Keith Akekelwa Mukata v The People (10 of 2018) [2019] ZMCA 63 (27 May 2019)

:tN T'HE COURT OF . APP-EAL O'F ZAMBIA HOLDEN AT LUSAKA t- J:j _r · a · c 10[ l ·f. a APP'lUtL/ 1.0 / 2 018 BE '1'WEE · KEITH AKEKELD. . MOIOJ£?A ~U . PEOPLE CORAM- Mchenga DJP Sichinga and Ma:,ula , JJA APPELLANT RESPONDENT On 25 th September 8 ,eptember ,2018 2018 , 26 · September 2018, '.2B ' and 23 rd May 2019 For the Appel-lan t: M. Mllt:emwa ., SC , Mutemwa Chambers r K . Chalwe Kaba..lata . Mwansa Kaba.la .ta, Practitioners Legal . Mweem:ba Advocates ARM ~ ,ega1 Practi. Era.c ti , M. Katol. tionsrs and ti0aers L, gal and Paul ,0 1 Milner . K . Mweemba ·w. Muhanga , Me'ssrs . l<ie t:h For the . Responden ,t : M. Ch::i..pant:a-Mw-ansar Advocate , M .. K ~ Chi tuodu , Depu ,ty Ch.ie .f Depu y Chi..ef St::ate ta te Ad oca te , S. Si:mwaka , Senior t:e . . M,. H"akasellke-Si.muc.h.imb.a ,e -4d oea 1te , M . R !'E!mbo,. State & ta t ,e ., Se.n · or Na ti.a .natl P;ros ecu 1t.i.ons Advaca stat Advo ,cat:e .. Juth ,ori t y. JUDGMENT Mc);:'U!,nga ~ D~. deli 'vered the J udgme~t of tb ·e cou r l. Subraman.iam Y The Director of PubJ..i .~ Prosecutic,ns I 19 ,55] .1 W. L ~R .. 9'65 ' - J2 - 2 . S'akalavThePeople [1980,l Z . R . 205 3 . Mwape v The People SCZ Appeal No . 132 of 2010 -4 . J:nutu Etambuyu Suba v rndo Zambia , Bank Limi. te d SJZ No . 52 of 2017 5. Teddy Puta v Ambinwire Fr iday SJZ No . 43 0£ 2017 6. Geojago Robert Musengule and Amon S~bande v The People scz Judgrnent~o . 19 of 2017 7 . Abel. Mkandawire and Others v The People SCZ Appeals No.06 , 07,08 ; 09 of 2017 8 . Do nal.d Fumbelo v The People SCZ Appeal No . 476 of 2013 9. Rodgers Kunda v 'The People SCZ Appea 1 No , 18 o~ 2017 10 . Wesley Mul'Ullgushi v Cathrine Bwale Mizi Chomba [2004) Z. R . 96 11 . Attorney Z . R. Genera.l v Marcus Kapamba Achiwne (1983) 12 . J:musho v The People [19?2,J Z . R . 77 13 . Attorney Gene .ral. v Peter MVuka Ndhlovu [198 :6 J Z , I\ . 14 . Nkongolo BaM Charles Farms Limited Limited , Kent Choice l2005] Haruperi. v Zambia National Limited ~. R. (:tn Oommerc_ia.l receive:t:sh i p) 15 . Mwewa Murono v The Peop l. e l2004J Z , R , 2017 16 . Chahal.a v The People [1976) Z . R . 14 17 . Saluwema v The People ( 19 65) Z . R , 4 -J3- 18 , S.ai di Banda v The Peopl.~ SJ 30 . of 19. Maseka v ~he People [1972] Z. R . 9 20 , Teddy Mun tanga and Anothe.r v The I>eopl.e CAZ Appeal No . 159 and 160 of 2017 21 . Phi r .i and Othe r s v '!'he People [1 9 73) Z. R . 4 7 22 . Chansa v The People [ 1 975 ] Z . R . 136 23. Chuba v The ~eople (1976) Z . R . 33 4 (Reprint) 24. Char l es Lukolongo and Ot hers v The People (1986] Z. R . 115 25 . ialebu Ba nda v The ~eo p le [1977) Z. R . 227 tReprint) 20 . Gilbert Ch ile.ya v The People (1981] Z. R . 33 27 . Pe t er Yotamu HaameAdo v The People [1971J Z . R . 184 .28 . Lipepo and Others v The People (2015] Vol . 2 Z . R , 29 . Joh n Timothy and Feston Mwamba v The Peo p :Le [1977 ] Z. R . 39 4 30. Jack. Maul.la and Asukil.e Mwapuki v 'the I>eople [1<;180] Z . R . 119 31 . Madubul.a V The Peopl.e [ 1993-9 4 1 Z . R , 91 32. Chimf we?llbe v The People SCZ./9 / J.45/2013 33. Liswaniso v The People [1976] ~ . R . 27 7 3 4 . Sipalo Chibozu and Chi b o~u v. The People (1981] Z . R . 28 -J4- 35 , The People Z . R . 533 v Mateyo Mujumaiz i Jerusalem {2012] 36 . Mang orned Gasanalieu v The People (2010] i. R . 37 . Lupupa v The People [19771 Z. R . 38 38. Nkhata [1966] and FouI Z. R . J.24 others v The Attorney General 39. Chansa v Lusaka City Council [2007] Z. R . 256 40 . Attorney Gene.ra.l v Peter Mva,ka Ndhlovu t l986] Z . R . ~1 . Bri,ght K.atontoka Mambwe v The People SCZ judgme .nt No . 8 of 201 4 42 . ~alal,uka Musol e v The People [1963 ·-6 4] Z and NRLR 173 43 , Attorney Genexal. v Roy Clar ke [2008 J Vol. Z. R . 38 44 . Re : Liso (1969] Z. R . 6 45 , Director Z . R.14 of Pub.l-ic Prosecu ,t.ions v Lukwosha {19t>ii] 4 6. '. I'he People v N jobvu [1966] Z,R. 47 . R v Forbes [2001] 1 All ER 686 48 . Dorothy MUta le an~ E'h.iri v The People [1995 - 1997) Z. R. 277 49 , Dav i d Zulu v The People (i977] Z. R. (Repr i nt) SO . Joseph Mulenga and An other v The People [20081 Z. R . 1 Legislation ~eferred to : -JS- 1. The P.enal Code Chapter 87 of the Laws of Zambia 2. The Criminal Procedure Co.de , Chapter 88 of the Laws o f Zambia Works referred to : 1 . Black's Law Dictionary, 9 ~ Edition , Thomson Reuters 2 . Cross on Evidence, Sixth Edition , Butterworths . Introduction 1 . This appeal ema n ates f r om °LhE -judgment o[ the High -::c,1,,·. , (Wanje l ani. J . ), delivered e n .2&·" February '.:0 "": S. Sy u 1a1 1udgment , the appe l lant was convi-:-ted of the: offEnc1.= oz l!H.i.tder and .sen t enced to suffer c.api tal pun~ shment . 2 . ln the main , the appeal considerE whether , an infe1 Jt1c, of gui l ty is the on l y ene t hat could have been 1raw1 , the citcumst.a ntial evl.denc,e that wa,s befor~ the tr 1 .. 1 judge . Charge before the trial court j. The appellant, was charged with one ::ount o f .:he o ft• •r, (J of murder contrary to section 200 of the Penal Code . Tin- - J6- particu l ars of the offence all-eg e d that on the 6'•· of Mav 20 17, at Lusaka , in the Lusaka Pistrict of th e Lusa Ka. Province of the Republic of Zambia , he murdered Namakambwa Kalilakwe nda . Evidence before the trial judge 4 . In t.he early hours of 6'"' May 2011, Chola Col l -ins Kaba.m,ba , a guard at a property close t.o 1c-he appella.nL ' ,; la w firm , heard 3 - gunshots . Immediately chereafter , n e heard footsteps of people who appeared to be running away from the appellant ' s law firm. The 3 - gunshots wer e also hea r d by Pav an Kumar , who was at his restauran L cu rhe same road wJth the appellant ' s law firm . 5. When Pavan heard the gunshots, he called the police. J!e also peeped at the appella nt ' s gate and noticed that i i. was closed . Not long thereafter, he heard the appellanL calling o~t tor help , saying his guard, Namakambwu Kalilakwenda , had been shot . It did rtot take 1ong for the police to arrive . -J7- 6 . One ol the first police officers to arrive was Insp ector Chi lu fya . He found the gate to the appellant ' s law firn, open . He also found a group of people, w·ho Wii!-re unruly, in the premises . Lying in the drive w-ay, inside the ga.t e , was the body of the appellant's guaYd . There were alsc two ca.r s parked i n the driveway, a BMW and a Toyu t .. . Landcruiser . Close to the BMW, a11d abot1t 18 meters frr,m where the guard ' s body was, he picked what he descr..1.b ed as a 9mm cartridge casing . He then attempted to open the BMW, but he failed . He asked the appellant for the keys and he was given keys that failed to open it . 7 . He then checked a round the yard, and in a flower bed., hn found keys that opened the BMW. 'A searc ·h of that car , yielded , among other things , a pistol under a basket. !L belonged to the appellant . He handed over ~he pist o l, the cartridge casing , 7 cartridges and LWO maga~ines, to Detective Chief Inspector Moya . The 91. Jard ' s body 1r1as then taken to the hospital , while the appeli.ant. 1>1as t.cili.er1 to a police station. -JB- S. Later that morning, Superintendent Shibalatani, a s ee n ~ of crime officer , in the compa1l_y of the appellant. , visited the appellant ' s law firm to reconstruct tbe scene of the crime. Also present, was Detective Chief InspecLo~ Chibesa, a f orensic ballistics office~ . 9 . The reconstruction of the scene i nvolvea the appel lanL showing them where the guard ' s body w.as found, whet e- he:: parked the BMW and whe r e he was on the two occasions when he discharged his pistol. He also showed n:im somn reddish stuff, that appeared c.o be blvod, near where t.he guard's body is said to have been and. some suspect.ed bullet marks on t he wall and t~e gate . The superintenden t also picked cartridges casings . Photographs and measurements were takeh 0£ the distances in between various places in Che premises . 10. The point at which the appellant said he W<iS wh~n be fired the first shot was 19 metres from the gate and 15 . 5 metres from where he sald 'the guards body lay a [ lei: trte shooting . They also measured the distance betwei?j -where the appellanc said be. was when he fired ~ht! LW1> • - J 9- shots fr om where he said he was when he fired the firsl shot, it was 1 . 5 metres apart. The t wo cartridge casings where picked 5 ruecres from where the appellanL sald he was when he fired the two shots, but they were 4.5 metres from wher e he said he was when he fired t he ficst shot. 11 . After the scene rec onstructlon , superintendenL Shibalatani handed over the two car t ridge casings he picked for ballistics examinati on s . 12 . On the same day, that is the 6th o f May 201 ·,·, 0etectlve Chief Insp ector Moya , handed ove~ the pisco L, 2 magazines , a c a rt r idge e asing and cartridges, recove r ed from the appellant ' s law firm by Inspector Chilufya, to Detective Chief Inspector Chjbe.sa. Detective Chief Inspector Ch ibes a also recei ve d t o twc cartridge casing ·s from Superintendent. Shibalatan i . 13 . On 9'" M.ay 2 01 7 , Dex:ee:ti ve Chief Inspector Chibesa visited the appellant's la w firm and examined the damaq e d gate and the marks on the wall, He saw blood splatt er an the on the ground , inside the premises and near the gate . tte also visited the mortuary, where he exam i ned ~he -J10- guard ~ s body. The guns ho w □ uru:i ·· n he e:c m a u c: ,-•r: 9.92mm , while hat in the shau l e , was l~ ... 4~mru ins .z He subsequ. ntly prepa.ted ·e or Be . :ng u til findings. ong- other hin.g.s, h eo nc. 'L e. cartridge casings he r ce · v _ Ins"ecto · Chilufya d scri e s a 10 . 2mm. He o . - n d t a. they were all isch om . 11 appellant ' s isto I addi was h.is v · ew al he ~ounds an · he guard , consisr.en - wi h - p wha had been shot wi h a Ei _ a_m lea .. · ng 1 O ~ 2..n Gar ridg . s •. 15. D tee ' ive Chi1z I- nsp~~ Chibe El, was a t E V e h~t t .e n,ar s !l be at a.nd w l we e. c;au -ed y -ul e s . 1 wa.;:, ol 0 h s V1 ie u rd was ace .. a . am a dis a.nc ·O betwee ' e d t t . w h ~ wl h h -m, a.n - a LG -□ e r .... s. .son Wh I - l ' sho a t j n Acco d, . n , h.e arra.sc n g p :-f ice , D cti e h . - nspec Moya .,, 6 -b Ma ~ 01 7 , , .in - - e m □ rn i i1 rac.ei • d I- n ·ormatirn - · a i;-l:~ ha e.1'1 aoti -Jll- the appellant's premises . He confii::med being handed over a pistol , a cartridge casing , 2 magazines , 7 cartridges anct a reed basket . Othe r than the reed basket , which he returned to a relative of the appellants ' acquittance, he handed over all these artic l es to Detectiv e Chief Inspector Chibesa. 17. De tectiv-e Chief Inspector Moya submitted tl')C:! appellant ' s shirt for chemical examination but did noL present the results to court . He admitted being informed by the appellant ' s lawyer, that there was word that some cartridge casinqs were picked outside the yard of the appallaht 1 s law firm, but denied that it was tne casa _ l 8 . In his defence, the ,;ippellant -cold the court t hr1I· c,n 5<i, May 2017 , around midnight I he was at hj s law [1- c m in the company of a lady he was jointly charged witt, ln r.he court below _ l'lhilsc there , his guard informed him that there were 2 intruders at the ser~anc' s quarters . He called r.he Minister of Home Affairs and he irtform~d of che presen ce of the intruders. - J12 - 19 . Not lo n g thereafter , he decided to leave . The lady he was with was went ahead c,S be locked up. As he drov1. J to the gate , he noticed that she was being held by ,an intruder . He jumped out of his oar and .r:u□ towards her but retur ned to his car where pi. e ked his pistol . '!'he roan who was holding the lady ran t o the gate and he fired ~ warning shots in the air . He also noticed that there 1,as another man holdi ng t he guard. 20. He t hen hea r d 2 shots that were fired from oulside the gate and the two men ran away . In turn , he Ei .:-eci another: warning sho~ in the air , after movi ng awa y from where he had been when he fired the first two shots. He then hea r d the guard cry out that he was in pain . Ile found him two metres from the ga~e and discovered lhol he had been s h ot . He called out tor help and attampt~d to lift hi'm, but fai l ed . 21 . Pavan Kumar ca.me in and not long · thereafter, t.lH police arri v ed . At the ti me the police arrived , theri..• were a number of people in the prem i ses . A man weacL11g -Jl.3 - dread l ock s, demanded his pistol , which he handed over . It was subsequently given to Inspector Chilufya . 'Thu keys for the BMW where recovered from his backpack. J n due course , he was ta~en t o the police station oy Detective Chief Inspector Moya. 22. Later that moi:ning 1 he was t.aken back r:o his law f.itm for the reconstruction of the scene . I n the days that followed 1 while in detention , he was visited by his legal assistant, who c.old him that his cousin i1au overheard police office rs discussing ho,,i they should deal with the cartridge casings t h ey had pi cked outs1de his law firm . He said D-etectl ve Chief Inspector Moy:1 confirmed the picking of t he cartriqge ca~ings . 23 . The appellant denied s h ooting t he g uar d . He al~o denied conceali ng t he pistol ln t he boot: of the BMW. !i~ .sa id the keys for the BMW were found ln a backpack t.hoL he banded ove r to the po l ice. 24 . Bot h Mr. Mutale SC and Mr, Bwalya , confii:med th ~ appellant ' s story that Detective Chie f Inspe ctor Moya t.old the m that he had re ce ived informati o n that Lh0• -Jl.4- police had found cartridge ca.sings outside c.he yard lo the appellant ' s law firm . Mr. Bwalya, who 1,1as pres ent when Mr. Mutale SC met Detective Chief Inspeccor Moya, produced notes that he took at the meet ing . 