Mutale Sakala v The People (Appeal No. 145/2022) [2024] ZMCA 215 (23 February 2024)

IN THE COURT OF APPEAL OF ZAMBIA HOLDEN AT KABWE (Criminal Jurisdiction) Appeal No. 145/2022 BETWEEN: MUTALE SAKALA AND THE PEOPLE L 3 FEB 2024 NALREGIS 50067,LU APPELLANT RESPONDENT CORAM: Mchenga DJP, Ngulube and Muzenga, JJA On 16th May 2023 and 23rd February 2024 For the Appellant: · Mrs. M. K. Liswaniso, Principia! Legal Aid Counsel, Legal Aid Board For the Respondent: Ms. N. Lubasi, State Advocate, National Prosecution Authority JUDGMENT MUZENGA JA, delivered the Judgment of the Court. Cases referred to: 1. Mwansa Mushala v. The People (1978) ZR 58 2. Latins Lungu v. The People - SCZ Appeal No. 35 of 2018 3. Kanyanga v. The People - SCZ Appeal No. 145 of 2011 4. llunga Kabala and John Masefu v. The People (1981) ZR 102 5. Peter Yotam Hamenda v. The People (1977) ZR 184 J2 Legislation referred to: 1. The Penal Code, Chapter 87 of the Laws of Zambia. 1.0 INTRODUCTION 1.1 The appellant was charged with one count of the offence of murder contrary to Section 200 of the Penal Code Chapter 87 of the Laws of Zambia. He was subsequently sentenced to death by Makubalo J. 1.2 The particulars of offence alleged that on 23 rd September 2019 at Chipata in the Eastern Province of the Republic of Zambia, the appellant murdered Peter Banda. 1.3 He has appealed against the conviction and sentence on the basis that the prosecution did not prove its case beyond all reasonable doubt. 2.0 EVIDENCE IN THE COURT BELOW 2.1 The evidence of seven prosecution witnesses secured the appellant's conviction. The circumstances surrounding the deceased's death are that on the fateful night around 23:30 hours, PW1, PW2 and PW3 the neighbours to the appellant were awakened by the sound of a person J3 being assaulted. They woke up and were able to recognize the voice of the person assaulting another as being the appellant. 2.2 According to these three witnesses, the appellant was saying while assaulting the deceased "I have caught you. You are the ones who stole my bicycle. You were seven of you. Now 6 are remaining." PWl, PW2 and PW3 mobilised themselves and proceeded to the direction of the voice. PW2 was ahead and as he drew near, with a torch, the appellant took off. PW2 gave chase but could not proceed further as he had no shoes, and the appellant ran into thorny shrubs. He went back to see the person who was being assaulted. He found that the deceased was tied to a tree at the appellant's house and that was where he was being assaulted from. 2.3 The deceased died shortly thereafter and a manhunt was launched for the appellant. He was subsequently apprehended and handed over to the police. 2.4 This marked the end of the prosecution evidence. The appellant was found with a case to answer and he was put on his defence. J4 3.0 DEFENCE 3.1 In his defence, the appellant opted to give sworn evidence and did not call any witnesses. He denied assaulting the deceased as he was not there at his house on the material day. He admitted having lost a bicycle. 4.0 FINDINGS AND DECISION OF THE TRIAL COURT 4.1 After careful consideration of the evidence before her, the learned trial judge found that the prosecution had proved its case beyond reasonable doubt. 5.0 GROUNDS OF APPEAL 5.1 Unhappy with the conviction and sentence of the court below, the appellant launched the present appeal fronting two grounds structured as follows: (1) The learned trial court erred in law and in fact when it convicted the appellant for murder in the face of many doubts as to the guilt of the appellant. (2) The trial court erred in law and in fact when it sentenced the appellant to death without due consideration of the evidence on record which should have led to the finding of murder with extenuating circumstances. JS 6.0 THE APPELLANT'S ARGUMENTS 6.1 The gist of the appellant's submission in support of the first ground of appeal is that the trial court relied on the voice identification of the appellant by PWl and PW2 when the investigations officer did not conduct any voice identification parade. We were referred to the case of Mwansa Mushala v. The People 1 where it was guided that even persons well known to witnesses can be mistakenly identified. It was learned counsel's submission that there is no evidence on record beyond all reasonable doubt that the voice heard on the material date by the witnesses was that of the appellant. 