The People v Matthews Musonda and Ors (HP/316/2024) [2025] ZMHC 84 (10 October 2025)

IN THE HIGH COURT FOR ZAMBIA AT THE PRINCIPAL REGISTRY HOLDEN AT LUSAKA (Criminal Jurisdiction) HP/316/2024 THE PEOPLE V. • t ' .. . .. Coram: Chigali Mikalile, J this 1 oth day of October, 2025 For the People: Mr. S. Phiri & Ms. Mtonga, State Advocates - NPA For the Accused: Mr. J. K. Matende, Legal Aid Counsel - Messrs Legal Aid Board GiYICENT Legislation referred to: The Penal Code, Chapter 87 Cases referred to: . \ 1. Edward Sinyama v. The People (1993 -1994) Z. R 16 (S. C) 2. David Zulu v. The People ( 1977) Z. R 151 (SC) 3. Mwewa Murono v. The People, SCZ Judgment No. 23 of 2004 4. Woomington v. DPP (1935) A. C 462 5. Mushala and Others v.· The People ( 1978) Z. R 58 (S. C) 6. Nyambe v. The People ( 1973) Z. R 228 (C . A) -. .. Maketo and 7 Others v. The People (1979) Z. R 23 (S. C) Chabala v. The People (1976) Z. R 14 (S. C) Pensulani Banda v. The People (1979) Z. R 202 (S. C) Saidi Banda v. The People, SCZ Appeal No. 114 of 2015. Muvuma Kambanja Situna v. The People (1982) Z. R 115 (S. C) Choka v. The people (1978) Z. R 243 (S. C) Willard Hamunyangwa and Others v. The People, Appeal 39,40,41 /2023 Maseka v. The People(l 972) Z. R 9 7 . 8. 9. 10. 11. 12. 13. 14. 15. Njobvu v. The People, SCZ Judgment No.17 of 2011 • Text ref erred to: Adrian Keane, The Modern Law of Evidence (2000) 5 th Edition Introduction 1. The accused persons herein were arraigned for the offence of Murder contrary to section 200 of the Penal Code Chapter 87 of the Laws of Zambia. The particulars of the offence allege that Mathews Musonda, Misheck Phiri, Timothy Mondonona and Patrick Nthele on a date un known but between the 19th and 20 th day of September, 2023 at Chilanga in the Chilanga District of the Lusaka Province of the Repub lic of Zambia jointly and whilst acting together with others unknown did murder Bruno Chikalanga. 2 . All the accused p leaded not guilty. Trial course 3. In its endevour to prove the charge, the state called 8 witnesses. 4. PW l was Goliath Tumbama aged 29 who testified th at on 19th Sep tember 2023 at around 20:00, a friend, whose name he could not J 2 -- recall, invited him to Kazionele Market for a drink. The friend left be tween 02:00 and 03:00 and PWl also went home. The next morning, he visited the friend's house and was informed that the friend never returned home. PWl left and went back there around lunchtime. This time, he found the friend and he was asleep. When asked what the matter was, he mentioned that he had been beaten by Junior. PWl said he did not know Junior's full name. He only knew that he stayed in Kazionele area. Two to three days later, PWl learnt that his friend had died. 5. Under cross-examination, PWl recalled that the deceased was named Mweemba. He stated that he and Mweemba consumed alcohol from around 20:00hrs until about 02:00hrs the following morning. PWl maintained that he did not see the direction the deceased took after he left the drinking place as he was intoxicated. He confirmed visiting the deceased's house around 07:00hrs the next day. He denied the assertion that he visited because he knew what had happened to the deceased. 6. PW2 was Naomi Tembo who testified that on 20 th September 2023, around 09:00, she met a man named Timothy at Kazionele Market who was selling a phone. A3 was identified as the said Timothy. Her friend, Ruth Daka, needed a phone and upon being informed of the phone on sale, sent Kl00.00 to PW2 via Airtel money. According to PW2, she inserted her SIM card with the number 0978548030 and confirmed that the phone was in good working order. She then com pleted the transaction. She described the phone as a black Itel with J 3 -. grey sides, a crack at one corner, and a red battery. The phone was marked IDl. 7. PW2 further testified that Ruth used the· phone (IDl) for two months before buying a new phone. When PW2's phone got damaged, Ruth allowed her to use ID 1. 8. On 29th November 2023, Ruth came to her house in the company of police officers. PW2 was interrogated about the phone and she ex plained how she acquired it. The police confiscated the phone and picked up Ruth and her. They were taken to Chilanga Police Station for further questioning and PW2 learnt that the owner of the phone was deceased. PW2 was detained for two weeks. 9. Under cross-examination, PW2 confirmed that even Ruth was in police custody for 2 weeks. She clarified that she did not know A3 as a work ing class but as a pupil. She also stated that she was unaware that he frequented Patrick Nthele's (A4's) barbershop. She knew him simply because they lived in the same area. 10. PW3 was Ruth Daka aged 27. Her testimony was that on 20th Sep tember 2023, her friend PW2 informed her that someone was selling a phone. She was interested as her own phone had been stolen. She sent money to PW2 after she confirmed that the phone was in good working order. Around 18 hours, PW3 collected the phone (an Itel) from PW2 and inserted her two SIM cards with numbers 0979391968 and 0970834242. She testified that she used the phone for two J4 months before purchasing a new one. Meanwhile, PW2's phone got damaged and PW3 gave her the Itel phone to use. 11. On 29th November, 2023 the police paid her a visit at her work place. They questioned her about the Itel phone and she informed them that it was with her friend, PW2. They asked her if she was aware that the previous owner had died and she responded in the negative. The po lice then asked her to lead them to PW2's house which she did and the phone was retrieved. PW2 informed the police that she purchased it from Timo. Both of them were taken to Musamba Police Station. PW3 identified ID 1 as the Itel phone PW2 purchased on her behalf. 12. In cross-examination, PW3 confirmed that PW2 purchased the phone from Timo. She conceded that she was one of the murder suspects and was only released upon giving a statement. 