Musonda and Anor v The People (Appeal No. 86/2022; Appeal No. 87/2022) [2023] ZMCA 211 (23 August 2023)

IN THE COURT OF APPEAL OF ZAMBIA HOLDEN AT LUSAKA/ NDOLA (Criminal Jurisdiction) Appeal No. 86, 87/2022 BETWEEN: GUSTAVE MUSONDA SOLOMON MUSONDA .� / Cvv· _____::..., AND THE PEOPLE , 1 ST APPELLANT "-. \ 2ND APPELLANT ' 2 3 AUG l�tl � �ALREGI�! o Qr-. 7 /4'?-· RESPONDENT CORAM: Mchenga DJP, Majula and Muzenga, JJA On 18th January 2023, 22nd February, 2023 and 23rd August 2023. For the Appellant: Principal Legal Aid Counsel, Legal Aid Mr. P. Chavula, Board For the Respondent: Principal State Advocate, National Mr. F. M. Sikazwe, Prosecution Authority JUDGMENT MUZENGA JA, delivered the Judgment of the Court. Cases referred to: 1. Simon Malambo Choka v. 2. Saluwema v. The People (1965) ZR 4 3. Attorney General The People (1978) ZR 243 v. Marcus Kapumba Achiume (1983) ZR 1 J2 4. Morgan Gipson Mwape v. The People -Court of Appeal No. 31 of 2016. 5. Yokoniya 6. Machipisha Musonda 7. Chitalu Mwale v. The People -SCZ Appeal No. 285 of 2014 Kombe v. The People (2009) ZR 184 v. The People -SCZ Appeal No. 138 of 2014 to: Legislation referred 1. The Penal Code, Chapter 87 of the Laws of Zambia. 1.0 INTRODUCTION 1.1 The appellants were charged with one count of the offence of murder contrary to Section 200 and one count of attempted murder contrary to Section 215 of the Penal Code. 1.2 The particulars of offence in count one alleged that on 21st March, 2021 at Mpika in the Muchinga Province of the Republic the of Zambia, appellants jointly and whilst acting together murdered Norman Bwalya. The particulars of offence in count two alleged that on 21st March, 2021, at Mpika in Muchinga Province of the Republic the of Zambia, appellants jointly and whilst acting together, attempted to murder Felix Bwalya. J3 1.3 The trial court convicted the 1st appellant of murder and sentenced him to death in count one and both appellants were convicted of grievous harm in count two. The first appellant was sentenced to 4 years imprisonment with hard labour in count two while the second appellant was sent to an approved school by Limbani, J. 2.0 PROSECUTION EVIDENCE IN THE COURT BELOW 2.1 The appellant's conviction was secured by the evidence of three prosecution witnesses. A summary of the prosecution evidence was that PW1 and the deceased were fishermen and day, on the fateful they discovered that their fishing traps had been destroyed. They decided to sail across the river to enquire who may be responsible for the damage. Across the river, they found the appellants. PW1 then asked if it was the 1st appellant who had dismantled The 1st the traps. appellant responded that he was the one who destroyed them and that he would do the same to him. 2.2 The 1st appellant then sent his son the 2nd appellant herein to go and a juvenile fetch his gun. The second appellant aged 15 complied, brought the gun and handed it over to the pt appellant. Instantaneously, the 1st appellant aimed it at the deceased. The J4 second appellant begged him not to shoot but the 1st appellant threatened to shoot him instead and pointed the gun at him. The 2nd appellant knelt down and instantly ran to stand at a distance. 2.3 After this, the 1st appellant turned back and aimed at the deceased and shot him in the chest. The deceased fell into the water and some pellets hit PWl. PWl quickly jumped on the 1st appellant to try and disarm him. After seeing this, the 2nd appellant got a stick and hit him on the left arm. He let go of the 1st appellant and the 1st appellant ran away with the gun. PWl shouted for help and his father came to his rescue. The appellants were apprehended later that day by PWl, PW2 and other community PW2 members and took them to the police. confronted the 1st appellant about the shooting and the 1st appellant told him that it was the devil that led him to shoot the deceased. The 2nd appellant led PW3 and other police officers to recover the firearm and bullets in a bag in the bush. 2.4 This marked the end of the prosecution case. The appellants were found with a case to answer, and they were put on their defence. JS 3.0 THE DEFENCE 3.1 In his defence, the pt appellant opted to give sworn evidence and called no other witnesses. His account of how the events unfolded on the fateful day, in summary, was that when he saw the deceased and PW1 he was scared for his life because he identified the two to be among the people who were striking the fishing camp. According to the 1st appellant, his fear become worse when he saw that one of them came with a firearm. He told the trial court that he confronted the attackers who picked sticks and beat him. He narrated that they beat him so hard that he lost consciousness and when he gained consciousness his son told him that the gun which his attackers had went off during the scrimmage with PW1 and the deceased. 