The People v Shebby Chisenga Chilekwa (HT/108/2022) [2023] ZMHC 63 (5 April 2023)

' . IN THE HIGH COURT FOR ZAMBIA AT THE DISTRICT REGISTRY HOLDEN AT MONGU (CRIMINAL JURISDICTION) BETWEEN: HT/ 108/2022 THE PEOPLE AND SHEBBY CHISENGA CHILEKWA Before: The Hon. Mr. Justice Charles Zulu. For the State: For the Accused: Cases re ferred to: State Mr. K. Sifali and Mr. T. Mufaya, Senior State Advocate, National Prosecution Authority. Mr. M. Zulu and Mr. J. Zimba, of Messrs Makebi Zulu Advocates, and Mr. C. Changano, of Mesdames D. Findlay & Associates. Advocates, JUDGMENT 1. Kambarange Mpundu Kaunda v the People (1990-1992) Z. R. 215. 2. Yokonia Mwale v The People (SCZ Appeal No. 205/2014). 3. Katukula Trywell v The People (SCZ Judgment No. 32 of 2015). 4. Esther Mwiimbe v The People (1986) Z. R. 15. 5. Hau/a v Ronaldson {2011] UGHC 64. 6. Shawaza Fawaz and Prosper Chelelwa v The People (1995) S. J. 2 (S. C.). 7. Tako v the People (1975) Z. R. 197. • 8. llunga Kabala and John Masefu v The People (1981) Z. R. 102. 9. Phiri v. The People (1978) Z . R . 50. 10. 11 . 12. 13. Charles Lukolongo and Others v The People ( 1986) Z. R. 115. Peter Yotamu Haamenda v The People (1977) Z. R. 184. Nelson Banda v The People (1978) Z. R. 30. Saunders v United Kingdom {1996] ECHR 65. Simon Miyoba v the People (1977) Z. R. 218. Green Nkutisha and John Mwakishala v The People (1979) Z. R. 261. Jack Maulla and Asukile Mwapuki v The People (1980) Z. R. 119. Attorney General v Kakoma(1975) Z. R. 212. 14. 15. Mushemi Mushemi v The People (1982) Z. R. 71 . Jones v National Coal Board {1957] 2 Q. B. 55. 16. Chimbini v The People (1973) Z . R. 191 . 17. R v Turnbull {1976] 3 ALL E. R. 547. 18. Ali and Another v The People (1973) Z. R. 232. 19. Dorothy Mutale and Richard Phiri v The People ( 1995/97) Z. R. 227. Gilbert Chileya v The People (1981) Z. R. 33. R v Gladstone (1984) 78 Cr. App. R. 276). 20.. 21 . Legislation & Other Materials referred to: 1. The Constitution of Zambia Chapter 1 of the Laws of Zambia. 2 . The Penal Code Act Chapter 87 of the Laws of Zambia. 3. The Judicial (Code of Conduct) Act No. 13 of 1999. 4 . Archbold: Criminal Pleadings, Evidence and Practice, (Forty-Third Edition) Vol. 2, at Paragraph 20-2. 5 . Evans Bell, An Introduction to Judicial Fact Finding (Commonwealth Law Bulletin2013), page 519. -J2- INTRODUCTION Initially, the indictment was against, Shebby Chisenga Chilekwa aged 34 years and Josephine Chilufya Mumbi aged 52 years jointly arraigned on the charge of murder, contrary to s ection 200 of the Penal Code Chapter 87 of the Laws of Zambia. The particulars of the offence allege that, on October 6, 2019, at Kaoma District, Shebby Chisenga Chilekwa and Josephine Chilufya Mumbi Phiri, did unlawfully cause the death of Lawrence Banda. The duo pleade d not guilty to the charge, and a plea of not guilty was recorded. Consequently, the case proceede d to trial. However, on the date scheduled for judgment on April 5, 2023, the State entered a nolle prosequi against Josephine Chilufya Mumbi resulting in her discharge from the proceedings. Therefore, this j udgment will proceed against She bby Chisenga Chilekwa. Nevertheless, the summary of the evidence and the submissions significantly r emain the same. THE CASE FOR THE PROSECUTION (TESTIMONIES) The State called fourteen (14) Prosecution Witnesses (PWs) . PWl was Frank Mwamba, a businessman of Lusaka, his testimony touched on the ownership of the motor vehicle, Toyota Hilux registration mark BAD 5864, allegedly driven by Shebby Chilekwa on the day of the alleged murder. Conveniently, I will proceed to give a summary of PW2 's testimony, Brian Mulenga, which speaks directly to the charge. -J3- PW2 was Brian Mulenga, a businessman and member of the United Party for National Development (UPND) . He recounted that in 2019, he was among a group of nine other people who were called from Lusaka by the UPND to go to Kaoma and help the Party with the Council Chairperson by-election campaigns that were scheduled to take place there. He said he was part of the team which inter alia comprised, Kalufyanya, Lawrence Banda (the deceased herein), Chiwenga and Godfrey Chitanga. He said the group was assigned a motor vehicle, Toyota Land Cruiser GX, branded with the UPND symbols, and the driver was Godfrey Chitanga. According to him, whilst in Kaoma District, their campaign assignment was spearheaded by Honourable Sitwala. He stated that on a date he could not recall, at around 08:00 to 09:00hours, his team was directed to tour Mangango, but while still at the campaign centre, he saw a white Toyota Hilux, bearing registration mark BAD 5864, drive past their centre, and that gun shots were fired from the said vehicle. He said he and his team went to the roadside to check on the vehicle. He said after less than ten minutes, the said motor vehicle returned. He said they stopped the vehicle, and saw a pistol on the dash board. He added that after sometime Police Officers arrived in a motor vehicle, and he reported the matter to the Police, and the Police pursued the Toyota Hilux. He explained that around 10:00 to 11 :00hours, while at the UPND Secretariat in Kaoma with his team, he received a phone call