13. PW4 was Alick Malulika, a Welder aged 32 who operates from Ka zionele Market. It was his testimony that in September 2023, A4, identified as Patrick Nthele, offered to sell him a memory card for K 70. PW4 paid K 40 upfront as he didn't have the full amount. He kept the card in his music system without incident until 5 th January 2024 when police officers from Chilanga Police visited his shop in the com pany of A4 and collected the memory card. PW4 told Court that he had known A4 since childhood. He also identified the memory card which was marked ID2. J 5 • -14. Under cross-examination, PW4 stated that nothing occurred after giv ing his statement and denied going to Chilanga Police on 5 th January 2024. He acknowledged that there are many memory cards similar to the one he bought. He pointed out that there was nothing saved on the memory card which indicated who the previous owner was. PW4 accepted that he charges people's phones at a fee. He also accepted that the barbershop where A4 operated from was also in the business of charging phones. 15. PWS, was 44-year-old Gloria Mbozi of Shakatwe Village in Kafue Dis trict. She testified that in September 2023, she received information that her younger brother, Bruno Chikalanga, the now deceased, had been beaten. She rushed to and found him at Chipapa Clinic. He was later transferred to Chilanga Clinic and then back to Chipapa. When asked who assaulted him, the deceased stated that he was assaulted by four people. This included Misheck, her husband's tenant and Matthews, his grandson. He also mentioned that his phone had been taken during the assault. According to PWS, although there were no visible injuries, she could tell that Bruno was unwell. She identified A 1 and A2 as Matthews and Misheck respectively and further told Court that Al is also known as Junior. 16. When cross examined, PWS reiterated that she did not observe any physical injuries on the deceased. 17. PW6 was Philip Kasaila aged 60 of Chipapa Mulendema village. He told Court that the deceased, Bruno Chikalanga (also known as J 6 • Mweemba), was his grandson. On 19th September 2023, Bruno re turned home in the evening. He ate a meal prepared by his mother and was later picked up by his friend, Goliath Tumbama (PWl herein), with whom he proceeded to a tavern. 18. The following morning, between 06:00 and 07:00hrs, the deceased's elder brother, Luckson Mbozi, received a call from one Owen informing him that Bruno had been beaten. PW6 testified that he and the Bruno's mother rushed to the scene where they found Bruno in a wire box. He was assisted out of the box and they noticed that his stomach had hardened. They took him to Chipapa Clinic where they were ad vised to obtain a medical report. PW6 hired a taxi and took Bruno to the police station where a report was issued. Bruno was then taken to Chilanga Clinic where an X-ray was done before he was referred back to Chipapa Clinic. 19. After receiving treatment, Bruno was revived and able to walk home. According to PW6, on the way home, Bruno informed him that he had been beaten by four people, two of whom he knew and two of whom he could identify if seen. He pointed to one house close to the clinic saying Matthews (also known as Junior) lived there and also pointed to another as the one where Misheck resided. He also stated that these individuals stole his Itel phone. 20. It was PW6's further testimony that Bruno's condition worsened around midnight and he was taken him to Kazionele Hospital. Due to the severity of his condition, he was transferred to Kafue and later to J 7 • University Teaching Hospital (UTH). At 15:00, he was taken to theatre and thereafter placed in the Intensive Care Unit. He died between 22:00 and 23:00hrs on 22 nd September, 2023. 21. PW6 identified A 1 and A2 as Mathews and Misheck and he told Court that he knew them as they grew up in his village. 22. When cross examined, PW6 confirmed that the information he had about the incident came directly from the deceased after his discharge from Chipapa Clinic. He explained that when they left the clinic for the police station, Gloria (PW5) stayed behind due to limited space in the taxi but later rejoined them for the return home. PW6 emphasised that those present when the deceased recounted his ordeal other than himself were PW5, the deceased's mother and the deceased's brother. There was no re-examination of this witness. 23. PW7 was Wana Mukuma, Regulatory and Data Protection Head at Air tel Networks, Zambia whose duties include ensuring that law enforce ment agency requests are processed on behalf of the institution. It was her testimony that the institution was issued a warrant to extract information which included call records, IME and the KYC (Know Your Customer) information related to 0770152060 and 0779391968. The results of the query in the system revealed that the number 0770152060 was registered to Bruno Chikalanga while the number 0779391968 was registered to Ruth Daka. J 8 -24. It was her evidence that the system which she used was very secure as it was firewall protected and regularly serviced and updated. The KYC, the call records and IMEI were identified IDs 3 to 5 and subse quently produced as P3 to PS respectively . 25. PW7's evidence was that the IMEI (PS) showed that the • s1m 0978548030 (belonging to PW2) was inserted into the device at 14:35hrs. She stated that the number that appeared frequently was 0970834242 (which was PW3's number). PW7's evidence was that according to P4, the number 0770152060 was last used on 20 th Sep tember, 2023. 26. When cross examined, PW7 She stated that the call records do not reflect that the sim 0978548030 (PW2's sim) was inserted at 09:00hrs on 20th September, 2023. 27. PW8 was Dt. Inspector Brighton Chisola whose testimony was that on 24 th September 2023, he was assigned a murder case to investigate in which Phillip Kasaila (PW6) reported that his grandson, the now de ceased, had been assaulted between 19th and 20th September, 2023 in the Kazionele area and later died on 22nd September, 2023. During the assault, the deceased's phone, containing SIM number 0770152060 was stolen. 28. On the docket was the medical report issued to the deceased on 20th September by Chilanga Police Station. PW8 told court that he inter viewed Phillip Kasaila, Patricia Chanda, Gloria Mbozi, Luckson Mbozi, J 9 11111 ■m• • and Goliath Tumbama, all of whom confirmed that the deceased had named four assailants, including Mathews Musonda and Misheck Phiri. 