Frank Mulenga and 3 Ors v The People (SCZ Appeal No. 05/2010) [2013] ZMSC 63 (6 February 2013)

IN THE SUPREME COURT OF ZAMBIA HOLDEN AT KABWE SCZ Appeal No. 05/2010 (Criminal Jurisdiction) IN THE MATTER BETWEEN: FRANK MULENGA WEBSTER CHIWAYA MOFFAT NKHOMA BERNARD KAPASO AND THE PEOPLE 1ST APPELLANT 2ND APPELLANT 3RD APPELLANT 4TH APPELLANT RESPONDENT CORAM: CHIRWA ACTING DCJ, CHIBOMBA AND MUSONDA, JJS. On 9th August, 2011 and 6th February, 2013. For the First and Fourth Appellants:Mr, G, Mhango of Nyangulu Co. For the Second and Third Appellants: Mr. K. Muzenga Acting Principal State Advocate For the Respondent: Mr. C. F, R. Mchenga - Director of Public Prosecutions JUDGMENT Musonda, JS, delivered the Judgment of the Court. -Jl- Cases Referred To: 1. David Zulu V The People(1977) ZR. 2. John Timothy and Feston Mwamba V The People (1977) ZR at page 394. 3. Kalebu Banda V The People (1977) ZR at page 169. 4. Chansa V The People (1975) ZR at page 176. 5. Sithole V State Lotteries Board (1975) ZR at page 240. 6. DPP V Kilbourne (1977) All E. R. 567. 7, George Musupi V The People (1978) ZR at page 271. 8, Nkhata and Four Others V Attorney General (1966) ZR 168. 9. Kunda V The People (1972) ZR 196. 10. Chwa Hum Htive V King Emperor (1926) l LR 11 Ranga 107. Legislation Referred To: 1. Penal Code Chapter 87 of the Laws of Zambia, 2. Criminal Procedure Code Chapter 88 of the Laws of Zambia. Works Referred To: 1. Bryan A. Gamer, Black's Law Dictionary, Eighth Edition (St. Paul: Minn, Thomson West 2008) p.15. 2. Vice Wigmore on Evidence, 3 rd Edition (1940) Vol VIII, Section 2184 at pp. 36- 37. When we heard this appeal, Justice Chirwa sat with us. He has since retired. Therefore, this judgment is of the majority. The four appellants were charged with one count of aggravated robbery and one count of murder. In count one, the particulars of the offence were that Frank Mulenga, Webster Chiwaya, Bernard Kapaso, Moffat Nkhoma and Fredrick Hamweemba Hamakowa on 25th June, 2004 at Lusaka in the Lusaka District of the Lusaka -J2- Province of the Republic of Zambia, jointly and whilst acting together and whilst armed with a firearm did steal from Lantin Amara, 1 motor vehicle namely Mercedes Benz Registration Number AAF 4514, Kl00 million cash valued at K260 million the property of C. R. Carriers and at or immediately before or immediately after such stealing did use or threaten to use actual violence to the said Lantin Amara, in order to obtain or prevent or overcome resistance to the said property being stolen. In count two, it was alleged that Frank Mulenga, Webster Chiwaya, Bernard Kapaso, Moffat Nkhoma and Fredrick Hamweemba Hamakowa, on 25th June 2004 at Lusaka in the Lusaka District of the Lusaka Province of the Republic of Zambia jointly and whilst acting together did murder Lantin Amara. The evidence for the prosecution centred on the evidence of 8 witnesses. PWl was Gershom Bowa, a cashier, who worked with the deceased. He recalled that on 26th June 2004 after balancing the cash book with the deceased around 21 :50 hours 1 the deceased took the cash which was K48 million. The deceased had envelopes and the Johannesburg book. The deceased was alright. The witness -13- went into his vehicle and the deceased went into his Benz Car, green in colour. The witness did not know the person by the name or names Fredrick Hamweemba Hamakowa, but he knew a person called Fredrick also called "FBI". He said he had known "FBI" for some years as he was a driver at the company (CR). PW 1, during the trial, referred to the 5 th Accused as Fredrick or "FBI". The witness went home and reported for work the fallowing day. He learnt that Lantin Amara had been shot dead and he went to Emmasdale Police Station to give a statement. In cross-examination, the witness stated that he was in the office until around 21:50 hours with the deceased. They had K48 million and there were envelopes containing money. PW2 was Febby Nyemu, who was operations manager. He testified that he had worked with the deceased for 3 years. The witness identified the body of the deceased in presence of two police officers, one of whom was chief inspector Mola, CIO, Emmasdale Police Station on 28th June, 2004. The body had wounds on the right hand side of the body. PW2 testified that at CR, he knew Fredrick Hamweemba Hamakowa, a public service vehicle driver. PW2 said Hamakowa ~J4- had worked with him from about 2001 to about 2003. He said Hamakowa was also known by the nickname '1FBI". When Hamakowa came from a sister company in South Africa, he acted as an inspector, while waiting for his bus. PW2 explained that "FBI" meant "Fredrick Bus Inspector". That, however, by June 2004 "FBI" was not working for CR, as he had been retrenched. PW2 identified "FBI" as AS during the trial. In cross-examination, the witness said he did not know the procedure of delivering money to Mr. Ramsey. He did not know of any security arrangements. On the material day, he was in Kitwe. He said "FBI" was a good bus inspector, who was retrenched, as there were more workers than needed. PW3 was Angel Mulenga, a businessman. The witness was cited for contempt of court in February, 2005 and was remanded in custody at Peter Singogo remand prison in Ndola. While in prison, he befriended Moffat Nkhoma, the third appellant. They became so close that they started sharing intimate secrets. They were together for 20 days. One afternoon, the third appellant received a parcel of nshima with a note in a plastic paper. The note contained a threat. The author called himself '1Coaches". Coaches wanted the balance . Js. of the money or he would spill the beans. And that the third Appellant said the note by Coaches, was referring to the money which was stolen at the crime scene, where someone was shot dead in Lusaka. That A3 did not say who was shot, but the person was related to a Mr. Calcius Ramsay. The witness learnt that Ramsay was not an uncle to the deceased. PW3 said the third appellant asked for a favour as he was coming out of Prison. PW3 testified that the third appellant asked him to see Frank Mulenga (the first appellant), who was the third appellant's friend. The third appellant gave the witness (PW3) the first appellant's phone number. The third appellant wanted his friend, Frank Mulenga (first appellant), to take care of Coaches and remove the guns from the farm. When PW3 came out of the remand prison, he reported to Ndola Police Station, who reported to Lusaka Central Police. A few days later, PW3 travelled with two police officers to Lusaka. PW3 said in the company of first, second appellant and a deceased accomplice drove to Ndola with the intention of robbing the Bank in Ndola. At the Bank in Ndola the gang members came out of the car, the police officers from Ndola and Lusaka apprehended them, before anything could happen. They had guns and masks in their -J6- hands. The deceased person and the second appellant were armed. He identified the second appellant as Webster Chiwaya. He identified the vehicle which was used to travel to Ndola from Lusaka. In cross-examination PW3 testified that the vehicle they