from the caretaker of their camp, to the effect that their camp had been -J4- raided and their food stuffs looted. He said, he directed Chitanga to remain behind, and asked Chris (PW3) to drive the motor vehicle and take him to the camp. He said with him in the motor vehicle was Lawrence Banda, Chiwenga and a few other gentlemen from Mongu and Kaoma Districts. He said when they returned to their camp, they discovered that their camp had been raided and flags had been removed. He said he and his team decided to pursue the attackers. And eventually caught up with the same Toyota Hilux, they earlier had an encounter with, driven by the same driver, Shebby Chilekwa, wearing a Patriotic Front (PF) t-shirt. He said they parked 20 meters away from the Toyota Hilux believed to belong to the Patriotic Front (PF). He said a short argument ensued between the UPND and PF camps. He said the driver of the Toyota Hilux, Shebby Chilekwa, came out from his vehicle, and started firing gunshots in the air. And that to his surprise Mumbi Phiri (A2) came out and shouted: "Shoot these mother fuckers". He said when he heard a gunshot, he saw his colleague, Lawrence Banda a.k.a. Gaddaffi staggering around. And that he advised his driver, Chris to remain in the vehicle for fear of being victims too, since they had no weapons to repel the attack. He said Chris (PW3), reversed the vehicle and they fled from the scene, and later learnt that Lawrence Banda was dead. As to the identity of the accused persons, he said he was able to identify the driver, Shebby Chilekwa, because he had observed him for a period of five minutes. And as for Mumbi Phiri he said, she was -JS- well known to him as a former Member of Parliament for Munali Cons ti tu ency. In cross examination, he explained that when they parked, Lawrence Banda came out from their vehicle and approached the PF vehicle. He denied allegations that his team smashed the PF vehicle, neither did he stab Shebby Chilekwa. PW2 reiterated that after Lawrence Banda was shot and dropped to the ground, he ran away. He said he was aware of another shooting incident allegedly perpetuated by Chola on the material day,but said the incident was in another location. He said on November 8, 2021, he was called by the Police, and gave a statement. He said this was the first time he was called to give a police statement. He said part of the content of his statement was his and part of it was not his. In reference to his statement, wherein Francis Muchemwa was alleged to be the killer; at first PW2 said, he did not know the name. But later said, it was recorded that Muchemwa was from Intercity, and that he committed the present offence. He also stated that he made a mistake to mention Muchemwa, because he was also human to make mistakes. PW3 was Christopher Mapulanga, a resident of Chawama, Lusaka, and a member of th e UPND. He said in October, 2019, he together with other nine people, including, Godfrey Chitanga, Funwell, Brian (PW2), Lawrence Banda (the deceased) , Kalufyanya, and "Opalananayesu Kris tu", set out for Kaoma from Lusaka. He said the -J6- purpose of their journey was to help their Party with campaigns for the Council Chairperson by-election in Kaoma. He said in Kaoma they lodged at General Sitwala's lodge. He said while they were at the camp preparing to go to Mangango, they heard gunshots outside. He said, he together with Funwell, Brian (PW2), Chichi and Kalunfyanya went outside and found a motor vehicle, Toyot a Hilux, white in colour, and the same was driving away. He said after a short while, the said motor vehicle returned, and they stopped the vehicle. He said on the dash board, he saw a pistol. He said when asked, if they are the ones that had fired gunshot, they replied in the negative. He said later Police Officers arrived, and they explained to them, and the Police left together with the occupants of the Toyota Hilux. He said as for his team, they went to the UPND Secretariat. He said while at the Secretariat, Brian (PW2) received a phone call from their caretaker at the camp, informing him that their camp was raided and ransacked by the PF. He said PW2 then instructed him to drive the Land Cruiser GX to the camp, to check what had transpired . He said in the vehicle there was, Fun well, Brian (PW2), Opalananayesu Kristu, Kalufyanya and Lawrence Banda together with other young men from Kaoma. He said after confirming what had happened at their camp, they d ecided to follow their attackers, and located the white Toyata Hilux bearing registration mark BAD 5864. He said upon noticing the Hilux, they parked 20 meters away from it. -J7- He said Brian (PW2) disembarked from their motor vehicle together with Lawrence Banda, Funwell and Chichi, and approached the occupants of the Toyota Hilux, to ask them why they had raided their camp. He said he saw Shebby Chilekwa wearing a white PF t -shirt, getting out of the Toyota Hilux, and fired two gunshots. He said when he heard the gunshots, he closed his door, and called for his friends. He added that he was surprised to see Mumbi Phiri, A2, emerge from the front passenger seat of the Toyota Hilux, shouting: "Shoot these mother fuckers!" He said the person