6.2 It was the appellant's further submission that PW2 did not clearly see the appellant as he only pointed a touch in the direction of the person who was running and thus did not see his face. It was further contended that the prosecution failed to investigate the appellant's alibi. In support of this contention, we were referred to the case of Latins Lungu v. The People2 where the Supreme Court held that: "We pronounce ourselves on the need for the police to obtain relevant evidence and avail it to the Court to avoid any prejudice to the accused (and the prosecution} and it must be borne in mind that justice is for all parties." J6 6.3 In the alternative, the appellant contended in ground two of the appeal that had the trial court properly considered the evidence on the record, it could have concluded that there existed extenuating circumstances. We were referred to the case of Kanyanga v. The People3 where the Supreme Court held that: "Section 201 of the penal code should be read together with the Black's Law Dictionary which defines extenuation as mitigation circumstance means a fact or situation that does not justify or excuse a wrong act or offence, but that reduces that culpability and this may reduce punishment. A fact or situation that does not bear on the question of a defendant's guilt, but that is considered by the court in imposing punishment and especially the severity of a sentence." 6.4 It was learned counsel's contention that the law does not limit what can or cannot be an extenuating circumstance and that the facts in issue should be such that reduces one's culpability. Counsel submitted that it is not strange in the Zambian community for one who is said to be a thief to be beaten even though it is an unlawful act. We were urged to find that there were extenuating circumstances, thus imposing any other sentence other than death. J7 7.0 RESPONDENT'S ARGUMENT 7.1 On behalf of the respondent, the learned counsel in response contended that the trial court was on firm ground when it convicted the appellant of the offence of murder based on the identification by PWl and PW2. Counsel contended that PWl and PW2 lived in the same community with the appellant for six years and their houses were close to that of the appellant. 7.2 It was further contended that according to the evidence on the record, the distance between where the deceased was tied and beaten and the appellant's house is about 4 metres and the same point where the appellant's voice was heard. According to learned counsel, this cannot be a mere coincidence but an odd coincidence. We were referred to the case of Ilunga Kabala and John Masefu v. The People4 in which it was held that: "It is trite law that odd coincidences, if unexplained may be supporting evidence. An explanation which cannot reasonably be true is in this connection no explanation." 7.3 Counsel stated that there was no explanation from the appellant but a bare denial. J8 7.4 On the issue of PWl recognising the appellant using his torch, it was learned counsel's submission that the evidence on the record indicates that the distance between the PWl and the appellant when he lit his torch was approximately 6 metres and that PWl clearly saw the appellant. We were also referred to the case of Mwansa Mushala supra where the Supreme Court held that: "Although recognition may be more reliable than identification of a stranger, even when the witness is purporting to recognise someone whom he knows the trial judge should remind himself that mistakes in recognition of close relatives and friends are sometimes made, and of the need to exclude the possibility of honest mistake; for observation the greater that possibility becomes. The momentary glance at the inmates of the Fiat car, when the car was in motion, cannot be described as a good opportunity for observation." the opportunity the poorer 7.5 On the issue of the alibi raised by the appellant, it was the counsel's submission that the police did not see it relevant to investigate the abili as there is evidence on the record that the appellant merely ran away from his house. We were referred to the case of Peter Yotam Hamenda v The People5 where it was held that: "Where the nature of a given criminal case necessitates the that a relevant matter must be investigated but J9 it to investigate in fails investigating agency circumstances amounting to dereliction of duty and in consequence of that dereliction of duty the accused is seriously prejudiced because evidence which might have been favourable to him has not been adduced, the dereliction of duty will operate to the favour of the accused and result: in an acquittal unless the evidence given on behalf is so overwhelming as to offset the prejudice which might have arisen from the dereliction of duty." 7.6 Learned counsel further contended that even though the alibi raised by the appellant was not investigated, this did not prejudice him in any way. It was also contended that had the alibi been raised during warn and caution statement, the arresting officer could have made investigations into the matter. We were urged to dismiss this appeal and uphold the judgment of the court below. 