used was originally ABC 6480, but there was a dummy number fixed. The first appellant told him it belonged to AS. But when AS was asked to stand, the witness said he was seeing him for the first time. The officers in Lusaka had asked PW3 to work with them to apprehend other members of the gang and recover the guns. PW 4 was Henry Chanda a Constable at Emmasdale Police Station. He testified that on 25th June 2004, he was on duty as shift officer from 16:00 hours to 08:00 hours the following day. Around 22: 00 hours he received information from the central room that there was a hit and run case. With Constable Lowa, they went to the scene and found an ambulance. There was someone injured. The scene had lights from houses. He asked the victim, who said he had been shot at and his Benz car stolen. The victim spoke in a low voice, thereafter he was too weak to speak and was taken to UTH in an ambulance. -17- PW4 said at the scene, he picked a magazine of an AK 47 and three empty cartridges of an AK 47. He handed the magazine and three cartridges to Chief Inspector Mola, CIO, Emmasdale Police Station. Later they received a message that there was an abandoned Benz car. They went to Mbelele Road in Olympia Extension and found it with doors open, the car engine was running and the music was on. The Benz was green in colour. There were scattered things at the scene such as plastic bags and papers, which he handed over to the Detective Chief Inspector Mola. In cross-examination, the witness said that same night, he handed the three cartridges to the Chief Inspector Mola, CIO. The following morning at 06:00 hours, he picked two more spent cartridges. He again handed them to Mola the CIO. The arresting officer told him these were taken for Ballistic Examination. In re-examination, PW 4 said the other two cartridges were picked up from scene, where the deceased was found lying down. PWS was Nyamfuku Pius Ilunga, a ballistics expert. The essence of his evidence was that Detective Inspector Makondo of Lusaka Division Headquarters submitted two AK 47 rifles, 128 rounds of ammunition and three empty cartridges for laboratory -J8- examination. The two rifles were automatic AK 47 rifles also known as Klashimlov Rifle 1947 model of caliber 7.62mm, Russian shot capable of loading, firing and ejecting rounds of ammunition of 7 .62mm Russian shot. PW5 said he test fired the two AK 4 7 rifles to ascertain their working condition and to obtain spent cartridges for microscopic examination. Their working condition was good. From 128 rounds, he used 4 to test fire the two AK 47 rifles. The three spent cartridges of 7 .62mm Russian shot were submitted by Detective Inspector Makondo for examination. The three empty cartridges were loaded and fired and ejected from firearms of the same caliber 7 .62mm. After obtaining spent cartridges from the two AK 47 rifles, he put them side by side on the microscope with the empty cartridges allegedly picked from the scene of crime. After analysis of these, he observed strong identical characteristics of the firing pin impression mark indicating that the two spent cartridges were fired from AK 47 rifle serial number 3189229 and one from AK 47 rifle serial number 3841614. He testified that the two AK 4 7 rifles are the same ones which loaded, fired and ejected the three spent cartridges allegedly picked from the scene of crime. He said the two AK 4 7 rifles and 128 -J9- rounds of ammunition were dangerous military weapons capable of causing fear, injury or death to any animal or human target when challenged or fired upon. The weapons were restricted to the defence and security personnel for operational use. He produced the ballistics report in his evidence and identified the exhibits i.e. the guns and ammunition, which included spent cartridges. In cross-examination, the witness said he dismantled the firearms to demonstrate the firing pin. PW6 was Jimmy Phiri, a detective sub-inspector of Kalingalinga police post, who apprehended former Accused 5 after seeing a photograph. He was given the description of his clothes. After apprehending Accused 5, he handed him over to Detective Sub Inspector Sibutonga of Lusaka division. He identified Accused 5 in court. PW7 was Proteciar Mweemba, a detective inspector. He testified that he was one of the officers carrying out investigations in a case of murder and aggravated robbery in which Lantin Amara was murdered on 25th June 2004. He said constable Chanda picked 15 live ammunition for the AK 47 rifles and five spent cartridges at the scene and that Constable Chanda handed these to officer-in- -no- charge, Emmasdale. Then from Emmasdale, he took them to Force Headquarters for ballistic examination. Later PW7 received information from PW3 that when he was in prison at Peter Singogo in Ndola, one inmate, Moffat Nhkoma (the third appellant) was complaining that he was not paid his part of the deal. This information was given to police when PW3 was released on bail. Moffat Nkhoma (the third appellant), said the group was planning to stage a bank robbery in Ndola. The investigations officers shifted from Lusaka to Ndola. On 24th March, 2005, they intercepted an attempted Bank robbery at Microfin Bank in Ndola and in the process, they recovered one motor vehicle, Toyota Corolla) green in colour with two registration numbers, ABC 6480 and ACG 4328. He said "ABC 6480" was covered by "ACG 4328". The witness said he was with the following officers: Detective Sergeant Phirt Detective Sub-inspector Sibutonga Constable Zulu and another officer he could not recall. PW7 said they apprehended three suspects in the same motor vehicle. The three were Frank Mulenga (first appellant), Webster -Jl 1- Chiwaya (second appellant) and Bernard Kapaso (fourth appellant). The other two who attempted to run were assaulted by members of the public and one died. From the motor vehicle, they recovered two AK 47 rifles and 128 live rounds of ammunition, A black bag which contained five masks and a blanket was also found in the vehicle. The witness identified the firearms, which he said he took to Police Force Headquarters for ballistic expert examination. He said the serial numbers for one AK 4 7 1s 3841614 and the other is 3819229. PW7 testified that PW3 informed him and the other police officers that the third appellant was communicating with a former worker at CR and that the former worker was also known as Coaches. And that during their investigations, they looked for Fredrick Hamakowa who was also called "Coaches" or "FBI". The investigating team had a photograph of "FBI". And that they apprehended Fredrick Hamakowa who was one of the accused. PW7 identified the five spent cartridges. The recovered 128 rounds of ammunition. He also identified the firearms, the blanket, five spent cartridges. He also identified the motor vehicle, ACG 4328, whose number below was ABC 6480. -112- When asked in cross-examination by Mrs. Mulenga, PW7 said the investigating team shifted to Ndola on information from PW3. They were five police officers joined by 20 of their colleagues from Ndola. They captured the three