3.2 In his defence, the 2nd appellant opted to give sworn evidence and called no other witnesses. His evidence was similar to that of the 1st appellant that the 1st appellant was attacked by the PW1 and the deceased. He confirmed that during the struggle, the firearm went off and only one person was wounded. He accepted leading the police to the recovery of the firearm. 3.3 This marked the end of the defence case. J6 4.0 FINDINGS AND DECISION OF THE TRIAL COURT 4.1 After a careful consideration of the evidence before him, the learned trial judge found that the deceased was shot at a close range and that the ist appellant is the one who pulled the trigger. The trial court also found that the 2nd appellant tried to stop his father from shooting and that he was not part of the common unlawful design of shooting the deceased. 4.2 The trial court went on to find that there was no evidence on the record to support the allegation that the injuries PW1 sustained were from a gunshot. The trial court further found that the medical report on the record pointed to grievous harm and not attempted murder. On the totality of the evidence adduced, the prosecution had proved their case of murder in respect to the 1st appellant and grievous bodily harm in respect of both appellants. 4.3 The trial judge went further to find no extenuating circumstances in this matter. The 1st appellant was later sentenced to death and four years imprisonment with hard labour in respect of the second count. The 2nd appellant was sent to an approved school. J7 5.0 GROUNDS OF APPEAL 5.1 Embittered with the conviction and sentence, the appellant filed three grounds of appeal couched as follows: (1) The learned trial himself judge erred and misdirected the 1st appellant based witness of a suspect evidence both in law and fact in convicting on the uncorroborated when the dangers excluded. of false implication had not been fully (2) The learned trial judge misdirected himself and in fact in convicting explanation reasonably regarding possible. the appellant the events of the fateful both in law when his day was (3) The learned trial judge erred and misdirected the 2nd appellant of the himself both in law and fact in convicting offence evidence were due to a gunshot. grievous that the injuries of causing revealed bodily harm when medical which PW1 sustained 6.0 THE APPELLANT'S ARGUMENTS 6.1 In support of ground one of the appeal, learned counsel for the appellant contended that in convicting the appellants the trial court relied on the evidence of PWl a brother to the deceased who falls under the category of suspect witnesses whose evidence requires corroboration or something more to rule out the danger of false J8 implication. In support of this contention, we were referred to the case of Simon Malambo Choka v. The People1 where it was held that: interest of his own to serve with a possible more than a belief as if he were an accomplice "A witness should be treated to the or extent that his evidence requires corroboration based something in the truth thereof of his simply on his demeanour evidence. the court that the danger that implicated on the evidence the accused is being falsely and that it is safe to rely witness." and the plausibility more" must satisfy has been excluded of the suspect That "something 6.2 According to learned counsel for the appellants, PWl was not only a witness with a possible interest to serve but was also untruthful. Counsel brought to our attention of the inconsistencies in the evidence PWl and PW3. It was pointed out that PWl told the trial court that the bullet entered the deceased on his chest and protruded behind whereas PW3 stated that the bullet entered from the back and came out from the chest. 6.3 It was further contended that the dangers of false implication, in this case, were not excluded. We were urged to allow the appeal, quash sentence both the conviction and and set the appellant at liberty. J9 6.4 In support of ground two of the appeal, it was learned counsel's contention that the 1st appellant's explanation of how the events of the fateful day unfolded was reasonably possible and therefore the trial court should have taken the same into consideration. It was contended that the explanation of the 1st appellant that the gun fired accidentally when he was struggling with PW1, was reasonably when possible considered together with the finding of the court that there was no proof that the injuries which PW1 sustained were from a gunshot. We were referred to the case of Saluwema v. The People2 where it was held that "the accused person's case is reasonably possible although not probable, then a reasonable doubt exists and the prosecution cannot be said to have discharged its burden of proof." 6.5 In summation, counsel contended that the shooting was not intentional but accidental. 