Hassan Kainda v the People (Appeal No. 220/2020) [2022] ZMCA 172 (25 July 2022)

IN THE COURT OF APPEAL OF ZAMBIA HOLDEN AT LUSAKA (Criminal Jurisdiction) . Appeal No. 220/2020 BETWEEN: HASSAN KAINOA AND 5 JUL 2 THE PEOPLE G!STRY I RESPONDENT CORAM: Mchenga DJP, Majula and Muzenga JJA On August, 2021 and 25th July, 2022 For the Appellant: Mr. K. B. Mwendalubi - Legal Aid Counsel, Legal Aid Board For the Respondent: Mrs. M. M. Chizongo - State Advocate, National Prosecution Authority JUDGMENT MUZENGA JA, delivered the Judgment of the Court. Cases referred to: 1. Champion Mannex Makwakwa v The People (1973) ZR 347 2. Love Chipulu v The People (1986) ZR 73 3. Angel Chibesa, Abel Banda v The People - SCZ Appeal No. 46 of 2015 4. Chimbini v The People (1973) ZR 191 5. Peter Yotamu Haamenda v The People (1977) ZR 184 (SC) 6. Ernest Mwaba and 4 Others v The People (1987) ZR 19 (SC) J2 7. Francis Mayaba v The People - SCZ Judgment No. 5 of 1999 Legislation referred to: 1. The Penal Code, Chapter 87 of the Laws of Zambia. 1.0 INTRODUCTION 1.1 The appellant was charged with the offence of murder contrary to Section 200 of the Penal Code1 . The particulars of offence alleged that on 15th February, 2020, at Ndola, Hassan Kainda, jointly and whilst acting together with other persons unknown did murder Kennedy Kabwe. He was subsequently convicted and condemned to suffer the ultimate penalty of death by the High Court (before Hon. Madam Justice Y. Chembe). 2.0 EVIDENCE IN THE COURT BELOW 2.1 The appellant's conviction was based on the evidence of four prosecution witnesses. The first witness was Patson Sinyangwe (PWl). He told the trial court that on 15th February, 2020, while at Kabushi Market he received information that a person had been apprehended for allegedly gassing people's homes. He went to the scene and found a huge crowd of people who were beating the suspect. As a member of the Community Crime Prevention Unit J3 (CCPU), he tried to stop the crowd from assaulting the suspect. While in the said process he saw Mwenya hit the deceased on the back of his head with a big stone and the deceased started bleeding profusely from the wound. He stated that he confiscated a phone which was used by a member of the public to film the incidence and handed it over to the police and that the deceased was later taken to the hospital where he was declared dead. 2.2 Grace Kamanga (PW2) told the trial court that on the fateful day as she was coming from church, she found a crowd of people who were throwing stones. She went on to say that she gave her phone to Collins Chanda, a person she was with, to hold it for her. She later went home to see if her children were not in danger. It was her further testimony that when Collins got home, he informed her that her phone had been taken by the police. Later she went to Masala Police Station to retrieve her phone but was informed that the phone would not be given to her as it had a recording of what transpired. 2.3 In cross-examination she stated that the police showed her the video that had been captured by Collins on her phone. 2.4 Kennedy Munyemesha (PW3) told the trial · court that on 18th February, 2020 his aunt informed him that his cousin by the name of Kennedy Kabwe had been killed in a riot in Kabushi. He J4 proceeded to the mortuary to identify the body. He stated that prior to the incidence Kennedy enjoyed good health. 2.5 Detective Inspector Chitupila (PW4) told the trial court that on 15th February, 2020 he took over a docket for murder in which one Kennedy Kabwe had been killed by unknown people. He was later given a cell phone which had been recovered by PWl. He stated that on the said phone, there was video evidence captured during the assault of the deceased. It was his testimony that the video showed the appellant beating the deceased. He identified the accused from the video as Hassan who was also known as Mwenya. 2.6 He testified that on 2nd March, 2020 he received information that the suspect was at a bar. He proceeded to apprehend the accused around 01 :00 hours. It was his observation that the appellant was wearing the same clothes as those worn by the attacker in the video which included sneakers, yellow socks, a T-shirt with a picture of Bob Marley and the inscription 'money' and a yellow bracelet. All these were produced in evidence. He further told the trial court that he attended the post-mortem examination after which he was given the post-mortem report. That according to the report, the deceased died due to multiple beatings. JS 2. 