Mark Mutengo v People (APPEAL No. 139/2017) [2018] ZMCA 632 (27 February 2018)

IN TH E COURT OF APPEAL OF ZAMBIA HOLDEN AT LUSAKA and NDOLA (Criminal Jurisdiction) APPEAL No. 139 /2017 BETWEEN: MARK MUTENGO AND THE PEOPLE ::j,,t_~•".#"" r.,,,_..,.,,.,.._, 2 7 FEB 2018 . a»:,i-, 1 ... _ .... ~ • ~ APPELLANT RESPONDENT Coram: Mchenga DJP, Mulongoti and Sichinga JJA On 6th September 2017 and 27th February 2018 For the Appellant: D. Ndhlovu, Kalulushi Chambers with K. Muzenga, Deputy For the People: C . K. Sakala, State Advocate, National Prosecution Authority Director, Legal Aid Board JUDGMENT Mchenga, DJP, delivered the Judgment of the court. Cases referred to: 1. Milford Maambo and 2 Others v The People, CC, Selected Judgment No, 31 of 2017 2. The Director of Public Prosecutions v Enos Kokomo [1970] Z. R. 41 3. The Director of Public Prosecutions v Ngoma [1976] Z. R. 227 (Reprint) 4. Shamwana and & Others v The People [1985] Z. R. 41 5. Chipango and Others v The People [1978] Z. R. 304 -J2 - 6. Simon Malambo Choke v The People [1978] Z. R. 243. 7. Abraham Mwanza and Two Others v The People [1977] Z. R. 295 (Reprint) 8. Mulenga v The People [1966) Z. R. 139 (Reprint) 9. The People v Nzila Mulonga [2013) 3 Z. R. 290 10. Kenious Sialuzi v The People [2006) Z. R. 87, 11. Elisha Malume Tembo v The People [1980) Z. R. 209 12. Alphonsious Cheelo Hamasaka, CAZ Appeal No 59, 2016 13. Kaamba v The People [1976] Z. R. 122 14. Regina v Evans [1958) R&N 432 Legislation referred to: 1. The Constitution, Chapter 1 of the Laws of Zambia 2. The Penal Code, Chapter 87 of the Laws of Zambia 3. The Criminal Procedure Code, Chapter 88 of the Laws of Zambia The appellant appeared in the High Court on an information containing a count of the offence of causing grievous harm with intent to maim , disfigure or disable, con trary to Section 224(0) of the Penal Code. The particulars of the offence alleged that on 25th March 2016, with the intention to maim, disfigure or d isable, he caused grievous harm to Christopher Chama . He denied the charge and the matter proceeded to trial. The evidence before the trial court was that the appellant, a resident of Kabundi North, in Chingola, had a field behind his house where he grew crops including banana and sugarcane. On 25th March 2016, around 19:00 hours, he -J3- decided to keep watch at his field because he had been a victim of thefts on two previous nights. He was armed with a firearm. According to the appellant, not long after he took his position, Christopher Chama and Evans Mwimba entered the field and they both uprooted some sugarcanes. When he shouted "do not run, I am going to shoot you", they dropped the sugarcanes and started running away. He fired a warning shot in the air but they did not stop. To stop him from escaping, he shot Christopher Chama in the leg. Later that evening, at the police station, the appellant rendered first aid to Christopher Chama to stop the bleeding from his leg. Christopher Chama and Evans Mwimba's evidence was that on the material day, they passed through the appellant's field, on their way to buy a phone when they heard a gunshot. Soon thereafter, Cristopher Chama was shot in the leg. They denied stealing any sugarcane at the time he was shot. Following the shooting, Christopher Chama was hospitalised for a month and 2 weeks during which period he underwent an operation in which 4 pellets were extracted from his leg. The medical report, which was admitted in evidence, indicates that the doctor who attended to him found that he had suffered gun-shot wounds on the left leg. The appellant was subsequently interviewed by the police and charged with the offence of unlawful wounding. However, the Director of Public Prosecutions committed him to the High Court for trial on the charge of causing grievous -J4- harm with intent to maim, disfigure or disable, even though he was not arrested or charged with that offence. Evidence was led during the trial showing that both Christopher Chama and Evans Mwimba were tried in the Subordinate Court for stealing sugarcane worth K7.50 from the appellant. Just before the close of the prosecution's case, when the arresting officer, the prosecution's last witness was testifying, the respondent attempted to withdraw the criminal charges through a no/le prosequi. The move was abandoned following objections by counsel representing the appellant. The trial judge found that Christopher Chama was on a path open to the public when he was shot. She found that at the time the appellant set out for his field, not only did he go there to see who was stealing from him, but he was also aware of the consequences of using the firearm. She found that the injury he inflicted on Christopher Chama amounted to grievous harm. She also found that