29. According to PW8, he visited the crime scene in Kazionele and estab lished that the deceased was attacked along a gravel road and later found at Seyuwa Farm. He subsequently apprehended Al and A2, and warned and cautioned them. They decided to remain silent. He later submitted the number - 0770152060 requesting for KYC infor mation. He received feedback from Airtel and confirmed that the num ber indeed was registered to the deceased, Bruno Chikalanga and was inserted in the phone bearing serial number 3500134213514. Further review of the records showed that on 20 th September, 2023, the num ber 0978548030 which belonged to Naomi Tembo, PW2, and another number 0970834242 belonging to Ruth, PW3, were used in the phone. 30. PW8 tracked down PW3 who in turn led him to PW2 from whom he retrieved the phone. He checked the phone's serial number and con firmed that it matched the deceased's phone. He recorded statements from both witnesses. PW2 informed him that she bought the phone from Timothy Mondomona (A3) and later gave it to PW3. In a warn and caution statement (admitted in evidence following a trial within trial) A3 admitted that the phone belonged to the deceased and con fessed to participating in the assault and theft, naming Matthews Mu sonda, Misheck Phiri, and Patrick Nthele as accomplices. Patrick Nthele (A4) was said to be the one that got the memory card. J 10 -31. PW8 further testified that A4 who had been on the run, was appre hended by the Anti-Robbery Squad in Eastern Province. Under a warn and caution statement (also admitted in evidence) A4 admitted that four individuals, including himself, attacked the deceased and stole his cell phone. He got a memory card from the phone and later sold it to Alick Malulika (PW4) of Kazionele compound. A3 retained the hand set. He also revealed that they left the deceased unconscious near Seyuwa's farm. 32. According to PW8, he was led by A4 to PW4 from whom he recovered the memory card originally in the deceased's phone. PW4 confirmed that he purchased it from A4. PW8 was also shown the location where the deceased was attacked and left. 33. PW8 said he obtained the postmortem report from Dr. Victor Telendiy, who conducted the examination on 23rd September 2023 . The report confirmed that the deceased died from blunt trauma to the abdomen. Upon inspecting the body, PW8 observed stitches on the abdomen. 34. Based on these findings, PW8 made up his mind to charge and arrest the accused persons for the subject offence. He identified the medical report (marked ID7), the postmortem report (marked 1D8), the Itel phone (IDl) with serial numbers 350013421351445 and 350013421351452 and the memory card (ID2) and subsequently pro duced them in evidence and the exhibits were marked Pl, P2, P7 and P8 (chronologically). J 11 _ 35. Under cross-examination, PW8 confirmed that Al and A2 denied in volvement in the assault. He stated that he charged Al and A2 based on A3 and A4's confessions as well as PWl's narration. He admitted that there was no physical evidence found on Al and A2 directly link ing them to the crime. He also confirmed that PWI, PWS, and PW6 all reported that the deceased mentioned Al and A2 as his assailants. He, however, admitted that the medical report states that deceased was beaten by unknown people. PW8 clarified that his conclusions were based on evidence provided by the deceased's relatives. He as serted that the deceased was the best person to know who his assail ants were and he named them before his death. 36. In further cross-examination, PW8 stated that there was evidence sug gesting that the deceased and his friend went drinking around 20:00hrs but could not confirm the time they started drinking. He also stated that the crime scene was located approximately 15 meters from the main road and near the market and showed signs of a strug gle. He further stated that it was not within his knowledge if there was light at the time of the attack. PWl, PWS and PW6 stated that there were 4 assailants while A4 stated that there was a fifth person but that he did not participate. 37. Regarding the deceased's phone, PW8 denied being told that it was left for charging at A4's barber shop. He also stated that the phone had two sim cards but PS only represented one sim. According P4, how ever, the last call was made on deceased's number on 20th September, J 12 at 03:SOhrs. PW8 confirmed that he did not have a word with anyone who spoke to the deceased on phone on 19th September, 2023. 38. Further in cross, PW8 was shown A3's warn and caution statement and he confirmed that there is no mention of Al and A2. He clarified that only A4 led him to retrieve the memory card. He accepted that he had no evidence regarding the use of the phone at the time it was allegedly at the barbershop but the call record showed that it was ac tive. 39. At the close of the prosecution's case, all 4 accused were put on their defence and all opted to give evidence on oath. No other witnesses were called. Defence 40. Al, Mathews Musonda, aged 25, testified that on 6th October 2023, between 03:00 and 04:00hrs, police officers unexpectedly arrived at his home and accused him of drug dealing, which he denied. A search of his house yielded nothing and yet he was apprehended and placed in custody at Chilanga police station without being questioned. 41. A week later, he was taken to CID and asked about an assault that occurred at the compound, an issue unrelated to his initial detention. Despite repeated questioning, he maintained that he had no knowledge of the assault. Later on, he was joined in cells by Misheck Phiri (A2), a person he did not know or associate with. Both denied knowing each other during questioning. A 1 expressed surprise that J 13 • he was in Court when he knew nothing. He denied PWS's claim that he participated in the assault of the deceased and stated that he was not present on the day of the incident and had no involvement. 42. Under cross-examination, he confirmed that he resided in Kazionele Compound and that he was related to Headman Shakatwa. He denied the assertion that he occasionally consumes alcohol. He conceded that that was the first time he was claiming not to know his co-ac cused. 