accused, whom he saw come out of the car. He said one attempted to run and was killed by members of the public and that the two AK 47 rifles were in the motor vehicle. The masks were in the bag which was in the same motor vehicle. When cross-examined by Mr. Inambao, the witness said he picked the ammunition and the spent cartridges from Emmasdale and not the scene. He was not aware how many robbers attacked the deceased. He was not aware if police killed any suspect, but was aware of the suspect killed by the mob. The witness further said he was not aware that Webster Chiwaya, the second appellant, was outside Zambia. When he was shown page 6 of the passport which was stamped by Zimbabwe Immigration on 20th June, 2004 and the other stamp showing that he entered Zambia on 5 th July, 2004, the witness said the accused never told him that. PW8 was Cosmas Sibutonga a detective Sub Inspector of Lusaka Central Police Station. He was assigned to investigate the case of murder and aggravated robbery in January, 2005. It was -J13- alleged that the late Mr. Lantin Amara was robbed of Kl00 million and later shot dead. He visited the scene with other officers. The offence occurred on 25th June, 2004 between 21:30 hours to 22:00 hours in Olympia Park along Kwacha Road, opposite Olympia Basic School. One of the eye witnesses said he saw 2 motor vehicles, a Toyota Corolla and a Mercedes Benz. The witness was Constable Humphrey Chanda who said the deceased was unconscious, bleeding and was rushed to UTH, where he was declared dead. PW8 told the court that in the course of investigations, he received information from male, Angel Mulenga (PW3). And that PW3 told him that whilst in Ndola, at Peter Singogo Remand Prison, he came across his fellow inmate, Moffat Nkhoma (the third appellant), who informed him that there were friends of his in Lusaka who he said or alleged to have killed the late Lantin Amara. And that the same group was intending to stage a bank robbery in Ndola. And that one of the people to rob the Bank was Frank Mulenga (the first appellant). PW8 told the Court that PW3 told him that he had been told to meet the group in Lusaka along Chachacha Road at a place called Shooters. And that when he was in Lusaka, -Jl4- he contacted the so called ''coaches". And that the other person that he contacted was Bernard Kapaso (the fourth appellant). It was PW8's further evidence that PW3 sat in front of the car next to the driver, Frank Mulenga (the first appellant) was in the car and that the witness had noticed that he was just about to escape, but was apprehended within Microfin Bank premises. And that the three suspects and exhibits were brought to Lusaka. When the investigating team came to Lusaka, CR. Management was interviewed about ''Coaches" or "FBI". The management said he was their former employee, Fredrick Bus Inspector, "FBI" for short. And that his name is Fredrick Hamweemba Hamakowa. That from the description given, the police apprehended Fredrick Hamweemba Hamakowa in March, 2005 in Chunga Compound Lusaka. And that the third appellant was withdrawn from Peter Singogo Remand Prison in Ndola and brought to Lusaka. The five empty cartridges and two AK 4 7 rifles were sent for ballistics examination. PW8 said he arrested Frank Mulenga (the first appellant), Webster Chiwaya (the second appellant), Moffat Nkhoma (the third appellant), Bernard Kapaso (the fourth appellant), Fredrick Hamweemba Hamakowa (the fifth accused), who was acquitted in the court below for aggravated -J15- robbery and murder. After warning and cautioning the suspects in English, they all denied both counts. PWS tendered, the firearms, spent cartridges, live ammunition, masks, a blanket, the ballistics report, the cushion, the post mortem report, which were all admitted as part of the prosecution evidence. In cross-examination, PW8 stated that it was not possible for the second appellant to have been in Zambia on 25th June, 2004 according to the passport. All the five accused persons elected to give sworn statements, when the learned trial Judge put them on their own defence. The first appellant, Frank Mulenga, testified on oath as OWL He told the Court below that he used to hire pool tables at Town Centre, Mabvuto Motel and at Mandevu or near Mandevu Market. He recalled that on 24th March, 2005 he left home around 07:20 hours for Chililabombwe. There was a football match during Easter weekend between Zambia and Congo Brazzaville. On his way to Chililabombwe, he dropped in Ndola as there was no direct bus from Lusaka to Chililabombwe. When going to where he could catch a bus to Chililabom bwe, a white car approached and someone in the same car said, "and this one". The two men from the rear seats -J16- came out. They said they were police officers and they took him to Ndola Central Police. He was searched, they got his phone, a small bag in which he had put a jersey and they beat him. Later, he was brought to Lusaka after being detained for two days in Ndola. He gave the police officers his Lusaka house number. The first appellant said he was brought to Lusaka, where he was accused of being a thief and asked what he knew about the murdered CR worker. He said in Lusaka, he was detained up to 20th May, 2005. He was later charged with people he did not know and appeared at the old Chikwa Court on 15th June, 2005. The police officers said, "him and 2 others had murdered and stolen from a person''. He said the person who pointed at him in Ndola was Angel Mulenga (PW3) who lied that he had phoned him. He testified that PW7, Makanda, lied and that PW8 who said PW3 identified him lied as well. He had the phone and if PW3 had phoned him, that would have been indicated in the phone. In cross-examination, the first appellant stated that he knew A3, A4 and AS at Chikwa Courts on 15th June, 2005. He was apprehended on 24th March, 2005. He denied meeting his co -Jl 7- accused in 2004. He said he did not know where Microfin Bank is in Ndola nor was he apprehended at the same time with the second and the third appellants. He said he was alone and that he did not travel with Angel Mulenga (PW3). He said he did not know PW3. The second appellant, Webster Chiwaya, testified on oath as DW2. His evidence was that he used to order beer from Zimbabwe and sell at Simoson and COMESA markets. On 23rd March, 2005, he went to Intercity Bus Terminus going to Ndola to visit a friend, Sunday Mwaba. He said he and Mwaba had agreed to open a shop and sell clothes. He testified that he (DW2) started off around 11 :00 hours on Wednesday and reached at 15:00 hours. He phoned Mwaba to go to East Wing Three. He said there were a lot of people and cars parked. He said he sat waiting for Mwaba in a restaurant. And that a man approached him and asked him who he was. He said he told the man that he was Webster Chiwaya. The man however, produced his identity card and called four other officers, two men and two female. The officer told the second appellant that he was Manfred Sichiyoyo who had stolen a vehicle in Lusaka. He was taken to Indeni Police Post on 26th March, 2005. -J18- He was put on an