Jawad v R (Criminal Review Case 3 of 2024) [2025] MWHCFin 1 (7 March 2025)

be Fe ee eae ND es AT oe Ee IN THE HIGH COURT OF MALAWI LILONGWE DISTRICT REGISTRY FINANCIAL CRIMES DIVISION CRIMINAL REVIEW CASE NO. O38... OF 2024 (BEING BLANTYRE SRM CRIMINAL CASE NUMBER 1066 OF 2015 BEFORE H/W BODOLE) BETWEEN MUBAMMAD JAWAD ccsseonrevsesneweancucemerenmese cersenwemnnerenaens APPLICANT AND REPUB LIC vc cccnussemncnnmmnnanamnnnnausimennansnuaannonmmnncennenimanacnn RESPONDENT CORAM: Hon. Justice Anneline Kanthambi Mr. Alfred Majamanda Counsel for the State Mr. Fostino Maele Counsel for the Applicant Mr. Harry Amos Court Clerk/Official Interpreter RULING On an Application for stay of Proceedings, Calling for the Lower Court Record, and Review 1. The Background This is the Court’s ruling on an Application by the Applicant for a stay of proceedings and a call of the record of BLANTYRE SRM CRIMINAL CASE NUMBER 1066 OF 2015 to the High Court for the High Court to exercise its powers of review on the legality and propriety of the order of proceeding to try and deliver judgment in the absence of an accused charged with a felony. The application is supported by an affidavit sworn by Counsel Fostino Yankho Maele and avers the following; Page 1 of 11 I, FOSTINO YANKHO MAELE legal practitioner of Po Box 51339 Limbe make OATH and STATE that: |. I conduct of this matter on behalf of the Applicant and I am duly authorized to swear this affidavit. 2. The matters of fact contained in this affidavit emanate from my general conduct of the matter on behalf of the Applicant and from the record of the proceedings that I read and I verily believe the same to be true, to the best of my knowledge and belief PARTICULARS OF THE APPLICANT OF THE CASE kad The Applicant appeared before the Blantyre SRM Court charged with the offence of money laundering contrary to section 35 (1)(b) of the Money Laundering, Proceeds of Serious Crimes and Terrorist Financing Act . 4. The particulars of the amended charge averred that the Applicant on or about the 11" day of August, 2015 at Chileka International Airport in the City of Blantyre, Republic of Malawi concealed in his hand language and was in possession of proceeds of crime namely the sum of $US269, 970.00 which he knew or had reason to believe that it presented in whole or in part, directly or indirectly, proceeds of crime namely illegal dealing in foreign currency unlawfully obtained. 5. The Applicant pleaded not guilty to the charges whereupon the State procecded to called witnesses. 6. At the close of the prosecution’s case the court on the 16" March, 2019 found the Applicant with a case to answer. 7. There were several adjournments largely due to the absence of the Applicant and on the 23" April, 2019 the Court ordered that if the Applicant would not appear the Court would proceed in his absence. 8. On the 23™ April, 2019 the Applicant was not present and his Counsel then Messers Ritz Attorneys applied for another adjournment which the State objected and the Court proceeded under section 248 of the Criminal Procedure and Evidence Code. 9. The court directed the parties to file written submission but the only the State filed. The Applicants legal practitioners then did not file any submissions 10. On the 13" June, 2019 the Court proceeded to pronounce a judgment in which the Court found the Applicant guilty of money laundering contrary to section 35 (1)( c) of the Money Laundering, Proceeds of Serious Crimes and terrorist Financing Act. Il. The copy of the judgment is exhibited and marked as “FM 1” 12. The court also heard submission on sentence in the absence of the Applicant herein. 13. The court has since set the 25" March, 2024 for the delivery of the sentence. The Notice is exhibited as “FM 27 14. A thorough reading of section 248 as also read with section 93, 94 and 95 of the Criminal Procedure and Evidence Code, makes it clear that the Court cannot proceeding the absence of an accused person in a case where the Accused person is being charged with a felony. 15. In the case at hand the Applicant was being charged with a felony hence the Court could not have proceeded with the case let alone proceeding with the judgment in this case at all as the Court cannot proceed with trial in the absence of an accused person charged with a felony. 16. Further the judgment shows that the court proceeded to convict the Applicant when he had not pleaded to the emended charge. A person cannot be convicted of a charge which they did not plead to. Page 2 of 11 17. The judgment also shows that the Court acquitted the Applicant of the initial charge which the State had preferred but the court directed the amendment of the charge and suggesting the charge to be preferred by the State. This was as well totally contrary to the role of the court as the arbiter. 