43. A2 was Misheck Phiri, a 25-year-old businessman of Kazionele Com pound. He testified that on 14th October 2023, he went to sleep at around 21 :OOhrs. Between 03:00 and 04:00hrs, police officers arrived at his residence, where they apprehended him. He was taken to Chilanga Police Station and held in the cells for two weeks before his charge was made known to him. It was alleged that he and his friends assaulted someone who eventually died. He claimed no knowledge of the deceased identified as Bruno Chikalanga and maintained his in nocence when questioned about the matter. A2 also denied knowing his cellmate, now Al and Al similarly denied knowing him. 44. After sometime, A2 and Al were joined in the cells by A3 whom A2 claims to have met for the first time on that day. Weeks later, they were joined by A4, also a stranger until the day he was brought in. According to A2, he was surprised that he was jointly charged with people he did not know. On the whole, A2 denied having participated in the assault of the deceased. He confirmed that PWS was his land J 14 lady. He denied being with A3 and A4 when the deceased was at tacked. 45. When cross examined, A2 reiterated that PW5 was his landlady. He, however, expressed ignorance over the relationship between the de ceased and PW5. 46. A3 was Timothy Mondomona aged 24 of Kanjalika Village, Kafue Dis trict and former grade 11 pupil. It was his testimony that on 8th No vember 2023 around 22:00hrs, he was picked up by police officers from his home and taken to Chilanga Police Station. He was ques tioned about a phone and he confirmed having sold an Itel phone. Ac cording to A3, he found the phone at his friends' barbershop located in Kazionele where he also worked from. The friend in question is A4. They charged phones in the barbershop at a fee. He told Court that many people charged phones from there and he did not know who the owner of the Itel phone was. A3 denied any connection to the offence • • 1n issue. 4 7. Further in his testimony, A3 turned around and said that he did not sell the phone. Rather, his friend Naomi, PW2, asked him if he had a phone she could use. He informed her that the only phone in his pos session was the one whose owner had not picked up for 2 to 3 weeks. He agreed to give Naomi the phone to use temporarily at a fee of K 90.00. Days later, he learned that Naomi had been detained but wasn 't told why. He rejected the prosecution's claim that he sold her the phone at K 100.00. J 15 • .. 48. According to A3, the police falsely accused him of murdering the de ceased just because the phone was in his possession at one point. He said his colleague Patrick Nthele (A4) who got the phone's memory card, could confirm the details. A3 claimed that he only admitted to the assault because he was beaten during interrogation. He also told Court that he did not know the other accused persons except Patrick Nthele. 49. When cross examined, A3 maintained that he did not sell the phone to PW2. He conceded that the issue of him lending PW2 the phone was not raised during PW2's cross examination. He stated that he could not remember the month when he lent her the phone but recalled that the phone was in the shop for 3 weeks prior to giving it to PW2. He denied the assertion that PW2 bought the phone from him on 20 th September, 2023. 50. A4, Patrick Nthele, aged 22 of Kalimina Village in Chilanga District told Court that he is a barber man at Kazionele Market. It was his testimony that one Saturday in November 2023, he was in his barber shop when a new client, whom he was seeing for the first time, brought a phone for charging. He was informed that the shop closes at 20:30hrs but that person never returned to collect the phone. The phone remained unclaimed for about two weeks. He and A3 decided to examine it closely and thus opened it. According to A4, the phone had no SIM card. It only had a memory card which he removed and inserted in the barbershop radio. He stated there were no photos on the phone or memory card and they continued using the card until it J 16 .. got damaged. When A3 asked what they would do if the owner ever returned, A4 said he would replace the card and reload the songs. Three days later, he purchased a new memory card which he later sold to PW4 at K 40.00. 51. It was his further evidence that the barbing machines needed new blades and so he went to town, leaving A3 at the shop. Later that day, A3's lady friend visited A3 at the shop and they had a private conver sation. On the two days that followed, A4 missed work due to field duties and a football match. On the evening of the football match, he received a call from his friend Richard who asked him why he hadn't worked that day. He asked to see him the following day. He visited Richard and only left his place past 15:00hrs. On his way home , he met 4 unknown people who accused him of committing an offence and informed him that they had been looking for him. They apprehended him and surrendered him to Chilanga Police. 52. At Chilanga Police Station, he was asked if he knew A3 and further asked to explain what he knew about the phone. A3 was picked up from the cells and both of them were asked how they ended up with the phone. According to A4, he explained that the phone was brought for charging by an unknown person. The police officers went ahead and accused them of attacking a person and stealing his property. The charge was eventually read to him but in English which he did not understand. He, therefore, refused to sign and the police whipped him using a short baton. Because of the beatings, he gave in and signed the statement. The police introduced him to other gentlemen that J 17 he did not know and told him that those are the people with whom he • V would be charged. 53. When cross examined, A4 confirmed that the phone brought for charg ing was the Itel phone from which he got the memory card. According to him, the memory card he sold to the welder was not the one he removed from the Itel phone. He conceded that he was mentioning the new memory card for the first time. He also conceded that he did not account for his whereabouts on 19th September, 2023 in his exami nation in chief. 