the defence of self defence was not available to him because at the time he discharged the firearm , Christopher Chama and Evans Mwimba had already dropped the sugarcane and were not posing any threat to his property or posing any eminent danger to his life. She found the case against him proved and convicted him. He was sentenced to 5 years imprisonment with hard labour. The appeal , is in the main, against conviction. Mr. Ndhlovu and Mr. Muzenga have argued that since Christopher Chama and Evans Mwimba were suspect witnesses, their evidence should have been corroborated; that the ingredients -JS- of the offence of causing grievous bodily harm with intent to maim, disfigure or disable, were not proved; and that the trial judge wrongly placed the burden of proving the defence of self defence on the appellant. Mr. Muzenga, has in the alternative, advanced an argument against the sentence imposed on the a p pellant. However, before we deal with the arguments against the appellant's conviction and sentence, we will attend to some issues that Mr. Ndhlovu has raised, which we consider to be preliminary. He has submitted that the attempt by the respondent to enter a no/le prosequi instead of offering no evidence against the appellant, was an abuse of the trial process; that the prosecution of the appellant on a charge of causing grievous bodily harm with intent to maim, disfigure or disable, when he was not arrested or charged with that offence by the police, was unfair. Further, that the prosecution of the appellant for the subject offence, when Christopher Chama and Evans Mwimba were at the same time being prosecuted for stealing sugarcane from his field , was irregular. Just before the close of the prosecution's case, the defence counsel objected to the state advocate's intention to withdraw the case against the appellant by way of no/le prosequi. The objection was on the ground that it was an abuse of the process and he instead, demanded that the State should offer no evidence against his client. -J6- The power of the Director of Public Prosecutions to discontinue criminal proceedings has its genesis in Article 180 {4){a) of the Constitution. It provides that: "The Director of Public Prosecutions may- ( a) ...... . (b) ..... .. (c) Discontinue, at any stage before Judgement is delivered, criminal proceedings instituted or undertaken by the Director of Public Prosecutions or another person or authority." While this provision does not particularise the method of withdrawal, the power to enter a nolle prosequi is set out in section 81 of the Criminal Procedure Code and it provides as follows: "In any criminal case and at any stage thereof before verdict or judgment, as the case may be, the Director of Public Prosecutions may enter a nolle prosequi, either by stating in court, or by informing the court in writing, that the People intend that the proceedings shall not continue, and, thereupon, the accused shall stand discharged in respect of the charge for which the nolle prosequi is entered, and, if he has been committed to prison, shall be released, or, if he is on bail, his recognizances shall be treated as being discharged; but such discharge of an accused person shall not operate as a bar to any subsequent proceedings against him on account of the same facts." Though there is no legislative provision governing the practice of offering no e vi dence, it has been the practice for the Director of Public Prosecutions to offer no evidence in cases where for one reason or another, a decision has been made to abandon a prosecution . The offer of no evidence enables the court to acquit the accused person and the Director of Public Prosecutions will ordinarily not offer no evidence where there is a likelihood of the prosecution being restarted. -J7- Since the offer of no evidence, like the entry of a nolle prosequi, is a route the Director of Public Prosecutions takes to discontinue criminal proceedings, it is in the absolute discretion of the Director of Public Prosecutions. It cannot be questioned by the courts or anyone; see Milford Maambo and Two Others v The People 1 on challenging prosecutorial decisions of the Director of Public Prosecutions. In this case, the trial judge should not have allowed the appellant's lawyer to object to the decision to withdraw the charge through a no/le prosequi because the notice was given before judgment and was within the period prescribed in section 81 of the Criminal Procedure Code. This being the case, we find no merit in the complaint that the decision by the Director of Public Prosecutions to enter a no/le prosequi was an abuse of the process. Mr. Ndhlovu also submitted that there was miscarriage of justice when the appellant was prosecuted for the offence of causing grievous