identification parade, where the lady could not identify anyone who stole her vehicle. The second Appellant testified that the three male officers said they would take him to Lusaka. This was on Saturday, 26th March, 2005. On 28th March, 2005, five armed police officers picked him and took him to Millennium Police Post. On 1st April, 2005, he was promised police bond, but one police officer stopped the process. On Saturday, 2nd April, 2005, his wife brought his NRC so that the police could reconsider the granting of police bond, but the arresting officer, PW8, Sibutonga, told him that he had murdered someone on 25th June, 2004. He denied the offence. He told the police officer that he was in Zimbabwe in June and that his passport was at home. Four police officers took him to his house where his Passport No. 2949387 issued on 19th February, 1999, which was to expire on 18th February, 2009, bearing NRC 152954/65/ 1 was found. That on page 5 of the passport, the stamp indicated that on 20th June, 2004, he had entered Zimbabwe and returned on 7 th July, 2004. That PW8 returned the passport. And that he was charged with the first appellant, Frank Mulenga, fourth appellant, Bernard Kapaso and Fred Hamakowa who was AS and were later joined by the third -J19- appellant, Moffat Nkhoma. The second appellant tendered his passport as part of his evidence. In cross-examination, he stated that he travelled to Zimbabwe on 20th June 2004 and came back on 5 th July 2004. He did not know his co-accused. The third appellant, Moffat Nkhoma, testified an oath as DW3. He told the Court below that he opened a grocery at Chipata Chifundo market selling second-hand clothes. On or about 23rd to 25th April 2005, he was at Peter Singogo Prison, when the officer-in charge of prison called him to introduce him to two officers. He was not surprised because he was apprehended in October, 2004 in Lusaka and handed over to officers in Ndola. In Lusaka, he was taken to Lusaka Central Prison. The following Monday, the police insisted that he takes them to his home. They went to House number 39 / 1 New Makeni, which they searched. On 28th April, 2005, he was taken to Lusaka Central Police station and was charged with the offence of killing someone who used to work for CR and theft of the money. He was taken to Ndola in July, 2005 and again brought to Lusaka Central Police Station. At court he learnt of the co-accused, whom he did not -120- know. And that PW3 testified in Court that he was in prison at Peter Singogo with him. The third appellant said PW3 was not a friend or an enemy. He said he was in Cell 11 while PW3 was in Cell 10. PW3 said he, the third appellant found a letter in the nshima one day and that the letter was threatening him. He denied sending PW3 to Lusaka to contact the first appellant. In cross-examination, he stated that they were 50 in Cell number 11. He knew some people in Cell 10. He said he did not recall talking to PW3, though he used to see him. PW3 was not introduced in Cell 11. He denied having given PW3 any message to take to Lusaka. The fourth appellant Benard Kapaso, testified on oath as DW4. His evidence was that he owned two taxis and a third was about to be registered. When he was apprehended on 22nd March, 2005, his friend Mule called him and was asking for a lift from Kitwe to Ndola. He told his friend he would pick him on 22nd March, 2005 in the morning. On 22nd March, 2005,he picked up Mule and drove one of his unregistered vehicles. This is a Toyota Corolla ABD 349, green in colour. -J21- He said, although the motor vehicle was not registered, it had the number ABD 349 allocated by the Road Traffic Commission. From Kitwe to Ndola, he carried Mule's cousin and his wife. In Ndola, they found the post bus loading passengers. He took the goods to the post bus. While parked, he was approached and surrounded by two armed men, whom he suspected were from the city council or Interpol. They asked him about the vehicle. He told them that was his vehicle, which he bought from South Africa. They told him the vehicle had a Lusaka number ABD 349 and it was suspected to have been stolen. They took him to Ndola Central Police Station where he was detained from 22nd March, 2005 to 25th March, 2005. When asked for documents, he told them they were in Kitwe or Kalulushi. The police officers got all vehicle documents. On 25th March, 2005, the police officers told him to get into the vehicle and drive to Lusaka to verify the documents with the Road Traffic Commission. They were four, three officers and himself. Later, on 5 th April,2005, he was charged with aggravated robbery and murder. Three months later on 15th June, 2005, he appeared at Chikwa Court. The police story that he was apprehended with Frank -J22- Mulenga (the first appellant) and Webster Chiwaya (the second appellant) was a lie. All witnesses lied against him. In cross-examination, he stated that he used to pass through Lusaka on his way to South Africa. He used to go to South Africa by bus. The accused denied having been apprehended near Microfin Bank in Ndola. He said the first and second appellants were not apprehended together with him. And that on 25th June, 2005, he was at home in Kalulushi Mine Township. On 25th March, 2005, at 18:00 hours, he was at home, not in Lusaka. DWS was Fredrick Hamweemba Hamakowa (AS). He testified that he was a Heavy Duty Driver and Mechanic. On 12th April, 2005 at 15:30 hours, he left home to go and buy paraffin. A few metres from his yard, a green Toyota Corolla approached him. From the Corolla emerged Detective Sergeant Phiri who produced his identity card. Phiri and his colleague searched his house and collected his cell phones and his certificates and nothing illegal was found. He was taken to Lusaka Central Police Station and handed over to Sub Inspector Sibutonga, who detained him. The following day about 09:00 hours to 20:00 hours, Sibutonga and Detective Inspector Makondo and t\vo other officers in the CID office interviewed him at -J23- Avondale Police Station and charged him with murder and aggravated robbery. He later appeared in court on 15th June, 2005. He denied knowing the other four accused persons. He said the evidence of PWl and PW3 about his working history at CR was correct and the nickname "FBI". And that the evidence by Detective Sergeant Phiri that he was apprehended in Kabanana was also true. He, however, disputed the nickname "Coaches" mentioned by the arresting officer (PWS). In cross-examination, he said he worked for CR for four years. He was never a cashier. He knew the deceased Lantin Amara. DW6 was Margaret Mangani, a Journalist and Features Editor at Times of Zambia. She testified about the news briefings by the police spokes person concerning the murder of the CR cashier and the theft of Kl00 million. She said on 1st July, 2004, the headline was "robbers shot dead". On 8 th July, 2004, the headline was, "police detain one suspect for beheading of a white woman". On 10th July, 2004, the headline was "police pick 3 suspects in connection with the killing of a CR cashier". On 31 st July, 2004, the headline was "police gun down suspected killer of CR employee". -124- She testified that in accordance with the Times of Zambia of 31st July, 2004, one suspect who was shot dead was leading the police to a home where a fire arm used in the CR robbery was hidden. In cross-examination, the witness said, "the article said investigations were to continue. There was no article which said these six people shot dead were CR employees and there were no names in the articles" The learned trial Judge, after painstakingly analysing the evidence, he came to the conclusion that: "The late Lantin Amara was robbed and murdered and that the company cash and motor vehicle were stolen by robbers in Lusaka and that the robbers were not identified. However a total of five spent cartridges were picked at the scene. On 24th March, 2005, there was an attempted aggravated robbery at Micro.fin Bank in Ndola which the police foiled. The first, second and fourth appellants were apprehended and two AK47 Rifles and 128 rounds of ammunition and a bag were recovered from a Toyota Corolla motor vehicle, green tn colour, which the said appellants, in the company of PW3, used to travel from Lusaka to Ndola. Three rounds of ammunition out of the 128 recovered in Ndola were test-fired from the recovered .firearms by the Ballistics -J25- Expert and compared to the five spent cartridges that were picked from the scene of the aggravated robbery and murder in Lusaka. The learned trial Judge accepted the Ballistics Expert's evidence that the empty cartridges picked at the scene of the aggravated robbery and murder were fired from the same firearms that were recovered from the first, second and fourth appellants at the scene of the attempted aggravated robbery in Ndola. As regards the identity of the first, second and fourth appellants, the learned trial Judge found that their identity was not in issue as PW3 travelled with them all the way from Lusaka to Ndola. In case of the third appellant, the learned Judge found that the third appellant had stayed with PW3 in remand prison for about 20 days, therefore, that the issue of identity did not arise. Based on this evidence, the learned trial Judge convicted the first, third and fourth appellants of aggravated robbery and murder and sentenced each one of them to death. The learned trial Judge however, acquitted the second appellant of aggravated robbery and murder as he sustained the second appellant's alibi, that he was in Zimbabwe on 25th June, 2004, the day when the murder and aggravated robbery were committed. He however, convicted the second appellant of attempted aggravated robbery at Microfi.n Bank in Ndola pursuant to Section 391 of the Penal Code" -J26- On behalf of the first and fourth appellants, Mr. Mhango filed four grounds of appeal. These are that:- 1. There were gaps and lapses in handling of the cartridges found at the scene and this raises some doubt as to whether it's those spent cartridges that were taken to the Ballistics Expert for examination. 2. There was dereliction of duty on the part of police officers in not lifting finger prints on surfaces of articles and items at the scene which dereliction of duty is fatal to the prosecution's case. 3. The evidence of the Ballistic Ex.pert is shallow and lacking as it does not help the court to examine it and agree or disagree with the ballistic expert's conclusion. 4. PW3 is a witness with his own interest to serve and is not corroborated by any other evidence on record and so the conviction is unsafe. Mr. Mhango relied on the Heads of arguments which he augmented with oral submission. In support of ground one, it was argued that the circumstantial evidence was not cogent enough to support the conviction. It was argued that the appellants were apprehended at Microfin Bank in Ndola on 24th March 2005, which is about 10 -J27- months after the robbery and murder were committed. Our decision in David Zulu V The Peopler1l was cited, where we said: "It is a weakness peculiar to circumstantial evidence that by its very nature it is not direct proof of a matter at issue but rather is proof of facts not in issue but relevant the fact in issue and from which an inference of the fact in issue may be drawn, ii) It is incumbent on a trial Judge that he should guard against drawing wrong inferences from the circumstantial evidence at his disposal before he can feel safe to convi.ct. The Judge must be satisfied that the circumstantial evidence has taken the case out of the realm of conjecture so that it attains such a degree of cogency which permit only an inference of guilt" It was argued that on a critical analysis and examination of evidence, especially the situation where spent cartridges were exchanging hands amongst or between officers and up to the Ballistic Expert, it is not certain which cartridges were sent to PWS for examination. Mr. Mhango attacked the evidence of PW4 when he said he picked three spent cartridges at the scene of the shooting which PW 4 said that he handed over to Detective Chief Inspector Mola, who was not called as a witness and the items were not marked for -J28- identification. Counsel argued that PW7 (Mweemba) said he took the items on 5 th April, 2005 from Emmasdale Police Station to the Ballistic Expert and this was 10 months after the incident. It was argued that PW7 did not say how he identified the cartridges. Further that the Ballistic Expert mentioned Inspector Makanda as the person who submitted two rifles, 128 rounds of ammunition and "three" not "five" cartridges for examination. Counsel submitted that without tags or markings, it could not therefore, be said that the cartridges picked at the scene were those sent to the Ballistic Expert. In support of ground two, it was contended that there was dereliction of duty on the part of the police by not lifting finger prints from surfaces like the Mercedes Benz, steering wheel, door handles both inside and outside, the magazines and some papers which were all over so that the finger prints of the appellants could have been compared with those lifted from these items. Our decision in John Timothy and Feston Mwamba V The Peoplel2l was relied upon where we held that: "If there is dereliction of duty on the part of the police in not testing an article for finger prints there will, if an article has .]29- a surface in which finger prints could be tested be a presumption in favour of the accused that there were finger prints on the article which did not match the finger prints of the accused" The case of Kalebu Banda V The People,r3 J was also cited in which it was held that: "Where evidence available only to the police is not placed before the court it may be assumed that had it been produced it would have been favourable to the accused. And in this context <available' means 'obtainable' whether or not actually obtainedn It was submitted that for these reasons, the available circumstantial evidence was weak. In support of ground 3, it was contended that PWS, the Ballistic Expert, did not support his opinion with test materials and Pin Impression Marks, which he said he saw on his microscope. That