Zulu and Ors v People (SCZ Appeal 3 of 1993) [1993] ZMSC 46 (16 February 1993)

IM THE SUPREME COURT OF ZAMBIA HOLDL^i AT LUSAKA (Civil Jurisdiction) SCZ APPEAL NO. 3-6 OF 1993 PETER BEM ZULU MATHIAS ZULU CHARLES SAKALA JOSEPH JuSTK ZULU Appellants Vs THE PEOPLE Respondent Corasi: Gardner, Saku la end ChaiU JJJS., loth February, 1993 For the Appellants: Nr. N. H. A. Samad, Senior Legal Aid Counsel. For the State: Mr. Nuuka, Legal State. JUDGMENT Gardner J.5. delivered the judgment of the court. The appellant was convicted on four counts. The first count was of hunting on private land. The particulars of the offence were that he, on or about the 9th and 15th December, 1989, at Chisamba in the Kabwe District, jointly and whilst acting together with ether co-accused did hunt game animals namely, four common duickers and a reedbuck on private land, namely ZAMANGLO Industry Corporation Company limited. The second count was of hunting during hours of darkness. The particulars of the offence being that he and the other accused on the 9th and 15th December, hunted animals namely four common duickers and a reedbuck inside private land during the hours of darkness while using a bulala lamp. The third count was of unlawful possession of Government Trophy. The particulars of which were that, he, with his co­ accused, on the 15th December 1989, did possess Government Trophy as set out in the charge. The fourth count was of hunting a protected animal which count was abandoned. J2 The facts of the case were that the apoellant and his co-accused were found at night on a private fann oy farm workers who gave evidence together with other prosecution witnesses. The prosecution witnesses said chat they heard the sound of gun shots and they went to investigate on the farm where they found the appellant and his co-accused together witn the carcases of some dead game. The appellant, who conducted his own defence in the court below, asked tnat the witnesses should be recalled, and, on recall tne witnesses said that when they first arrived at the scene, mere were only the otner co-accu$eci, and the appellant came later. There was evidence that two guns were found on the scene one of which was proved to nave been fired very recently and me ocher one not to have been fired. There was evloence tnat the appellant was carrying cne gun which had not seen fired. The first prosecution witness said mac the appellant said to the prosecution witnesses tnat they should not arrest tne accused persons because they were not culprits and tnat the main culprits were tne senior members of the Government who were poacning. The learned trial magistrate found that the presence of the appellant and his co-accused In a fenced paddock on a farm some distance away from me road Indicated that they must have been poaching the animals which were found. The appellant’s evidence was that the co-accused had taken on of their number to see a healer in the district because ne was suffering from mental problems. There was evidence to this effect from tint Government Medical officer who said that the person concerned had been admitted to Chainama Hills Hospital. The appellant said that when the people who were taking the sick person old not return, he went to where he nad left them on the main road ano was met by one of the co-accused. He said his fellow accused told him that they had found some poachers with some game meat, and the appellant, oelng a police officer, decided that he should go and inspect. He said octh he and bls co-accuseds were carrying guns because there were dangerous snakes in the area. The appellant’s evidence was that he was led by his co-accusad to a place where he found the rest of the accused together with the prosecution witnesses and the dea< animals. He denied that he had asked we prosecution witnesses to spare the accused because other people were more responsible for poaching. The learned trial Magistrate found that the fact that all these people were found on private land a long way from any road or path indicated that they were there for the purpose of poaching. „, The leamec trial Magistrate did not in nis judgment deal with the evidence of the prosecution witnesses when they were recailed to the effect that the appellant hlmsvif was not with the other co*accusedo where they were first found but that the appellant had chine later. The appellant in his appeal has argued that Oy not tahini? this evidence into account the learned trial magistrate misdirected himself and rjiat uu fr. Uul recti on ml fuUl to the conviction. /wuM, the btate Advocate, on behalf of the State, indicated that the State did net support the conviction pi tu* appellant. we are also concerned that the learned trial magistrate in considering the evidence of tne prosecution witnesses did not draw his own attention to the evidence or tlw witnesses witen tiiey were recalled to Um effect boat the appellant came on the scene laur. When tne learned trial magistrate rejected the evidence of the appellant he said in his Judgment chat none of the accused persons had denied that they were found in possession of cue gam sneat. Inis was a misdirection as to the factual evidence of tne witnesses, and had the learned trial magistrate not so aisoiracted himself 'he may well^^^ C0!W t0 a different conclusion as to the appellant’s guilt. Again, when considering whether or not the prosecution witnesses were telling toe cruta Men they said that the appellant had asked than not to arrest the accused persons because some senior people were responsible for poaching, the; bwru^d trial ma jt seme did n. K consider tn.- vict can whqn they first jivr evidehc? too pros;.'c;rtiiii; wtfusses ;uVv thi Hprossion that the appellar. one of ir group if tie psopId found ui?i im jas^ meat. It was only jfnr wra tnmc ch-y <»r-* to tell th.1 truth about the api^’lnt. -.gihi hau this uton considered oy ;h-j ieer.ijl trial -ujlstrate his d?uyr al biti va; n.iy well havi oeeu differs it. in u.te event, because of the learned trial nglstrata’s misdirection there is considerable doubt as to the guilt of the appellant mi tnn doubt rmst oe r?silv?7 in bls Tr* appeal Succeeds on this ground. 7.> a appv Jan', -Us;, sdjjested u-jair. on appeal tui duritij trial there was ar aajicocion chMt Ui’s r^uc Prys^u-jr mu the Hagistrace uore related* that ti<iv i>X'ai<, vugctiier unu trav thuy uruveii^u i»! enc soMe car '. Mjctuer. In virw of circu;;:;tur.c«3S, nad we found against the appellant on th® first ground we would uruered re.riai occause it is suits citur Uut justice was not seen to u.: in uu: event there is no need for such an order. The conviction is quashed and the sentence 1$ set aside. 4/......... If there was an order for forfeiture in respect of the ^un which belonged to Uw appellant that orAif is also set aslhs. J4 3. 1. GAHtttO SUtu-HL COJtu JuOSc £» L. SAKALA SUPktME C'JURi <X/ ”57s**ClilLA***** $UPR£M COURT JUKE