25 . Dr . Musakhanov , the forensic pathologist who conducted the post-mortem on the guard ' s body, was c,3lJc.,d as a defence witness . He opined tr,at the cause of death was cardio respiratory arrest due to a bullet wound. Ue also observed that t he e ntry point. had a 0,5cm x 0.5cm wound , with a flame burn on the lower neck. 'The ~xr L point was a 2cm x l . Sem wound on the lower shoulder. II was a lso his opinion that. the firearm was bet.ween 1 . :;im and 2~ from the guard , when it was discharged. 2 6 . The defence also cal led Thomas Fredrick Herm:inLJ.s Wolmarans, a South African ballistics expert. He v1.sit~d the appellant ' s law firm and examined the gate and lhc:: l-'all. He also carried 01.1t a nomber o f t'c'sts us1ng a pietol similar to the appellant ' s. In addition , he wenL througl1 the reports by the pathol og ist. and Detect iv,· Chief Inspect.or Chibesa. -JlS- 27 . In bis view , the guard was aot face to £a ce wlth tlu person who shot him ; he was in a crouching position wh~n he was shot . He was also of che view that flame b u rns could only be visible on the guard ' s body if the ba.rr c J of the pistol was between 5cm LO 10cm away , 1,1.hen i)e was shot, That being the case , the appellant, who was abo uL 19 metres from where the body was , could ~,ot ha,1e discharged the fatal shots . 28 . Fvrther, it was Mr . Wolmarans 1 view that l t was no~ possib l e , in this case , to conc l 1Jde that the guard wa:o s hot using a firearm loc:-ding a 10. 2mm cartridge, by merely looking at the wound. As regards the marks on Lhc wall and che gate, he ruled out the possibility t.hi>t th~y were caused by gunshots. 29 . Another w1.crtess called by the appellant was Boniface Bwembya , an Assistant Registi:ar, ai: the Professiona l Council of Z~mbia, Hls tesc1mony was on Lho legal i ty of Detective Chief Inspector Chibesa's -=xaminat;ion of the guard's body at mor t uary. Ir was hl-. S - J16- view that only a medical officer can sign a mt!dii:.:,, L report and ascertain the cause of dea cl1. Trial judge 's findings 30 . The trial judge considered the confliccing evidenca of Inspector Chilufya anct the appellant, on where the appellant ' s pistol and the BMW car keys were found. Sh~ noted that when Inspector Chilufya testified that H':! recovered the BMW keys from 1:he flower bed an:i the pistol from the boot of the BMW, it was not su _qgested to t1 nn that the keys were found in the backpack , while Lhe pistol was surrendered by the man wearing d.readl oc f;.s. She considered whether there was any reason why Inspector Chilufya would have falsely c la i med that the keys were found in the flower bed and c.be pistol 111 the car , b!.lt found no ne . 31 . In the absence of evidence f rorn the appel lanl, on why tee would give false testimony, she found Insp ector Chilufya' s account c redible a!ld acce!pted it_ She al.so concluded that the appellant's claim that the keys wh~r ~ -Jl.7 - recovered from a backpack and that he hanctsd ove.r Lh" pistol to a man weari ng dreadlocks, were an afterthoug ht , 32. The tr •i al judge also f o und t h at it was not in disouL. t' that the guard died ftom a qunshoc wound . She review ed the c:i rcumstances leading t . h . .. 15 shootlng . Sh e also co nsidered the appellant ' s evidence that intruders ca me lhto his premises , fired 2 shots an<l that he , ln t u,n , flred 3 warning shots in the air . She took t he view Lha l Jf che intruders ha d fired tw o shots , Cho l a Coll1.r.s Kabamba and Pavan Rumar:, wou ld not have only hei'!rd 3 shots . She fou nd that t he evidence of these t ~a witnesses , that t hree shots were fired , was confirmed by the recovery of 3 cartridge casings i n the appella nL' s premises. 33 . FurLher, having rejected the evidence o f the discovery o f cart r idge casi ngs , outside the law firm , an being hearsay, she c oncluded thaL the finding of bl ood sp l atter on the inside of the gate, rule d out the possibility th~t the pers on who shot the guard wa;; outside the gaLe . This evidence and the recovery of Lhe -Jl 8 - 3 cartr1oge casings , confirmed that the guard was sh ol from within the yard of the appellant 1 s law firm . She also found that the co ncealing of the pistol , afte~ I L ~as discharged, raised doubt on the claim that intruders had vi site q the premises. 34 . The trivl ju dge then considered whether the shol s fired by the appe ll a n t are the ones that killed th~ guard . First of all I she found that the evidenct'l nf Detective Chief Inspector Chibe sa and Mr . Wolma.rans, was i nconclusive on what caused t-he dent on the gate and wal l . She a lso found that even if it was the case , the pr€sence of those dents was not of ~ny mat e ri~ l importance to the case . Simila r ly , she found the failur e to inc l ude the BMW in the scene reconstruction . as bei ng immater ia l, 35 . She accepted Detective Chief Inspector Chibesa ' s evidence th a t the 3 cartridge casings picked in c.he appe ll ant ' s law firm were all discharged from thE appellant 's pistol . Sne also considered the conflict i nQ evidence of Deteeti ve Ch ief Inspect or Cl'libesa a.nd [~ . -Jl9- Wol ma cans, on c.he calibre of t:he fi r ea~m that c aus e cJ t ht: death of the guard . She found that she cou l d nn l. decermine che issue on the basis of che wounds chat he had suffered. Notwithstanding this finding , she wa s satisfied that the q1..1,ard ,~as face to face , with h1 s assailcint and .iri a crouching position when he was s l1or. . 36 . After reviewing all the evidence before her, 1..:11<= trial judge concluded that t.he guarct was t,;il l ed by Ltio appe ll ant ' s pis-col. She t.hen considered whe t her h e had mal1.ce eforechought whe n he snot at tbe guard . She fo und that although the appe l lant. ' s attempt to cake i:he. guar d to the hospital, suggests that he may not have inc. e nd ed to kill him , he had malioe afterthought because n~ was a firearms l icence holder and he knew the consequenc es of dischargi n g a firearm. He had statutory mal -L~c aforethought , as is se~ ou t in section 20 4 of the Penai Code . 37. Th e trial Judge also found tha t there was de r eliction of duty when the pol1.ce failed i;;o submi t. l ne appellant ' s T- shirt for cnemical analysis a nd when Lhev -J20- a awed the see e to be co t:.ani n r_,o,d She ~ha h police aced nnprofess on lly ,,.;h~ pho ogra hs to be aken a nl J.:.. No wi hs anding those f~n ings, gha f~n- · ha a _ pellant suf ered no p j use ~ e ui en against him w s overwhelming~ I le _o onl- infe:rence, an infe ehc of who shot h~ guard, nd e a nalic_ a a e ou It - the ti me. G·rounds of appea1 38. Si . teen ou , d~ wexe dvi:: nc.ed in s ppc - t- ~-f . j ~ a p al£ We w:il- not epra .. uc:e h~ I · arba in,1. ut . SU to 5 y 1Tl05 of · h m e l ' cate otl I • W'l h- a.rgume ts be~ng a \rr;lflC!2d in .$ . p or of Wha b_.a. - L11- - I p esent d as di:_ e -, t gr unds of appea l . 39. A.l hough ther ls .0 p vis an .1.n Qll_ A_c lj_ ~~, h t;j , limit he n mbe of ro n "'i - h ,w ) q submiEs, on s ppo o f such g s 0 . - pe,;;;l b_ ,, _ t l. S n help . ul _h_ cou_ llT_ig - - J21 ;.. lo split issues and r1 le mul ci.ple- grou11ds -.,, app,,a . L 1 1 !epllcated arguments , on th~ same lssues . ll unit sl A$ down the de-::lsi.c,n m:2h.i!'lo proces.:o , :1s ui-ine,;es~ar l , lengthy J\. Jdgmt?nts , ctiv~:;ing th"' rnulliplic::-at.eo ar'e•~i.rr,•~r,1_-;, nave tG be prepacect _ 40 . Beca•.;s,e it is ~onV"eniont. , and to ensur1;, r:l;3rily, W'"" nave recast , witnout stifling the thru5t of the J~p~a J , the 16 y.rounds filed ln support of tnis appE:uJ. , ir tci ,. •rounds . The reformulated gr0unds , a~e as to!! o ~c : 40.l , The erroneous rejectiom of Mr. Mutale SC and Mr . Bwalya ' s evidence , as being hea.say ; 40 . 2. Findings of the fact that are not supported by evidence : a) The concealing of the keys to the BMW and the pistol by the appellant ; b)The p:resence of blood splatter on the gate ; c) The guard being face to face with the person who .shot him ; and d) The absence of intrude r s at the appellant ' s law firm at the time the guard was shot . 10 _ 3 . Th•e er ·roneous p1acing ,of the burden of pro ,of 0n be J22 iitppellant; 40. 4. The :failure to ad:Judicate on . importan ss es · a) The presen ,c :e of 9mm. c ,artridge casing ' at e s,ce e of the crime · b) The p:resence a bullet. . hales on the wall and the gate; c)The contamination of the sce:ne· d) T e dere1ic:tio .n of duty by the po1 ic ,e ~ e}The do ·wnpl .aying of incons:i.st:ene.i.es in the proseC11tian evidence ; f} The fail\lre tg c:,a_ll. medica1 ev en .ce be di .s·erepancies in the -SJ.~,e 0£ ·tbe gunsh .o w0un -t an ,g) The -failuJ:e to a.djumcate on the demeanour a d credibility of w·i tnes~es r 40 _5 The rroneous fi .nding that the appell.ant hz zaal1c afore th,n.zgl:J, t ; a,n d 40. 6, An infe nee af gu · - , no .being the onl.y · nfe::z::e · .c;:e at 0ou.ld ha,v ,e been dra .wn on the tha ·_ , as be:(ore ·::n r .al judg,~. -J23 E:r:raneous rejection cf ev i de:1nce all:eged tc be hearsa y 41 . The rs g o~n o ape- i th ,erroneo sly lass'eie h tii:RDrlV . 0 M Mu a 1 ,. ••r· ' and. Mr .~ Bwalya , on t e C L r g~ a.::i I . q out ide he appe lan , s aw iuu , s bein hea In S ppcr O :E thi S C 01 tl ' ) ii: p l, M .riu_ ,n to he cas~ o S.ubra:ma.niam . v The D:irector o f Pul:il .ic Pzasec:utions 1 a .d. sub. · t e, e C t~ a. he~ repe ted wh .t thry we id nu worran the class fic-.:tion of he -es ·n y . L 1n~ b_ar ay e.v e C ■ Muhanga - 1 - 1 su mi· -,ed h - he ...! w .iJJp-por e lns p -•~ __ w J c n ..::i me ere _ t - _ ,__ - r ._ ri g a.sin . If tb teferr _ Lhe- G 5 0 i Sakal.a V- i'be !?eo:ple - r J u i er _ th t t.. ' ei r t s t iJtmny s 10LJld an i - . J2>4- In ~Sfvnse G -hia or b i __ or. 1:. __ - ., s l- ::, 1- e~ Lr"=' _o h-· ~- .se f Mwape v !l'h.e Peop1e , i ·s · r- · s _s r- s ~; ~m. _j _ w _ _! l . ~u f h___ - r =-u_ ,~nt . n ,-F Subrama.niam v The D.ire .cto ·r of Pub.lie : l?J:osecu ·ticns 1 , • t w:a s p L _ ~ 0 - h - the fact that the statement is made .,. quite apart f.rom i'ts trut , u1ne.ss ,, i.s f ·requently releva t in considering the menta ·1 sta.t e and . conduc::t thereafter as the witness Qr of some other pezscn in wh.ose presenc .e the statemen was made'' . r b c.our b Wr ?Jnd in tnls cou , t· . Mui.:-1 r · ~ L M1 . BWalya s ·~st'm Yr 1 r c- L..1. l - ge ·- 1- he. aip_ el an r s fl 1::c1 m 1:r m ,. ,;:, law . l - rn I r - th-: cl a i..m r_h- th J lie r o ,~e-= 1 in :, Q -a2 s- f he evide ce, hey _ r::ovs:a ed 1 n · nvestigat~ng th · s case ; p~.r e :: r ,_nce a.s _ - d e o he pieing of a -rum ca · ~i g_ c-~:n s. 4 6 . I cannot, :n the c cum ai - _r appe an, so ghc o produce wi nes 1 on p · c:k.111g of ·_ h"' r g C ing.;i, _Q ,_he _ u poses O- sho _he ma ,e . They ac ll l l y sou _ t he ev C C ha 9mm c rtridge as in gs where. · ked . T_ ey -1.so ~nu r - se he evidence top eve that so meone - G ou side t e appella 's _w r irm ut be .:: r, : :i r. t suppresse that evide ce. 47, Conseque n tly , we ind _he ia ju g y PXclu e the evid . ce or . e Jl hear.say . BP aus 50 ' ght to in T O, uce the ev ctiance s pron a wh sa · d ~ it d□ not fa · l 1n · h~ e - e i □ n set c .1 J_ , S-ubrama,niam v The Di .rector of Public Prosec u t i. o n.s i L di tion, the fact that th~ rwa ·i ~- ess . , - r _ p s n~ o goods anding , is imma_er· l -e ad.miss J __ il L -, -J2 6- admissib le mere l y because it was repeated by a cred l u 1~ person. This ground of appeal fails. Findings of fact not supported by evidence 48. The second ground of appeal is ~ ha t the trial jud~ E made findings of .fact that are not supported by IJ1c.: evidence . Finding that the appellant concealed the pistol and car keys 49 . The first: finding of facr. that is said not t o b e supported by the ev1.dence , is tr,e t i nding that. t:hc appellant concealed the pistol ond the car keys . SO. First of all, Mr . Mutemwa SC, pointed out t hal Inspector Chil uf ya , the police officer who re c overed th G articles, told the cour t thac he found the keys f o r t hr BMW in the rlower bed and when he opened tbe c ar I Me found the pistol in the boot . On the other hand, c ht.• a,ppellant told the c ourt that tJ1e keys where 1n r1 backpack, whi le he handed over the. pist o l t o a milu wearing dreadlocks . - J27- 51 . State Counsel then argued that since the recovery of the keys and pistol was contentious, che trial judge should have resolved the conflict between che appelJan t and Inspector Chilufya, on the basis of the:ir credibility. He referred to the cases of Inutu Eta.mbuyu Suba v Indo Zambia Bank Limi 'bed 4 and Teddy Pu ta v Ambinwire Frida yS , in support of the argument . 52 . State Counsel also argued that the crial judqe should have accepted the appellant ' s evide n ce , thac Lhe: keys where in a backpack and that the pistol was hande d over to a man wearing dreadlocks, because he was a more credible wltne:ss than Inspector Chilufya . In,;pe,::l: o , Chilufya had acted unprofessioni3lly , w)len he £ailed t o take the dying g~ard to the hospital and allowed membe rs of the public to take photographs at ttie scency. Tl1c !ailure to ad~ance reasons o n why the appellant•~ explanation was not accepted , let alone, t:.he admiss1of) of Inspector Chilufye' s c.estimon y , was a rnisdi r-ection. 5 3. Stat€ Counsel then po i ni:.ed o ut that in any case:, the trial '1udge ' s finding that the keys for the BMW arnJ -J28- the pistol , where hidden , ie not supported by Lne testimony of any wi t ness . Inspector Chilutya , the poli~c officer who testified about the recovery of the pis tol , did not say that it was concealed . 