Pumpula and Anor v People (SCZ Appeal 64 of 1992) [1993] ZMSC 70 (22 April 1993)

IN THE SUPREME COURT OF ZAMBIA SCZ Appeal Nos. 64 & 65 of 1992 HOLDEN AT LUSAKA (Criminal Jurisdiction) 1. 2. KELVIN NDANDA YEVUKA PUMPULA ARONOLD LISHIKA Appellants vs THE PEOPLE Respondent CORAM: Gardner, A. D. C. J., Chaila and Chirwa JJ. S. 25th August, 1992 and 21st April, 1993. • Mr. E. Sewanyana, Assistant Senior State Advocate for the respondent Ms W. Henriques, Senior Legal Aid Counsel, for the appellants Chaila J. S. delivered the judgment of the court. (1) George Musongo vs The People SCZ Judgment No. 38 of 1978. The appellants were corfvicted of murder and were given mandatory death sentences. They have appealed to this court against both convictions and sentences. ■ ' ■ ' ■ ■ ■ \ Briefly the facts of the case were that on 27th January 1989 PW1 the deceased's widow and the deceased by the name of Lubasi Bowa went to the fields. While they were there the deceased decided to go to his other wife's field. PW1 remained alone in her field and.was approached by the appellants who informed her that she should go home as she had some visitors. The appellants escorted her half way and they told her that they were going elsewhere to collect some money owing to the deceased. The deceased never went back home. When the appellants arrived home PW1 asked them about the visitors. The first appellant pointed to some spot where they had allegedly left them. PW1 informed the two appellants that they had told a lie about the visitors. The following morning PW1 went to the fields. The first appellant followed her. When they arrived at the field saw a dog belonging to the deceased which she and the first appellant followed to the field where the deceased had gone the previous day. When they reached the field the first appellant pointed at the deceased body and said "See there is my uncle". The deceased was lying down dead and when PW1 started to cry the first appellant said: "What are you crying r* “ ■. •’ , "a*’: * /' •' /2...for?........ • -I - • • •/ . J2 - for?" Later the villagers were informed of the death. The scene was visited by PWs 2 and 3 and later by PW4. PW4 later interviewed the two appellants and second appellant said he and his co-accused had killed the deceased and that the first appellant had in fact killed hir Later the appellant led PW4 into the bush where the axe exhibited was hidden. The second appellant further revealed that he was merely requested to kill the deceased for a reward. PW4 handed the two appellants, axe and radio to the police. The appellants were arrested by the police and gave statements which were disputed in court. A trial within a trial was held andthe learned trial judge ruled that the statemeTits by the appellants to the police were free and voluntary and they were therefore admitted in evidence. Miss Henriques appearing for the appellants has advanced two grounds namely: (1) that the learned trial judge misdirected himself in finding that the appellants made free and voluntary confession’< statements on which he relief to convict the appellants. (2) The learned trial judge misdirected himself in not finding in the, circumstances of this case, that the failure by the prosecution to lift finger prints from the axe amounted to a dereliction of duty giving rise to the presumption that had they been lifted they would not match those of the appellants. Miss Henriques before arguing the appeal raised the issue of the age of the first appellant. She said that the first appellant was a juvenile at the time of commission of the offence. We ruled that the appeal would go ahead and if we dismissed the appeal against conviction then we would ask for medical examination of the first appellant. The appeal proceeded. ■ Miss Henriques has argued that the learned trial judge erred in relying in convicting the appellants on the confessions they gave to the police. She argued that in the first instance there was evidence to show that the appellants were assaulted before they were taken into custody and that they were kept in custody without being given food and that the police took too much time in recording the statements from the appellants. She has argued that the learned trial judge's ruling on the confessions was not adqequate. She has argued that the learned trial judge should have given adequate reasons why she rejected the story of the appellants. As regards the other /3...confessions to.... J3 confessions to messengers, Miss Henriques has argued that the Au* . ‘ appellants had been assaulted by vigilantes and that when they confessed to the messengers the threats or ill treatment were still operating on their minds. It would be very unsafe to rely on the confessions from the messengers. She referred the court to the case of George Musongo vs The People (1). The second point is on finger prints. She has argued that the police should have lifted finger prints from the axe but later she abandoned this argument when she was asked whether there was evidence that the surface of the axe was suitable for the acceptance of finger prints. ’■-y Mr. Sewanyana has conceded that the judge's ruling regarding the confessions to the police contained inadequate reasons and he further agreed that confessions to the messengers should also be excluded but despite that he maintained that there was sufficient circumstantial evidence to support the conviction. . .... . . * X" tj' We have considered th$ arguments put forward by both ^counsel The circumstantial evidence was that the appellants were placed on. the scene of the crime the day when the deceased went missing. The ■ appellants told PW1 that she was wanted home since she had visitors. PW1 went home and found that there were no visitors; She later challenged the two appellants and accused them of having'told, a lie about visitors. The deceased never returned. On the following day the first appellant went together with PW1 to the field. They found a dog which led them to the field where the deceased person had gone and they found the deceased dead. When PW1 started to mourn she was stopped by the first appellant. The two appellants later confessed to the vigilantes about the matter. The learned trial judge ruled that they had been forced by the vigilantes and .rejected the confessions to the vigilantes. The appellants gave confessions to the police. The admission of these statements was contested vigorously. The learned trial judge ruled that they were given freely and voluntarily. In his judgment the learned trial judge treated the other evidence as merely suspect and supported the evidence of the confession statements given to the police and the confessions given to the .messengers.:. We have considered the arguments , of Miss Henriques concerning the police statements. We are in total agreement that the ruling was very inadequate and it would be unsafe /4..to rely ........ to rely on such ruling. We are left with the circumstantial evidence and confessions to the messengers. In his judgment the learned trial judge was fully aware of the threats which were made by the vigilantes to the appellants and excluded any confession made to the vigilantes. He proceeded to consider the statements and admitted the confessions made to the messengers. The evidence clearly shows that the appellants freely made the confessions to the messengers. We do not agree with Miss Henriques’ arguments that threats by the vigilantes had effect to operate qn the minds of the appellants when they admitted to the messengers. We are satisfied that the circumstantial evidence supported by the confessions to the messengers was sufficient to warrant the convictions, The appeals against convictions are therefore dismissed. When this matter was argued the question of age of the first • • . ... ' . . appellant was raised. After we heard the arguments we made an order that the first appellant be examined as to his age at the time when the offence was committed. The medical authorities have submitted the^B report. They confirm that at the time of the commission of the offence the first appellant was a juvenile. As regards the second appellant ? the appeal against sentence Is dismissed. As regards the first ■■ appellant, the death sentence is set aside and it Its place we order that he be detained at the pleasure of the President. ! supr^xWwAjdge