who was shooting, thus Shebby Chilekwa, shot Lawrence Banda. He said he r eversed his motor vehicle and fled from the scene. He said they were scared since they had no weapon. He said at the material time they had no confidence in the Police, because they did not receive support from the Police, and that they did not report the case to the Police. He said it was n ot his desire to punish the accused persons due to change of government. PW4 was Monde Nyambe, a resident of Mongu District, but during the alleged incident h erein, was in Kaoma. She was not an eye witness to the alleged shooting of the deceased. However , she said on October 6, 2019 at around 11:00hours, she was from church and heading to her home. She said a fast moving UPND motor vehicle passed h e r, moving in the direction she was h eading, and later heard some gunshots. She said in the process of moving, she came face to face with a white motor vehicle with a cracked front window screen, but without occupants. She said upon entering into her yard, she saw a person laying on the ground, clad in a black pair of trousers, red t-shirt and a head sock. She said blood was oozing from the head -J8- of the person laying on the ground. She said upon reaching h er destination, she did not find the UPND motor vehicle that had passed her earlier on. She said she then rushed to the road to call the Police to pick up the wounded p erson. She said upon arrival, she gave directions to the Police, where the wounde d person was laying, and followed behind. She said at the scen e there was a Police Officer picking some substances from the scene. She said she stepped on one of the substances, and that the Police asked h er what she was doing . And her reply was that, she was standing in h er court yard. She said when people asked her what she had picked, h er description was that they were particles normally seen in films falling off from guns. She said when her mother called for h er, she left the part icle in the hands of Moses Sibesani. She said Moses later told her that he gave the said particle to someone else. She said her statement to the Police was only given on November 1, 2 021 . She said she only picked one cartridge and saw a Police Officer pick two cartridges. She said Chola was familiar to her, but denied s eeing someone on a motor bike around the crime s cene on the material day. She said she did not s ee Cho la on the m aterial date around the crime scene. PWS was Chinyama Mut ti, a timber trader of Matero Township, Lusaka. He said in October 2019, h e was in Kaoma District for his timber business. He recounted that on Octobe r 6, 2019, around 09:00hours, he was at home working on a m achin e with Manji Siamasiku and Titus. That while working on the machine, around -J9- 11 :00hours, there were some political campaigns going on. He said h e s aw a PF motor vehicle pass and returned after a short while, and stopped near where he was doing his chores . He said he th en heard two gunshots. He said he wondered as to what was happening and headed toward the unbranded PF motor vehicle, and asked the gunman, referring to Shebby Chilekwa, wearing a white PF t-shirt and black pair of trousers, why he was shooting. He said the gunman retorted that he was protecting the motor vehicle, which was under attack. According to PWS, at the time h e was conversing with the gunman, he had already shot somebody, referring to Lawrence Banda. He said when the shots were fired, he heard someone, shout: "kill". And that that is how the deceased was killed. He said they parted ways with the gunman and he heard another gunshot. He said he returned to the crime scene after the arrival of the Police, and narrated to the Police what he had seen. In cross examination, he said he had never seen Shebby Chilekwa before October 6 , 2019. He added that, the deceased attacked and stole a handbag from a lady who was in the PF motor vehicle, and that the lady in defence said: "shot him". However, h e said no one said: "shot the mother fucker". He said the shooting was after the command to shoot. He said the deceased did not struggle with the gunman, but was aiming to grab the gun. He added that it was the UPND Supporters that were pelting stone at the PF supporters. He said if the deceased was not stopped, he would h ave grabbed the gun. -JlO- He said it was not true that in his statement to the Police he said the gunman wore a black t -s hirt. PW6 was Dr. Luchenga Mucheleng'anga, a State Forensic Pathologist, employed by the Zambia Police Service, with 3000 post mortem examinations to his credit. He said on October 9, 2019, h e was presented with the body of a deceased male, Lawrence Banda aged 24 years old, identified by his relative, for purposes of conducting forensic p ostmortem examination. He said h e discovered a hole on the h ead. And that when he r emoved the skull he witnessed subarachnoid, otherwise called hemorrhage. He said the chest and abdominal areas were normal. He said his conclusion was that the cause of d eath was a gunshot wound to the head. He said , his opinion was that, the deceased was struck by one bullet , a nd the injury was immediately incapacitating. He said after examining