Francis Musanka v People (APPEAL No. 167/2017) [2020] ZMSC 188 (30 September 2020)

IN THE SUPREME COURT OF ZAMBIA APPEAL No.167/2017 HOLDEN AT LUSAKA (Criminal Juris diction) BETWEEN: FRANCIS MUSANKA APPELLANT AND JOSfp lD?o THE PEOPLE RESPONDENT CORAM; Phiri, Muyovwe, and Chinyama, JJS. On 6 th November, 2018 and 30 th September,2020 For the Appellants: Mr. H. M. Mweemba-Legal Aid Board. For the Respondent: Mr. C. K. Sakala-National Prosecutions Authority. JUDGMENT Phiri, JS: delivered the judgment of the court. Cases referred to: 1. Joe Banda-v-The People, SCZ Appeal No.183 of 2013 Legislation referred to: The Penal Code, Cap. 87, s.200 s.201 (b) The Criminal Procedure Code, Cap. 88, s.210 -J2- This is an appeal against the judgment of Chawatama. J. delivered on the 4 th F ebru ary, 2016. The Appellant was tried and con victed of Murder Contrary to Section 200 of the Penal Code, Cap 87 of the Laws of Zambia. He was given a mandatory death senten ce. The particulars of the offence a lleged t h at the a ppellant on 17th May,2015 at Lusaka in the Lusaka District of the Lusaka Province of the Republic of Za mbia, jointly and whilst acting together with others unknown, did murder John Chansa (herein after referred to as "t h e Deceased"). The case for the prosecution r ested on the evidence of five (5) witnesses n a mely: Davies Chibwe (PWl), John Lumbwe (PW2) , Daniel Zimba (PW3), Mis ozi J ere (PW4) and Detective inspector Kennedy Mukangisa (PW5). The brief facts of t his case were that on 18 th May, 2015, PW l wen t to Ziko Ni Ba ntu Bar, a fter h e knocked off from work. He met a nd joined his friend the d eceased. The duo drank som e wine before moving to anoth er Ba r namely; Zelosi Bar, where t h ey continued drinking. According to PWl, while at Zelosi Ba r , h e decided to go a nd relieve himself. However, upon his r eturn, he found the deceased being beaten by six (6) people. He then saw the appellant, whom h e knew as Mike, hit the d eceased with a shovel. PWl came to learn tha t the actual n a m e of the a ppella nt was Fra n co. PWl n a rrated that h e saw the -J3- appellant because he was approximately 4 metres from where the fight was taking place and the area was illuminated by an electric bulb. This .,, witness first came into contact with the appellant, when this bar was just opened. The appellant was earlier employed as a Bar man. PWl and the deceased used to frequent this bar almost on a daily basis. After assaulting the deceased, the appellant attempted to run away but he was apprehended by a mob of people who , in turn, handed him over to the police that were patrolling in the area. PW 1 then helped to take the deceased to his relatives who took him to the police station. The deceased was later admitted to the University Teaching Hospital because he had suffer ed a deep cut on his head . Unfortunately, after one month, the deceased died of cerebral contusion due to the traumatic head injury. Upon the police investigations, following the death of the deceased, PWl was able to identify the shovel that was a llegedly used by the appellant to assault the deceased . In fact , it was PWl who led the police to the place where the shovel was recovered. -JS- The learned tria l J u d ge consider e d the evidence on b oth s ides and b elieved the evidence given by PW l as a n eye witness w ho saw the appellant assault th e deceased with a shovel. The Court concluded that the grievous h arm inflicted on the d eceased 's h ead r esulted into his death a nd this was s u fficient to con stitute malice aforethought. The Court rule d out the issu e of mistaken identity and affirmed that this was a case of r ecognition sin ce th e a ppellant was not a stran ger to PWl. In addition, the Court a lso p ointed out that the endorsement in the APP book appear ed genuine and showed that the appella nt was a rrested on 18t h April, 20 15 . Therefore , on t h e b asis of the totality of th e evidence, the lower Court convicted the appella n t as charged . Aggrieved with the decision of the Trial Court, th e app ellant ha& n ow appealed advancing two (2) Grounds of Appeal as follows: 1 . The learned Trial Judge erred both in law and in fact when she allowed evidence in reply to be adduced without complying to the provisions of section 210 of the Crimina l Procedure Code. 2. The learned Trial Judge erred in law and in fact when she convicted the Appellant and sentenced him to death in t he presence of evidence of a fight and mob beating. Mr. Mweemba, assaile d the trial Court's d ecis ion in the manner ' , section 210 of the Criminal Procedure Code , Chapter 88 of t he -JG- Laws of Zambia was applied. Counsel reques ted this Court to set th e law clearly on the app lication of section 210 as to when the