54 . In r esponse to this ground of appeal , Mrs . M:wansa referred to the case of Geojago Robert Musengule and Amon Sibande v The People 6 and submitted that since c.he finding that the ap p e l lant co ncealed the firearm, wus i.l finding of fact , we can on l y interfere with it in very limited circumstances . She then pointed ouL that t he trial judge gave reasons why she found Insp ec Lor Chi!Ufya ' s cestimony more credible tl,an triac of Uv1 appellcant. 55 . Mrs . Mwansa also pointed out thac. when Insp octor Ch i l1. Jfya was being cross exa m.lned , the s tory or 1 hn backpack and cha dreadl ack ed man , was not suggastod Ln r,1m . She referred. to che c asao of Abel Mkandawire and Others v The People ·7, Donald Fumbelo v The Peop1e 8 ,HL l Rodgers Kunda v The People , and suomitted t hr.1t t.hlc':;e two issues , ha vlng not been suggested to the w1tnes 5 , -J29- the trial judge was entitled to concluctE that- \ )111 appe ll ant 1 s reference to them, was an afterthowghL. The ·se 3re the .c:easons why she found his testimony to bf:'.' c redib l e . 56 . Our scrutiny of the reeord of appeal reveals that the trial judge, in her judgment,. gave r easo ns why sr,( accepted I r1spector Chilufycl' s account of where Ii,· recovered ~he pisco l, and not that by the appellanL. She co nsidered whet her the r e was a n ything that cou.!_d h;.;ve motivated him to falsely claim chat he found the pest.al ln the car or the keys in the fl ow~r bed , bul dld n~L find any. She also found tr rat s1.nce the appellant ' s cla , rn that the pistol was handed ov er to a cb·eadlocked man w&s not suggested to I nspector Ch1lufya in cr oss examination , i~ was an afterthought. 57 . Coming t o the argument th8t Inspector Chllu..£ya ,never said that the pistol ~as co ncealed , Black ' s Law Dictionary , 9 t11 Edition, defines a finding · of fa ct as being "a determination by a judge , jury, or administrative agency of a fact supported by the evidence -J30- in the record , usu . presented at the trial or hearing ., ,..11 In ocher words , it. is a ci:inclusion c.hat a r.rier of fa cL , arrives at, after considering che evidence before he £ . It is not necessarily what one or another witness , te lls the COUc't. 58. While we agree with St.a~e Counsel's submission Lhilt. rnspeccor Chilufya did not use the word ''concealed", when he gave evidence on the recovery of the BMW key:; and t he pistol, it is our view thac. the t~ial judg2 was entitled to come to that conclusion, after consideri11q the evidence before her. She accepted Inspec lor Chilufya's testimony that when be asked che appellanL for the car keys, he gave him keys thac coul d not open the car, 59 . J..nspector Chllufya eventually found the key5 in tt10. flower bed and when he opened the car, he f ou nd tha pistol under a basket . Given chat che appel l ant's cl~lm that he had J!Jst fired the pist o l, to ward off irttrudei:-~, placing 1t under a basket , in a car , and throwing away - J31 - the keys, after locking the car, cannot amount ~o anything, other than hiding or concealing . 60 . We also find that the trial judge gave reasons tor finding that Inspector Chilufya was a credible witness . Further , the circumstances set out in the case of Geo ja go Robert Musengul.e and Amon Sibande v The People , i n whi c11 an appellate court can set aside a finding of fact, n~v e not been met in this case . The finding that the appellanL concealed the pistol ls not perverse, any trier of facL , properly assessing the evide nce before her, would hav e arrived at the same conclusion . This argumen~ fails. Fi nding that there was blood splatter on the gate 61 . The secortd finding o f fact that is said not t:.o be s\..lpported by the evidence, is the findir1g that t hete was blood splatter on tne gate . f;2 . Mr:-, Mu Lemwa SC 1 subrnitced that Det ectlv,e Ch!t .. H I nspector Chibesa denied the presencm of blood splat ler on l:he gate , So did Superinte.ndent: 5hibal.atani 1 who eaLiJ they foond "some reddish substance that l ooke d 11~.e -J32- blood" near the gate . ST.ate Couns6: 1 then referred to t.n c case of Wesley Mulungushi v Cathrine Swale Mizi Chomba10 and submitted Lhat there was misdirection, when the Lrl al judge found that there was blood splatter on the gate, -1n the absence of evidence supportirig i !. • 63 . Io response to this argument, Mrs. Mwansa subm1LL~t1 tha t the finding was arrived at after T.he trial judge considered the evidence of Superintendent Shlbalataru, Detective Chief Inspector Chibesa and Inspertor Chilufya . De.tective Chief . Inspector Ch ibesa , particular, mentioned the pres-ence of .blood splatter, inside the gate . 64 . Mrs. Mwansa then referred to the case of The Attorney General. v Marcus Kampwnba Achiume 11 and Sllbroittea thuL the finding can only be set as id e if it is perv~rse; wes made in the absence of relevant. evidence; there wa.s "' misapprehension of the facts; or could not have t,or-r, reasonably made if a proper 111.ew of the ev1.der1c:i h:ld been taken . It was not th~ c ase, in this matter . -J33 ~ 65 . We have examined the judgment and the reco.rd ol appeal . In ner judgmen t , the trial judge sa1d , 11, • following on the issue , ' ...... , I find that the deceased was inside the gate at the time of the shooting , that he was shot fro~ inside the gate is evidenced by the blood splatter on the inside of the gate and further ...... " . 66 . Ho~1ever , the testim~my of Inspector C)71J.ufya w;u; that when he arrived at the appellant's law ti rm, h•.l found the guard ' s body inside the premises , near U1c gate . He made no mention of seeing any blood splatter . ln the case ot Detective. Chief Inspector Chibesa , lw denied seeing any blood splatter on the gate, buL sa1J " it was on th.1:: ground but inside the ga Le,'' . Superinter,dent Shibal ata ni said he saw some re~jdlsL stuff, that looked like blood , on the ground , at a p1.ir, ! where the body was found, 67 . E'rom the evidence al Lhese thL 'ee pol:i..ce o.f. Eicer.;; it is clea r that t he blood splatter was not on the oat~, but on the ground. In the case of Imusho v The People 12 , the Court of ~ppeal held that: -J3 4-- ''An a ppellate court will n ot interfere ;,i th a findipg of fa ct i..f there was reasonable finding will be s et aside if ground it sucn it was made on a vie w of , b ut .for th e facts which could no ,t reaS-onably be ente r taine d . 11 The testimo n y of both Superin te ndent Sh il'Ja latanJ and Detective Chief Inspect OL Chibesa , points at btcud splatter on the q~ound , but inside tbe appellant's premises . 68 . In the circ.ums tan ces , we accept State Cc,unsel Mutemw a ' c submission t.hat the finding t:hat there was blood splatter on the gate, is not supported by Lh • evidence . This argument succeeds and the finding 1s ~~L aside . 69. Notwithstanding, we find that had the trial 1uda• properly assessed thE:: evidenc~ before her I she ~,ou1• I hav e come co the conc lus ion that the blood splaLLet seer by the witnesses 1 was wit.hin the appellant ' s premises , on c.he ground and nea.r the gate . Fi ndi ng that th e gu a r d was f a c e to face with th e s h ooter • -J35- 70. Tbe third finding of fact , that has been crit1eised for nol: being supported by evidence, is the finding I hill the g\Jard was face to faoe with the per.son whn shot tLJ m. 71 . Mrs. Kabala ta pointed out that according to Dr . Musakhanov, the entry point of th e bullet that k.tl !ed the guard, was in the front of t he neck , while tbe exlL was at the back . ln the case of Mr:. Wolma.rans, his evidence was thac. the par.h r.he bullet took is indi ca L1.,,e of the £act that the guard was in a crouching positl oP when he was shot ; he disputed Detective Chief Inspector ch1besa's opin io n that the guard was face t o face with the person who shot him . 7~ . Mrs . then Kabalata referred r.o the case of Sakala v The People 2 and submitted that the tr ial judge shoul,J have given reasons for her preference of Detective Ch 1~l Inspector Ch1besa's testimony to that of Di:. Musakha rltl'I and Mr. Wolmar:ans , on r.he pos1 tion in wl1ich the gua cct was when he was shot, Having failed to do so, we wer ~ 1lrged, on the basis of the decision 1.n the case- of -J36- . Atto ,.rney .· General ·v Ma.:cc::us Kariamba t' Achiume 1 - ,l to rev r s _ h - '. ndi n , e U Se it l S n O . S uppo r ~ t e e 1 en, ;c . 7 3 . The online d ct.ionary; en. cuc:f0.i:ddicti0naE"ies . com, describes he hra e nf ce -o face'' as -a lar"' 1s: ,~ (of two peopl.e) c1cse togethe ,r and facing each ether~'. LJnl s .... h.e phrase wop op _e h ~sanding an facing echo her, whi h we th · n sh o u 1 - no be do see any con l i t in t e -estimony o Dee tive Ch'ef Ins ec o ch ' es, Musakh -no n Mr . Wolm rans, on t~e issue- Tf a e accept r . W lmara_ s' e i c e r1-- ,_ guard was n a p io l ich · s su p a r e JY ,, :s EIV'ide , f? on th ag n a -i r sh · f- b twe n - txy n e wo l::ls , th pe -s n who 5 t e guard mus ha·e been n en t. o •, 1 • m. _. is L .1:1 •h l'" • , und rn s in he £ - !I n_ f ' he 11 r::k an no it:: a k . .,..,urth~r r ad he- gua th - w- j_ l~- 0 . t_;h LnL pdS _:_ i n b I a Ling □ wn pr trai n, rL _ oint wovld na h e b e, in be rJt=>C::t: , lJ D _, 't ,... h@ad . is tbe:re ~ore J.37- oa 1n u a tn pe 5 n wash hi I rl OU - • V .n i he wa:s 11 a ro c _ ing ; pos1 J l 1..on ~ h . 7 5 . I 2"oll ws ha . t t 1al ju.dg~• r;;:; inding (.hac t.:[i ~ l-lP -d was ace - ace with ~h....: ersa 1 who .9 h m no per el: e. I ur vie t f ~ . d I e _in ng , s fl_ h If:; s uppo. y the evide ce w~ u 1 hold . T .1 s c.t.rq m- , L :l"in,ding that thez- ,e were n ,o intruders at appe .llant ' s offj.ce '7 The our · b f · d, . l_ sup , or ed .by w~r~ no in ru a the 11 - ~ s 1 av. _ i rm on 1i - is gu as '10: . 7'1 . 'Mr, Mu emw"' SC, :rc.f ,e rrl:il, a L- e e i ~ a ~o 1 · ab:J.n who s - id h~ h _ar a j..lrso sa · o -~l th a e' efo - he hea d t.he ap a 1 n r.:::a1ll out .. \J r ad been s 0 . Ac-a tlin Sta e Coun e.1 , Lt a~ _. v iden ce su ggests h - ha . 1.-he ,:r pell 3n r r s·· m-=- o e e son ( ) was res n t ~ I n add l l - on~ h p , ·te ~,ul JJ .s- h he wi ne ~ als s d _e be rci oo st- unnin~ aw~) ~nd _he n ly infe _ ce 1a Q. I! I _ ha r e r-i ds ,"J.e ~ ' ha _h...., were l1e .n rut:1 r - . St-a e Co n el 1 :n ref re . o h ::-. , ... a s t:-= Atto;cney Genel."al v- Pete:c MV1.1ka Mdhlovu ,1 3 and Nk .on ,golc Fa.rJJL.s L mited v Zamb.ia National Commercia1 Bank Limited Kent Choi .ce . Linu. ted ( . In Racei vershi .p) Charles Baru ,peri .-. r d .mi _ e t.ho t 1 h h w _ ar an a pp e. J l I: e c al'.t r _ ~ ~ 1 can SA"\: a ide- th s .f · n• L ng b call se C V ti. e de c~~ In res-po 1 e t t h1 s grou subm · t ed tha he r ial ju ge · h ly fa nd tha h were no intrudes . T_~ conceali go -1e istal , ~ft_r 1 e shoat · - gr aise · o 1... an t h.e cl a ' m . H d h y b _ 1 present , the .. ell ant oul not hav'=!' h 1 dd~r 1 t -5 ,- the shooting. The r'a judge's finding tha in ruder~ in he app llant ~s premiss , t c he t · m .h .1 s uard w s s_ o , mus e consi eted in con ex T __ em ed on the appel lan \,.:1 · m th _ ch u w - J39 ho also ire.arm 81 . The appel ant's evid n l'1:! was hat whan n driving Ollt r he saw the ady w s with he 7 a y,i- ti_ being hel by man He earn~ OLJ h_ ' ti r~ h e a.1 I thra man fledt an $ he .r - n be .s w J. guar being he d by ana L.h r man. rte f -f d a a L.he. hoL 82 . Altho gh & pe l 1 a t ' ;;') evidence tha' the guard crie_ c fro:m auts~de,. suggested ha J. w-as h n_ :Jd:ers iH\ not h I m, who sho the g d. r ol ' - a l . ev · dence that he . heard people .r nning po r.he appellan ' s t s irriony _ at · he.r ll.1e e L t .ru r:: s. 8.3 . However , Chola Colli g a amba 0.- p a ~ m test mo:ny wa tha - only sha fj_ Fll L De ec ive C ief nspec or a'B V denc _1, :., ca . ridge casings ' r: cove d m he ap~e ;::;i_n J_ - ·~ fi m were ired from his pis 'o l, re ere '=h~ appe an7 1 • -J 4 0- claim that two shots were fired by i ntru ders questionable . If the intruders also fired , Chola Collins Kabamba and Pavan Kumar would have heard 5 shots and noL the shots they both heard . Further, Chol a Coll ins Kabamba did not see the people he heard running and there is nothing to confirm that they ... ere actually running out of the appellant ' s premises . 84 . When discounting the appellants claim that the.r,? where intruders , the trial judge considered concealing of the pistol. If he is to be believed thaL there were intruders , the appellant not only placed the piStol back in the car, he l acked the car and threw away the keys, after firing waring shots. That conducL t!i 1nos t unusual given c.he pistol was licenced and according 1.0 the appellant, the la1 'f firm had been t:he subject. o! a recent intr~sion. 85 . In the face of ~his evidence, we find that the triel Judge was entitled to doubt the appellant's c laim Lhal h . .is -aw -2?:lll was 1nva e f 1 • d d b ' y intru d ers . ana - . d r1n th ac it was not the case. The finding is not perverse beca us ~ it -J41- I s one th~ t can reasonably pe made o n the ev 1.dence d!i..l L 1~as before her. l\le uphold it.. '!'his argument. there tor, . fails . The placing o~ the burden of proof on the appellant 86 . The third ground of appeal .1.s that the trial Juci-,11·1 erred when she pl.aced the burden of proof 011 Lll•-= 3ppellant . 87. M:r. Muhanga r eferred c.o the c:as~ of M"ewa Mur.ono v The Peop l e i 0 and submitted tbat .1t was wrong for. t h e tria l judge lO find th.<1t the appellant did not le~d an 11 evidenc~ suggescing that chol::1_ Collins Kaba11da 1 ~f.lV:lll Kumar and I rispec!!:.or Ch i 11.l fya, had a ma ti ve to tal S"' 1 y i mplicate him . 