the brain and the head, he did not find any projectile. He said the entry and exit point of the bullet was one and the same, and that in m edical parlance this was called a "key hole deformity''. He explained that the entry was the frontal bone rath er than the forehead. PW7 was Stan Israel Kaputula, the District Health Director for Sioma District and a medical practitioner . And at the material time, the Medical Officer-in- Charge at Kaoma District Hospital. He said on October 6, 2019, wh en he p a ssed through the Hospital, around 12:00hours there was commotion at the Hospital, of people drawn from the UPND and the PF, and a couple of victims with various complaints. -J11- He said among the people he attended to was Lawrence Banda, who was in the OPD. He said Lawrence Banda had blood all over his body. He said when he investigated the source of the blood, h e discovered it was coming from the head and noticed a serious puncture wound. He said in order to arrest the bleeding, the wound, which h e d escribed as two puncture holes, was sutured, and some treatment administered. He added that some sutures were later released after noticing that the eye pupils were dilating, indicative of pressure in the head . He said an x-ray examination was done, and it was discovered that there were some fragments, and h e concluded that the fragments were from a bullet. He said the two puncture holes were indicative that something entered the head and came out. He also stated that there were two entry holes. He added that no procedure was conducted at Kaoma to remove the bullet fragments. He said bleeding continued and finally the patient collapsed and died. He explained that because of the commotion, it was decided not to tell the mob that the patient h a d died . He said there was another patient with injuries on the arm and h ead . He said he was later advised by Doctor Makawa that Lawrence Banda and the other patient were to be airlifted. He said th ere was debate whether there was n eed to airlift the dead one as well. He said after consultations with the flying doctors, the dead one was also airlifted. PW8 was Felistus Liwakala, a general worker of Mangango Mission in Kaoma District. She s aid on October 6, 2019 , around 10:00hrs to 11 :00hrs, she got to a p lace where the PF was distributing chitenge -J12- materials, and was a recipient of a chitenge material. She said nearby, there was a Toyota Hilux with PF members. She said after the vehicle left, she heard two gunshots and commotion, as she was heading to her home. She said she ran to take cover. She said she did not see the person who fired the gun shots. She said when she got home, she realized that there was a person laying on the ground, wearing a Manchester United shirt, and clad in the UPND regalia. She said she was then advised by her landlord to get inside the house. And that while inside the house, standing by the window, she got three pictures using her mobile phone. She said later the Police were called to pick the man who was laying on the ground. She added that later, three Police Officers, including Ms. Chishimba and Ms. Mukelebai approached her and asked for the pictures she took. She said she forwarded the pictures to them via WhatsApp, and later on lost her phone. She said the two Police Officers came back on October 10, 2019, and a statement was recorded from her. And that the next time she gave a statement to the Police was in 2021 . PW9 was Superintendent Davies Chimota based at Police Force Headquarters, working as a Digital Forensic Expert. He said on December 12, 2021, he received a functional Phantom 5 Techno cellular phone from Mr. Mulimba (PW14), which had no password. He said he was instructed to search the phone for some video footage pertaining to the shooting incident in Kaoma. He said he proceeded to carry out his examination, employing digital forensic techniques analysis. He said he used the law enforcement software called -J13- cellebrite; a computer closed system in order to avoid any infiltration by external factors. He said the software was also used to retrieve hidden files, deleted files or any encrypted data. He said the mo bile gadget had 31 open video files, and through Cellebrite a total of 180 files were retrieved and presen ted to Mr. Mulimba. He said the videos of interest to Mr. Mulimba were three, relating to three different events on different d a tes . He said one video was showing a person laying on the ground. PWlO was Detective Inspector, Phison Chishala. a Detective Inspector b ased at Police Hea dquarter s, Crime One. He said on February 11 , 2022, at Kaoma Police Station, h e was a ssign e d to conduct an identification parade involving the present case. He said th e parade comprised eigh t male participants of similar appearances, including Shebby Chilekwa, to whom he explained his rights. He said the witness, Chinyam a Mutti (PW5) identified Shebby Chilekwa, three times despite the positions of the suspect being shuffled. He said after the parade, no complaint was registered by Sh ebby Chilekwa. Connected to the t estimony of PWl0 is the testimony of PW12, Marcel Mulenga, the Scenes of Crime Officer. He said on October 