harm with intent to maim, disfigure or disable, when he was arrested for the offence of unlawfully wounding Christopher Chama. In the case of Director of Public Prosecutions v Enos Kakoma 2, the respondent appeared in court on charges of forgery, uttering and theft and was prosecuted on those charges. One of the charges was dismissed by the magistrate on the ground that the respondent , had not been arrested in that connection and that section 83 of the Criminal Procedure Code (now section 91 of the Criminal Procedure Code) had not been complied w ith. It was held, inter alia, that: -J8- "Arrest" means to physically confine a person who is alleged to have committed an offence. The respondent having earlier been arrested for other offences and already confined, could not have been arrested for the additional charge. For this reason the magistrate erred in dismissing the fourth count on the ground that the respondent had not been arrested." Further, in The Director of Public Prosecutions v Ngoma3, the respondent appeared in the High Court on a charge of murder. At the close of the trial, the case against him was dismissed and he was acquitted, for among other reasons, that no evidence of his arrest had been led during the trial. Baron, DCJ , delivering the Judgment of the Supreme Court, at page 230, observed that: "We are not aware of any proposition of law which suggests that evidence of arrest is necessary in a charge of murder, and it was abundantly clear on the evidence that the death of the deceased was established." First of all , we endorse the decision in Director of Public Prosecutions v Enos Kakoma 2, where it was held that where an accused person has been arrested for an offence and a decision is subsequently made to charge him with another or a different offence, there is no need to formally arrest him again for the new offence. Further, we are of the view that the position taken by the Supreme Court in The Director of Public Prosecutions v Ngoma 3, on there being no need to lead evidence of arrest in a murder case, is applicable to all criminal offences. It is our view that in all cases, the burden on the prosecution is to prove that the offence was committed and that it is the accused person before the court who committed it. The charge on which the accused person was interviewed or -J9- arrested , is immaterial and in the face of overwhelming evidence proving the charge, a court cannot acquit an accused person merely because there is no evidence that he was arrested on that charge . Evidence of arrest can probably be an issue where an accused person is facing a charge where an offender can only be arraigned on a warrant of arrest. However, it would appear that even in such a case, the objection should be ra ised before trial and once an accused person has subjected themselves to the jurisd iction of the court, he cannot, on appeal , question the propriety of the court to try him. Further, in cases before the High Court, section 245 (2) of the Criminal Procedure Code, provides that: " .... .... the Director of Public Prosecutions may charge the accused person with any offences which, in his opinion, are disclosed by the depositions either in addition to, or in substitution for, the offences upon which the accused person has been committed for trial." It is clear from this provision that even if the appellant was not charged with the offence of causing grievous harm with intent to maim, disfigure of disable, it was within the discretion of the Director of Public Prosecutions to prosecute him for the offence , if she was of the view that that is the offence the evidence d isclosed . In fact, what is paramount is that he defended himself on the charge he was facing and was given an opportunity to call witnesses. This being the case, we find no merit in the argument that there was a miscarriage of justice w hen the appellant was prosecuted for an offence for which he was not arrested. -JlO - Coming to the submission that the charge that the appellant was facing in the court below was bad for duplicity because his victims were at the same time facing charges founded on the same facts in the Subordinate Court, in Shamwana and 7 Others v The People4 , at page 55, Silungwe C. J., delivering the judgment of the court, observed as follows: "In plain English, the word duplicity means doubleness, insincerity, or double dealing. In law, it means the charging of two or more separate offences in the same count. Thus, where two or more offences are charged in the same count of an indictment, the indictment is, to that extent, bad for duplicity. As we observed in Mwandila v The People (7), at page 176, the law relating to duplicity is intended to avoid subjecting on accused person to an unfair trial, so that he may