7. 7 In responding to the second ground of appeal which was argued in the alternative, it was learned counsel's submission that the facts on this record do not disclose any extenuating circumstances and that there is no evidence on the record to indicate that it was the deceased who stole the appellant's bicycle. JlO 7.8 All in all, we were urged to uphold the judgment of the lower court and dismiss this appeal. 8.0 HEARING OF APPEAL AND ARGUMENTS CANVASSED 8.1 At the hearing of the appeal, learned counsel for the appellant, Mrs. Liswaniso, placed full reliance on the documents filed. On behalf of the State, Ms. Lubasi informed the court that the State would equally rely on the heads of argument filed before the court. 9.0 DECISION OF THE COURT 9.1 We have carefully considered the evidence on the record, the judgment under attack and the arguments for and against the appeal. 9.2 In support of ground one, learned counsel for the appellant has argued that the voice recognition evidence given by PWl and PW2 is not reliable as even in recognition of people previously known, mistakes have been known to be made. We agree that it is possible even in voice recognition or identification that mistaken voice recognition can be made. However, in this case it was not a case of single voice recognition evidence as PWl and PW2 independently heard and recognised the voice of the appellant speaking while assaulting someone. The danger of an honest but mistaken voice recognition is Jll further ruled out as the voice or sounds led them to the appellant's house where they found a person being assaulted tied to a tree. This provides supporting evidence. We thus find no merit in this argument. 9.3 Learned counsel further submitted that the failure for the police to investigate the appellant's alibi amounted to a dereliction of duty, which ought to operate in favour of the appellant. It would appear from the evidence of PW6, the arresting officer, during cross examination and re-examination, that he was informed by the appellant that on the material day, he was drinking beer at the bar the whole night. He added that he did interview some people but did not lay evidence before the court. 9.4 The Supreme Court in the case of Ilunga Kabala And John Masefu supra held inter alia that: "In any criminal case where an alibi is alleged, the onus is on the prosecution to disprove the alibi. The prosecution takes a serious risk if they do not adduce evidence from witnesses who can discount the alibi unless the remainder of the evidence is itself sufficient to counteract it." 9.5 We agree with learned counsel for the appellant that the failure by the prosecution to lay evidence before court, which was available to them, J12 amounts to a dereliction of duty, which raises a presumption in favour of the appellant and can only be rebutted by very strong evidence. However, in this case, there is evidence of PWl and PW2 who heard the appellant assaulting the deceased, found him tied at the appellant's house and the appellant was seen running away from the scene (his house) when the witnesses approached. This in our view is very strong evidence which offsets the prejudice occasioned to the appellant. We thus find this argument not to be helpful to the appellant. All in all, we find no merit in ground one and we dismiss it. 9.6 Ground two is argued in the alternative to the effect the trial court ought to have found the existence of extenuating circumstances. The appellant in his own evidence however, distanced himself from the assault on the deceased. He stated that he did not take part and that he was not around. There is no evidence as to the circumstances in which the deceased was caught and tied to the tree. It is unfathomable to expect the trial court in this scenario to find the existence of extenuating circumstances. We therefore cannot fault the trial court. This ground too, must tumble. , . J13 10.0 CONCLUSION 10.1 Having found no merit in both grounds of appeal, we dismiss it. The conviction and sentence imposed on the appellant by the lower court is upheld. DEPUTY JUDGE PRESIDENT -----~ -----------------· P. C. M. NGULUBE K. MUZENGA COURT OF APPEAL JUDGE COURT OF APPEAL JUDGE