54. In re-examination, A4 told Court that he was at home on the 19th Sep tember, 2023. Submissions 55. The prosecution's submissions begun by recounting its evidence. Em phasis was placed on the fact that the deceased identified his assail ants as Junior, the grandson of headman Shakatwa whose real name is Mathews Musonda and the other as Misheck Phiri, a tenant in his brother in law's house as he walked past their residences. It was sub mitted based on the evidence that the deceased statement prior to his death falls within the realms of res gestae which was an exception to the hearsay rule. In this connection counsel called in aid the case of Edward Sinyama v. The People(1) wherein guidance on this matter was provided as follows: If the statement has otherwise been made in conditions of approximate, though not exact, contemporaneity by a person so intensely involved and so in the throes J 18 • • - of the event that there is no opportunity for concoction or distortion to the disad vantage of the defendant or the advantage of the maker, then the true test and the primary concern of the Court must be whether the possibility of concoction or distortion should actually be disregarded in the particular case. The possibility has to be considered against the circumstances in which the statement was made. 56. Predicated on this authority, it was argued that before identifying his attackers, the deceased, had been severely beaten and only regained consciousness at Chipapa Clinic. His account marked the first oppor tunity to explain the events leading to his hospitalization. The state ment was made in close proximity to the attack. Although he managed to walk home following his discharge, he remained in severe pain as evidenced by his re-admission to hospital between 23:00hrs and mid night on 21 st September 2023, before his death on 22nd September. 57. Counsel further submitted that the other two accused person were implicated by the evidence on record as A3 sold the phone belonging to the deceased to PW2. Furthermore, A4 took the memory card from the deceased's cell phone and sold it to PW4. 58. Counsel submitted that despite the absence of eyewitnesses, the cir cumstantial evidence against the accused rose above mere conjecture and reached the level of cogency required to infer guilt, as established in David Zulu v. The People(2l. Further corroborative evidence is the post-mortem report which reveals that the deceased died as a result of peritonitis (inflammation) due to blunt impact trauma to the J 19 - • abdomen. Counsel argued that the unlawful death resulted from an assault by the accused and ultimately prayed that they be found guilty as charged and convicted accordingly. 59. In a bid to exonerate the accused, defence counsel begun the submis sions by highlighting the principle that the responsibility to prove the offence against each of the accused persons was the prosecution's and it ought to be proof beyond reasonable doubt. Further, the accused holds no burden to prove his innocence as elucidated in the case of Mwewa Murono v. The People(3l and the case of Woomington v. DPP(4l. On the basis of these authorities, it was submitted that failure by the prospection to prove beyond reasonable doubt every element of the offence of murder should properly result in the accused being ac quitted and discharged. 60. Defence counsel argued that the key issue was the identity of the as sailants. He contended that the deceased may have misidentified Al and A2 as being amongst his assailants. The evidence failed to elimi nate the risk of honest mistake more so that the attack occurred at night. There were no details regarding lighting or the deceased's op portunity to observe the assailants. Counsel further highlighted that the deceased had consumed alcohol for approximately seven hours, from 20:00hrs on 19th September 2023 to around 02:00 to 03:00hrs on 20th September 2023. According to counsel, this logically brings into question the deceased's grip on faculties as he made the recogni tion. J 20 • . 61. Another limb of counsel's argument was that the earliest report was to the police and the medical report issued (P7) indicates that the de ceased was assaulted by unknown persons. Reliance was placed on the case of Mushala and Others v. The people(5l to underscore that although recognition may be more reliable than identification of a . stranger, there is still need to exclude the possibility of honest mis- take. The poorer the opportunity for observation, the greater the pos sibility of honest mistake. To further augment their case, the defence relied on the case of Nyambe v. The People(6l. In summary it was submitted that after 7 long hours of drinking and considering it was dark at the time, the deceased could have misidentified his assailants. 62. It was also contended that the statement attributed to the deceased person in this case was not a dying declaration or res gestae. Coun sel's submission was that the first opportunity the deceased had to report the matter was when he was picked up. The second was at the police when he made a complaint of assault. It was argued that the statement changed from unknown person as stated on P7 to just Jun ior as mentioned by PW 1 and to Mathews and Misheck as per PWS and PW6. According to counsel there was room to concoct a story. To this end, counsel referred to the case of Edward Sinyama v. The Peo ple (supra) cited by the prosecution. 63. It was further submitted that there was nothing expressed in the pros ecution's evidence to the effect that the deceased had lost all expecta tion of life. Consequently, the statement made by him while walking back from the clinic could not be equated to one made on oath. J 21 - - - -------------------- : 64. Turning to the confession statements by A3 and A4 that they attacked the deceased together with Al and A2, it was contended that the said confessions were evidence against the accused persons that made them and not evidence against Al and A2. To buttress this position counsel called in aid the case of Maketo and 7 Others v. The People(7l in which the apex Court guided that: "An extra-curial confession made by one accused person incriminating other co accused is evidence against himself and not the other person unless those other persons or any of them adopt the confession and make it their own.'' 65. Counsel noted that in this case Al and A2 never adopted the confes sions of A3 and A4. On the totality of the evidence before the Court the prosecution cannot be said to have proved beyond reasonable doubt that Al and A2 participated in the assault and murder of the deceased herein. They should therefore be acquitted of the subject offence. 