State should be a llowed to call evidence in reply or rebuttal. The said section 210 provides as follows: "If the accused person adduces evidence in his defence introducing new matter which the advocate for the prosecution could not by the exercise of reasonable diligence have foreseen, the court may allow the advocate for the prosecution to adduce evidence in reply to contradict the said matter." Mr. Mweemba submitted that the r equirement starts at the point wh en the accused introduces evidence in h is defence , which t h e State cou ld not have r easonably foreseen . We were referred to the case of Joe Banda-v-The People 1 which s u ggested the parameters to be observed when dealing with section 210 of Cap 88 . Counsel a rgued that it was procedurally irregu la r for the State to call for evidence in reply or rebuttal on a matter that is n ot con templated in th e section, as the issue of the APP book was well a ddressed by the d efence in cross-examination of a ll the necessary witnesses. The suggestion by t he a ppella nt in cross-examin ation th rough t h e a d vocate was that he • 1,1, . .... was a ppreh ended on a differ ent date from t h e one the prosecution was suggestin g, which was a Fr iday the 17t h April, 2015 and not 18 th April, -J7- 2015, which appears in the APP book. The State therefore, had reasonably foreseen this and should, in Counsel's view, have called evidence to discount this fact before closing their case. Mr. Mweemba argued that the only reasonable conclusion for their failure to do so , is that at the time of these issues, the book in question, which shows the appellant to have been apprehended on the 18t h April, 2015 did not exist and was merely fabricated to suit the prosecution's case. In this case, the learned Judge erred and wrongly allowed this evidence as this is not what section 210 of Cap 88 envisages. He therefore requested this Court to expunge the evidence in reply from the record a s it was wrongly obtained. Counsel also suggested that we need to look at the evidence of PW 1 as that of a single identifying witness. He pointed out that there is a suggestion that there was no mention of a shovel in his statement until almost after a month. It was also suggested that PWl could have been drunk at the material time and could have taken a wrong perception of the facts. We were urged to consider the prosecution's evidence as lacking sufficiency to sustain the conviction. -JS- He prayed that the a ppella nt b e acquitted forthwith and be set at liberty . Arguing 1n the alternative , 1n respect of ground 2 , Mr. Mweemb a assailed th e trial Court's decision to convict a nd sentence the appellant in the circumstances of evidence of a fight and mob beating, as only PWl purportedly witnessed the fight while he was drinking togeth er with t h e deceased on the date in question. Further that th ere was a fight during which more than 6 people were beating the d eceased during the night under insufficient light from one electric bulb. Coun sel s ubmitted that it was common knowledge th at the app ella nt in participating in the beating could not have intended to cause the death of the d eceased . It is also likely that there was a reason provoking t he appellant, which s hould have prompted the a ppellant to participate in beatin g up the deceased. Counsel's view was th a t this must take out the blameworthiness of the app ellant's guilty mind to bring him squarely in to the provisions of section 201 (b) of the Penal Code, Chapter 87 of the Laws of Zambia which provides for extenuating cir cum stan ces. -J9- He submitted that on the totality of the evidence, t h e Court below s hould have considered a ny other senten ce other than death. Counsel therefore urged this court to a llow this ground of appeal and set aside the death senten ce to be s ubstituted with a n y other sentence. Responding to the a ppellant's arguments in respect of both grounds, Mr. Sakala entirely agreed with the appellant to the extent that there was evidence of a fight a nd mob beating a nd so the a ppella nt should not h ave been sentenced to death but that any other sentence s hould t , , ! , 1 If t , h ave been considered. Mr. Sakala a lso agreed with the appellant to some extent, to t h e effect that the appellant introduced the issu e of the d ay when h e was ap preh ended early enough for the State to discern where his evid en ce was leading . However, the Judge went on to use her discretion to a llow the r eception of evidence in reply. On the other h and, Mr. Sakala submitted t h at even if the evidence in rebuttal was expunged from t h e record, a con viction could still stand because the appellant himself agr eed that h e was a pprehended after fighting at t h e said bar. According