88 . Mr. Muh anga also referred to the cases of Chabala v The People , Salu wema v rhe People 1 Saidi Ban d a v The People , Maseka v The People 19 and Teddy Muntanga and Another v The People i 0 and subm i :red that where an dt.:cuseu person gives evidence, it is sufficient thal Jtls explanacion is probable . 'l'he:re is, no need for tJ1'! explanation to be proved beyond all reasonable doubl, ll'~ -J42- further argued . 139. In addition , Mr . Mt:hanga referred t o Lhe case Phiri and Others v The People 2 1 anci submitted tha:. tn~ prosecution , having failed to escablish tha t the witnesses had no morlve co falsely impli cate the appellant, the trial ju dge should have 1:esolved t l,e 1 s sue.: in the appe l lant ' s favour . She shou l d have foun d tha t hey had a motive t o falsely implicate hlrn . 90. Cross on Evidence, Sixth Edition, at page l 07 , ma.ke:::1 to the evidential burden , whi ~h js d a fin e d ~5 reference follows : "Th e evidential burden is the obligation to show ,, if called upon to do so , that there is sufficient evidence to raise an issue as to the existence or none existence of a fact in issue , due reg~d be i ng bad to the standard of proof demat)ded of the party Wlde.r such obl "igation " , The burden of proof (evident i al bur<len ) oa!"ld standar o of proof where c o nsidered in the case Mwewa Murono v ~he People , and it was held , int e r alia , that: (i) In criminal cases , the rule is that the legal burden of proving every element of the offence charged, and consequently the gui lt of the -J43- accused lies fro111 begion2aog to end on t.he prosecution . (ii) The standard of proof must be beyond all reasonable doubt . (iii) Th e a cau sed bears the burden of adduc.:in .g evidence in support of an¥ de£ence after he bas been found witb a case to answer. 91. From the forgoi11g , it is clear that in a cr1 n1~nal case , the burden p l atCed o n the prosecution is tio pr1 1v~ all the ingredients of t he offence beyond a11 reasonabl ~ doµbt . However , wt,en it c::otnes ta evide nce in supporL or an accused person ' s defence or any o ther asse~ tion adv a nc ed by h ill\, he bears the burden of lee1di ng ev id e n r.1., in support of such defence or assertion. 92 . E;vidence in support of an accused person ' s def-en cc or asser&ion, can be led through the cross examina ~ion of prosec uti on witnesses or by calling of aefe!' ,cr. w1cnes3es in support of it . The accused pers on 1 is noL required to pr ove the defence or asser .. ion beyond ~ 11 r easo n able doubt, it is suf fi cie n t chat he p l aces oeL 0 10 t he court , evide n ce that is enough for t he col.rt Lo consider the availability of th~ tletence or accepl th E - J 44 - assertion . 93 . Other tha n when pi;obably dea l ing with the testimony of a witness with a mental disability, accomplices a.'1d other wi t nesses with a possible interest of their own vo serve, we are not aware of any r ule of law thaL presupposes t hat a witness is untcuthfu l or not credible, and consequently requi r es c.he- prosecution to prove their credibility . It is our view , chat witnesses are presumeo to be cred ible un t il the contrary is proved. , through either cross examination or the i n troduction of evidence that discredits their testimony . 94 . Hence , 'vre do not accept the appellant ' s subnti.ss ion that the prosecution should have estab l ished that Cholu Collins Kabanda, Pavan Kumar and Inspect or Chilu £ya , had no motive to falsely implicate the appellant and Lhal having failed to do so, the tr ial judge should have foun~ t hem not to be credible witn esses. Si nee it Ls tho appe l lant who c laims that they are not credible -J45- j 'fl -C"H:?s ses, _ e - i:tde. 1 y i him , t c., p 1 a c...:. _J ~ r e .r - i l cou _t, e ,i eoce ins~ or o_ at claim . .in f t I he j u l e r~on s e e ta iri o 10 o _ -aph.s t es ene 1:1 d lr adi n ~, i'lem .me ia , di Ch LI ya' .s est i -on 1 • Sh · ~Dllncl th ~t ill .. Conssq u n tl r We f . rt he . i a 7 J Q . e can n at h~ . pell an f ~i led ~o _ d u - ~ e id~ ce.,. Q which he ou l ci nave .o n.ti thiL Ip I - nes BP •8 whe. e no C e ble T- > 1.8 roun 0 - ap ::.a_ ,. -±ls . ~orta:nt issues not detecnined by the t,r:ial judge 1he ourth g·oun_ o ·P ,eal is ha t the tLi ai ed o a.et.ermine a n.umb r of _import t issues. The p:cesence 0£ 9mm c~.ctridges at the scene The I .1.rs e Lm or a issues he i 1 j is said to have a~le t □ e er ine a h presenr o ;:1:mm c rt_ idg ca_· ng a the see ;>F; e , rin e. - J46 - 98 . Mr . Muhanga point:ed out that Insp ector Chilufyu testified that when he arrived at the appellant' s pre mises, soon after he received informa t ion of th e shooting , he picked a 9mm cartridge casing whl ch he gav e to Detective Chief Inspector Moya . iie argued that froln Detective Chief Inspector Chibesa ' s evidence , it 1~ clear that the 9mm cartridge casing was not subjected t.n 3ny exa min ation , because all that he examined , wer e 10 . 2mm ca r t r idge casings. 99 . Mr. Muhanga then submitted that the tc-ia l j udg !! shou ld have resolved the pr~sence o f 9mm ca.rt:.c-idge cosings , because it is supported by Mr . Mutale SC and Mr Bwalya ' s testimony , that ca ,rtridge casings whece pir.k oa outside the appe llan t ' s premises. Tri add.1t.1on 1 we were invited to take judicial notice of ~he fact Lha t Inspector Chi.lufya , be l ng a serJior police off:..ce~ and an officer - ln-chal:ge of a police station, was tt'ained i.r11 a nd famil i ar with the calibre of the cartrldge c.a1;1 n4 that he picked . -J47- 100. Counsel als-o referred to c.he case Cnansa v The Peop:le 22 and submitted chat since the ballistics exp c r L did not examine the 9mm care.ridge caslr1g , his op i ni on that c.he fatal bu llet was discha~ged from the appellan t ' s piscol , should not hav e b een accepted . On the authorjl y of Inutu Etambuyu Suba v Indo Zambia Bank Lim.ited 4 , he argued that there was mi sdirection when the trial 1 udg t: failed to resolve the presence of the 9rnrn cart r id ql.". casing. 101 . In response to t:he argume nt chat che p o l 1,.;r• concealed the p r ese nce of 9mm cart r idge c asings, cand l:he c.r ia l j bd ge did not deal with t:he issue , Mrs. Mwansa submitted t hat she did . The trial judge considered l b~ ela irn that the ca r tridge casings were casings fr om outside t he law firm b u t round the evidence to bo hearsay . She poin t ed o u t that t he soctrce of t he infonnation that cartridge casings were picked, was a r e1ative of the appe l lant , who was not cal l ed as a witness . -J48- 102 . M.rs. Mwansa referred to t.he cases of Subramanian v Director of Public Prosecutions , . Abel Mkandaw i re and Others v 'l'he People 7 and Mwape v The People 3 and submittc::,;i that since the appellant intended to rely ari t hr.1 truth f ulness of t h e c l ai m that :::artridge c asings we:rc p icked outside his law f1.rm , without calling the mak e · ot the st.atement , the avidence was corr~ctly excltH:lr •d for being hearsay. 103. The two prosecution witnesses who talkect about rn ~ picking of cart ridg e casin~s are, Inspector Chilufya tind Superin t ende n t Shibalaca ni. Superintendent Shibalatnn did not mention the calibre of the two cart~idge casJng~ that he picked, suf f ice tc say that he handed them ovD1 to D~tective Chief Inspector Chib~sa . 104. In [he case of I n spector Chi luf ya , he said s oon after he 11ea rd of t.he shooting, he went int o t h,;, appellon t' s premises , where he pi.eked a 9rom carL.ricttie casing . He handed it ove r to Detec~ive Chief Inspect or Moya, who in turn ha nd e d it to Det ective Chief Insp ecLor Chibesa . Detective Chief Inspeccor Chibesa ' s eviden c~ -J49 - was that when he examined the 3 c a r tridge c asings, Lh,.il i s , two from Superini:endent Shibalatani and o ne fruw Inspector Chi 1 ufya , he found that they were alJ oi c1 10 . 2mm c alibre. 105. We wer e i nv i ted LO take judicial noti ce of the fa ~L t hat Inspector Chilufya , who was an officer in charge <11 a police st.at.ion, was trained and fami l i ar wit h t1 1n calibre of ammunition . In other words, we are being inv.ited to find that the cartridge casing that lnsp ectoi Chi l ufya described as being a 9mm cartridge casing, W3S -1ndeed a 9mm cartridge casi n g , because he knew what i L was and cou l d not have been mis,:;aken . 106 . The ecli tors of Ha.lsQury ' s Laws of Engl.and, Third Edition , Volume 15, at pa r agraph 615 1 have said tht " following on wh en a court can ta~e judicial noti~e of LJ fact : ' 1J\lclicia.l notice :is taken of various facts which are familia r t:o any judici al tribunal by the Lr uni v ersal n o toriety .rE!gu.lar recn,rrence l n the ord i nary course of natiue o r or business,. 107 . From the foregoing, it is cl1=.ar that for us t.o La1'.e -JS0- judicial notice of the fact that. Ins pector Chilufya was .trained in, a nd is conversant. with the cali bre o i arumunitio111 we must. be fa miliar with tliat fact or 1l int.1st be a fact. of universal notoriety. Other than kn owin g that there are some police officers who are trained ln ballistics , because they regularly appear before ou .r courts , we are not aware of the exte .nt or level ot training that police officer.s r eceive in that area. Neither is -r.he level of training t~t: police officers rece i ve on f i rearms, a matter of public .riot.oriely. w~ are therefore not ln a position c:o Lake judicial notl c'-' ~f the fact that Inspector Chilufya was possessed of any expertise in ballistics . 108 . Detective Chief Inspector Chibesa 1 s evidence thal che 3 ca rt ridge casings he exarn:.ned werB all 10 . 2mm, wa:c unchallenged. Given his expertise , we are satisfied lha l c.here was evictence before the r.rial judge that U,t> cartridge ca.sing that Inspector Chilufy.a described ;:;s 9mm was 111 £act a l O. 2mm cartridge casing . -J51 F rt .r .e ~ we hav 1 ' d n 1 te _ tha - r C an Mr. Bw ya's on t l I • p.lC;,J..fl I ca_ I r1. ge c:::.as s - , w s rrec · - Y xc.luded ea -s-y. - 1 hough r.he :t • al - judg l. l'l -· ~ J ci ·Lh :.er f r . w - l -"==~rlJ h - cal ' b _e D C.h11 f a, it h i ca.t t.ri e ca ng pi ea y 01.) 1 vi w tha aci l1:L1 o ne s. t. -,A i enc a w s b _o ~ sh wau d h ve st ' l1 f ·_ha o 9rnm artr ~dqe :sing a_ t ,pp llan s p · m · ses. Th I..s arqum_ I ,..'..1 - Cause of dents 1 o. Th e on the gat:e and "w.all econ hi:iit th tr ia dg - s - ' r1 t l Ve a J · - i cat e UL t le en s o _he - e nd oll wE!r _ not. 'J ' . Th is e .e . ce ten ed to s r h r;1pp l l~n j s evidence . a he f ' ed ri the ' a r ... Mrs , . K bala ~nL ]: ' ha Mr. w 1.rrtara.ns on C e mp1 g ...... r=t ~ aise doub s an le t --y i:! Chi Ch i u y . ' at he g t an [ w 1 1 wer- • -J52- uullet . Ehe argued t.hat 9P1en that Mr. Wol.rnarans' t l 11t111,1 that it was not the c~se, was rtot rebutted, and 1 q , lJ, 1 ~osenc~ of any ctamt1gE to ihe gac~ i'lnd wall , t:b,. t r L·JI judge should have found i:.hat th1=- appellant. dJd no L 1,1_£• into lhe wall or at the gate, uut in the air. l!t . In t he Ca5e of Chuba v The People 23 , Gardner , J . ~ .. ctimrnenting on how the court should treat tr.e evider. ce <:.)! a handwriting expErt, said t:.he Eollowlng at p.:ige , J1. : '' The principle is that the opinion of a handwriting expert must not be suhst ,i tuted for the judgment of the court . It can only be a guide , a1.be~t a veey strong gu,i.d.e , to the court in .arriving at ,i.t,s own cono.li.ision on the ev idence before it, and ;ii, this respect we w·ou.ld criti.ci.se t he use of the wo.raing by tbe handwr i ting expert that ''thase similarities indicate with a strong degree of certainty that the writer of t1,e speci.n\en writings in. col:umn (b) is one and the same person who wrote the disputed endorsements on the disputed cheque rt wou ld be wrong to a s sume other,.ise ." ll~. IL i~ ou.t view , that the po;;ition t.ai-:en by .l.h• Supreme C:ourt .111 the case of Chuba v The People 23 , w I LI, !"egard i: o handwriting e,cperts, ~s app. Llc3.ble LO Lh test.ic nony of any ~11.tness whc is an expert . :'i In• ~'-' 't h -J !,3-. evidence of a ballistics expert is art opird .ori, l:..he cou1 !. is still required to assess it, .1t cannot. be receivecd without reservation, aE was sugge sted by Mrs. KabalaLa. 114 . We have exarnlned the judgmenr and find that conlrary to ~ r s Kabala ta ' s claim , the i;.rial Ju dge did in tact. consider the question whether the damage seen on th{) wall and gate , was caused by gunshots . She found Lh !: evidence to be inconclusive. Since it was the pr osecution who were claiming that t he damage was caused by hulle t,s 1 Ln effect, she found that chey had failed to prove tnoL i.t was the c.ase. 115 . Further, in the face of evidence t:..hat i:he guard. Wi>S with-in the premises of che a.ppellant' s low firm when he was shot., and t hat only the appe lla, nt' s pistol ;.iai. discharged, we do not find any basis on which the tt ia1 judge wo0ld have co nclud ed that the guard could not havH been shot by th e appellant, because he ficed in the alr . The pathologists evidence points at a downward diagonal krajecto ry of the bullet that killed the guard and t h1s is i ndi cat.ive thac the firearm was aimed downwards . 'l'hdl- - J54- evidence renders que-st.lonable , the appel lant. ' s c: I aim that he £ired in the ait, in an upward direction. WF. find no merit in this argument . Contamination of the scene 116. The third argument in support of the claim that t h e trial judge failed to adjudicate on contentions issues relates to the contamination of the scene . 