66. On the evidence against A3 and A4, counsel made submission on two main limbs which addressed recent possession of the phone and the memory card and the confessions respectively. In the first limb it was submitted that guilt was not the only inference that can be drawn from recent possession of property believed to have been recently stolen. In aid of this submission, counsel cited the case of Chabala v. The Peo ple(8) to highlight that there can be no conviction if the explanation regarding possession of recently stolen property might reasonably be true. J 22 .. - :: 67. It was argued that A3 and A4's explanations of how they came into pos session of the phone and memory card were not disproved by the evi dence in rebuttal. The explanations were, therefore, reasonably possible and as such it cannot be said that guilt was the only inference. 68. With regard to the second limb, it was submitted that this Court has discretion not to rely on the confessions despite being admitted. Counsel called in aid the case of Pensulani Banda v. The People(9) where the Supreme Court guided that it was entirely within the discretion of the Court to prefer not to convict on a confession alone. In light of the forgoing authority, counsel contended that the circumstances of this case make it unsafe to rely on the confessions more so that the two ac cused clarified that they falsely gave the statements to the police. 69. It was further submitted that there were inconsistencies in the prosecu tion witness evidence regarding the number of assailants. These incon sistencies were material to the effect that there was a possibility that the confessions given were in fact false. Counsel further pressed that there was a possibility that the phone and the memory card could have come into the possession of A3 and A4 innocently, the phone having been brought for charging at their barbershop. 70. In conclusion, it was submitted that a conviction upon the evidence pre sented against A3 and A4 would not be safe and counsel prayed that they be acquitted. J 23 -- Considerations and decision 71. I have considered the evidence presented as well as the submissions by counsel on both sides. Indeed, it is trite law that the prosecution must prove the case against the accused persons beyond reasonable doubt and there is no burden placed on the accused to prove his innocence. 72. The offence of murder is set out in section 200 of the Penal Code Chapter 87 of the Laws of Zambia where it provides as follows: "Any person who of malice aforethought causes the death of another person by an unlawful act or omission is guilty of murder.'' 73. Malice aforethought is described as follows in section 204 and quoting the relevant paragraphs only: Malice aforethought shall be deemed to be established by evidence proving any one or more of the following circumstances: (a) An intention to cause the death of or to do grievous harm to any person, whether such person is the person actually killed or not; (b) Knowledge that the act or omission causing death will probably cause the death of or grievous harm to some person, whether such person is the person actually killed or not, although such knowledge is accompanied by indifference whether death or grievous bodily harm is caused or not, or by a wish that it may not be caused; 74. Thus, to prove the charge, the state must demonstrate beyond reasona ble doubt that: (i) (ii) death occurred; the cause of such death was an unlawful act or omission; J 24 • . - • (iii) the accused persons are responsible directly or indirectly for causing the death; (iv) the death occurred with malice aforethought 75. From the evidence before me, it is not in dispute that on 19th September, 2023 around 20:00hrs, the deceased left his residence accompanied by his friend, PW 1, with the intention of engaging in drinking. The following morning, he was found assaulted and helpless near Seyuwa's farm. He subsequently succumbed to his injuries and died on 22nd September, 2023 at UTH. The postmortem report indicates that the cause of death was blunt impact trauma to the abdomen. 76. From the forgoing it is clear that death occurred, therefore, the first ele ment has been proved. 77. As to whether the cause of death was an unlawful act, the testimony of the deceased's grandfather, PW6, was that when the deceased left home with his friend on the night of 19th September 2023 , he was for all intents and purposes in good health. The pathologist's report indicates that apart from the post operative incision on the abdomen wall, necessitated by the trauma to the abdomen, everything else was intact and unre markable. I am, therefore, satisfied that what caused the death of the deceased was an unlawful act and the manner of his death was homi- cide. 78. I will now determine whether the accused persons caused the death of the deceased. J 25 • -- .. 79. It is worthy of note that there was no eye witness to the assault of the deceased. The evidence against the accused persons is therefore cir cumstantial. I thus warn myself of the danger of drawing the wrong inference. As guided by the apex Court in the case of David Zulu v. The People (supra), the Court must be cognizant of the dangers of relying on such evidence and be satisfied that the evidence has taken the case out of the realm of conjecture and attained a degree of cogency which leaves only an inference of guilt. 80. Further in the case of Saidi Banda v. The People(10 ) , the Supreme Court stated that where the prosecution's case depends wholly or in part on circumstantial evidence, the court is in effect being called upon to determine if the prosecution evidence has established certain basic facts. Those facts do not have to be proved beyond reasonable doubt. Taken by themselves, those facts cannot prove the guilt of the accused. The Court should then conclude from a combination of those estab lished facts that a further fact or facts exist. The Court must then be satisfied that those further facts implicate the accused in a manner that points to nothing else but his guilt. 