7 Under cross-examination, PW4 stated that the video in question was clear and showed the accused's face. He accepted that the clothes produced in court had no special feature and denied having arrested the appellant based on the video evidence. That marked the close of the prosecution case. 2.8 After considering the evidence of the prosecution witnesses, the trial court found the appellant with a prima faciecase and placed him on his defence. He opted to give evidence on oath and called no witness. 3.0 DEFENCE 3.1 In his defence, the appellant told the trial court that on 2nd March, 2020, while at Sisi bar, he got into a scuffle with another person. The owner of the bar asked them to leave the premises. When they reached outside the said bar, they were apprehended by soldiers who took them to Masala Police Station. He told the trial court that at the police station, PW4 told him that he had been looking for him and that he was upset with him because he had refused to steal spare parts for him. That PW4 then told him that he would charge him with the offence of murder and that he would be detained together with other suspects who were arrested for killing a person in Kaloko on 15th February, 2020. J6 3.2 In cross-examination, he maintained that he had differed with PW4 but could not report the issue to the police. With respect to PWl, he stated that he implicated him because he was promised to be released if he could turn into a state witness. He denied that he was also known as Mwenya and also denied being the person identified in the video. 4.0 FINDINGS AND DECISION OF THE LOWER COURT 4.1 The trial court considered the evidence and written submissions presented before it by both parties. She found that there was overwhelming evidence that the appellant beat the deceased with fists, he kicked him on the back and threw rocks at him subsequently killing him. The trial court also reasoned that PWl witnessed the ordeal and that the appellant must have been aware that hitting the deceased with rocks would result in grievous harm. He was subsequently convicted and sentenced to death. 5.0 GROUND OF APPEAL 5.1 Disenchanted with the conviction, the appellant filed one ground of appeal couched as follows: (1) The learned judge in the court below erred both in law and fact in convicting the appellant of the offence of murder when the prosecution did not prove their case beyond all reasonable doubt. J7 6.0 APPELLANT'S ARGUMENTS 6.1 In support of the sole ground of appeal, it was submitted on behalf of the appellant that the trial court erred both in law and in fact in convicting the appellant for the offence of murder on insufficient evidence. It was submitted that PW1 did not correctly identify the appellant as there was a mob of people and a lot of confusion at the scene of crime. We were referred to the case of Champion Mannex Makwakwa v The People1 where it was held that "the circumstances in which the offence was committed were undoubtedly traumatic and the opportunities for observation of the culprits were poor." 6.2 We were also referred to the case of Love Chipulu v The People2 were it was held that: "As it was pointed out in R v Turnbull and Others (3) at page 552, Recognition may be more reliable than identification of a stranger; but, even when the witness is purporting to recognise someone whom he knows, the jury should be reminded that mistakes in recognition of close friends are sometimes made." relatives and 6.3 Given the foregoing, it was contended that the alleged identification was manifestly unreliable as no details were given to substantiate its authenticity. J8 6.4 Further, it was contended that the video relied on by the trial court which was allegedly taken during the event did not show anyone inflicting harm on the deceased. In addition, it was contended that the appellant gave a reasonable explanation on how the articles like bangle and T-shirt among others were found on him. 6.5 It was also submitted that should we conclude that the appellant was present at the scene and participated in the beating of the deceased, that the same was a mob justice offence and that it was not established that the appellant is the one who struck the fatal blow and hence he should be found liable for Manslaughter. Reliance was placed on the case of Angel Chibesa, Abel Banda V The People. 