know exactly what case he has to answer. It is well established that duplicity in a count is a matter of form not of evidence called in support of the count. This is illustrated by the English Court of Appeal in R v Greenfeld and Others (6), at page 1156; and paragraph 28-26 of Archbold 41st edition (unless otherwise stated, reference hereinafter to Archbold will be reference to the 41 st edition). To ascertain whether a count is bad for duplicity, it is generally enough to examine the count itself, that is, the count's statement of offence as read with its particulars of offence, it being ordinarily unnecessary to look further than the count itself. If an examination of the count shows that two or more offences have been charged therein, then the count is bad for duplicity." In this case, the appellant who was charged for shooting a boy he found stealing in his field appeared in the High Court on an information containing one count of the offence of causing grievous harm with intent to maim, disable or disfigure. The boy he shot and his friend , were at the same time appearing in the Subordinate Court on a charge of theft . While the two offences are founded on th e same facts , they were not set out in one count in the same charge sheet or information, for them to be considered bad for being duplicitous. -Jl 1- We find that there was nothing wrong with prosecution of the appellant for shooting a boy who stole from his field when that boy was being prosecuted for stealing from his field. Consequently, we find no merit in the objection to the charge the appellant was facing on the ground that it was bad for being duplicitous . The first argument in support of the appeal was that the case against the appellant was anchored on the uncorroborated evidence of Christopher Chama and Evans Mwimba. These witnesses are said to be witnesses with a possible interest of their own to serve and their testimony should not have been relied on in the absence of corroborative evidence. Counsel referred to the cases of Chipango and Others v The People5 and Simon Malambo Choka v The People6 and argued that since these witnesses' evidence was not corroborated, it should be discounted. The respondents position was that issue cannot be made of the credibility of these witnesses because the appellant admitted shooting Christopher Chama. We agree that in the circumstances of this case, both Christopher Chama and Evans Mwimba can be categorised as being witnesses with a possible interest of their own to serve . This is because they were found stealing from the appellant's field at the time Christopher Chama was shot, yet they claimed that they were just passing through. In the circumstances , the possibility of them giving a misleading account to either exonerate themselves or falsely implicate the appellant, is highly probable. -J12- However, even though these two witnesses claimed that they were just passing through the appellant's field when Christopher Chama was shot, the trial judge did not accept the claim. She accepted the appellant's testimony that he shot at him after he attempted to run away. That was soon after dropping the sugarcane he had uprooted in the field. We agree with the respondent's submission that even though Christopher Chama and Evans Mwimba could be said to have been witnesses with a possible interest of their own to serve, there was no need for the trial judge to find evidence corroborating their testimony because she accepted the appellant's testimony and not theirs, of what happened immediately before the shooting. She accepted that they stole some sugarcane just before he shot at one of them. As a result, we find no merit in this argument and we dismiss it. Coming to the argument that the ingredients of the offence were not proved, counsel submitted that the offence under section 224 (a) of the Penal Code was intended to cover situations where serious harm is caused and not just assaults or ordinary unlawful wounding. They submitted that the medical evidence does not show the level of injury Christopher Chama suffered and in the circumstances, it cannot be said that the injuries envisaged under the provision. Counsel went on to argue that since all he suffered was a scar, at most, the evidence proved the offences of assault occasioning actual bodily harm or causing grievous harm. -J13- In response, it was submitted on behalf of the State, that it is not in dispute that Christopher Chama suffered a wound after the shooting and he was hospitalised for a month and two weeks . The doctor who examined him found that he had suffered gunshot wounds. Counsel submitted that the injuries he suffered meet the definition of a "wound" under section 4 of the Penal Code. Further, the appellant chronicled how he planned