117. M.r. Katolo pointed out that although ttte trial Judge found that t)le police acted unprofessionally Wl'lt:11 they failed to stop membe~s of cne public from contaminating the scene , she did not go further t o mak e a fipding on the effect of that cont:arnination . Had .slH2 done so , s he would have found thq.t the contamini.l t lo11 raised doubts on the appellant's guilt . 118. In response to this argument , it was submitt ed tbat the ~rial j udge did add~ess her mind to the issue. Mrs. Mwansa submit.t.ed i:hat contamination of the scene, whi_11 borders on derellccior1 of dut:.y, will o nly operate JJ i favour of an ~ccused person and entitle him to an - JSS acquittal , if the prosecution evidence is HO(: overwhelming and fails to offset the piesumptions Lha l may be arrived at in favou r of an accused person . sh e referred to the case of Charles Lukolongo and Others v The People ll4 and sub mitted t hat after considering Lh c evidence before her , the trial judge correctly fovnd that the presumption was displaced by the overwhelm i no evidence . 119 . The online dictionary , en . oxforddictionaries . com , defines conta minai:ion as , "the action or state of making or being made impure by polluting or poisoning' ' ., rn th e case of a crirne scene, eontaminatio~ c an be said t o ~~ the disturbance of tl'le scene which results 1n LhL introduction o r r emoval of evidence . It may jeopard iSJu an accused person ' s case, by either introducirtg ev1d ~nc~ that tends t o incriminate hi m or removing evidenc~ t hal could hQve exonerated him. 120 . lri this Ci.:\se, the trial j udge found that tn~ s cenn was contami 11ated because the police did not co r don off the prem i ses . It enabled members of the pub l ic to en t 01 -J56- the pliice and some of them took photographs . Other Lhan enter the premises , there .is no evidence of any thing that may have been introduced or removed, but the IacL that their presence amounted to contamination , ls common ca use. 121 . Contrary to Mr. Katolo ' s submission , the trial judge did actually address her mind to the effecc_ of Lhe conta mination . She found that since i:he evidence against. Lhe appellant was overwhelming , he W<iS not: in '<lilY prejudiced . 122. As r egards Mrs. Mwansa's submission t !laL conlaminat ion of a c rime scene borders on dereliction oL duty 1 in rhe c ase of Kalebu Banda v The People is flt pac, n 233 , Baron , 0CJ 1 said the following on r.1 derelict101, ,;I duty; when " circumstances evidence has not been obtained i n wh~e there waa ·" duty to do so - and a fortio r i. when it bas been i;,bt a ined and not .laid before the oourt - and possible pre j udice bas resu.lted , then an assumptiori favourable to the accused must be inacie. '' -J57- Having just said contamination of a cr1.me ' scene , concerned with the introdUC'tion or removal of e'{i dencG , we do not think it borders or1 der.:eliction of duty , a~ suggested by Mrs Mwansa. However , we agree with her v'e w thar;. its effect o n a case , is dependent o n the pre jucllcei chat an accused person suffers. 123. In this matter, the case againsc the appellant was anchored on ballistics evidence, while his defence wa;; centred on the claim he f ired in the air and the fat~! shot was fired by intruders . While it is possible Lhd l the c r;owd cou l d hc;1ve t:.amper:ed with r;:a.i;t,i;icige casl nge d i scharges by the intruders , t hat presu.rnpti0n ls oCfscl. b y the uncohtroverted evidence of thole Collins Kabart11:la and E'avan Kumar, that. only 3 shots were l':irl:>d. ll ls improb able that the members of tbe publ i o could hav2 picked the cartridge casing s discharged by intruders, because t:he ev i dence tr1at we hove:< j•.;sl. reviewed ru l es out the possibility that if t he.y we:.:e a11v intruders, they discharged a firearm. -JSB- 124, We are satisfied with the trial judge's find i ng that the appellant syffar~d no pre jud ice £com cha contamination of c.he scene . We find no tnerit in t h o argument . Failure to £ind that there was dereliction of duty 125 . The fourth a~gurnent in support of the e l aim Lhal ~h~ tria l judge fai l ed co adjudicate on contentio us issu ~s relates t0 the fail ure to find that there was derelict ion 0f duty when the police failed to investigace o r pr oduce in coart , evidence on a number of specified issues. 126. 'I'he issues were listed as , when c.he police fal locJ to investigate the presence of intruders; whe n the po l ic~ failed to investigate who shot the guard ; when the pol icu failed to as c~:rt ain who was driving the BMW and r. hQ Toyota Landc n 1iser that where f ound in c.he drJ.ve wr.y ; when t.he police fai1ed to p.roperl.y reco11sr.ruct c.he s cE?nc;-,; and when the police failed to br i ng cr ucial evide n ce LO court, in part ic ular tbe cartridge ca sings pir.!kr::- Ll outside Lhe appellant's premises. • -J59- 127 . The other instances pointing at dereliction of d uly were identif i ed as when the police- failed to ment.1on 1.h <·: BMW vehicle ' 1n scene reconstruction reporL Superintendent Shibalatani; when the police- failed by to mention in the report by Superintendent Shibalatani Lhal t he appellant's shi ct was taken for ballis tics exa mination; when the police failed to present t hQ appellant ' s shirt in court; when the po l ice fai.led t.o take the guard to the hospital; and when the p o l l ce failed to secure t.he scene and obtain evidence from 1hr' persons who were on the pre.mises. 128 . In a dditi on , it was also pointed out that there was der el iction of duty whe n t he police failed to conau cL concl usi ve and tho r ough tests on the gate , the wall, an d bulle t holes; when the police failed to provide hando ver notes of exhibits by Inspector Chi.lufya ; when the polic e failed to uplift any finger prints; when the poi ice fai led to tak e photographs from the BMW where the pist ol was allegedly d is cover ed; when the police failed to adm in ister a warn and caution on the appellant. ; and when • -J60~ ~he police only tendering 1 oi tbs J photg albums o! I lb .a-cene . 1~9 . ML, M~hanga r e f er red to tbe cases of Teddy Muntan g a and Enock M_pelembe v The People ~0 , Phiri and Others V The People , Gilbert Chileya v The People , Peter Yotamu Haamenda v The People 27 and Lipepo and Others v 'I'he . Peopl.e 28 and subtflitted that t:he derelict.ion o f ·:lu • v, leads to a presumption in f:1vour oi the appell3n t: . lf/r. •,;e.re urged to acqi,i t t.he eppellanc . 130, .rn response to ttu.s ground of appeal , Mrs . Mwans .;; submitted that the c.rial judq6 dld address hF:::r m111d t.lLe issue of dereliction 0£ dut:.y . She referred t n I 111 case of Charles l..ukolongo and Others v The People ,.,r1t; subm1 tted that. dereliction of duc:.y wi 11 operate in f.; v,~u o f an accused person and entitl~ him to an acqu~L t u l , u.nless the pros<acution Ecviden~e offsets su ch r,resumptlon. 131. Mrs, Mwansa also r.efected c.o rhe ca s es ot Ka l.ebu Banda v The People ~5 and Lipepo and Others v The Peopl e ' 8 a nd submitted that the extent of c.he r-iresumption w I J - J6l- depend on the evi d.ence before t.ne ~ourt and where U1,;;re is oven✓helrning evidence, the court r::an st-111 co nv _icr notwithstanding the dereliction of duty . She submit t ea that atce.r cortsidering the evidence before her, U1e tr1 a I judge rightly found that. che presumption was dtsplc0 ,.:e d by the overwhelming evidence. 132. Mrs . Mwansa distinguished the case of Ph i .r i and Othe~s v The People ~1 , that the appellant referred Lo 1 1 support oi the argument triat. statements shou l d have b1?on recorde d from the persons the police found at the sce ne . She argued that in this easer there were no eye witness es and the police i:;eoorded statements from t.hose presen t al the tirne, Chola Collins I<abanda and Pavan Ku mar. ['h e other people four1d <1t the scene , came after the inc:id ru 1t. 133 . As we said earlier on 1 when w.e. referred to the ca s.1..; of ~alebu Banda v The People ~, derellcLion of dut y IS cohcerned with the failure to investi(jac.e or to p.re s en l [0 cou r:t ' evidence collected cours e ,;:ii inlfest:igati .ons . In the case of Charl.es Lukolongo and Other s v The People 2 4 , Chornba J. S., deliverJng J.1 1 1udgme nt of the Supreme CourL , :i.t page !.2£ , ob5ervo:>ti •• ~ -J62- follows : "Decided cases on the question 0£ dereliction 0£ dut>y show, inter aJ.ia , that where ev idenc e available onJ'.y to the police is not placed bef ,ore the court, the court must presume that had such evidence been produced . J:t would bave favourable to the accused. The presumption is not necessarily fatal to tbe prosecutio_n case because the word " favourable" has been construed to mean " in favour of: " and nor to mean '' concl1.1si va' ' . (See the case of Kalebu Banda v The People (6). ~n the case of John Timot ,hy and Feston Mwaba v 'I'he People (6) it weas also held that in case!! of fail1,). J:'.e to take finger prints the presumption i n favour of the accused wili on ly be made if the article from which finger prints ou gh ,t to bave been taken had a surface on wb.i,:,1, fi.µge.r prints ,;,ould be detected . In the case of Kapulosbi and Oth eTs v The People (7) it was held that the presumption capable of being , d.ra,,n in de ,reJ. i ction ,of duty cases is d.i:splaceable by a strong evidence tq the ce11tra:ry . '' 134 .. J t foll o~ts , t.t1ar where L1.- i~ pcop,:.> 1 Ly fauna lJ 1,11 t:hel"e wa ::; detel~o::ticrn of duly , c.he r::o..:rt mu.;iL -ont'\ 1ti••: t:.he presumptions that ar'c' :a vr..ur~ t !~ to t r,e accuo.off person as ,, 1es111 t of tn~ fai l ure. 'J''.'le ::iourt •"11ru,c ; nv e a c igat';!d or some o t t:1e ~111de,r;c,;, co lle: ct1::d '-.a 1,1 -J63- presented to it. Much as there may be some failings i n an investigation , it does happen that a case can stil 1 proved beyond all reasonab l e doubt. 135. In this case , the dereliction of duty complained of can be divided into two groups , matters not in vestigated and evidence collected during i nvestigati ons , bu l not prese nted to cour t . Issues not invest1gated 136 . From the lisc set. out. by tn e appe l lanc , LhG derelict i on o f duty , that ha s been associated with Lhe failure to investigate , in cludes not investigating Lhi: presence of intr\lde r s; who shot t he guard ; who wa1; dr iv ing the BMW and the Toyota Landcruisei that. w0r!i found in the drive way; nae properly re co nstructing Lh~ scene; the failure to take the ~uard to the hospita l ; t h e failure to ob~a1n evidence from the persons who wer~ on tne pr emises ; the failure t o conduct conclusi ve ana thorough tests on the gate and the wall for bullet ho l es; the f ai l ure to Uplift finger prints ; the failure to cake - J64-- photographs from the EMW where thei::e pistol was alleg~..:ll v discovered; and the fai l ure to administer a w=1rn and caution on the appellant. 137. We are at pains to understand t.he claim that LJ1. C!rl3 was dereliction of duty when the presence of intrud~rs and the shooting of the guard were not i111vestigated. Our unde-rstanding is that this is what this case 1s a.l. l abouc . It would appear tti:;1t as far as the police a r:~ concerned , it 1s r.he appellant who shot tbe guard ano there were no intruders. Whether they 2tre- right or wrcin,11 is an issue that will be resolved when we deal with th~ question whether an infer€nce of guilty is the only on~ that can be drawn on tbe evidence that was be.f.ore tha trial ju dge. 138 . Coming to the fai l ure to investigate who was driving the BMW and the Toyota Landcruiser that were found ln the drive way; we agree with Mrs . Mwansa t:hat all the prosecution wa.s required t o prove, are faci:s that are matE:rial to the Cose. The saici motor vehicles belong 1.0 either the appellant or hi~ 9CquainEance . There 1s -J65- oot hin g ta suggest chat knowing Who was driving e1l he~ of the m1 was material to proving the cha:r::ge the appel la nl was fa c i ng . As a result , we find that the fai l ure re ise~ no dereliction of duty . 139. We ta)<e the same view on the t:laim t.ha t t he re wa;; dereliction of duty when the police failed to take Lhe guard to the hospiLal . We do not see how it could nave impacted on the investigations . The evidenc e o I Inspector Chilufya establishes that guard was dead when he got to the appellant 1 s law firm . Neith~r ce-.11 we conceiv e any presumption that may be drawn in favour o I· the appe l lant as a result of t h_e fa i lure . It is not c le :H what would have bee n achieved or discovered, if he hud been taken to the hospital immediate l y . 140. In his testimony , Superintendent Shibalatan.1 told the trial judge that the scene reconstruction involved the appe l lant te l ling them where he was When he diseha-r:ged his pistol, where the gua.i:d was at the Li m•~ the intruders discharged their firearm and where t he cars were parked . They then took rn~asw:,;;rnen ts an d -J66 - pictures . 141. Superintendent Shiba l ar:ani, Detective I nspector Chilufya a nd the appellar1c., who were t he milli' players in the scene reconstruction, all gave eviaan cQ du ring the trial and were cross examined at lengLh. ln t.he circu.mstances, we do not see the prejucH ce l!he .appe l lant suffered , £torn what is being described as a n "im pr operly conducted scene .reconstru t:tLon'' . 1 Q 2 . In support r o _ the argument that the-re was d@.r@l ic ti on of duty when the po l ice failed to ob La 111 evidence from the persons who were on the p.cemises, Mt . Muhanga refe rr ed to the case Phiri. and Others V The People 2 1 . We agree with Mrs , Mwansa tha t the facts in Lhat case, can be dist i nguis he d from the current ca &e . rn this case 1 the on l y persons known to have perc e 1 ve d what happened wer~ Chol a Collins Kaba mba and Pavan Kumar . They heard and s.:,w what happened after the gunshots , 11nci we~e interviewed and testified in cou r t . -J67- i43, There is nothing to suggest chaL the per5t.i!li'l Inspector Chilufya found in the appellant's law I l tm ei t)1er sa~1 or perceived anything_ Even if they did, t l1is case is anchored so much on the ballistics evidence nn the numbers cf shots fired and the source ~I tl,~ cartridge casings picked . 