3 7.0 RESPONDENT'S ARGUMENTS 7.1 The state supported the conviction and sentence. It was contended that the evidence on the record is clear that there was an eye witness who recognized the appellant as one of the people he saw beating the deceased person. The eyewitness gave a detailed account of what he saw the appellant doing. Further, the said eye witness stated that he was able to recognize the appellant as he had known him for 10 years. We were referred to the case of Love Chipulu supra. Counsel contended that at trial, the appellant did J9 not dispute or challenge the evidence pertaining to his identification and neither did the issue of mistaken identity arise. It was submitted that there is nothing on record to show that PWl could have possibly mistakenly recognized the appellant. We were referred to the case of Chimbini v The People4 where it was stated that: "Most important among the factor to be taken into account is whether the witness knew the accused person prior to the incident; there is a greater difference between recognizing someone who is familiar or at least who one has seen before and seeing a person for the first time and to recognize him later from observation which may be charged with stress and emotion." 7.2 It was counsel's further submission that in addition to the evidence of the eye witness, the appellant was positively identified from a video footage of what transpired on that day. That a clear description of the clothes worn by the appellant was also given. It was contended that the appellant did not directly dispute that the clothes belonged to him but only insinuated that the clothes are common and could be bought from any boutique. In addition, we were referred to the case of Peter Yotamu Haamenda v The People5 where it was held that: "Where the quality of identification is good and remains so at the close of the defence case the danger JlO of mistaken identification is lessened; the poorer the quality the greater the danger. (Emphasis ours). In the latter event the court should look for supporting evidence which has the effect of buttressing the weak evidence of identification. Odd coincidences can provide corroboration." 7.3 On the issue of mob justice, it was submitted that the appellant intentionally did something to kill the deceased by beating him and leaving him for dead. That even after PWl tried to stop him, the appellant went ahead to stone the deceased. Further it was submitted that in cases of mob justice resulting in a death, a charge of murder can only stand if intention to kill is established and evidence reveals that the person so accused is the one who did something out of the common scheme. It was contended that the fatal blow the appellant gave the deceased is what led to the death of the deceased. We were also referred to the case of Ernest Mwaba and 4 Others v The People6 where the Supreme Court stated that: "A positive finding, therefore, that other villagers also participated in the assaults would not relieve the Appellants of their own liability. As active participants in the venture, they would an be principal offenders within the meaning of section 21 of the Penal Code." " .... where joint adventurers attack the same person, then unless one of them suddenly does something which is out of line with the common scheme and to which alone the resulting death is attributable, they will all be liable. But where, as here, the assaults were Jll of a similar nature involving the use of hands and whips only, so that it is impossible to attribute the death to the blows of any particular individual, then each adventurer has caused the death of the deceased within the statutory definitions contained in section 207{d} and {e} of the Penal Code ..... " 7.4 In summation, it was contended that based on the post-mortem report, it is clear that the deceased suffered severe multiple mechanical trauma to the body and that the deceased had suffered multiple injuries. That this goes to show that what the appellant did was the fatal blow that caused the death of the deceased but also, what is evident is that his participation in beating the deceased led to the death of the deceased. On this basis we were asked to uphold the decision of the trial court and dismiss the appeal. 8.0 HEARING OF APPEAL AND ARGUMENTS CANVASSED 8.1 At the hearing of the appeal, learned counsel for the appellant, Mr. Kapukutula and learned counsel for the respondent Mrs. Chizongo placed full reliance on the documents filed and we are grateful for their submissions. 9.0 CONSIDERATION AND DECISION OF THE COURT 9.1 We have carefully considered the evidence on the record, the arguments by counsel and the judgment sought to be assailed. J12 9.2 Learned counsel for the appellant argued at great length on the possibility that PWl mistakenly identified the appellant. The learned trial court considered this possibility and ruled it out. 9.3 We certainly cannot fault the finding by the learned trial court. It is undisputed that there was a mob that attacked the deceased on suspicion of being a gasser. They attacked the deceased using various weapons ranging from stones, sticks and fists. 