6.6 In support of ground three, it was contended that the conviction for the offence of causing grievous bodily by the harm is not supported evidence on the record. It was contended that the trial judge in convicting the appellant thought that the injuries which PW1 sustained JlO arose from beatings using sticks. It was submitted that the medical report form on page 116 of the record indicates which that the injuries PWl sustained were due to a gunshot and not sticks. That since the medical evidence shows that the injuries which PWl sustained were due to a gunshot, there is no evidence the 2nd on the record linking appellant to the offence of causing grievous bodily harm for which he was convicted and sentenced. We were referred to the case of the Attorney General v. Marcus Kapumba Achiume3 where the Supreme Court guided that: findings judge unless it is satisfied were either "The appeal court will not reverse by a trial question any relevant facts or that they were findings of the evidence, reasonably made of fact in that the findings of of the a proper view or made in the absence or upon a misapprehension no trial court acting correctly which, on evidence perverse make." can 6. 7 In summing up his submission, counsel contended that the prosecution did not prove the offence against the 2nd appellant beyond all reasonable doubt to warrant a conviction. We were urged to allow the appeal and acquit the appellants. Jll 7.0 RESPONDENT'S ARGUMENT 7 .1 On behalf of the respondent, the learned counsel submitted that the trial court properly warned itself of the dangers of suspect witnesses and how they should be approached. to our We were referred Judgment in the case of Morgan Gipson Mwape v. The People4 • In this case, in restating the principle laid down in the case of Yokoniya Mwale v. The People5 we held that: Court in the Mwale case concluded that a will thus be safe if it is based on the evidence of the deceased before "The Supreme conviction uncorroborated and relatives the evidence to have a bias or motive to falsely or any other interest was key was for the court to satisfy itself no danger for false implication." of witnesses or victim it, those witnesses who are friends that on provided could not be said of their own to serve. That what implicate the accused, that there was 7.2 It was learned counsel's further contention that in the case of Machipisha Kombe v. The People6 the Supreme Court guided that "there need not now be a technical approach to corroboration. Evidence of 'something more' which though not constituting corroboration as a matter of strict the court law, yet satisfies that the danger of false implication has been excluded." It was J12 the counsel's contention that in the present case, "something" may include the following: discovery of the appellant's firearm hidden in the bush, evidence of an independent witness, of PWl PW2, the injuries that were inflicted by gun pellets, and ballistic examination of the firearm among a few. We were urged to dismiss this appeal. 7 .3 In opposing ground two, counsel contended that even though the accused is entitled to lay down a defence, the 1st appellant's defence in this matter was an incoherent afterthought and that explains the reason the trial court did not believe it. We were urged to dismiss the appeal for lack of merit. 7.4 In responding to ground three, the State conceded that the trial court made a finding of fact in convicting the 2nd appellant which is not supported by the evidence on record. Learned State Advocate contended is still that be that as it may, the conviction safe as there is evidence from PWl to the effect that the 2nd appellant beat him twice with a big stick. We were invited to exercise under our discretion Section 16( 4) of the Court of Appeal Act and substitute a judgment of guilty for the 1st appellant for the offence of acts intended J13 to cause grievous harm contrary to Section 224(a) of the Penal Code. 7.5 We were urged to dismiss this appeal against conviction and sentence as it lacks merit. 8.0 HEARING OF APPEAL AND ARGUMENTS CANVASSED 8.1 At the hearing of the appeal, learned counsel for the appellant, Mr. Chavula on the documents placed full reliance filed. On behalf of the State, Mr. Sikazwe informed the court that the State would rely equally on the heads of argument filed before the court. 9.0 CONSIDERATION AND DECISION OF THE COURT 9.1 We have carefully led in the court below, the considered the evidence trial court's judgment and the submissions advanced by the parties. 9.2 The first ground of the appeal assails the conviction for murder by the trial court on account of the evidence of a suspect witness. We note that the eyewitness to what happened to the deceased was the deceased's brother, PWl. The law on how to treat evidence of suspect witnesses is settled in our jurisdiction. In the case of Chitalu Musonda v. The People7 stated , the Supreme Court that "A relative is not automatically a suspect witness, it is the circumstan ces Jl4 of the case that can render a relative to be a suspect witness." Furthermore, in the case of Yokoniya Mwale v. The People supra the Supreme Court held that: should not be said to be a witness "A witness to serve merely because they interest victim and that there should be something evidence that tends to show that such a witness be inclined of the in the would the appellant." are relatives implicate to falsely with an 9.3 The conclusion we draw from these authorities is that by merely being a relative or friend to the deceased, one does not automatically become a witness with an interest of his own to serve thereby requiring his or her evidence to be routinely corroborated. However, where there is evidence that more is needed for the court to rely on the evidence of such a witness, the court must always look for corroborative evidence. 