29, 2021 , in the company of Mr. Mulimba (PWl 4), h e visited the crim e scen e, where Lawrence Banda was allegedly murdered, for purposes of scen e reconstruction . He said h e took photograph s of the area led by Chinyama Mutti (PW5) and Monde Nyambe (PW4), depicting the position of the cartridges, the PF and the UPND motor vehicles, and where the deceas ed was laying. -J14- He said he also participated in the identification parade and photographed the event, in which Shebby Chilekwa was identified by PW5 . He said the parade was well conducted without complaints. PWl 1 was Acting Assistant Superintendent, Simunza Uyoya. He said on October 29, 2021, he was assigned to be part of the team tasked to investigate the murder of Lawrence Banda, allegedly killed during campaigns for the Council Chairperson by-election in Kaoma District. He explain ed that investigations started after the UPND was ushered into government He said on October 30, 20 2 1, in the company of other officers, h e travelled to Kaoma from Lusaka and interviewed Chinyama Mutti (PW5). He said through PW5, he learnt that Lawrence Banda was shot dead by the driver of a Toyota Hilux, bearing registration m ark BAD 5864. He said the other p erson interviewed a p a rt from Brian Mulenga (PW2) and Christopher Mapulanga (PW3 ) was Bronah Lubasi (DW2), who was said to h ave been one of the p assen gers of the Toyota Hilux. He said Bronah Lubasi could not state who the gunman was. He said through interviews of PW2 and PW3, h e came to learn that Shebby Chilekwa was the driver of the Toyota Hilux, and t h at he was th e hairdresser to the former President. He said PW2 and PW3 told him tha t Lawrence Banda was shot by Shebby Chilekwa using a pistol, under the direction of Mumbi Phiri, A2 . He said a manhunt was instituted for Shebby Chilekwa, and a breakthrough was on February 4, 2022, when h e received -JlS- intelligence information that Shebby Chilekwa was hiding at a known house in Woodlands along Brentwood Road belonging to a Police Officer, Mr. Chanda Chisenga. He said a search warrant was obtained and upon conducting a search at the said house, Shebby Chilekwa was found hiding at the servants' quarter under the bed. He said Shebby Chilekwa was arrested and taken to Kaoma on February 10, 2022. In cross examination, he denied allegations that Shebby Chilekwa was tortured at the time of his arrest and detention. He said he was made to believe that there was interference in the case at the time. He said while the smashing of the PF motor vehicle was recorded in the Occurrence Book based on a report given by Bronah (DW2), the death of the person was not recorded. He said at the material time, the Police only took statements from the PF side, and not the UPND side. He said when investigations were restarted the Police decided to hear from both sides. He alleged that the PF members/witnesses were unwilling to assist the Police. He said the case involving Chola Simwaba was a different matter from the present case. And that he was aware that in the case of Chola, a firearm was recovered. He said he was aware of Manji Siamasiku, alleged to have taken a video of the murder scene. He admitted that the video was key to the case, but was not before court. It was also his testimony that efforts to retrieve the Toyota Hilux, BAD 5864 proved futile. At this stage, I consider it appropriate to now -J16- summarize the testimony of PWl , Frank Mwamba, a businessman of Lusaka, who testified as to the ownership of the motor vehicle and to matters connected thereof. PWl said he was the proprietor of a company called Master Source Limited. He said in 2015, he had some business connection with Mr. Assan Muhammed of Star Shell Limited, a company trading in old and new motor vehicles. He said Mr. Muhammed asked him if two motor vehicles in his possession could be registered under PWl 's company name, with the option of buying one or both, thereafter. He said he was agreeable and forwarded the certificate of incorporation of his company to Mr. Muhammed. He said in 2016, he went to Mr. Mohammed to find out if the vehicles were registered and was advised that the vehicles were taken up by the PF. He added that in 2016, he received a call from the Police, and was queried about the Toyota Hilux, BAD 5864. He said the Police informed him that the people who were in possession of the motor vehicle were involved in a fight at 10 miles Lusaka, and that one produced and discharged a gun. He said upon receipt of the information, he went to see Mr. Muhammed, who directed and advised him to call Mr. Amos Chanda of State House. He said he also advised the Police that the vehicle was with Mr. Chanda. He said weeks later, again, he received information from the Police that the said motor vehicle was connected to a fight and shooting in Bauleni Township. He said he got concerned and approached the PF Secretariat, and met the PF Secretary General, Mr. Davies Mwila, who undertook to have the change of ownership -J17- executed, from PWl 's company to the PF. He said thereafter he stopped receiving speed trap fine notifications regarding the said motor vehicle, until November 2021, when Police Officers interviewed