .../, I I I I :.,.• · l .. . I· . • I j . ·· 1 I _:. i I > .:... J l I • I j I • I .. i I l r i· I j IN THE SU?RH1E COURT OF ZAMBIA Appeal nos. 2 I 3 of 1991 / ' .. HOLDEN Af LUSAKA {criminal jurisdlctiQn) DAVID HAASULO 1st Appellant lULLlM LUNGU -v- THE PEOPLE 2nd Appellant Respondent CORAM: Ngul ube, D. C. J. • Gardner, AJ. S. and Sakal a·. J. S. On 23rd July. 1991 . ( for the appellants, . Mr. ;~huunga of Sllweya and Company ,,,... . for the state, Mr. Mukelabai, State Advocate ----------------------------·' ~ . . ,. ~ JUD GM E. N. T . Mgulube, o.c. J .. del lvered th~.i Judgmeot of_. the court ... • , ,..,..,,. .,. .. ' .... ~ . ::;~ ""•t;.;>1,,,,- t' \, ,>J'.\,.;~ • ... • _-,. • • C c--.._.... ·i I r- r,; ~,: •• ), ' " ., • " ,t • 1',,,. .... .... ,/ ..~.._. . • fi lhe appellants both police o.ffCcers in 'the CID section w~re· ' .. ., sentenced to three years imprisonment ~fth hard la~o1.:1r., fol101.dng: ·. ' 1 . upon their con'!ictlon on a charge Qf mansl.aughter. The particular.~ . - . ; I,, ' ~ alleged that on 19th October, 1~8.7 ~<!t Monie.1.t.11,1. unlawfully caused·.: ~ •!~ , (' ' • . ~ ., ; ;. I _. J-\•..;(: .. :.. • ' 1 • :,- .. . / \. • ,&If• · .. ; the death of Kasongo Kazadi. . The prpsec1,1tlon case ~as~hat · 10 the course of investigations the ap~llants were awakened from their · houses around 02.00 hours in the night_. and they reported ·at the ~ '. ... •' police station where PLls 1· an~ 2,'were O!) duty' In' the 'Inquiries . ,~ ~ . . "'· office. The deceased was a: suspect .. .tn. a case and the 'pollce we11t out , . . with him for inquiries. The prosecution case was further that the . ',... . . . : .. , • - J ~ • "' .. ~·. : {,'~ ~ • . appellants brought the dece~s~ ~a~k. to, ,the po}\c~~ ~j ~ion around 03.00 hours and tnat it was then, thot they assaulted .him in the CID ...... .• • .. office. It was common ground that · t~e deceased die~ as a result of ·.:' .( injuries caused after he had been beaten. The prosecution case was · 1 supporwd by PWs 1 and 2 \'lilo were uni formed poll_ce officers on duty ... '.. • ,I I u • • • \ ' wt,o alleged that It was the appellants who assaulted the deceased. !hey were supported by P~·ls 5 and IS. These last two wi tness~s. were " ·, I ,. .... . .. . . ••• susppjlJ _·:_ ~ ,.,;,,.~g,;:•~ f suspects being held at tha same police station. All these witnesses d:zpos~d·· toHne deceased being in. good health and ~hysically fit .· . before and at the timd of his collection on that night. They also deposed to hearin~i the deceased screaming and crying from the direction of the CID section and to later seeing the deceased in a sorry state until he expired in the cells. .., In convicting the appellantst the learned trial j~dge correctly • stated that the first two witnesses were witnesses with a possible interest of til!!ir mm to serve since they. ·too ~vere on duty that night and a suggestion had been made by tile defenc~ that perhaps they themselves had as$aultect the deceased after the appellants had , ,;:, left him. The leijrned trial judge.also considered_ the position of PH5 who stated that he was very bitter to have been detained at the instance of .the appellants but who was nonetheless held ·to have provided the necessary corroboratlon to PWs 1 and· 2°. The other ., . . ~ .. .. . . . ' . witness 'nho provided corroboration was PW6 who was at the time cooking for other prisoners and he ·also said he had ·hea·rd tho screcl111s coming from the CID section and seen ~he decea~ed when he .was bro~ght back to the cell. . . . -~~. ~ • • :., _·,,• ''.'