the Ballistics Expert told the court his findings after examining the guns and spent cartridges taken to him. And that he got Pin Impression Marks and thereafter, he observed identical individual characteristics of the firing Pin. And that the Impression Marks of the three spent cartridges picked from the scene of the crime and the cartridges which he test fired from the guns brought -BO- to him indicated that the two spent cartridges were fired from AK 4 7 rifle serial number 3189229 and one from AK 4 7 rifle serial number 3841614. And that the two AK 4 7 rifles serial were the same ones which loaded, fired and ejected the three spent cartridges allegedly picked from the scene of crime. It was submitted that the Ballistic Expert did not report to the court the strong individual characteristics of the firing Pin Impression Marks and the unique characteristics he talked about. We were referred to our decision in Chansa V The People,(4l where Baron DCJ said: "A Ballistics Expert gave evidence that the used round was in his opinion from that very gun and if this evidence has been admissible then certainly the evidence against the appellant was overwhelming and the conviction entirely proper. Unfortunately, however, the Ballistics Expert did not support his opinion by any support material or photographs." It was submitted that in Sithole V State Lotteries Board,C5l this Court stated that: "There may be circumstances in which an expert, by reason of the very nature of subject on which he is giving his opinion is unable to present any documentary or pictorial evidence to the court and in such cases the court has nothing more on -131- which to rely to assist it to come to a conclusion and reasoning of the expert .... But ... where there is in fact documentary or pictorial evidence which formed the basis of the expert's opinion it is necessary for these documents to be properly proved and for the court to see for itself the various points on which the expert bases his conclusions. It is for the court to come to a finding and the expert's evidence is merely there to assist the court in coming to its conclusion. In the present case the evidence makes it clear that there were photographs and other test material available to be placed before the court and the failure to produce that material is fatal" In support of ground 4, it was argued that PW3 is a witness with his own interest to serve in that he was in custody at Peter Singogo Police Post and naturally, he wanted freedom and would concoct anything to please the authorities. It was argued that PW3 is a witness, in the words of Lord Hailsham in DPP V Kilbournef6J ,who can: "Reasonably be suggested to be or reasonably possible that he has an interest". We were further referred to our decision in George Musupi V The Peoplem where we held that: "The tendency to use the expression witness with an interest of his own to serve carries with it the danger of losing sight of -J32- the real issue. The critical consideration is not whether the witness does in fact have an interest or a purpose of his own to serve, but whether he is a witness who because of the category in which he falls or because of the particular circumstances of the case may have a motive to give false evidence" On behalf of the second and third appellants, four grounds of appeal were filed. These are that:- 1. The court below erred by not regarding PW3 as a witness with his own interest to seive. 2. The court erred in convicting the 3 rd appellant at PW3's uncorroborated evidence. 3. The court erred at law when it relied on unreliable circumstantial evidence to convict the appellants. 4. The court erred in convicting the second appellant of attempted armed robbery. Heads of arguments were filed on behalf of the second and third appellants. Grounds one and two were argued together. It was contended that PW3 could have been treated as a witness with an interest to serve whose evidence would have required corroboration and the entire evidence of PW3 ought to have been discounted. In support of ground three, Mr. Muzenga argued that the circumstantial evidence put forward was not cogent to warrant the -133- conviction of the appellants. It was submitted that the evidence of PW7 and PW8 under cross-examination showed that they were not witnesses of truth regarding the circumstances under which the first, second and fourth appellants were apprehended. In support of ground four, Mr. Muzenga argued that the Court below misdirected itself when it convicted the second appellant of attempted armed robbery. It was argued that there was no overt act to convict the appellant of attempted armed robbery. Mr. Muzenga also attacked the failure to lift Pin Impression Marks and Finger Prints. He also attacked the credibility of PW7 and PW8 who he characterized as untruthful witness. In response, the learned Director of Public Prosecutions, Mr. Muchenga, supported the conviction. He argued that there was no break in the chain of events as the evidence by PW7 on page 22 of the record demonstrates that he is the police officer who took the cartridges to the Ballistics Expert. That PW7 said he was in the company of the other police officers when he picked the cartridges that were taken to Emmasdale Police and later to the Ballistics Expert. He further submitted that there is no rule of evidence which -J34- requires the Ballistics Expert to tender photographs taken when conducting an examination. He submitted that the evidence on record shows that the Ballistic Expert's evidence was never challenged and that the cartridges matched the guns. That it could have been different if the photographs were taken, but not submitted, then there would have been some doubt. Further, that the evidence against the first and fourth appellants is that they were apprehended after they came from the car from which the police recovered the firearms which were linked to the spent cartridges that were picked at the scene of the crime 9 months earlier. The learned Director of Public Prosecution submitted that in the absence of an explanation on how these two appellants had firearms which had been used to kill someone 9 months earlier, the only inference was that they were robbers. In respect of the third appellant, it was submitted that the evidence of PW3 was that the third appellant had admitted to him that he was involved in murder and robbery. In reply Mr. Mhango reiterated that there '\¥ere gaps in the way cartridges were handled. He submitted that at page 10, PW7 said at -135- the scene, he picked some cartridges and that he took them to Chief Inspector Mola, CIO, Emmasdale Police Station. That however, PW7 did not say that he took them to Mweemba. And that at page 26, PW7 said he picked the ammunition from Emmasdale and not at the scene. And that the Ballistics Expert told the court that he saw impressions on his Microscope. That however, the court was not given documentary evidence or photographs. Hence there is weak evidence by the Ballistics Expert and there is also weak uncorroborated evidence. We have considered in depth the submissions in favour of