him concerning the said motor vehicle. He said at no point did he physically see the motor vehicle or the certificate of registration. He said he was not privy to what happened in Kaoma concerning the motor vehicle. PW13, was Kalani Muchima, who was called to testify regarding an interview he had with Mumbi Phiri. I will not labour to recapitulate his testimony given the nolle prosequi. The last witness for the State was PW14, Donald Mulimba, an Assistant Superintendent, and the lead Investigations Officer. He said on October 6, 2019, he was based in Kaoma District working as the District Criminal Investigations Officer (DCIO). He said around 11 :00hours, he was called by Mr. Chipasha, who told him that he heard gunshots in Site and Service Township. He said at that time no official report was made to the Police. He added that later, he received a report from the Officer-in-Charge to the effect that, a male person was shot in the head, and was taken to Kaoma District Hospital. He said he rushed to the Hospital and found commotion at the Hospital, whereby the PF cadres were harassing onlookers. He said at the Hospital, he found a victim with a wound on the head identified to him by his pseudo name, Gaddaffi (the deceased). He said the victim was unable to talk. He said while at the Hospital, he heard more commotion, and when he went outside, he discovered that Hon. Sitwala, the MP for Kaoma was being harassed by the PF -J18- cadres. He said he advised Hon. Sitwala to leave in order for peace to prevail. He also stated that, while at the Hospital, he received another call from Mr. Ndhlovu, advising him that he should head back to the office because there was another shooting. He added that when he got to the office, he was handed over a pistol, a magazine, three rounds of ammunition, recovered from Chola Simwaba, a member of the UPND. He said Chola Simwaba was alleged to have shot Gift Simangolwa, a PF cadre, who was said to have been at the Hospital as well. PW14 said, he went back to the Hospital, and visited Gift Simangolwa, who was shot 1n the leg and arm. He said Gift Simangolwa told him that he was shot by Chola Simwaba. He said when he returned to the office, Chola Simwaba was in the hands of the Police. He said while at the Police, two Land Cruiser motor vehicles arrived, chanting the name of Chola. He added that to calm the situation, he decided to transfer Chola Simwaba to Mongu. And that the following day, October, 7, Detective Mwamba handed to him two dockets, one involving attempted murder, and the other murder. He said he came to learn that, Gaddaffi, who was dead by then together with Gift Simangolwa were evacuated to Lusaka. He said on the same date, October 7, 2019, the scene of murder was visited, and discovered that the real name for Gaddaffi was Lawrence Banda. He said at the scene, people were afraid to give statements to the Police, and that nothing material was picked from the scene. He said -J19- the second scene involving the victim, Gift Simangolwa was located 500 meters from the murder scene. He said at the second scene, he picked a cartridge of a pistol of 9mm caliber, which was forwarded for forensic ballistic examination. He said he travelled to Mongu and charged Chola Simwaba with the offence of attempted murder. And said, he proceeded with investigations for the murder case. He said the usual witnesses proved difficult to find, and that even when located, were unwilling to give statements to the Police. He added that a few days later, around October 2 9, 2019, officers from Police Headquarters, led by the Deputy Director of Criminal Investigations Department, Mr. Simon Tembo (DW6), took over the murder case, including the one for attempted murder. He said at the material time, Chola Simwaba was appearing before the Subordinate Courts, but was later discharged. He explained that from October 29, 2019, he was operating from Police Service Headquarters, and was re-allocated the docket for the murder case. In his testimony regarding the videos recovered from the Phatom 5 Techno cellular phone, he touched on the testimony of Chimota (PW9). He said the docket of murder including the cellular phone was handed over to him by Mr. Nsofwa (DW7). He said when he opened the phone, he went to the gallery. He said the videos relating to the murder case where not there, except a screen shot of a Toyota Hilux, BAD 5864. He said he handed over the phone to Mr. Chimota from -J20- the Digital Forensic Department of the Police, to recover videos that were inaccessible. He said after the digital forensic examination, three videos of interest were recovered. He explained that the first one showed the deceased, Lawrence Banda laying in a pool of blood. The second one showed p eople running around, and the third one showed people carrying a casket. He said the third video involving carrying of th e casket h a d nothing to do with the present matter . He said in Kaoma and Mongu several witnesses were interviewed. He recounted the testimonies of Chinyama Mutti (PWS), Felistus Liwakala (PW8), Kalani Machima (PW13), and that h e also interviewed Bronah Luba si (DW2) , including Brian Mulen ga (PW2), and Christopher Ma