to execute the shooting. Section 224( a) of the Penal Code, which creates the offence of causing grievous harm with intent to maim, disfigure or disable, reads as follows: "Any person who, with intent to maim, disfigure or disable any person, or to do some grievous harm to any person, or to resist or prevent the lawful arrest or detention of any person- unlawfully wounds or does any grievous harm to any person by any means whatever; or ( a) (b) In our view, an offence is committed under the provision in any one of the fo llowing circumstances : 1. When a wound or grievous harm is inflicted with intent to maim; or 2. When a wound or grievous harm is inflicted with intent to disfigure; or 3. When a wound or grievous harm is inflicted with intent to disable; or 4. When a wound or grievous harm is inflicted with intent to cause grievous harm; or 5. When a wound or grievous harm is inflicted to resist or prevent lawful arrest; or 6. When a wound or grievous harm is inflicted to resist or prevent lawful detention. A court, will convict a person charged with an offence under the provision if there is proof that when the injury was inflicted, the offender's intention was to ma im, disfigure, disable or cause grievous harm and that the injury inflicted is eith er a wound or amounts to grievous harm . -J14- ln this case, the charge in the information alleged that the appellant caused grievous harm to Christopher Chama with the intention of maiming, disfiguring or disabling him . The appellant's evidence which was accepted , was that he shot him with the intention of preventing him from escaping . There was therefore evidence before the trial judge that the firearm was discharged with the intention of disabling Christopher Chama. In relation to the injury suffered , section 4 of the Penal Code defines the terms "grievous harm" and " maim" as follows: ""grievous harm" means any harm which endangers life or which amounts to a maim or which seriously or permanently injures health or which is likely so to injure health, or which extends to permanent disfigurement, or to any permanent or serious injury to any external or internal organ, member or sense; "maim" means the destruction or permanent disabling of any external or internal organ, member or sense" According to the medical report, Christopher Cha m a suffered "Gunshot wounds on the left leg + foreign bodies (pellets)" when he was shot by the appellant. For these injuries to amount to grievous harm they should have either endangered life or destroyed or permanently disabled an external or internal organ. Alternatively, the injuries should have caused serious or permanent injury to health or where likely to injure health or cause permanent disfigurement. In the case of Abraham Mwanza and Others v The People7, at page 296, Baron DCJ, delivering the judgment of the court and commenting on medical reports presented during trial, observed as follows: "There may be cases in which the medical report will be sufficient to supply this information without it being necessary to call the doctor, but our experience is that medical reports usually require explanation not only of the terms used but -J15- also of the conclusions to be drawn from the facts and opinions stated in the report. It is therefore highly desirable, save perhaps in the simplest of cases, for the person who carried out the examination in question and prepared the report to give verbal evidence in court; certainly the doctor should have been called in the present case." In this case, it is not clear from the medical report, whether the injury suffered by Christopher Chama did amount to grievous harm. It has not been established that the injuries endangered life, affected an internal or external organ or caused permanent injury to health . It is our view that the medical officer who prepared the report should have been called to explain the extent of the injury. Consequently, we find that there was misdirection when the injury he suffered was found to amount to grievous harm in the absence of evidence of the disability that was suffered as a result of the shooting. Notw ithstanding, it is our view that on the evidence before her, properly directing herself, the trial judge would have still found that the charge had been proved. Section 4 of the Penal Code defines the term "wound" as being: " ..... means any incision or puncture which divides or pierces any exterior membrane of the body, and any membrane is exterior for the purpose of this definition which can be touched without dividing or piercing any other membrane" The medical report shows that he suffered "Gunshot wounds on the left leg + foreign bodies (pellets)" and the trial judge found that these were extracted after an operation. Though there is no direct