the first and fourth appellant by Mr. Mhango and for the second and third appellant by Mr. Muzenga. The issues as we see them in respect of the first and fourth appellants are: (i) Was there a break in the chain of possessions of the spent carlrl.dges by the police?; (ii) What is the effect of not lifting fingerprints from surfaces of articles and items at the scene?; (iii) What is the probative value of the Ballistic Expert's evidence? and -J36- (iv) What is the status of PW3, as a witness for the prosecution?. In respect of the second and the third appellants, the issues are: (i) What is the status of PW3 as a witness?; (ii) Did PW3's evidence need corroboration, and was there corroboration?; (iii} Was the circumstantial evidence sufficient to have taken the case out of the realm of conjecture so as to attain such a degree of cogency as to leave only one reasonable inference?; and (iv} Was the conviction for attempted robbery in respect of the second appellant competent when he was not charged with the offence?. We shall deal first with the fourth ground of appeal in respect of the second appellant. The second appellant was acquitted of aggravated robbery and murder after his alibi was sustained. This was that he was in Zimbabwe when the aggravated robbery and murder were committed. However, the learned trial Judge convicted him of attempted aggravated robbery, which crime he was not charged with, nor was evidence in support and in rebuttal of the charge tendered. The second appellant having been acquitted of -J37- aggravated robbery, he could obviously not be guilty of attempted aggravated robbery. This was a clear misdirection. It is our view that there is merit in ground four. The conviction was a nullity. We, accordingly, quash the conviction and set aside the sentence. The second appellant is therefore, set at liberty. We propose to deal simultaneously with ground four in respect of the first and fourth appellants and grounds one and two in respect of the third appellant as these grounds are canvassing the discounting of PW3 's evidence on ground of it being accomplice evidence or evidence of a witness with his own interest to save. It is critical that we first define who is a witness with his/her own interest to serve. A witness with an interest to serve may be an accomplice, who is defined as partner in crime, associate, accessory, confederate, collaborator, fellow conspirator, while a relative or a friend, may be a witness with an interest to serve as we said in Kambarange V The Peoplet8J. Failure by the trial Judge to warn himself and specifically to deal with that issue is a misdirection. Could PW3 fit in the two descriptions?. PW3 was taken into custody for contempt of court in Ndola, many months after the aggravated robbery and murder were committed in Lusaka. When in -J38- detention, he met the third appellant who confessed to him to have been a confederate in the aggravated robbery and murder of Lantin Amara. The third appellant gave PW3 the nick name, phone number of his confederate, the first appellant. When PW3 came out of prison, he straight went to report that information to Ndola Central Police, who informed their colleagues in Lusaka. The police were the architects of entrapping the appellants as the appellants, with the participation of PW3, planned to rob a bank. This is an offence the appellants were never charged with. So PW3 was neither an accomplice nor a witness with his own interest to serve. There was no hope for advantage because he was not a suspect or under investigation for aggravated robbery or murder for the police to induce him to testify nor did the police know he had such information from the third appellant. PW3 was a citizen performing his civic duty of assisting the police by giving them information which was freely given to him by the third appellant. The witness had a statutory and moral duty not to assist the third appellant and his confederates to escape punishment. PW3 having information about the commission of the murder and aggravated robbery, he would, therefore, have been an -139- accessory after the fact as defined 1n Section 397 ( 1) which states that:- (1) Any person who receives or accepts another who is, to his knowledge, guilty of an offence, in order to enable him to escape punishment, is said to become an accessory after the fact of the offence Black's Law Dictionary at page 15 defines accessory after the fact as: "An accessory who was not at the scene of the crime, but knows that a crime has been committed and who helps the offender try to escape arrest or punishment" Under Section 217 of the Penal Code, he would face up to 7 years as an accessory after the fact. Under Section 398, he would be sentenced to 3 years for concealing aggravated robbery which is a felony. We reiterate what we said in Musupi V The People supra that: "The tendency to use the expression 'witness' with an interest to serve carries with it a danger of losing sight of the real issue. The critical consideration is not whether the witness does in fact have interest or a purpose of his own to serve, but whether he is a witness who because of the category in which he falls or because of the particular circumstances of the case may have a motive to give false evidence" -J40- We think it is a mischaracterization to call PW3 an accomplice or a witness with an interest to serve. He was neither of these. He did not know of the intended aggravated robbery or murder nor was he a co-adventurer in their commission. How can one be an accomplice to an aggravated robbery and murder whose planning, commission, he did not participate in or know? He was given unsolicited information months after the commission of the offences. The third appellant's information to PW3 led to the discovery of firearms that were used in the robbery and murder. This brought to the fore another conspiracy to rob, which was foiled by the apprehension red-handed, of the first, second and fourth appellants. Even if this court were to accept that PW3 was an accomplice or a witness with an interest to serve, his evidence led to the discovery of firearms and ammunition which were used in an aggravated robbery and murder and the discovery of an aggravated robbery conspiracy, are relevant and facts. We said in Liswaniso V The People(9l, that as long as evidence is relevant and a fact, it is admissible, whether its obtaining is in violation of the Constitution or any other law. We reiterate what we said in Emmanuel Phiri and Others-10) that: -141- "If a court acts on an uncorroborated evidence of an accomplice, it must be satisfied that the risk of false implication has been excluded. Corroboration need not be corroboration in strict law, but something more that goes to confirm what the accomplice has said, thereby eliminating the risk of false implication" We have discussed the case of Emmanuel Phiri supra, to illustrate that even if PW3 was an accomplice or a witness with his interest to save, which we have said he is not, the discovery of the murder weapons is corroborative and eliminates the possibility of PW3 fabricating the