to Counsel, it is highly probable that h e mixed the date of th e incident because h e could not have been apprehended twice. It is -JlO- a lso possible that he just made it up to try and get himself off the hook of justice. He was appreh ended immediately after the said fight by the same officer. This could only have been on th e 18 t h April, 2015 and not oth erwise. Mr. Sakala supported the appellant's conviction and left the sentence to the discretion of this court. We have considered the grounds of t h e appeal and the evidence on record . In the first ground, learned Counsel fo r the appellant lamented that t h e lear ned tria l J udge misapplied t h e provisions of section 210 of the Criminal Procedure Code when s h e a llowed the production of the APP book in rebuttal in order to ascertain the date the appellant was arrested. Section 210 of the Criminal Procedure Code , Chapter 88 of the Laws of Zambia falls under part VI of the Crimina l Procedure Code which exclusively deals with criminal trials before the Subordinate Courts . The appellant in this case was tried by the high Court whose criminal trials are guided u nder Part IX of the Criminal Procedure Code. Reliance on Section 210 of the Crimina l Procedure Code was therefore a misdirected approach. Further, a lthough section 294 under Part IX of the Criminal Procedure Code is s imilarly worded to section 210 regarding -Jll- evidence in rebuttal, it must be noted that the jurisdiction of the High Court is different from that of the Subordinate Court. Unlike the Subordinate Court, the High Court is a court of unlimited jurisdiction ,,. in which the trial Judges have wider discretion to inquire into any matter they consider relevant for the ascertainment of the truth . In our considered view the decision of the trial Judge to a llow the production of the APP Book in order to determine the appellant's date of arrest was not really a n issue worth determining because the appellant, in his own evidence placed himself at the scene of the crime where he was arrested as he tried to escape soon after he struck the deceased with a shovel to the head . Although he denied that he used the exhibited shovel to strike the deceased on his head, his claim that the deceased fell in a drainage as he restrained him from entering the ladies toilet room still firmly placed him at the scene of crime; such that even if the APP Book was disallowed, the totality of the evidence, including the appellant's own evidence, placed him at the scene of crime. Accordingly, we do not find any merit in the first ground of a ppeal. In support of the second ground of appeal, Mr. Mweemba presented a number of speculative arguments about what could have happened at -J12- the scene of crime and suggested that there were other people who participated in beating the deceased under insufficient light. Firstly, the evidence on record does not suggest that the electricity light at the scene of crime was insufficient. Secondly, a lthough there is evidence that there was a fight involving about six people, the medical evidence produced at the trial firmly supports PWl 's testimony of a single source injury to the deceased's t • I t , ~ f\' • head as the cause of death. According to PW 1, the deceased suffered this injury when the appellant struck him with a shovel to the head. This injury could not have been caused by mob b eating . Mr. Mweemba a lso suggested that PWl was in the category of a single identifying witness. By so saying, it was suggested that evidence of identification was insufficient. We do not agree. The learned trial Judge rightly concluded that PWl 's evidence of identification was by . - --- ·•·-•• recognition. Indeed, the evidence which the appellant did not dispu te established that the appellant was very well known to PWl who was at the scene of crime. The learned trial Judge was on firm ground when she chose to believe the evidence of identification given by PW 1. ,,. In our view, that evidence was thorough and conclusive. -J13- The use of the shovel to the deceased's head was no doubt intended to kill or to cause grievous harm, as it indeed did. Hence the malice aforethought. As for the suggestion that, PW 1 and the deceased were drinking beer, we have not found any evidence of drunkenness as a defence on the part of the appellant. In ou r considered view, the appellant's conviction was well founded on the evidence on record. Regarding the sentence, we have not found any evidence of extenuating circumstances to warrant any lesser sentence. We find no merit in both grounds of appeal and we dismiss it. G . . Phiri SUPREME COURT JUDGE / E. C . N. Muyovwe SUPREME COURT JUDGE \b (t\ ·. ······ ··· ··· ··~ · · · · · ····· ······ J . Chinyama SUPREME COURT JUDGE