81. Thus, I ask myself if I have before me established facts upon which I may draw the conclusion that further facts exist that point to the ac- cused persons' guilt. 82. As regards Al and A2 , I hold the view that the case against them de pends substantially on the correctness of their identification. In the J 26 • case of Muvuma Kambanja Situna v. The People(1 1l The Supreme Court held that: If the opportunity for positive and reliable identification is poor then it follows that the possibility of honest mistake has not been ruled out unless there is some other connecting link between the accused and the offence which would render mistaken identification too much of a coincidence. 83. The question then is - is there is a connecting link between Al and A2 and the offence which would render mistaken identification too much of a coincidence? In resolving this issue, I have carefully considered the testimony of PW 1, a friend of the deceased and the testimonies of PW5 and PW6 who are relatives of the deceased to the effect that before the deceased succumbed to his injuries, he informed them that he was assaulted by four people, two of whom were particularly mentioned. These are Al and A2. I am cognisant of the fact that such witnesses may have an interest of their own to serve. In the case of Choka v. The people( 12l the Court guided that: A witness with a possible interest of his own to serve should be treated as if he were an accomplice to the extent that his evidence requires corroboration or something more than a belief in the truth thereof based on simply his de meanor and the plausibility of his evidence. That "something more" must sat isfy the Court that the danger that the accused is being falsely implicated has been excluded and that it is safe to rely on the evidence of the suspect wit- ness. J 27 --- ---------------- • • 84. Thus, the evidence of the three witnesses herein ought to be taken with a pinch of salt until it is established that the danger of false im- plication has been eliminated. 85. The State argued that the statement by the deceased constituted a dying declaration, or res gestae. The defence vehemently denied this assertion and argued that the statement did not fall within the ambits of res gestae. 86. The learned author of The Modern Law of Evidence 5 th Edition at page 283 has this to say regarding dying declarations: A dying declaration is not admissible unless at the time when it was made the declarant would have been a competent witness and was under 'a settled hopeless expectation of death. It is not necessary to show that the declarant expected his immediate death. The test is whether all hope of life was aban doned or that the declarant thought death was impending or imminent. It is immaterial that he subsequently thought he would recover or that others en visaged or assured him of his recovery. However, if the declarant evinces any hope of recovery, however slight, at the time of making the declaration, it can not be received in evidence. 87. Thus, the key question .is whether the deceased had a settled hopeless expectation of death when mentioning Al and A2 as his assailants. 88. PW6, the deceased's grandfather is on record as saying that on the day the deceased mentioned Al and A2 as his assailants, the deceased obtained a medical report, underwent an x-ray at Chilanga Clinic and J 28 • was later treated at Chipapa Clinic. It was only after leaving the clinic that he named the two. Notably, the deceased was able to walk home unaided as he narrated his ordeal. It was only later on that his con dition took a turn for the worse and he was rushed to the hospital and admitted. 89. In my view, the circumstances do not suggest that the deceased had a settled hopeless expectation of death when identifying his assailants. On the contrary, it appears he remained hopeful that the treatment would be effective. Additionally, there is no evidence that family mem bers were present at his death bed. Therefore, although I have no reason to disbelieve PWS and PW6, I am disinclined to treat the de ceased's statement as a dying declaration. 90. In any case, going by the evidence of PWl, the deceased had been con suming alcohol for about 7 hours, that is, from around 20:00hrs to about 03:00hrs when he left the drinking place. Therefore, it is not farf etched to conclude that at the time of the attack, the deceased was quite intoxicated. , This brings into question the grip he may have had of his mental faculties. Was he fully in control of his mind or judgment at the time? Was he capable of perceiving the events accurately? Fur thermore, the arresting officer, PW8, is on record as saying that he visited the scene of the attack but could not confirm whether there were lights at the location. Thus, it remains unknown whether or not there was sufficient light for the deceased to properly observe his as- sailants. J 29 -• -V 91. With the foregoing in mind, I join hands with the defence in their sub mission that the evidence failed to eliminate the risk of honest mistake. The possibility that the deceased misidentified his assailants cannot be ruled out. 92. The peripheral issue is whether any evidence, beyond the de ceased's statement, connects Al and A2 to the death. A careful review of the record reveals no other evidence linking them to the offence. If anything, Al's own testimony distances him from the offence. His unchallenged testimony was that he was picked up by the police for drug dealing and not the alleged assault. 93. I now turn to A3 and A4. The prosecution evidence is that the ac cused persons stole items from the deceased which included his Itel phone. It is common cause that PW2 acquired the deceased's Itel phone from A3 on behalf of PW3. The phone was eventually recovered from PW2 who was using it at the time. While PW2 told Court that she purchased the phone for K 100.00, A3 in his testi mony denied selling the phone to PW2 but maintained that he loaned it to her at a fee of K 90.00. I am inclined to believe the evidence of PW2 that it was an outright sale because there is no evidence on record to suggest otherwise. PW2 was not challenged on her evidence that she bought the phone or that there were terms agreed upon regarding the loan period. 