evidence on the issue, it is inconceivable that the pellets would have lodged themselves without piercing the skin, an external membrane of the human body. .. -J16- Even though the particulars of the offence mentioned grievous harm, we are satisfied that the appellant suffered no prejudice because it was brought to his attention that he was being accused of injuring Christopher Chama with the intentio n of maiming, disabling or disfiguring him. The last argument in support of the appeal against conviction was that trial judge placed the burden of proving the defence of self defence on the appellant. Counsel submitted that this was a misdirection in that all the appellant was required to do, was to raise the defence and it was for the prosecution to rebut it; the case of The People v Nzila Mulonga8 was referred to. In the alternative, counsel referred to section 17 of the Penal Code and the case of Mulenga v The People9 , and submitted that the defence of self defence was available to the appellant because he used reasonable force to repel thieves who were stealing from his field. Scrutiny of the judgment shows that the appellant's defence of self defence failed not because the trial judge rejected his evidence that he shot Christopher Chama to prevent him escaping but because she found that excessive force was used. It cannot, in the circumstances, be said that the trial judge placed the burden of proving the defence on the appellant. Coming to the alternative argument, in the case of Kenious Sialuzi v The People 10, it was held, inter alia, that: "A person shall not be criminally responsible for the use of force in repelling an unlawful attack if the means he uses and the degree of force he employs in doing so are no more than is necessary in the circumstances." -Jl 7- Further, in the case of Mulenga v The People9, the appellant shot a person he suspected was about to steal from his premises, delivering the judgement of the court, Doyle JA, at page 142, pointed out as follows: "Upon the trial judge's findings the appellant was entitled to arrest the deceased by virtue of s. 27 of the Criminal Procedure Code and to use all necessary force to do so by virtue of s. 15 of that Code. The measure of necessary force is provided by s. 18A of the Penal Code. The trial judge found that necessary force was exceeded, and this finding, which is amply supported by the evidence, disposes of any question that the appellant was entitled to an acquittal." In th is case, there was evidence, which was accepted by the trial judge, that the appellant shot at Christopher Chama when he was trying to apprehend him . It is our view, that in the circumstances, there was need to consider whether the law applicable was section 17 of the Penal Code, dealing with defence of property or section 18 of the Penal Code, which relates to the use of reasonable force to effect an arrest. The two provisions read as follows : Section 17: "Subject to any other provisions of this Code or any other law for the time being in force, a person shall not be criminally responsible for the use of force in repelling an unlawful attack upon his person or property, or the person or property of any other person, if the means he uses and the degree of force he employs in doing so are no more than is necessary in the circumstances to repel the unlawful attack." Section 18: "Where any person is charged with a criminal offence arising out of the arrest, or attempted arrest, by him of a person who forcibly resists such arrest or attempts to evade being arrested, the court shall, in considering whether the means used were necessary or the degree of force used was reasonable for the apprehension of such person, have regard to the gravity of the offence which had been, or was -Jl8- being, committed by such person and the circumstances in which such offence had been, or was being, committed by such person." The appellant's testimony was that he shot at Christopher Chama because he w a nted to apprehend him. At the time he shot him he had dropped the sugarcane that he had uprooted and was running away. The trial judge accepted this evidence and found that he was not repelling an attack as the stolen property had already been dropped and the thief was fleeing . She also found that the appellant was not in danger of attack. This being the case, it is our view that properly directing herself, the trial judge would have found that the law applicable was section 18 of the Penal Code, which deals with the use of reasonable force to effect an arrest. Notwithstanding the misdirection, we find that the appellant suffered no prejudice because both sections 17 and 18 of the Penal Code will only come to the aid of an offender when reasonable force is used to either repel an attack or