pulanga (PW3). He recapitulated the testimonies of PW2 and PW3. He said after Kaoma and Mongu, h e travelle d b ack to Lusaka. He said a s earch for the whereabouts of Shebby Chilekwa was instituted. He said h e m a de s everal visits to the residence of Shebby Chilekwa, but hit a snag, until February 4, 2022, wh en Shebby Chilekwa was arrested by Uyoya (PW 11) , from a house of a Senior Police Officer in Brentwood Road, Lusaka. He said when Shebby Chilekwa was questioned under warn and caution statement, h e a dmitted b eing in Kaoma, but denied shooting and killing Lawren ce Banda. -J 21- He said at an identification parade constituted in Kaoma, Shebby Chilekwa was identified by Chinyama Mutti (PW5). And that efforts to get PW2 and PW3 to be witnesses in the parade failed. PW14 led the Court to visit the crime scene (scene one) in Kaoma, Site and Service Township where Lawrence Banda was allegedly killed, including the crime scene (scene two) in the same location involving the case of attempted murder, allegedly committed by Chola Simwaba. He said the two scenes / places were far a part by 500 m eters. He dispelled allegations that Chola Simwaba was chased by a mob from the murder scene to the other scene of the attempted murder. In cross examination, he stated that when he asked PW2 and PW3 as to how Lawrence Banda was found in possession of the handbag, he was told that, Lawrence Banda grabbed the hand from a lady who was in the Toyota Hilux, BAD 5864. He said when h e interviewed Bronah (DW2) he was told that somebody grabbed her handbag. He described the overall statement of Bronah made in October 2019, of b eing partly true. He said Bronah told him that she was frightened and ran away. He said it was not true that Bronah was the one seated in the front passenger seat of the Toyota Hilux. He said the two dockets for the case of murder and attempte d murder were collected by a team of officers from Police Hea dquarters led by Senior Assistant Commissioner, Mr. Simon Tembo (DW6). He said he did not know why the team from Police Headquarters took over the cases. -J22- He said according to his investigations, Chola Simwaba was not at the crime scene of the murder case, but was apprehended by Danny Liato, one of the people at the PF campaign center in Site and Service. He said he did not interview anyone from the PF campaign centre. He said the incidence relating to the attempted murder case took place between 12:20hours to 13:00hours. He said in the course of the interview to obtain a statement from Brian Mulenga (PW2), PW2 implicated Francis Muchemwa in the murder of Lawrence Banda. He said on this part, PW2 was lying. He said this caused him to cross-out that part of the statement. He alleged that PW2 signed the statement once, for everything, including the corrected part. And that it was PW2, that told him to remove the part implicating Muchemwa. PW 14 admitted that page 2 of the statement was not signed. According to him this was so, because it was a continuation on page 3, which was signed by PW2. And regarding the statement of Christopher Mapulanga (PW3), he said there was a page missing. He denied being negligent. According to him, the statement of PW3 was incomplete because, he just forgot. He said the video, that was recorded by Manji Siamasiku allegedly watched by Mr. Tembo (DW6) was no longer in the phone. He said the video was not in the said Techno phone. He reiterated that the videos that were in the phone relevant or pertaining to the case were three. He said at the time he was testifying Manji Siamasiku was before Court, but left, because he had a problem at home. PW14 said when he interviewed Manji Siamasiku, he said he began to film when the UPND cadres were throwing stones, and continued -J23- to film during the shooting, and after the shooting. He said this particular video was not recovered from the Techno phone apart from the other three af orestated videos, despite the mechanism to recover deleted data being employed. He said he had reason to doubt Manji Siamasiku. PW14, said Manji Siamasiku only took the video after the incidence. He stated that he was not aware of the whereabouts of the cartridges picked by the Police at the murder scene. He also s t ated that a cartridge was picked at the attempted murder scen e. He said PW2 and PW3, including another UPND cadre, Ndopu Ndopu were not suspects. THE CASE FOR DEFENCE (TESTIMONIES) Al , Shebby Chisenga Chilekwa, aged 34 years testified th at at the relevant time, he was part of the PF campaign team in Kaoma District, in terms of managing fuel distribution, and motor vehicle relief logistics , in case of a shortfall of motor vehicles. He said on October 6 , 2019 , at around 09:00hours, he was directed by Mr. Mulyata to transport p eople from the PF campaign centre to various places. He said, driving a Toyota Hilux, BAD 5588, he drove to the campaign centre, and picked Bronah (DW2), Mbololwa (DW3 ) and Muzaza. He said Bronah occupied the front p assenger sea t , while the other two, and another, occupied the b ack seats. He said they h eaded to Site and Service Township. He repeatedly said Mumbi Phiri was not part of them. -J24- He explained that on the