94. A4, in his testimony, admitted that he retrieved a memory card from the Itel phone and used it in his own stereo in the barbershop. He, J 30 .. however, denied the assertion that the memory card he sold to PW 4 was the same memory card obtained from the deceased's phone. According to him, the memory card from the phone got damaged and he bought another one. Whatever the case, however, the fact remains that A4 got the memory card from the deceased's phone and used it as if it were his own. Contrary to his assertions, he sold a memory card to PW4 in the very month of September when the attack on the deceased occurred. 95. As the evidence has established, A3 and A4 gave confession state ments which were admitted into evidence following a trial within the main trial. It is cardinal to mention here that contrary to the arresting officer's assertion, Al and A2 were not mentioned by A3 and A4 in their statements. Nowhere are the two mentioned as accomplices. At this stage, I remind myself that confessions have to be treated with utmost care. The Court of Appeal in the case of Willard Hamunyangwa and Others v. The People(13 ) stated that a review of authorities around confessions depict that confessions, due to the prejudicial effect they may have, must be guarded care fully and full adherence to the rules must be ensured. 96. In the case at hand, even if the confession statements were to be excluded, the evidence clearly establishes that A3 and A4 were in possession of the deceased's phone. 97. According to PW2, A3 sold the phone to her around 09:00hrs, on 20th September, 2023, the very day the deceased was assaulted and • J 31 • • -- found injured. A3 denied this assertion and he and A4 are on rec ord as saying that they had kept the phone in their barbershop for about two weeks before they decided to examine it closely and open it up. Their evidence is that an unknown person brought it for charging as charging phones was part of their business in the bar bershop. However, the call records (P4) do not support this testi mony. A quick examination of the record, particularly the period from 1st to 20 th September, 2023 clearly shows that several calls were made on the very phone using the deceased's number 0770152060 each and every day in that period. It is to be noted that the accused told Court that there was no sim card in the phone at the time they opened it which means they could not have made phone calls using the deceased's sim card. 98. The only logical conclusion, therefore, is that it was the deceased that made those phone calls, the last of which was at 03:50hrs on 20th September. Thus, the truth is that the deceased was in pos session of the phone until early morning of 20 th September. The phone had not been abandoned in the barbershop for over two weeks as alluded to by A3 and A4. Quite clearly, the accused per sons' explanation is not reasonable to entitle them to the benefit of a doubt as held in the case of Maseka v. The People(14 .. )- 99. It is obvious that the period that passed between the last call on the deceased's number (03:SOhrs) and the time PW2 inserted her own sim card into the phone (around 14:00hrs) was too short. The J 32 only reasonable inference to be drawn from these facts is that the two accused were involved in robbing the deceased. 100. Further, even if the two denied beating the deceased, there can be no doubt, in light of the medical report and postmortem report, that the deceased was assaulted and since the assault is connected to the robbery, the only logical conclusion is that A3 and A4 partici pated in assaulting the deceased and the deceased died shortly af ter. In the case of Njobvu v. The People(15l, the Supreme Court held that: Where there is evidence of assault, followed by death, without the oppor tunity for a novus actus interveniens, a Court is entitled to accept such evidence as an indication that the assault caused the death. A person is not deemed to have killed another if the death of that person does not take place within a year and a day of the cause of death. 101. In the matter at hand, there is no dispute that the deceased was assaulted on 20th September, 2023 and he died two days later on 22n d September, 2023. Furthermore, the evidence is clear that alt hough the deceased was initially discharged from the clinic, he was rushed to the hospital the same night of the discharge. I am with out a doubt that there was no intervening act breaking the chain of causation between the assault and the deceased's death. I am, therefore, satisfied that the deceased died as a result of the injuries he sustained during the assault. J 33 J • . -- " 102. All in all, I find that the circumstantial evidence against A3 and A4 has taken the case out of the realm of conjecture and has attained a degree of cogency leaving only the inference that the said accused assaulted the deceased and left him for dead. The testimony of PW6 indicates that the deceased was found in a place which would make it difficult for an injured person to come out of. Anyone that leaves an injured person in such a position quite clearly foresees that their actions may result in grievous harm or even death of that person. In the circumstances, the requirements of section 204 of the Penal Code have been fulfilled. Death was caused with malice aforethought. 103. I accordingly find the two accused persons, A3 and A4, GUILTY of murder contrary to section 200 of the Penal Code, Chapter 87 and I CONVICT them accordingly. As it pertains to Al and A2, as es tablished above, there is no cogent evidence against them. Reliance cannot be placed on the statement implicating them made by the deceased for reasons canvassed above. The doubt in my mind as to their guilt must be exercised in their favour. 104. As such, I find Al and A2 NOT GUILTY and therefore ACQUIT them and set them at liberty forthwith. Delivered in open Court this 10 th day of October, 2025 ............ ~ .......... . Mwaaka Chigali Mikalile (Mrs .) ··· ,,.,,-RRF'cEP~UB:;-:-U:--,.c-.. .,. HIGH COURT JUDGE J 34