18. It is therefore clear that the judgment in this case was made in error of law and any further orders that may be made for example on sentence would be of no legal effect at all. 19. Further, the charge was amended by the court in the ruling on the case to answer and the Applicant herein had not pleaded to it at all. 20. In the premises the judgment convicting the Applicant cannot stand at all as the charge had not ben read to the Applicant and the Applicant had not yet pleaded to it a person cannot be convicted of a charge that they had never pleaded to at all. 21. It would be in the interest of justice that this court stays the current proceedings and calls for the record of the proceedings so that the High Court can satisfy itself of the correctness of the of the order of the court below to proceed in the absence of an accused person charged with a felony. 22. It would not be fair that an erroneous order should be allowed to stand without this court satisfying itself with the propriety and correctness of the order to proceed in the absence of an accused charged with a felony 23. The interest of justice therefore lay in favour of granting a stay order of the current proceedings pending a full hearing of the review of those proceedings WHEREFORE from the foregoing premises, | humbly pray to this Honourable Court that it orders that the proceedings before the BLANTYRE SRM CRIMINAL CASE NUMBER 1066; THE REP vs MUHAMMAD JAWAD be stayed pending a further order of this court and that the record of the proceeding be immediately forwarded to the High Court for review SWORN by FOSTINO Y. MAELE...........cceeeeeeeee At Blantyre this 19 March, 2024 The Respondent also filed an affidavit in response to the application for review and averred the following; I, ALFRED MAJAMANDA, a legal practitioner in the firm of Messrs. Mbendera & Nkhono Associates, of P. O. Box 1785, Blantyre in the Republic of Malawi on this 17" day of June 2024 make OATH and SAY as follows: 1. THAT as the court record will show, on the 29" day of October 2018, I was duly granted consent, by the office of the Director of Public Prosecutions, to be a Public Prosecutor, for the purpose of continuing with prosecution of the present matter, as such, I have due authority to swear this affidavit on behalf of the Respondent. 2. THAT I depone to matters of fact obtained through my general conduct of this matter on behalf of the Respondent and I verily believe the same to be true to the best of my knowledge, information and belief. eo THAT the Applicant herein was charged, in the Senior Resident Magistrate Court Sitting at Blantyre, with the offence of Money Laundering of the sum of $269,970.00 contrary to Section 35 (1) (b) of the Money Laundering Proceeds of Serious Crime and Terrorist Financing Act. 4. THAT the accused pleaded not guilty to the charge and the State proceeded to parade its witnesses. 5. ‘THAT by Ruling dated 10" March 2016, the Senior Resident Magistrate Court found that the Applicant had no case to answer on section 35 (1) (b) of the Money Laundering Proceeds of Serious Crime and Terrorist Page 3 of 11 I2. Financing Act, but had a case to answer on section (1) of the said Act. Consequently, the Senior Resident Magistrate Court, directed that the charge sheet be amended to reflect the correct section of the Act. The Applicant has never challenged that order. THAT pursuant to the lower Court's above said direction, on 12" April 2016 the State duly filed its amended charge sheet and the same was duly served on the Applicant's legal practitioners on the same day as the court record will show. THAT according to the lower Court's Ruling of 10 March 2016, on the next scheduled date of hearing, the Applicant was supposed to enter his plea on the amended charge sheet. THAT however, as the court record will show, from the time the charge sheet was amended, there had been several adjournments of the matter, largely at the instance of the Applicant. THAT on several occasions, the Applicant did not appear before the lower court for the continuation of his trial. Due to the Applicant's continued absence, on 20" March 2017, the lower court adjourned the continued hearing of the matter to 4" April 2017 and directed that that would be the last adjournment and the Applicant must appear before the court on the above said date. This direction was made in the presence of the Applicant's then legal counsel, counsel Hara of Messrs Ritz Attorneys. THAT however, when the matter was called for continued hearing on 4" April 2017, the Applicant was once again