Hambulo and anor v The People (Appeal nos. 2 & 3 of 1991) [1991] ZMSC 75 (23 July 1991)

IN THE SUPREME COURT OF ZAMBIA Appeal nos. 2 & 3 of 1991 HOLDEN AT LUSAKA (criminal jurisdiction) DAVID HAi®ULO 1st Appellant WILLIAM LUNGU 2nd Appellant -V- THE PEOPLE Respondent CORAM: Ngulube, D. C. J., Gardner, AJ. S. and Sakala, J. S. On 23rd July, 1991 For the appellants, Mr. Chuunga of Silweya and Company For the state, Mr. Mukelabai, State Advocate JUDGMENT Ngulube, D. C. J. delivered the judgment of the court; . 7■'T*' :-X--■ . t ■ . ■ ■ y ■ . The appellants both police officers in the CID section were sentenced to three years imprisonment with hard labour following upon their conviction on a charge of manslaughter. The particulars alleged that on 19th October, 1987 at Monze;they;uniawfully caused the death of Kasongo Kazadi. The prosecution case was^that in the course of investigations the appellants were awakened from their houses around 02.00 hours in the night and they reported at the police station where PWs 1 and 2.were on duty in the Inquiries office. The deceased was a suspect in a case and the police went out with him for inquiries. The prosecution case was further that the : .. 'XL • . X appellants brought the deceased back to the police station around 03.00 hours and that it was then that they assaulted him in the CID office. It was common ground that the deceased died as a result of injuries caused after he had been beaten. The prosecution case was supported by PWs 1 and 2 who were uniformed police officers on duty ‘ X rwho alleged that it was the appellants who assaulted the deceased. Jhey were supported by PWs 5 and 5. These last two witnesses were \ •" J-/ 2/......suspruyd suspects being held at the same police station. All these witnesses deposed' toithe deceased being in good health and physically fit before and at the time of his collection on that night. They also deposed to hearing 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 appellants, the learned trial judge correctly stated that the first two witnesses were witnesses with a possible Interest of their own to serve since they too were on duty that night and a suggestion had been made by the defence that perhaps they themselves had assaulted the deceased after the appellants had left him. The learned trial judge also considered the position of PW5 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 corroboration to PWs 1 and 2. The other witness who provided corroboration was PW6 who was at the time cooking for other prisoners and he also said he had heard the screams coming from the CID section and seen the deceased when he was brought back to the cell. On behalf of the appellants, Mr. Chuunga advanced one ground of appeal, namely, that the learned trial judge had misdirected * • •• himself when he convicted on the evidence of PWs 1, 2, Siand 6. It ’ ;; ■■ ' ;; was pointed out that PWs 1 and 2 had at first made an official report in which they did not implicate the appellants. They only came to do so when another police station in another town was asked to investigate the circumstances surrounding the death and then these two witnesses decided to incriminate the appellants. The question which arises is not so much whether the two witnesses had a possible interest of their own to serve but whether they could be regarded as credible witnesses at all. It seems obvious to us, and this is what we have said in many cases In the past, that before the ■. --v, ■ question of corroboration being received or being given by witnesses could arise at all such witnesses must be credible. Tn the circumstances 3/.... pointed pointed out by Mr. Chuunga and to which we have made reference, it was clearly impossible to regard PWs 1 and 2 as credible witnesses. Their evidence had to fall of its own inanition and could not in any event be credible so as to be capable of receiving corroboration, In any case the evidence on record shows that PW5 could not have ■h. offered corroboration on the crucial issue of the timing of the event when he alleged that the assaults took place some twenty minutes after 02.00 hours which was in the teeth of • the rest of the evidence. What is more, neither PW5 nor PW6 provided corroboration on the vital issue of the identity of the persons who were assaulting the deceased person. It follows, from the foregoing discussion that we consider that it would be unsafe to allow the convictions in this case to stand. We realise, of course, that the deceased was definitely the victim of assaults In a police station but the question here is that there was no credible evidence from the two police officers which could be relied upon to support these convictions. ■ The learned trial judge did not deal with this aspect of the case and these appeals by the appellants have to be allowed. The appeals against conviction are allowed; the same is quashed and the sentence set aside. ■ . ' ... ■ ■ .if. ' if?! •.■V M. M. S. W. Ngulube DEPUTY CHIEF JUSTICE . ' B. T. Gardner ■■ -' v ; ACTING SUPREME COURT JUDGE .... Ji . . : : ■ ■ ■ ■. ’ -.4 , ' r- ’'fv > J ■ ■ ’ • •’ t, ■ / E. L Sakala i SUPREME COURT JUDGE ... ih >