9.4 In the present case, we have evidence that the deceased, PWl and the appellants had no previous quarrels or disagreements. In accepting the evidence of PWl the trial court warned itself of the danger of convicting on the evidence of a suspect witness. A perusal of the evidence on the record does not suggest any motive on the part of JlS PW1 to falsely implicate the appellants. We cannot therefore fault the finding of the court below in this regard. Accordingly, we find that ground one lacks merit. 9.5 With respect to ground two of the appeal, counsel contended that the 1st appellant's explanation of how the events unfolded on the fateful day was reasonable and thus the trial court erred in not accepting the said explanation. This ground seems to be attacking the decision by the trial court to accept the evidence of PW1 over the 1st appellant's evidence. court We have stated time and again that an appellate cannot, "willy nilly" interfere with the findings of the lower court without justification for doing so. We note that the trial court properly analysed the evidence of PW1 and that of the appellants and found the appellant's evidence not to be credible on account of inconsistencies, introduced belatedly, among other considerations. The trial court had the opportunity of seeing the witnesses before making any conclusions. We see no reason to interfere with the trial court's findings in this regard as he was entitled to do so on the evidence before him. We find no merit in ground two as well. J16 9.6 Coming to ground three of the appeal, we note that the respondent has conceded that the finding of fact upon which the trial court convicted the 2nd appellant is not supported by the evidence on the record. Learned counsel has referred us to the principles espoused in the case of Attorney General v. Marcus Kampumba Achiume supra and urged us to reverse the finding of fact upon which the 2nd appellant was convicted. 9.7 The learned trial court found that the injuries inflicted on PWl, the subject of the conviction in count 2, were as a result of being beaten with sticks and not a gunshot. A perusal of PWl's medical report shows that he sustained "soft tissue injury due to gunshot." The trial court's finding is thus unsupported by evidence before it and we thus set it aside. We find that PWl sustained gunshot injuries. From PWl's evidence, the 2nd appellant begged the 1st appellant not to shoot at the deceased and upon his father (1st appellant) threatening to shoot him, he retreated at a distance and that's how the deceased was shot and consequent injury to PWl. With this evidence on the record from PWl, we hold the view that the 2nd appellant did not play any part in inflicting J17 injuries on PW1. We find merit in this ground of appeal and we acquit accordingly the 2nd appellant. 9.8 We note that the 1st appellant in count 2 was convicted of a minor offence of causing grievous harm, having been originally charged with attempted murder. We have already noted that according to medical evidence, PWl suffered soft tissue injury. This clearly does not meet the threshold of "real serious harm" as envisaged by the definition of grievous harm (see Section 4 of the Penal Code). We are aware that no appeal in this regard was argued before us. However, in terms of Section 16(5) of the Court of Appeal Act No. 7 of 2016, this court is clothed with jurisdiction to make any other order which the trial court could have made. We thus set aside the conviction and sentence of 4 years imprisonment for causing grievous harm and in its place we find the 1st appellant guilty of assault actual occasioning bodily harm contrary to Section 248 of the Penal Code. We impose a sentence of 12 months imprisonment with hard labour with effect from 21st March, 2021. I'.. J18 10.0 CONCLUSION 10.1 Having found no merit in ground one and ground two, we uphold the 1st appellant's sentence conviction and in count one. In count two, we accordingly substitute a judgment of guilty for the 1st appellant for the offence of assault actual occasioning bodily harm and sentence the pt appellant to 12 months imprisonment with hard labour. 10.2 Having found merit in ground three, we allow the appeal, quash the 2nd appellant's conviction, school set aside the approved order and set him at liberty forthwith. DEPUTY JUDGE PRESIDENT B. M. AJULA COURT OF APPEAL JUDGE ···········�·········· K. MUZENGA ·· COURT OF APPEAL JUDGE