absent. As the court record will show, due to the Applicant’s continued absence the lower court proceeded to revoke the Applicant's bail and issued a warrant of arrest against him. . THAT it should be highlighted that throughout the proceedings in the lower court, the Applicant continuously failed to comply with the directions of the court. ‘The Applicant was released on bail. His bail conditions were that he report to the Blantyre Police Station once a week, he was required to notify the police whenever he is leaving Blantyre and that he surrenders his travel documents to court. The Applicant's travel documents were given back to him on 25" November 2015 following an application he made to the court to allow him to travel to Mozambique for a week. However, the Applicant, to date, never surrendered back to the court the said travel documents. THAT I have been informed by Southern Region Prosecution Office at the material time, Mr. Mwambazi and I verily believe the same to be true that the Malawi Police Service could not trace the whereabouts of the Applicant herein, as such, the warrant of arrest issued by the Court in April 2017 could not be executed. . THAT the matter was subsequently rescheduled for hearing, however the same was continuously adjourned at the instance of the Applicant. On each instance that the matter was adjourned, both the Applicant and his legal counsel did not appear before the court, and no explanation was given for the absence of the accused. . TILAT in view of the manner in which the Applicant and his legal counsel had been conducting themselves throughout the course of the proceedings in the lower court, on 4" April, 2019 the court below adjourned the matter to 23"? April 2019 and directed that if the Applicant could not appear in court on the said date, the mater would be heard in his absence. . THAT on 23 April 2019, the Applicant once again did not appear in court. The Applicant’s legal counsel appeared in court and requested another adjournment. In view of the history of the matter, the lower court declined the request of the adjournment and the hearing proceeded in the absence of the applicant. THAT the applicant did not parade any witness in support of his defence. The court thus directed the parties to file final written submissions within 10 days. As the court record will show, the Respondent herein filed its Final Written Submissions, however the Applicant did not file any submissions. Page 4 of 11 17. THAT by judgment dated 13" June 2019 the lower court found the Applicant herein guilty on Money Laundering contrary to section 35 (1) (c) of the Money Laundering Proceeds of Serious Crime and Terrorist Financing Act. 18. THAT | verily believe that the Applicant's conduct throughout the proceedings in the lower court, were with the intention of preventing the continuation of his trial and thus evading justice. 19. THAT throughout the proceedings in the lower court, the Applicant gave no justifiable reasons for his absence. I verily believe that the Applicant intentionally chose not to appear in court, for the sole purpose of using his absence as a ground for review of the lower court's decision. 20. THAT I verily believe that the Applicant was well aware of the consequences of his absence in court, as on cach occasion that the lower court gave directions, the Applicant's appointed legal counsel was present in court. However, despite being aware of the consequences of his absence, the Applicant still waived his right to be present at trial and chose not to appear in court, even after clear directions from the court. 21. THAT in the premises, I verily believe that the Court below acted in the interest of justice by proceeding to hear the present matter in the Applicant's absence. PRAYER 22. WHEREFORE the Respondent humbly prays to this Honourable Court that the Applicant's present application for review be dismissed with costs SWORN by the said ) ALFRED MAJAMANDA ) At Blantyre this ....17".... Day of ...... June..... 2014 The Law; To answer the question whether or not this Court has the jurisdiction to call for the file and review the proceedings therein, section 25 of the Court's Act is the starting point and provides that: The High Court shall exercise powers of review in respect of criminal proceedings and matters in subordinate courts in accordance with the law for the time being in force relating to criminal procedure. [emphasis added] Further, section 26 of the Courts Act provides that: In addition to the powers conferred upon the High Court by this or any other jurisdiction over all subordinate courts and may in particular, but without prejudice to the generality of the foregoing provisions, if