144 . As rega rd s the failure t.o c ondu ct conclus .ive and thorough tests on t he gate and the wall f or bullet h oJ~N . As we understand 1t, che argument is that such test would have established th a t the dents on the gate and wed I were not ca used by bu l lei::s . We have already indi c;,t.-:)cJ that s ince r.he trial judge found the ev id ence l Q l:J~ inconclusive, • 1n effect , s he found thal Lhe da mag ~ W3 8 not ca useq by bullets . 145 . On the question of de r eliction of duty on acc-011nt;. of fa iling to lift fingerprints, the Supreme Court , .tn Lhe ca se of John Timothy and Feston Mwamba v The People ~9 , held 1 i nter alia , that: 1 r.f • t.here is a dereliction of dut)i' on the part of t.he polLce in not testing an art i cle for fingarprints there will , i f the article has surface on which fingerpr i nts -J68- could be det ect ed, be a. presumption in favour of \:.)le accu se d that there were fiQge.rprints on the art i,c_le which did not match the £ing ei;pr ints of the accused . ' 1 14\5 . In this case , the appellant does not dispute be inq at his law firm at the time of the shooting . ructh er , the trial judge found that: the scene was contaminated by members of the public who were given access to the sc ene . In the circumstances , the lifting of fingerpcints would no.: have advanced this case in any way , because tho. possibi l ity of finding fingerp ri nts belongin g 1 ~ stra ngers , was more than probable. 147 . :rhe failt.l!::e to take photographs from ~he BMW wh,~lf! t he appellan L1 s pistol ~as alEo sa1d to have amounted Lo a de.rel it:ti on of duty . In tr1e ca s~ of Jack Maulla and AsUkile MwapUJci v 't}le People 30 , th'= Sup:rl}ma Co1.,r t h G ~rJ, _nter alia , th~t : " There is no hard and fa.st: rule that the police should al wi\Ys bave the sce ne of ori..me and inc rimioating objects photograph _ed although such photographs can at t im"'s be Qf -imznense help to a triaJ. oou-rt." -J69 - 148 . Ii' follows , that it cannot. be said that the.re was dereliction of duty , merely because pllot.ographs were n ot taken. We do acknowledge that in some cases, the fai l u re to take photographs can affect the credibility o r ;, witness ' s testimony . ln this case 1 Inspector ChjJ.ury a was cross examined at length on the circumstances lead ing to the discovery of the pistol in the car. His test i mony was also the subject of credibility consideration b y th~ trial judge , who found it to be credible . We do not £1nd any dereliction of du,:y i!"l the circumstances. 14 9. Coming to the failure to ad.minister a warh an d caution on the appellant, ther:e is no doubc thal l l' i ;; a good practice for the police to interview a person w/ 10 is in their custody on suspicion that he has comm1tt od an offence . Such inrerview , may prove useful co ~he investigation as evidence exonerating him may b0 discovered at a very early stage. In t.his case , t he appellant ' s explanat.ion of what happened was rev e al ea during the scene reconstruction. We therefore find Lha 1 -J70- he suffered no prejudice when no warn and cawLlon statement was recorded frore him. F-ailure to present to court evidence collected 150 . As regards dereliction of duty as a result of Lhe failure to prese n t evidence collected during the course of inve stigati o ns, reference was made to the failure to present the cartridge casings picked outsid e th e appellanc ' s premises ; the failure to presenl t he results o f the e:<amination of the appel lant ' s shirt ; the failure to provide ha ndover notes of exhibits by Inspecco~ Cbilufya and when the police only tenderi~g l of the J phoco albums of the SGene. 151 . On the failure to presenr. the c artr1dqe ca.sin~-; picked o uts ide the appellant's prem ~ses . we have already held that the trial judge correctly found th;;t tno evidence pointjng at the picking of cat'trioge ca~!nos our.side the appellant's law fir m was hearsay . As Lile:! record stands, the t e is no evide nce that c arLr idg~ casings were picked eutsicle the appellant's law firm and dereliction of duty, on that score, does not aris e. -J71 - 152 . In his testimony , Detective Chief Inspec t or Moya, confirmed subrni ct i ng the appellant ' s 'I'-Sh1rt f or ballistics examination . He did not give any pla,1s lb l ("' ~eason for the failure to present the results or t l'lf" exc;Jmination to court. The trial judge accepted. t.har Lhc failure amounted to dereliction of duty b1Jt i,;ent o n r.o find that che appellant suffered no preJudice becaus e ~e accepted discharging a pistol and attempting to 11ft Lhe guard, who was bleeding. 1 53. In our view , the trial judge's finding tha t th o appellant was not prejudiced was correc1:. S:in c e Lha p u rpose of the examination was to find out if the 'l' Shirt had gunpowder residue and blood was on it, Lh~ appellant's admission that he discharged a pist o l a nd attempted t o lift che guard , takes the issue o ut o f eont.ention. In effect , the appellant does no~ d1spu l. Q that there could have been gunpow~er residue or bl o o d on his T- Shirt, he. gave an explanation o f how t ho s e substances could have found themselves on bis T-Sh 1r t . 15q . Coming to the Eoilure ta provide hand over not es ,:.t -J72 - exhibits by Inspector Chilufya and the pol1c e only tendering l of the 3 photo albllilts of the scene , as wa., .held in the case of John Ti. Jno.thy and Feston Mwamba v The 1?eopl.e 29 , derelict.ion of ducy 011ly leads t. O a presurnp t.1on favourable to an accused person, but such prest.nnpl. j ou can .be offset by overwhelming evidenc'? . The eviderc e col lec.ted by t.he police , which incriminated LT1e appellant , was t'rle cartridge casing s picked at the sc-enr:, and the ball is L 1.t:s ex ·ami n at ion conduc ted by D<=Lc~cL 11~ Chief Inspec tor Chlbesa . This evidence was overwh~l1n1ng , and we believe it offsets a!'ly presumption 1.n nis ti!V"!J r. . Downplaying of the inconsistencie .s in prosecut ion evidence 155. The fifth argull:lent in support of the ground of appe<'! l t hat. t.he r.ria.l judge failed to adJud1car.e on contentiou Lssues was that she downplayed the inconsis~enc1 es s n the prosecution evidence. 156 . Mr. Muhanga pointed out chat the trial j udge do wr, played the importance et the scene rel'::ons tru e!.! l or, e pi~ . .1. ein irnpar n de j ion _,J'J3 h_ h r t_ e ap ell :nt h d malic f oretJ'lcugl"lt. '('I I i tL e De _ ec '-i 'iie C ' I=! I s _c Supe in -n'e t -,_ibala ' fJ l - d Mr Wal -ralS t on h - ,- - I ""h 1- . e appe n wa w en h • ,e I sc h .a ge d ... . u _ p ~s _ _ _:._ - 1 t 1 (_ rns _ se -, ·ed on :.he guaxd ~ s o y~ WGS - .... n "- conai e e . 157 ~ Tbe athe di.sere anc.i ... t re sai ha - _.=_I I d n l aye wa - the arr s t e. ap 1 nt befo rec 1-pt 0 the po - .. 1ortem ~n l ho wounds ob er- d o - e .booy D th e d ,1? C that C ,e Cr1ie - In:spe Lo l the ,~ ibes -· t e au hor1_y infe c:e "ha h amper • h l the body,. s . .oul ha 5!W1 , t -r Li.'- . . M. uh nga th n su if1'1i ted t a · th ~~ s a Madu.bu.la V Tbe People 3 • , wh.1,. er the : .a 1 j lJdg - r.::e fer _d t. , Wh_Il ealin wi_ o· s~s : enci ~idence~ was only a · licabl l t - e. pr os u i .1.ns:te ,11 .:l whe e Lh~ d -t --"- repa -_c es 1n I he rasecu~ion ev r_e m1!! _r, 159 . I n response to this ground of appeal , Mrs . Mwans c:; - J74. - referred to the case of Chimfwembe v The People 32 a nd subm i tted there is no n eed for the prosecutor to prove each and evety detail on t he circumstances surroundi ng the commission of the offence . She also submitted t hal the cred i bility of the prosecution evidence cannot n ot be af f ected by minor discrepancies . What the prosecut io~ is requ i red to prove , is evidence that goes to estab l is L the particulars of offence. 160 . Mr s . Mwa nsa then a r gued tnat the flawed scen e of crime reconstruction an d the arrest of the appella nl before t h e receipt of t h e post-mortem report , had no bearing on the proof of the charges againsL rh~ appel l ant . As .rega r ds Detective Chief Inspector Chlbesa ' s e~aminatio n of t~e body wi~hout auchori ty , she referre d to the cases o f Madu.buLa v The People 31 a.nu Chimfwembe v The Peop l e 32 and submitted chat the accus ed person was not prejudiced in anyway , because other Lhan measuri n g , there is no evidence that they actual _y tampered wit h che body . -J75- 1e1 . The first issue we will deal wi th 1s the arresl. 0 1 the appellant before c.he receipt of the post. mo t L~m report. We do not see the signi f.1c.arice o-E t.h ti:; irregularity, if one rnay call it t hat , giver\ t ile provisions of section 26 (a) of the Criminal Procedu.i::e Code . It allows a police officer to arrest any pe rs on whom he suspects , upon reasonable grounds, has c::otnmlLLed a cognizable offence . . ·2 l. Ii) • Other than point. out that the offence of muro et , c111 offence for whi c h the appellant was arres~ed. a 11d subsequently charged with , i~ a cognisable offenc ~, w~ do not see t.he need for considering whet:her it was pr o per or desirable for the appellanc to be arrested before t he post-mortem report . Th1s is be c ause a charge that ha~ been proved beyond reasonabie doubt 1 cannot, on ap peal , be assailed on the ~round that at the time the c o n vJcl was arrested, the police did not have all the eviden c~ that was subsequently used to pr ove the charg~. 163 . The same can be sa id about Detecti11e Chief In $p ec l o c -J7 6- Chi b esa ' s examination of the guard ' s body with ol il authority . Giveti t ha t t he trial j ud ge found tha t thG e-v.id~nce on the calibr!? of the f ire a rm that caused u,~ injuries that were observed on the guard ' s bod y was inconc lu sive , we see no neect to deal with the issu e in any detail . Suf fic e to say that the rnere f act Dete c LLve Chief Inspec t or Chibesa ' s examined the body was w1t.h o u l aut hori t y , would not have rendered his evidence o n l hc test lnac.in,issible . In rhe case of Liswaniso v The People 33 , the Supreme Court held t hat .illegally ob t a 1n ed evidence, can , :in cerr.ain circw:ns 'Lances, be ad.missln lt:~. 164 . Examina tio:rt of th<? reports and the test i rnoni e s t, f Superi n te ndent Sh ibalatani and Detective thief TTispecto~ Chibesa, establish that what has been described a s .;; ''scene 1:econstr u c ti on 1 ' 1.n chis case , Was !'lo mor-1':! Lhdn obt aini ng piccor1.al evidence o f whe r e the appellan t wa s when he discharged his pisto l, relative r.o ,..,here L11u body and cartridge casings wer~ discovered . -J77- 163. As we see i~, the scene reconstruction was all ab c ul giving picto1·ial support c.o the testimony of I hr, witnesses . rt al so gave d.ist.an.ces between where tho various pieces of evidence were discove,red or se en al:. the crime scene . Of importance, was the distance betw ee n c.he guard's body and where t.he appellant said h e w;is when 11e disch,,n:ged his firearm . 166. From the scene recons[ruction, the appellar,t Lo l d c.he police that he was at poirtts that where b et we~n 1~ metres and 19 mecres from where the guard was when h• discharged his pistol . Mr. Wolmarans ' opinion was Lhal at thac distan~e, the appellant's pistol could rto L hav~ caused the flame burns that Dr . Musakhanov obser v.ed 011 the guard's bocty . Such flame burns could only hav e b~en caused if the pistol was discharged from a dista nc e L l :between 5 and 10 cm . But according to Det:ecti ve Ch .i.e [ Inspector Chibesa, the shooter was between O and ·~u metres. The importance of this evidence is that jt wou . a have established whether the appellant could have f 1r oa the fata l bullet form where he said he was . -J78 - 167 . We have e xami n ed t h e judgment of tne trial judige cllld note t.hat she did not dea1 with the conflict in the ev i dence of Detective Chief Inspector Chibesa and L'r'.~L of Mr . Wol ma r ans on whether tb1; appellant. ' s pistol could have caused the flame burns that Or. Musakhano,v observr.:a . She only dealt with t h e question whether Lhe pist o l could have caused the injury o.bserved by Dr . Musakhano v and Detective Chief I nspector Chibesa. 168 . The question that must now be answered is what 1s the effect of that failure? We will deal witl1 the issll~ when we consider the ground of appeal dealing w1 t b whet h e r an inference of guilty is the only one that couJ.o have been drawn on the evidence that. was before the trial judge . This is because the issue cannot be ~esolveo 1n isolation , it goes to the root of the charge . Discrepancies i n evidence on extent guard ' s gunshot wounds 169 . The si x tb argument .in support of ~his gron11rt .:it appeal that the trial judge failed to adjudi ca t e on Lh€ discrepancies between Dr. Musak ,11anov and Detective Chie[ Inspector Chihesa's evidence on che wounds su£fer~d Ly -J79- t he guard . 1 70 . Mr . Muhanga .refei;-red to 1:he caae mf Sipal.o Cbibozu and Chibozu v The People J• and pointed ovt t:hat i L WcJ:i desirable to call the docto~, Whexe medical evidence I~ concerned. He a 1 so referred 1:0 tha case of Cha,:le s Lukolongo and Others v The People i 4 and The People v Mateyo Mujµma i zi Jerusalem 36 and submitt ed Ltiat. desp1. Le this being a compl1cat,ed case , the prosecution ol}oce r,Ol to cell the pathologist . They left it to ,::h,;, appel I i;l'll:. to do s o . 