apprehend a suspect. In both situations, what is reasonable is dependent on the circumstances of the case, including the gravity of the offence which was or was about to be committed by the victim. Christopher Chama was suspected of having committed a theft, which is a felony. He stole sugarcane valued K7 .50 from a field through which a public road run. We are satisfied, that the trial judge cannot be faujted for finding that the use of a firearm to stop a thief fleeing from a field where he had attempted to steal a sugarcane valued at K7.50, was excessive. Though theft is a felony, the value of what was stolen but abandoned, did not warrant the discharge of a -J19- firearm . The argument that the charge should have failed because reasonable force was used on Christopher Chama, therefore fails . Coming to the sentence, it was submitted on behalf of the appellant that the sentence of 5 years imprisonment imposed on him was manifestly excessive because he is a first offender who merely used excessive force to repel a thief. Counsel referred to the case of Elisha Malume Tembo v The People 11 , where a fine was imposed on a man who killed a thief using a firearm and argued that in this ca se, no death occurred , yet a sentence of 5 years imprisonment was imposed. Issue was also raised with the trial judge's refusal to receive evidence of Christopher Chama and Evans Mwimba's conviction at the time she was sentencing the appellant. In response, counsel for the respondent referred to the cases of The People v Alphonsious Cheelo Hamasaka 12 and Kaamba v The People 13 and submitted that the sentence of 5 years imprisonment should not come to this court w ith a sense of shock because there were aggravating factors . Christopher Chama was hospitalised for a month and two weeks and cannot now walk properly b e c ause some pellets have not been removed from his leg . It was pointed out that in The People v Alphonsious Cheelo Hamasaka 12, a sentence of 2 years imprisonment was increased to 10 years imprisonment for the same offence. The first issue we will deal with regarding the sentence is the trial judge's treatmen t of evidence of Christopher Chama 's conviction . We find that the appellant suffered no prejudice when the trial judge refused to accept -J20- evidence that Christopher Chama and his friend had been convicted for stealing from his field. In our view, the conviction was not in any way going to affect the sentence as his conviction was anchored on his use of excessive force to apprehend Christopher Chama and not whether or not the two boys had stolen from his field. In Regina v Evans 14, at page 433, Beadle J , commenting on the computation of a sentence, observed as follows: "The description of an offence is a most unsafe guide in assessing punishment. All things being equal; some offences are undoubtedly more serious than others, but the individual circumstances of each particular offence are the predominating factors to be taken into account in computing punishment. The mere name of the offence should not be stressed unduly in this connection. For example, all things being equal, it would be fair to say stock theft is a more serious crime than common law theft; but it would be absurd to say that the theft of a fowl worth a few shillings is a more serious crime than the theft of, say, a motorcar worth several hundred pounds." It follows , that because the use of a firearm resulted in death and only a fine was imposed in the case of Elisha Malume Tembo v The People 11 , does not mean a lower sentence and in particular, a fine , must automatically be imposed in this case . The sentence in this case must be determined by the circumstances surrounding the shooting , including the nature of the injury. Earlier on , we referred to the case of Abraham Mwanza and Two Others v The People7, and pointed out that the medical officer should have been ca lled to tes tify on the extent of injuries suffered by Christopher Chama. In addition to determining the nature of the offence committed , it would have assisted the c ourt d etermine the appropriate sentence . In the absence of that evidence, a ll I -J21- that was before the trial court was that the appellant shot Christopher Chama in the leg and that pellets where extracted. There was also evidence that the appellant helped stop the bleeding following the shooting. This should have gone to the credit of the appellant. It was within his right to apprehend Christopher Chama, only that he used excessive force. In the circumstances, the sentence of 5 years imprisonment with hard labour, comes to us with a sense of shock as being excessive. We set it aside, and in its place, we impose a sentence of 12 months imprisonment with hard labour. J. Z. MULONG I COURT OF APPEAL JUDGE