it appears desirable in the interest of justice, either of its own motion or at the instance of any party or person interested at any stage in the matter or proceeding whether civil or criminal, in any subordinate court, call for the record there of and may remove the same into the High Court or may give to such subordinate court directions as to the further conduct of the same as justice may require. Page 5 of 11 Upon the court calling for any record under sub section (1) the matter or proceeding in question shall be stayed in the subordinate courts pending the further orders from the court. Further, section 360 of the Criminal Procedure and Evidence Code provides that: The High Court may call for and examine the record of any criminal proceedings before any subordinate court for the purpose of reviewing the proceedings and satisfying itself as to the correctness, legality or propriety of any finding, sentence or order recorded or passed, and as to the regularity of any proceedings of any such subordinate court. This Court notes that when considering a matter on review, it has same powers as it has when considering an appeal from the court below pursuant to section 362 of the CP&EC it proceeds by way of rehearing as rightly submitted by the parties. This court will now consider whether the court below directed itself to the facts and law applicable in arriving at the verdict, and will interfere with the verdict if, on the law applicable, the verdict could not be had. Equally it will do so where there was a misdirection on the law applicable. See Mulewa v Republic [1997] 2 MLR 60. These principles are also expounded in the case cited by the appellants of Pryce v Republic (1971-72) 6 ALR (Mal) 65. Further, section 362 of the Criminal Procedure and Evidence Code provides for the powers of the High Court on review as follows; (1) In the case of a proceeding in a subordinate court the record of which has been called for or which has been forwarded under section 361, or which otherwise comes to its knowledge, the High Court, by way of review, may exercise the same powers as are conferred upon it on appeal by sections 353(2) (a), (b) and (c), and 356. (2) No order made in exercise of the powers conferred in this section shall be made to the prejudice of an accused unless he has first had an opportunity of being heard either personally or by a legal practitioner in his own defence. (3) The proceedings by way of review may take place notwithstanding — (a) that an appeal lies from the finding made, or sentence imposed, in the proceedings under review; and (b) that the time limited for the bringing of such appeal has not elapsed— (1) the time limited for the bringing of an appeal against the finding made, or the sentence imposed, in such proceedings has elapsed; or (ii) the accused has declared in writing that he does not intend to appeal against cither such finding or such sentence. (4) The exercise of the High Court of its powers of review under this section in relation to any proceedings shall not operate as a bar to any appeal which may lie against the finding made, or the sentence imposed, in such proceedings: By the provisions of section 362(1) of the CP&EC the High Court may exercise the same powers as are conferred upon it on appeal by sections 353(2)(a),(b) and (c), and section 356 of the CP&EC. In terms of section 353 of the Criminal Procedure, these are the powers granted unto the Court; Page 6 of 11 (2) After perusing the record of the case and after hearing the appellant or his legal practitioner if he appears, the court may, if it considers that there is no sufficient ground for interfering, dismiss the appeal, or may- (a) in an appeal by any aggrieved person from a conviction- (i) reverse the finding and sentence, and acquit or discharge the accused, or order him to be tried by a court of competent jurisdiction, or commit him for trial; (ii) alter the finding maintaining the sentence, or, with or without altering the finding, reduce or increase the sentence; (iii) with or without such reduction, or increase and with or without altering the finding, alter the nature of the sentence; (b) in an appeal by any aggrieved person from any other order, alter or reverse such order; (c) in an appeal by the Director of Public Prosecutions from a finding of acquittal- (i) if the finding of acquittal was arrived at without the defence having been called, remit the case to the subordinate court with a direction to proceed with the trial and to call on the defence; (ii) in any other case, convert the finding of acquittal into one of conviction and either make an order under section 337, 338 or 339 or pass sentence or remit the case to the