171 . In response to these a.rgu ments 1 Mrs . Mwansa re fer red t. O the c-ase:s of Madubula v The People <lJL<J Chimfwembe v The People 3 2 and submi 1:ted that l,l1~ discxepancies in the evidence , on the size of the woi.:ndH suffered by the guard , tall in what can be classified as l'lnnor discrepancies . It is not in dispute that the qu anJ was shot and, in any case , the trial judge did not mc1k1· -JSO- any find i ng to the detr i ment of the appellant on 1-be basls of the discrepancies . 11 2 . Mrs . Mwansa also refe r red to tbe case of Lipe.po and Others v The People 28 a n(l submitted thac in a quest g r a nt the appe l lant a speedy trial , the state decided tu t0 close the case wi thout calling the pathologist be c a use he was outside the coun t ry , on leave . She also referrc a to the case of Mang omed Gasanalieu v The People 3 6 ant. I sub mitted that even if .:he pathologisL had not been called , the trial judge woul d not have been bound by 1.hB pathologist ' s opinion i n the post - mortem report . Shewn~ enti lled t o come l~o her own 1:on cl us1on , wh1ch sh!:! .t 111, when she found th at some of the evidence he gave, w~~ ~ontradicted by What the other wltnesses said . 113 . The first issue we w.111 deal ~,11:n ls the i:iJ~ lut~ ty the ptosecut1on , to co.1.1 c:he pathologist . Sect i on 191A ( 1 ) of t he C;riminal P;roc edure Code provides ss fol lc,~✓1; : 11 (l ) The oontants of an y document p~rporl i ng to be a rep o rt ~nder the hand of a medical o f ficer e~ployed in t:he pubiio service llpon any matter relevant to th.e i ssue -J81- i ·n any crinu.naJ. proceedings sbal1 be adm itte d .i n evi,dence :l.n such proceedings to prove t he matters stated t herein : Provided t hat - (i) th.,, court in wbicb any such report is adduced i.n evidence may • .in its discretion, cause the medical o fficer to be summoned to give ora 1 evidence .i ,n such proceedings o r t11ay cause wr itten i.nterrogatorias approved by tbe court to be submitted to him for reply, and such i nterrogatories and any reply t hei:;eto purpor ting to be a reply fr om such person shall likewise be admissible in evidence in such proceedings r (ii) at the request of the aoc us .ed , made not less tban seven day s be.fore the sh&11 be summoned to gi ve oral trial I evidence - such witne ,ss l,11 tt>s., ~SE ot 1:.upupa v 'l't\e People :n, i C we. I! '"wlu , ,,. JJ!"i cc!fl 1 1:h:lf ! ' 'S . 191 A of the Crinu.nai. Procedure Code w&s intended to obviate the nece-ss"' ty t o oal.1 ecxperts to prov e pure !. y- formal, matters , but Sho-u1d not be 'Used a s a substitute for v erba,.l ev .id,ence 11hen th,;, actual con .tent. of t;he report g <;>e;; to the very r oot of t:lle c h arqe ; ;i n a _ny case where the. evidence is more than purely fo.rmaJ t he e~er i: .shou.ld bta c al. le d . " -J82- Further , in the case of Sipalo Chibo z u and Chibozu v The People , the desirabil i ty of calling the do.:::co-r wh,: prepared t he medical report was considered . The cc~rL held os follows : " Med. Leal teports usually require explanation not only of the terms used bu ,t aJ.so of the conclusions to be drawn from the facts and opinions stated in the .repor t . It is therefore h1ghly desirable for the person who carried out the examination in question and pi:ei:,ared the report to give verbc1l evi~nc,e " Going by c.he decision in Lupupa v The ?eopl~ , H. 1s c l ear that it is acceptable , in c1:.rtain situa t 1011."', f or a trial court to receive medi c,31 eviden c e w1 t hou r =ail ing the doc~ar who prepared it . I t is part icu larl y the case, if the medical evidence is riot c 0 C1t.er1t i ous . That being t he ca se, t he mer~ fact that the pr cscc utor does not eal l th~ docto r, cannot be co nd emne d as bel nq mala tide. 175 . In any case , the record of proceedlngs shows lll 11 et tbe t i m~ ~e was scheduled t o testify, the patn o l oc1l~1, -J83- Dr . Musakhnov , was out of the country ; on leave . Further, we do no t see why issue is being raised with the mal.1.or because the appel l ant Was allowed to call tne Dr. Mt1sakhanov and he tur-ned up and testified . During his testimony , the appellanc. was allowed auffi.c1enL opport unity to examine the doctor . That being tne case , we agree with Mrs . Mwansa that the prosecat io ns fa11u~r: t o call the pathologist is a non - isa11e because tlie 3ppellant suffered no prejudice . 176. Comihg to the failure by the trial judge to resolv~ the difference in the evidence of Dr. Musakhanov and Detective Chief Inspector Chibesa , on the extent or Bi~Q of gunshot wou~ds the guard suffered , we equally agree with Mrs. Mwansa that the trial judge was not bound Lo agree wiLh either or both of them. These two wic.n ess~s observed the wounds in different circu1nstanc es and measured them using different instruments . lt was the11 open for the judge to decide 1;1,ho c.o be lie ve . In o u.r view , there mere fact that she did not q.ccept the 1/iew or either 0£ them, does not rnean that she failed to resc..lv r.: ·-J84- t h e issue. 117. The evidence on the wound sizes ,-,as tendered ln support of the clai m, by Detect.i ve Chie f Inspect :Jr: Chibesa that it was caused by a lO . 2mm cari:ridge . Mr . Wolmarans told the court:. t.hat:. the size of the wound c annot- be ordinarily used t o dee.ermine the ca l ibre of the bullet t h at caused it. . Our undersi:.anding of tn e effect of the finding that the evidence was inconclusi 1,r2 , is t hac. the trial judge found iL impossible to attrlbute the wounds to a 10 . 2mm bullet , We find nc merit in lh1g erguement, Demeanour and credib~lity of prosecution witnesses 178. The seventh argument 1n support of th1s ground or appeal 1s that the trial judge failed to pr0):,er1,. adjudicate on t he: demea,nou r and c:i;edibi.li t y of i:.n,·· ' prosecution w1·oesses ' t . 179 . Mr. ~1utemwa SC, pointed out that having founct L.ha l Inspector Chilufya had not acted prDfesslonally ~hen ~c -JBS- took photographs of the dying guard and tbe eppellanL 1 s ident.ity c ard, and did not praduco hc1ndover note~ 1 1, , exhibits , the trial judg ·e. should have ai:tached L1ltl l\ credibility to his te5t1mQny . Re r~ferred t o the easer of Nkhata and Four others v The Attorney General 3 8 , Chansa v tusaka City Council 3 9 1 Attorney General v Peter Mvaka Ndhlovu 4 0 and Nkongolo Fa=s Li.mi ted v Zambia Nati o na i Conuuercial Bank Liini ted , Kent Choice Limited ( In rec eiv ership) Charles Baruperi 14 and s ubmitt ~d tJ1a c th~r; e was misdirection when the tria l Judge failed to ass ~s~ the demeanour of Inspector ChllUfya , whose evidence w~s eon tradicced by that of Det~ccive Chief Inspect or Ch.ibes:a. 180 . In response to chis ground o f. appeal , Mrs . Mw;;ns.:.1 submitted that the trial judge , h w en d ' · eai1ng . r w1t.1 t:.est.imony of prosec1 .n.ion witnesses that: 1ncrltninated t!i ' tllf~ appellant , considered t l-te ppssibility of them tali; , IV implicating him , but ruled it 01.1t. Stle 1:.herefor e Jt,1 assess the c;r;edibil iry ;:,£ t.he prosecution w1cn ess~s . -J86- 181. ln th.is case, t he appellant was in the main, !.:mplicated by the testimony of Chola Collins K.;.bamba, Pavan Kumar and Insp ec~or Chilufya . Following th~ appellant ' s testimony, which was materially in confl.icL with these witnesses, the ,:rial judge considered why these witnesses may have falsely imp l icated him. Hav1nq found no reason , she found th~i.c: testimo ny on how many shots were fired that evening, and where the pistol w~~ recovered from, credi ble, and accepted it . 182 . The trial judge, having conside r ed I □ s_pr,cL oJ· Chilufya ' s wrong doing , in th e contexr_ of tne othet evidence that was l::)efore her , it is our view that sll~ c annot be condemned for failing to properly eval uat ~ t h ~ credibility of the witness. The ~ame can be said ~b □ U L the oth er prosecution witnesses , she did evaluate the credibility of their testimony . 183. We-heve examined all the arguments in support 9£ tht! claim ,:hat the trial judge did not adjudicate on u 11 ~ontentio us issues and find that it was not the c~se . -J87- With the exception of her no~ dealing the guest 10n whether bad the appellant disc h a rged the pistol from the position where he said he was, the guard would ha ve suffered the flame burns seen by the pathologisc , she dealt with all the et her issues. We will deai wilh Lliat failure when we deal with the question of whether 'in inference of guilty is the only one that can be drawn on the evidence that was before her . E~roneous finding that appellant had malice aforethought 184 . The sixth ground of appeal was chat che trial i~ctrre e rred when $he tovnd that malice a forethought was provr,!d . 185 . Mr, Muhanga referred t o che cases oE Brigh t Katontolta Mambwe v The ~eople 41 and Kalalulta Musole v The. Pe opl.e 47 , and submitc.ed t.hat murder being an o ffen eri ,::,I spe ~ ific .i ntern:., malice aforethought should have bt1e:; pr:oved. He argued that malice aforethought, ar, essenl ial ingredient of a cha rge of tnurdei; , was not: prow e,;i . Instead the trial judge. relied on the appellant ' s "p o'il incident" contiucl:. to impute malice. Sh e fcund tha r )1e -.188- had malice aforethought on che bas-is tha t b1= was l icenced firearm owner, who should have known Ll~ co nsequ ences of firing the pistol and that he hld Lli•~ pistol after (he shooting . 18ti . Mr . Muha n ga also r ,aLsed issue wlLh the trial ju d g e ' ti use o f t.he term ''sta tutory malice aforethoUghL' ' . tle r efei:red to the cases of the Attorney General v ttoy Cla-i;:ke ' 3 and In Re : Lisou , and submitted tha~ i t was wrong for the trial judge to find that "statutory mali ce aforet hought '; had bee.n established, beca us e th e la w makes no reference t:o such a terln, . ln relation t o a c harge of murder. 187 . In response to the argumenL chat malice af o reth o ugh t was not proved, M:r:s. Mwansa refer:red to the coses o I Direc tor of Public Prosecutions v Lukwosha 45 and The People v Njobvu 4 6 and submict.ed that on a cha l'ge o l murder, the prosecution c an either prove actual i.nt ~ r1l to kill or the intention to c ause grievous harm . Sine~ direct evidence of intention is rarely available, co1.1rl s • -J89- ISUdlly c1raw lnf~rerices of a G :::•_: S ~ ::1 p •J f :I l fl I intentions, fcom the evidence before 1r. The Lr i al 1JU rf1 ~,as, an tha evidence bef<J.r':' ti<.:r, entitled r.o come to ~ni:: ::onclusion tl1a.t t.he aopel lant h,:td msl i .;:e i3forethoa1111t when he shol che quard . 188 . 'T'1Je r.,f fence of murder 1.s set iJut J n section 'o f the Penal Code , whJ.ch provides as to!lows : " Any 'person who of mal.ice aforethough t c auses the dea th of another person by an unJ.awf ':ltl "ct or- omi .ssion i s guil. t.y of murder , " Mal 1.ce aiorethoughc.; is defined in section 204 of the Penal Code. The section p1"Dvi0es ':bat : " Mal i, ce a.forethought shall. be deemed t:,o be established by e.vidence pro vi ng .,_,ry one or more o f the fo .i lo•ting circun,stances ~ (a ) an i ntent ,i on t o cause the death o f or to d o grievous h,arm to any person , whethe1, such pe,rson is the person actual.l.y xill.ed or not ; ,(b l knowledge tbat bhe act or omi,ssi,on causi,ng death will. probably cause the death o f or grievous harm to some person , whether such person is the person a o tuai l y k i 1led or not , al. though such k~owl.edge is acc,0mpa.nied by indifference whether deiith or g·r i evo\l,!; bodily ha.rm -J90- is caused or not , or by a wu1h that :i t may not be caused ; (c) (d) an intent to commit a felony ; an intention by the act or o~ission to fac il itate the flight or escape from O\lstody of any person wbo has committed or attempted to commit a felony ." 189 . While we ag re e with Mr . Muhanga that The Penal Code, in rel,;1t.ion to the offence o f murder, makes 110 meI1LL C•tt of the term " statutory malice: aforethought'', we have !1.., difficul t y wit h the tria l judge usi n g the term . Section of the Penal Code , whi ch definss what mal1 c' afo r eth o ught is , is 1n two pa!"t.3 . Part of stJb.sec:t .1.011 2 (a\ of that pr ovisio n , deals with malice aforet ho1,;gl 1l rhat 1.s p ro ved by direct evidence of the act ua l. im:.er,c-i\'.ln co ki ll. The r-ema1nder of subsection 2 ( a1 and suose ct. l on:; (ti} (cl (d) , de al s with situations Whe:re in Lhe abs.e ll.:~ of d i rect evidence o f the in tention t.o l-:11 1, 1,;,,;. in t ention to kil l can be i nferred . 190 . In effect, even i f mur der is an offence or spe ctti lnt:ent , that is , the intention Lo ~ill , the; ':? i :1 staluto r y provision , ln section o~ the Penal Code , 1J£ t li e circumstanc es when the intention to ki-11 1 -1:1 1 l1t: -.191- absence of direct ev.1dEnce , can be inferred . In our "i ew , there was nothing wrong with the trial judge referrlo q c.o such intention , as "statutory malice afo1·etn ou9,hL" , because being a creature of statute , that is what it is . As it turned out the appellant was found to have mali.: -a afoz·etnought on the basis of section 204 (a) of the Penal Code ; he was f ou.nd to have i ntended to cause grievo us harm. 191. Reverting t.o the question whether maL1ce aforethought was proved, some of the evidence the trial j ud,ge too}; into accou rit was the fac;,t chat the appel la: ·,t. was the holder a firearrns licence and t:herefore farnil ia r 1Vitn its use and the injury it cou l d ca1,1.se, Sbe also i::ook into acc:ouht of the fc:1ct t.hat he concea le d Lhe firearm after the shooting . These two facts wher~ labelled as being extraneous by Mr . Muhanga_ 19 2 . As Mrs. Mwansa rightly s ubmiti::ect , direcc. eviden co , of mal ice aforei::hought, 1s seldorn avai lable and i n mosr c ases , the court draws an inference of it, on the basis -J9 2- of the evidence before it . rn this case, although t. J,c guacd was shot in the . neck , there is no direct ev1d eucc. that the appellant intended co kill him. The judg e wa~ therefore entitled to consider the question whether th r appellant rnay have d.ischarger.l the pisr.ol, not i.:now 1ng that i t could cause i nj ury and subsequently dearh. 