story. For what we have said, the fourth ground in respect of the first and fourth appellant and the first and second grounds in respect of the third appellant lack merit and we, accordingly, dismiss them. In respect of the first and fourth appellants, the first ground attacks the handling of exhibits. It is canvassed that there was a break in the chain of evidence. At page 22 of the record, PW7 testified that: "We visited the scene of crime. We picked 15 live ammunition of AK 47 and 5 spent cartridges. Picked up from the scene by Constable Chanda and handed to officer-in-charge -J42- Emmasdale. Then from Emmasdale I took them to Force Headquarters for Ballistic Examination" His evidence is corroborated by PW 4 who stated under cross examination that "PW7 took the empty cartridges to him". With the greatest respect to Counsel, we see no break in the chain of evidence as PW7 was there when the ammunition and cartridges were picked by Constable Chanda from the scene and then taken to the officer in-charge and PW7 then took them for ballistic examination. It must be acknowledged that the investigation was being conducted by a group of police officers given its complexity. Mr. Muzenga attacked the credibility of PW7 and PW8 whom he characterized as untruthful witnesses. We said in Nkhata and Four Others V The Attorney General(8 ) and we reiterate this here that: "We shall not interfere with findings of fact by the trial court, unless they are perverse to the evidence" We find no justification to interfere with those findings in this appeal. This ground of appeal lacks merit. On the failure to lift finger prints, we agree that there was dereliction of duty on the part of the police officers. However, this is cured by the Ballistic Expert's evidence which connects the guns -143- recovered to the spent cartridges picked from the scene in Lusaka. The authorities cited in this regard cast a duty on the prosecution to bring both favourable and unfavourable evidence where it is available. This is what we said in Kunda V The People'-9 ). We note that even where evidence may be obtainable, there may be logistical challenges like lack of chemicals to lift finger prints. The question is, did the prosecution tender sufficient evidence to prove the criminal charges to the required standard of proof which is beyond reasonable doubt notwithstanding that the untendered evidence is regarded as favourable to the appellants? We are of the view that they did. To acquit in these circumstances will be doing just what Wigmore, on evidence says. This is that: "Making Justice inefficient and ... coddling the law evading classes of the population. It puts Supreme Courts in the position of assisting to undermine the foundations of the very institutions they are set to protect. It regards the over zealous officer of the law as a greater danger to the community~ than the unpunished murderer" This view mirrors the decision in Chwa Hum Htive V King Emperot'- 10l, in which the court said that: -144- " ... it must be remembered that the acquittal of guilty accused is just as much miscarriage of Justice as the conviction of an innocent person". The public interest is served by letting those who commit crimes pay for their transgressions. We also note that guns do not change hands easily. We, therefore, find no merit in the second ground of appeal in respect of the first and fourth appellants. The third ground in respect of the first and fourth appellant canvassed was the unreliability of the Ballistic Expert's evidence. The Ballistic Expert, as reflected at page 16 of the record, dismantled the firearm number 3819229 and showed the court part number D64509, the bolt carrier number 41614, and showed the firing pin. The Ballistic Expert also demonstrated how he came to the conclusion that the spent cartridges picked from the scene were fired from the guns recovered from the first, second and fourth appellants. This was during what we could properly call, skillful and aggressive cross-examination. We, therefore, find no merit in this ground of appeal and we dismiss it. We now come to the third ground advanced by Mr. Muzenga on behalf of the third appellant which canvassed the weakness of the -145- circumstantial evidence. The evidence in this case which led to the discovery of the murder weapons came from the third appellant who confessed to PW3. These weapons were recovered from the first, second and fourth appellants just before they could rob a bank. These were the very weapons from which the cartridges picked from the scene of robbery and murder were picked from which matched the guns found in possession of the first, second and fourth appellants. With such a connecting link, could it be said that the circumstantial evidence is so weak that it is capable of leading to another inference other than the inference the learned trial Judge drew? We think not. The ground lacks merit and is dismissed. We would like to comment on the learned trial Judge's comments on page 167 of the record and J13 of the judgment where he said: "Granted that PW3 may have been a rewarded witness, and that is permissible legally and morally because there was nothing inappropriate. It is permissible to assist po lice officers and, where appropriate, be rewarded if or when a reward is offered because that does not alter things. The question is whether the evidence is tru.thfu. l. Of course PW3 is on record saying he had no personal gain or reward in the case" -146- This was an incautious statement as these comments were not a reflection of the evidence on record and are perverse to the evidence, as the learned trial Judge admits in his comments that "PW3 was not rewarded". However, despite this misdirection, he would have inevitably convicted. We, therefore, apply the proviso of Section 15 (1) to the Supreme Court Act, which is couched in these terms: (1) On an appeal against conviction, the Court shall allow the appeal if it is of the opinion that the judgment of the court before which the appellant was convicted or of the High Court in exercise of its appellant Jurisdiction should be set aside Provided that the Court may, notwithstanding that it is of the opinion that the point raised in the appeal might be decided in favour of the appellant, dismiss the appeal if it considers that no miscarriage of justice has actually occurred. For what we have said, the appeals by the first, third and Fourth appellants are dismissed, while that of the second appellant is allowed and his liberty restored forth with. -147- The sum total is that apart from ground four in respect of the second appellant whose conviction . we have quashed and the sentence set aside, all grounds canvassed in respect of the first, third and fourth appellants are dismissed. We uphold the convictions and the death sentences imposed by the lower court on the first, third and fourth appellants. D . K. CHIRWA Acting Deputy Chief Justice . ..................................... . H . CHIBOMBA Supreme Court Judge I ' , , ' l / t ~~ r .. : ............................... ~ ~ \ \ I I \I ~ .' '--.! P. MUSONDA Supreme Court Judge • -148-