subordinate court for sentence, and in any of the cases mentioned in this subsection the court may make any amendment or any consequential or incidental order that may appear just and proper. (3) Where the appellant does not appear at the hearing of an appeal, the court may- (a) if the appellant is the Director of Public Prosecutions , dismiss the appeal; or (b) if the appellant is the convicted person, adjourn the case. (4) Nothing in this section shall authorize the High Court to impose a greater punishment for the offence, which in the opinion of the High Court the accused has committed, than the trial court could have imposed. (5) When any person is acquitted of the offence with which he was charged but is convicted of another offence, whether charged with such offence or not, the High Court may, if it reverses the finding of conviction, itself convert the finding of acquittal into one of conviction. According to section 356 of the Criminal Procedure and Evidence Code, (1) In dealing with an appeal from a subordinate court the High Court, if it thinks additional evidence is necessary, shall record its reasons, and may either take such evidence itself or direct it to be taken by a subordinate court. (2) When the additional evidence is taken by a subordinate court, such court shall certify such evidence to the High Court, which shall thereupon proceed to dispose of the appeal. (3) Unless the High Court otherwise directs, the accused or his legal practitioner shall be present when the additional evidence is taken. (4) Evidence taken in pursuance of this section shall be taken as if it were evidence taken at a trial before a subordinate court. The Finding of Facts Having called up for the file and listened to the parties as well as having read their submissions, this Court finds the following; The Applicant herein was charged, in the Senior Resident Magistrate Court Sitting at Blantyre, with the offence of Money Laundering of the sum of $269,970.00 contrary to Section 35 (1) (b) of the Money Laundering Proceeds of Serious Crime and Terrorist Financing Act. The accused pleaded not guilty to the charge and the State proceeded to parade its witnesses. That by the trial Page 7 of 11 court’s ruling dated 10th March 2016, the Senior Resident Magistrate Court found that the Applicant had no case to answer on section 35 (1) (b) of the Money Laundering Proceeds of Serious Crime and Terrorist Financing Act, but had a case to answer on section 35 (1)(c) of the said Act. Consequently, the Senior Resident Magistrate Court, directed that the charge sheet be amended to reflect the correct section of the Act. On 12th April 2016 the State duly filed its amended charge sheet and the same was duly served on the Applicant's legal practitioners. According to the lower Court's Ruling of 10th March 2016, on the next scheduled date of hearing, the Applicant was supposed to enter his plea on the amended charge sheet, however, the same never happened as, from the time the charge sheet was amended, there had been several adjournments of the matter, largely at the instance of the Applicant. Due to the Applicant's continued absence, on 20th March 2017, the lower court adjourned the continued hearing of the matter to 4th April 2017 and directed that that would be the last adjournment and the Applicant must appear before the court on the above said date. This direction was made in the presence of the Applicant's then legal counsel, counsel Hara of Messrs. Ritz Attorneys. When the matter was called for continued hearing on 4th April 2017, the Applicant was once again absent and the lower court proceeded to revoke the Applicant's bail and issue a warrant of arrest against him. The matter was subsequently rescheduled for hearing, however the same was continuously adjourned at the instance of the Applicant. On each instance that the matter was adjourned, both the Applicant and his legal counsel did not appear before the court, and no explanation was given for the absence of the accused. On 4th April, 2019 the court below adjourned the matter to 23rd April 2019 and directed that if the Applicant does not appear in court on the said date, the mater would be heard in his absence. On 23rd April 2019, the Applicant once again did not appear in court. The Applicant's legal counsel appeared in court and requested another adjournment. In view of the history of the matter, the lower court declined the request of the adjournment and the hearing proceeded in the absence of the applicant. The applicant did not avail himself to testify or parade any witness in his defence. The court thus directed the parties to file final written submissions within 10 days. As the court record