193 . The fact that the appella~t had a licence for t ha L pistol, was evidance that pointed at hlm knowing whal a firearm can do . I t. was therefore not extraneous. Similarly , the concealing of ~e firearm w,as 1mpoc-L ,:u1t to the questio n whether he discharged the firearm in tt G circ umstances that he claimed . Would a ITTan who h~d Ju a r fired a licenced pistol in the air , to scare awa y intruders from his prem ises , hide such a firearm? '1''1.-;t. evide nc e c ann ot be looked at in iso lat ion and labell ed a s ''post i ncident '' , it must be considered in t.he 1 i gnL of all the oth e r evidence . 194 . Havil'lg f ound that the possession ot a tJrear-111' s licence and the co nceoling of the firearm, wei:e not. e xt raneous to the question of whe~her t he appellant bad ' -J93- malice aforethoughr:, we will deal w:i ch the ,quest io ri I'.:' l whether malir=e aforethought was provP-d ~1hen we deaJ wl Lil the next ground of appeal , which i.s on whether ar , inference of g·u il ty , is the only one that could be drawn . This is beo.ause j n a charge of murder, an lr-,fe:.ren ce ol guilty can only be drawn if malice aforethought has also been proved . Inference of g,,.ilty not being the on.ly inference 195 . The last ground of appea:l was that an in.fe.renc1:1 of guilty, 1s not the o nl y one that cou ld have been d.ra.,, r, on the evidence that was be f ore the t i::1.al judge . 196 . Mr MUhanga argued that the trial judge having found that the guard was shot with a firearm whose calibre was unkno~n , the appe l lant should not have been co~vicc ed o! Lhe offe nce of murder. He referred to the case of R v Forbes ,41 and submitted that s inc e the appellant was linked to tbe offe nce by b is pistol, a finding that th~ guard was killed by a firearm of an unknown calibre, should haye led to an acquictal . 197, Mr. Muhanga also argued that the flame bur ns suffeLed by the guard, placed the appellant far beyono the distance from which he would have inflicted triCl gu.nshot wounds suffered by the guard . He pointed 0L1 t_ thac. acco r ding to Dr. Musakhanov, the person who shol the guard was between 1. 2 and 2 meters, whi le Mr . Wo lmar:ans said i:.he gun must ha ve been between 5 Lo 10 c m. 198 . Fure.her, rhe evidence of Super i hc.endent Shibalata n 1 artd Detective Chief Inspector Chibesa, pla ced tnc appellant between 15 . 5 and l 9 meters from where the guard was when he discharged the pistol. 199. ~r. r-t-uhanga submitted chat in the face of eviden c1.~ that the appellant was at a distance beyond which hls p isto l cou l d have caused flame borns , it is possible that someone aloe shot the guard. He re fe..r.ted i:o U 1u c ase of Dorothy Mutale and Pbiri v The People 48 and submitted that i:he c ourr should have drawn an inferenr •• Lavou able to -heap ellant a £ 0 1'l a s rzi eo _ _ I __ ,_ -J95- to t e gua .rd. 200. in~ ly, Mr. Muban a r u d h b_ _ e11 ~ je, lani:;;tt ' on _at h y we e att C ~ ~ ca - ea onably b r-ue. He r e_red 0 th cas - f D,avi.d Zulu.v ne Peop1e . . ~ a d submit ed th t ih he fa~ at e~ pl- wn - I 1.._.. reasona.b y ti ru_., an in er _n ee. f ui. ty 1.f:l ,.:: ~ he on yo e a could be d ~wn a he e.vi E.- c was befor - r · 1 j ud He ain u :. H Lha evidenc liola ol lins Ka . rub , who he ' ing -way ra m t _ see imme 1 - gunsho h uncba Lle-ng d ha L th re wa~ n-01 .e s o □ Le ~ .n ic ng !:Jf ~m, ar 1d e casings . plan ti n . s u_ppo_ 20 1. In spanse t ht an I r 1n.re I U,. J. t: y - 6 t e or, o ne ha een _he e 1 en e wa efo , ' r1 a JU g suom L -ed tha h - ri 1 J mind owl n a co nvic on on i h . I - Vi • • -J96- .::ornpetent . She correctly came to the conclusion that t bf:' only inference that could be drawn on tbe evid~IJce Uia t was before her , was c.hat it was the appe l lant 1,/ho sh oL his guard and that he had malice aforethought . 202 . Mrs . Mwansa also referred to the cases of Joseph Mulenga and Another v The People 50 and Do na ld FUmbeJ..o v The People , a n d submitted that since Chola Collins Kabamba and Pavan Kumar ' s testimony on the number ot gunshots that they heard was not contested , and there is evidence t:hat the three cartridge casings that w,ar o picked, were discharged from the appellant's plsto l , LhQ •:Jnly infe ,rence that ,:;an be drawn is that he is the o m.• Who shot the guard. 203 . It is common cause , that the c a:;;e agains t \ h . appellant, is anchored OJl circumstantial evidence . , 1, the case of David Zu,lu v The People 4 ~, Chomba dS , delivering the Judgment of the Supreme Court , obser\ ,ej as follows at page 204 : " It ,i s pal.,p!ll>ly clear that tha evidence ava i ;Lab.le at th e tr~al. was circU111sta.nt ,i .aJ ev id ence . It is competent • -J97 ·- for a court to convict on such ev.idence as it .is to convict on any other types of admis-si. J:,J.e evidence However, t:.here is one weakness pe=1i.ar . to circumstantial evidence; that weakness is that by i ts very nature circumstantial avidert.ce .is not nrect proof 0£ a matter at issue but rather is proof of facts not in issue but relevant to the £act in issue and from which an inference of the fact in issue may be drawn -" Tbe court went on to hold Lhac. : "It is therefore inctll!lheot on a trial. judge tnat he should guard ag .ainst draw.ing -wrong inferences fto m the circumstantial evidence at his cU sposal before he can feel. safe to convict. The judge :in o-ur -v:iew must, :in , order to feel. safe to convict , be satisfied that tbe circumstantial evidence bas taken the case out of' the real.m of conjecture so that it attain '$ ·suc,4 a deg,i::ee of eoge.ncy whieh can permit only o,f an :inferanoe of guilt ,' ' .20-! . It follows , chac when ~saess1ng w~etner an inferenc• ')f 91.1.ill:y is thcz only one tr,,at. ,:;an be " ~ircumstantial evidenc~, one n1ust 1~u} al all che pla~_s i, t evidence that p rove the relevanc Sil. TH.;:• 1.nter~nces are ctrawn OT1 .s-uch pr~v~ri iocs.s , th~ :1t'dr1 in t 111? t:p5e '[)[ Dorothy Mu tale and Another v The People' mu.at be borne 1.n m1nc1. In chat •.ase, Si.,pr-"'mr> co ,rrr ,,,i 6 , u·.; i:: -J98- " Where two or ·more inferences are poss i b.le , it al.ways been a cardinal principle of the criminal bas la~ that the Court will adopt the one , whic::h i!'I more £avourable to an accused i f the,re i,s nothing in the case to exclude such infe rence" 205 . Whether or not two or more inferences can be draw n from t he evidence , can only be determined afler evaluating all the evidence that wa.s presented dur l ng the trial and the findings of fact made therefrom . I t cannot be decided , by looki ng at a single proven o-c unproven fa ct . 206 . Before ~e set out the faces proved by che evidenc ~, i t is nec es~a.y to comment on the picking of "1f11l~ r:,artridge cas ings, t.hat ha s repeatedly been referred L•J 1,n chis case, We bave a l ready indicated that t he 1:r .ial judge rightly found that the eviden ce cif Mr, Mu tal e SC and Mr . Bwalya on the isaue , was hearsay . We h av9 a l s ~ foLJnd that the cartridge c asing describeo as 9mm by In3pector Chilufya, was a~tually a 10 . 2mm cartridq ~ e esJ.ng . As the tact.s proved s land , no 9mm cal' cr idq•:; c asi ng WqS picked 1n ~hls ca se. • -J99- 207 . Reverting to the releva nt facts that were prov ed, it was proved that jn the early hours of 6tn May 2017 , J shots were fired from with i n the appellant's premises. Soon after the shots were fired, the sound o f people, who appeared to be running away frcm tbe appellant ' s law firm , was heacd . No one saw those people , but not lo ng thereafter, the appellant called out indicating tha t hls guard had been shot . '!'he guard was found dead and a pos I. mortem found that he had died from a gunshot wound. 208 . The other facr.s proved are that scon after Lhe shooting , the appe l lant's pistol was recovered from c1 motor vehicle, where it had been concealed. 'I'hruc cartridge casings were also picked frorn the appe llan L' .s prem ises and ballistics examinat i ons confirmed t h at Lh~y were all discharged his , pistol. It 1.s on this 1;;viden<::~ that r.he trial judge found that the only inferen c e th at coulct be drawn , was the appellant shot. and killed l he guard , and was therefore guilty of the offence o f murder. - ·JlOO- 09 . I was ar ued ha- □ l loi:-11 n thea C l,l firea m ·ha ~au_ed h ed was 1 ri conclus.1 ve r n in ~er _nee of oil y was riot t 1e onl one ha· co l be d "awn on n __ tridence. More so, in t.he. at;e of ti .e v..:ctence ';"ron1 t 1 , scene re o st-u ion r tba he wa a. L a distance rom w1 ch his istol (;OU l d not hav lame u rn o ..:1erve has been crit c · sed o - n t consi erio is evi n e. _10 . Tne ev· enc ~ t ~ distance t whic the appellan _ was w en h i s i - a have d'scbarge h's ist o l as not a 1ve a by any i es igat've process . lt wa~ by the appel l an ; it shou d t h eref r e cons i • ..:. ed l the 1 g·h o th~ o th r e· 1id ..;JJ ce t at a:s b fore · 11.e t J. a J d e As we see i t"" he W=:!S J. n is whe he.r __ ad L hP ria .l ju ge co ·nsi -e.red i L s.he wo• ld ha ,ve arrive di - e - ent cone usion on whethe~ the gua d was · nJure y _ull . isch ~g by the app l nt's pis •a1 ~ l. A the admi ttea 1:nridence stands, th . p llan w ~ n t e p mi 5 es a: _i s 1 w . E 1 _ m s t J. e _n1 _ • • - Jl Ol - sustained fatal gunshot wounds. He is the only pee sol who discharged a firearm shortly befor e the guaro Wa!:: round dead . Can ic be said be said thaL tbe appellanl could not have caused the fatal l h jo ries the yuord suffered because he was 19 meters a.way? We don't thinJ< so. Si nce no one else d ischarged a firearm, no one else other than ~he appellant c9uld have sho~ the guard, . I\ review of tbe evidence establishes that no one else oc.her than t he appellar ,t discharged a firearm J n the premises where his guard was found fatally injured by a gunshot . Even if people were heard running away from the premises , those individuals did not dischar gi:, any firearm. Only the appellant discharged his pls Lc1 three times and tr1is is co nfir med by the t.hree car-tr idg0 ,;::asings picked. What thiE evidence points at, is t.hal eve n if one where to accept. Mr . Wolmarans ' ev.id.ence thn' t he person who shot the guard could not have been more that. 10cm away from him, is i:.hat the appellanc.'s cl a im t.hat he was 19 meters away, when he dischargea h is pistol, ca nnot be true. 213. We find i:hat even. if the trial judge dld not. d!:"<;J -J102- with claims evidence on distance the he was when ne fired al. v1hich the appella n t his pistol, the qthor evidence before her still points at the appellant be1n y the shootex-. The ocher ,evidence actually points al 1.:11, fact that he cou l d not have been where he cla ims hew.is . The appellartt was not in any way prejudiced by the trial judge ' s failure to deal with evidence of wh'::!te he wa:: because the other evidence before her totally exc lu des the possibility that someone, ot her than h im discharq Ed Lhe fatal shot . 214 . 1t is our view that the trial j\ldge 1 s finding th;,L it LS the appe ll ant who shot the guard is unassallabl ~ . The question is 1 did he have nialice aforethought ? Thu sppell -a nt denied aim i ng at the guard, he claimed tl 1at he> f.ired in thia air . As we have previously indicated In this jud gment, malice aforethough t c an be proved by direct evidence of the lntent:ion to kill or an intent Hlll ;:o cause grievous tiarm; see section of the Pena l Code. In this c ase, . there is no direct evide .nce of t h,~ .. • -Jl03- intention to kill and the tria l judge reli~d on the f acL that the appellaJ"lt. , a holder of a fiteprm' s Ucer1ce , should have known the effect of firing a .9istol a t ;i person. 2 15. We f:i.nd that she canoot be faulted for .an:iving a t. that conclusion. E'rom the evidence on reco,d, il j i:; apparent that the appellant was aware that the effect of firing a pistol at a pecson was that ic could caDse deat n or grievous harm. In our: view , th,;1t is why he mainLair1e:-d that he £ired in the a.1r 1 even though the evide[l e1· indic~t~s th~t it was not the case. 216. This being the case , we find thac an inference of guilty is the on l y one that could have been ~rawn on th~ evidence that was befo~e the tria l judge. The last ground of appeal cherefore fails . Verd i ct 217 . The on l y ground of appeal we have allowed 1s the on~ relating to the finding that there waa blood splatter 0 11 • -J104- the gate . Even though we allowed that ground of appeal, we find that it is of n o effect on the r:rial juctye ' s finding that an inference of guilty is only one Lhat_ could have been drawn on the evid~nce that was b~loc~ her. 2 1 8. Cons equently, we upho l d the appellant's conv iction o n the charge of murder . We have also looked at: Lhc sentence , in the light of the evidence that was before the t ria l judge and we equa I ly uphold the sen tsnce . '!'he evidence before the trial judge did nor: disclose ar.y extenuating circumstances to warrant the irnposicion ,.,, a sentenc;;; othet" than the one "Chat ~he i r11posed . • . .. " .... ~~!: .~'.'/' ..... '..'.~-~L~ ...................... D , L. Y . Sichin~a COURT OF APPEAL JUDGE . od/;:~~j -~i;··· ............. . . .......... COURT OF APPEAL JUDGE