•'··• ~~·;· :~r.•• .. : .•'r on _behalf of the appella11~s.: Mr.: . Chuunga .. :a;dyanced · one ground __ ,; ) ; ;.;;_ ~. •:• ~ } • : I '.. ~ .-:.. . • . of appeal. namely. that the learnedi tr1~·1. ·jud'g~· Jf~d ··mts~(irected . . himself when he convicted on the e~Jdence of PWs .1., 2;'.<~j"r1d._6 •. It.::7J-·'., . was pointed out that PWs 1 and 2 had ·at .first made an- 'J~of:t'fcial report in which they did nQt -impltcate the 'appellants.; :' ·The/ only • . ,·· .. ,, .. ',, . · ~ ... · I°· t ., -: .. .;· ·:':..'.~':·<( ·t·" . -..._ ~-.. . . ·, \ •, .. . ' . . . . I I •.. · ·~ •• : t • , ,, •► lll'( } • , . came to do so wl1en another poltce station in another t9wn was as~ed to investigate the circums·tances' surrounding. the death,and th_en · .these two ~,itnesscs decided to ·,1nc:rim.inate the appellants. The . ,:. ·. . ~ . ~ ' .. \ . ·.. . ' . . ·,< ~ .· ~- possible question whiclI arises 1 s not so much whether the . two witnesses had a ,, interest of their own to serve but whether they could be . regard~d as credible witnesses at ap. It seems obviou:.. to us, and this is what we have said ln many c:ases in the past, ·t~~t· before the question of corroboration being receiv.ed or being given,by witnesses ., ., · . ., ,, coulo arise at all such witnesses must. be credible. • I I In"the circumstances • I O '1\ -~,,:. ~. • HI ... •. .t I I ,,•. . I ., I • I , :,· .... ; . ·.;:::···: t' ·_ ~ ·31 ...... pointed - -~~;,,- - " - : ... pointed out by Mr. Chuunga aod to which we have made reference, : it ' ' ,,. was clearly impossible to regard PWs 1 and 2 as credible witnesses. Their evidence had to fall o'f its own inan1t1on and could not in any ; , I I I I I I I I \ ,I event be credible so as to be capable of receivin~fcorroboration_. In any case the evidence on record shows' that PW5 could not ·have .· offered corroboration on the crucial issue of the timing of the event when he alleged that the assaults took place ~om~ ~wenty minutes after 02.00 hours which was· in the teeth of· the rest of the , , . .. . . evidence. What is more, neither P~l5 -nor P~i/6 provided corroboration on the vital issue of the identity ·of th·e persons who were assaulting <; i:' the deceased person. . It fo l lows, from the foregoing -di~cussion . ' ' that we consider that it would be unsafe to allqw the con~ictions · in thts case to stand. We realise, of course. that the deceased was ' definitely the victim of assaults in a police station but the question '. J;> ..... ' . ' ,· ·•' · .- . ' _ .. - . . ' . . - I - . : . . , - .. .. .. . . ·· . . - ' ' . here is that there_ was no credible ·.avidence from the two police -- officers which could be relied upon to support these convictions. I • , • . . ~ ;:.:, '':-. The learned trial judge d_id not deal \-11th tills aspect of the case and these apµ~als by the appellants have to be- allowed. Iha: appeals :1,! against conviction ~re allowed; the same 1s quashed and the ·sentence set aside. "'· I M. M. S. W. Ngulube DEPUTY CHIEF JUSTICE .. • .. ardner- •-.:." 1. A i,~ r -- ., ACTING SUPREME'.. COURT JUDGE , . " ... , ••