will show, the Respondent herein filed its “Final Written Submissions”, however the Applicant did not file any submissions. By its judgment dated 13th June 2019 the trial court found the Applicant herein guilty of Money Laundering contrary to section 35 (1) (c) of the Money Laundering Proceeds of Serious Crime and Terrorist Financing Act. The State is of the considered view that the Applicant's conduct throughout the proceedings in the lower court, were with the intention of preventing the continuation of his trial and thus evading justice because throughout the proceedings in the lower court, the Applicant gave no justifiable Page 8 of 11 reasons for his absence. The State believes that the Applicant intentionally chose not to appear in court, for the sole purpose of using his absence as a ground for review of the lower court's decision. The State further argues that the Applicant was well aware of the consequences of his absence in court, as on each occasion that the lower court gave directions, the Applicant's appointed legal counsel was present in court, and that despite being aware of the consequences of his absence, the Applicant still waived his right to be present at trial and chose not to appear in court, even after clear directions from the court. Based on the foregoing, the State believes that the Court below acted in the interest of justice by proceeding to hear the present matter in the Applicant's absence. Application of The Law on The Facts The law of this land is very clear, by virtue of Section 362(3) of the Criminal Procedure and Evidence Code, this Court can competently deal with the present application for review since the proceedings by way of review may take place notwithstanding — (a) that an appeal lies from the finding made, or sentence imposed, in the proceedings under review; and (b) that the time limited for the bringing of such appeal has not elapsed— (1) the time limited for the bringing of an appeal against the finding made, or the sentence imposed, in such proceedings has elapsed; or Subsection (4) of section 362 CP& EC also provides that the exercise of the High Court of its powers of review under this section in relation to any proceedings shall not operate as a bar to any appeal which may lie against the finding made, or the sentence imposed, in such proceedings. It therefore does not matter that the order of the court below was not challenged by way of an appeal let alone timeously, these review proceedings can still be lawfully had as the law permits the same. As regards the substance of the application itself, section 248 of the Criminal Procedure and Evidence Code dealing with the absence of an accused states the following; (1) If, upon the day fixed for trial or the day to which the hearing or further hearing is adjourned, the accused shall not appear and, in the case of proceedings originating by summons, it appears to the court by evidence on oath that the summons was duly served a reasonable time before the time appointed for appearing, the court may, instead of directing the issue of a warrant of arrest under section 95, proceed with the hearing or further hearing as if the accused were present: Provided that no sentence of imprisonment, other than a sentence in default of payment of a fine, shall be imposed on any person under this subsection. (2) If the court convicts the accused in his absence, it may set aside such conviction upon being satisfied that such absence was due to causes over which he had no control and that he had a probable defence on the merits. (3) If the accused who has not appeared as is mentioned in subsection (1) is charged with felony, or if the court, in its discretion, refrains from convicting or acquitting the accused in his absence, the court shall issue a warrant for the apprehension of the accused and cause him to be brought before. Page 9 of I] By the provisions of section 248 CP&EC above, it is possible to continue with the hearing in the absence of an accused when the accused had due notice of the proceedings. However, this hearing in the absence of the accused is subject to a few exceptions. The first being that the accused cannot be sentenced to a term of imprisonment in his absence, except a sentence in default of payment of a fine. Further the conviction is amenable to being set aside if the accused demonstrates that he had due cause for his absence over which he had no control, and he had a probable defence on the merits. Subsection 3 of section 248 of the CP&EC provides for another exception to the continued hearing in the absence of an accused, that is when the accused is charged with a felony, like in the present case. Section 4 of the Penal Code