9.4 The only witness who identified the appellant as having been part of the mob is PWl. He is indeed a single identifying witness. We note that PWl was not under any physical attack. He, in fact, was the one attempting to stop the mob from meting out what they perceived as justice on the deceased. He had also previously known the appellant for about 10 years. In fact he described the appellant as his childhood friend. The incident also happened in broad day light. 9.5 In the circumstances, we cannot fault the trial court when it held that the appellant was among the mob who attacked the deceased. 9.6 The question therefore to consider is whether the offence is murder. The Supreme Court in the case of Francis Mayaba v The People7 considered the issue of an assault by a mob. The Supreme Court stated that: J13 "The facts of this case are that on 23rd November, 1995, there was a beer party at the house of PW1, Esnart Mpokota, the appellant's mother. The deceased was at the beer party and he is alleged to have stolen from beer sales. The Mpokota's money gained appellant and his co-accused apprehended the deceased and tied his hands. The deceased is said to have led them to PW4, Diness Jaba and other places in an attempt to recover the money. When they failed to recover the money they took the deceased back to the beer party where they and other villagers severely assaulted him and burnt his back and tied him to a tree. He was left over night and the following day the deceased was found dead. The matter was reported to the Police and investigations led to the arrest of the appellant and his co-accused. A warn and caution statement was recorded from the appellant in which he gave details of events leading to the death of the deceased. At the trial the appellant denied ever making a statement to the Police." 9.7 The appellants in that case were convicted of murder with extenuation and sentenced to 20 years imprisonment with hard labour. On appeal, the Supreme Court stated that: "We have examined the evidence on record and the judgment of the learned trial Judge and we have also considered the arguments by both Counsel and we agree with them that the facts of this case do not support the conviction of murder because quite apart from the element of provocation and drunkenness negativing intent to kill, this was a case of mob instant justice and there is no evidence that the appellant or indeed the juvenile offender delivered the fatal blow that caused the death of the deceased. We would therefore allow the appeal and quash the conviction for murder and substitute a for manslaughter contrary to Section 1999. conviction J14 As regards sentence we agree with Mr. Chirambo that 20 years imprisonment, even for extenuated murder is excessive and it comes to us with a sense of shock. The appeal against sentence is also allowed. The sentence is set aside and we impose a sentence of 5 years imprisonment with hard labour effective from 8th December 1995 the date the appellant was taken into custody." 9.8 There is no doubt that at the time of this offence, the country was beleaguered with several gassing incidents which unsettled the citizens. Strangers, whether innocent or not, fell victim to mob attacks on suspicion of being gassers. We take judicial notice of the conditions that besieged our great country. 9.9 We note that many people gathered and assaulted the deceased. They cannot be said to have been the people who set out with a common design to occasion the deceased grievous harm. The evidence is clear that the mob constituted different people who came from different locations. 9.10 The post-mortem report stated the cause of death as "several multiple mechanical trauma to the body." Though a medical expert was not called to give an opinion as to what possible weapons could have occasioned the injuries, it clearly suggests several assaults, consistent with that of a mob. .. JlS 9.11 We are of the view that in the circumstances of this case, the offence is not murder but manslaughter. On this score, we agree with counsel for the appellant. 9.12 We therefore quash the conviction for murder, set aside the sentence of death. We instead find the appellant guilty of manslaughter. In sentencing, we have taken into consideration the circumstances of the case and the trauma that beleagu_ered the nation at the time. We thus sentence the appellant to 5 years imprisonment with effect from the date of arrest. DEPUTY JUDGE PRESIDENT •• •••• •• < .. ~ •.•• •.•.•••••• - -B: -~ MAij LA COURT OF APPEAL JUDGE ··· ······~ ·-··· ·· ······· ···· K. MUZENGA COURT OF APPEAL JUDGE