defines a felony as an offence which is declared by law to be a felony or, if not declared to be a misdemeanor, is punishable, without proof of a previous conviction, with death, or with imprisonment with hard labour for three years or more. The truant accused was charged with section 35(1)(b) of the Money Laundering, Proceeds of Serious Crimes and Terrorist Financing Act. Section 35(3)(a) of the Money Laundering, Proceeds of Serious Crimes and Terrorist Financing Act provides that person who contravenes this section commits an offence and shall on conviction be liable in the case of a natural person, to imprisonment for ten years and to a fine of MK2, 000, 000. Thus, the offence of Money Laundering as charged under section 35 (1) (b), and or the amended charge section 35 (1) (c) of the Money Laundering, Proceeds of Serious Crimes and Terrorist Financing Act attract a sentence of 10 years, rendering it felonious. That being the case, by virtue of section 248(3) of the CP&EC, the trial Court could not have lawfully proceeded to hear the matter in the absence of the accused, let alone convict him, his conduct notwithstanding. The law envisaged that such moments where the accused would absent himself in attempt to evade trial would occur, that is why there was inserted a safeguard in the latter part of section 248(3) CP&EC which provides that “the court shall issue a warrant for the apprehension of the accused and cause him to be brought before the Court.” Further safeguard is found in section 96(3) of the CP&EC which provides that every such warrant shall remain in force until it is executed or until it is cancelled by the court which issued it. Therefore, it does not matter how long the accused chooses to abscond, as long as there is a hanging warrant of arrest over his head, it remains valid and once he is apprehended on account of that warrant, the State is not precluded from continuing with his trial. Unfortunately, this is one of the shortfalls of our laws, that an accused person who has been found with a case to answer and facing a possible conviction can take advantage of especially when released on bail. The State is still left with the responsibility of effecting the warrant of execution by tracing the accused person’s whereabouts and bringing him to court. Page 10 of 11 The possibility of prosecuting the matter in the absence of the accused is one of the areas of the law worth exploring with a view to considering the review of the same to facilitate the bringing to justice those that are deserving. There are some jurisdictions that could be benchmarked, like the England & Wales and Northern Ireland, Scotland and Italy, among others, which in similar circumstances proceed to determine the matter to its logical conclusion, especially when it is abundantly clear that the accused is deliberately frustrating the ends of justice. In the meantime, in the absence of any statute empowering the court to proceed against an accused where he is charged with a felony, it would not be within the Court’s powers to go beyond the law in a bid to enforce the law or meet the ends of justice. The Court’s mandate is always confined within the precincts of the law, and the Court cannot be seen to be breaking the very law it seeks to enforce. That being said, the short of the matter is that the trial Court should not have proceeded in the absence of the accused person. It was sufficient that it had done what was lawfully within its mandate to do and issued a warrant of arrest, which warrant subsists up to now. Having been so empowered by the warrant of arrest, it behooves the State to carry out its duty to trace the accused and bring him to Court for trial. As matters stand now, the ball is in the State’s court. The Court will resume its responsibility once the State carries out its duty and brings the accused before it to stand trial. Regard being had to the foregoing, this Court, pursuant to section 353(2) (a) of the Criminal Procedure and Evidence Code, and pursuant to the powers granted unto the Court thereunder, after perusing the record of the case and after hearing the appellant’s legal practitioner, hereby reverses the trial court’s finding of guilt and sentence imposed on the accused person. This court further orders that upon his arrest, the accused person’s trial shall continue in the court of the Chief Resident Magistrate, with the accused taking plea to the amended charges. The trial court’s record is remitted back to the Court of the Chief Resident Magistrate. So it is ordered. Delivered this 7" day of March, 2025 at the High Court, Financial Crimes Division, Principal Registry in Blantyre. LL Anneline Kanthambi JUDGE Page Ib of 11