material date, he was not wearing a PF t-shirt, but a black t-shirt and a black pair of trousers . He gave an account of what transpired at the scene. He admitted that when they got to Site and Service Township around 09:00 to 10:00 hours, the vehicle he was driving was the only Hilux at the scene. He said they were besieged and attacked by a mob of UPND cadres driving a Toyota Land Cruiser GX . He said he was stabbed. He added that one of them wearing a red t-shirt approached his side. He said a t that point, he decided to get out of the Toyota Hilux, and bolted , to hide in a nearby bush. He said he never spoke to Chinyama Mutti, and denied being in possession of a firearm . He recounted how he was arrested. He stated that he was continuously subjected to torture in different locations from the time of his arrest up to the time he was taken to Kaoma. He said he was accused of killing a person in Kaoma. In his testimony, he profusely described how he was discrimina tely tortured by Uyoya (PWl 1) and his team, in an attempt to force him to falsely implicate former President Lungu, Mumbi Phiri, Police Officer, Chanda, and Francis Much emwa. He added that the Police was also intereste d to know from him, where former President Lungu took the money, upon leaving State House. He said, he r eplied with a no and denied the said accusations. He said it was not true that h e went into hiding. He said on the day of his arrest, at around 04:00hours , h e left his house in Chilanga to visit his brother in Bauleni. He said h e later r eceived a call from his wife, informing him that Police Officers had visited his r esidence at -J25- around 05:00hrs, in search of him. He said upon hearing this, around 07:30hours, he decided to take a trip to Brentwood Road to visit, a Senior Police Officer, Mr. Chanda to seek his counsel. He said while there, a team of Police Officers arrived. He said h e was harassed, assaulted and insulted, and later arrested and taken to Central Police Station. And that he was warned by Uyoya (PW 11), of the consequences he was to face as a result of change of government. He said he was later taken to a house in Kalundu where he was questioned and tortured. He denied the allegation that after the 2021 elections, he went into hiding to run away from justice. He said if his desire was to flee from justice, h e would have gone to his relatives in Congo, Tanzania or Malawi. He added that on December 16, 2021, he openly attended a pass-out graduation for his wife at Kamfinsa Police Training College. And regarding the identification parade conducted in Kaoma, he alleged that on three occasions Chinyama Mutti (PW5) failed to identify him, until the fourth time, after Chinyama Mutti spoke to a Police Officer named, Chishala. He complained that the identification parade was conducted in the absence of his lawyers, and that while others were changing positions on the parade, he remained in the same position. He said on the parade, the suspects were not of s imilar heights. DW2 was Bronah Lubasi Namata, a marketer of Mongu District and a member of the PF, and that at the m aterial time, she was the Field Campaign Manager. She stated that on October 6, 20 19, around 09:00hrs to 11 :00hours, a motor vehicle was assigned to her by Mr. -J26- Mulyata to undertake campaign activities in Site and Service Township. She said the driver was Shebby Chilekwa. She said in the motor vehicle, she occupied the front passenger seat. And that the other passengers she was with were: Mbololwa Nayoya (DW3), Mundia Mundala, Muzaza and Chipala. She said, the Deputy Secretary of the PF, Mumbi Phiri was not in the said vehicle. She said when they got to their destination, they offloaded chitenge materials and some food stuffs, which they carried. Sh e said after they were done, they took off, but moved a short distance, and saw a motor vehicle for the UPND, which had blocked the road and they could not pass. She said Shebby Chilekwa decided to stop the vehicle he was driving. She said when th eir vehicle was stationary, she saw a young man clad in a Manchester United t-shirt, and carrying a metal bar, disembark from the UPND motor vehicle, and approached them. She said when the young man got to their motor vehicle, h e started smashing the front window screen of their motor vehicle. She said Shebby Chilekwa got out of the vehicle and bolted. She added that after Shebby Chilekwa ran away, the attacker went to her s ide, struck her, and grabbed her handbag, including her phone. She said the youn g man threatened her, t h at he was going to kill her. She said the young man also attacked h er colleague Mbololwa (DW3) . She said people were beaten and screaming . She said onlookers did not come to their rescue. She said when she stepped out of the car, she heard gun shots. And that she did not know who discharged the firearm or who was shot. She added that at the time she heard the -J27- gun shot, Shebby Chilekwa had already fled. She said it was a lie that Shebby Chilekwa was moving with a gun on the dash board. She said as she was fleeing from the scene, she heard Shebby Chilekwa calling for her, and they fled together to a nearby house; got off her PF t-shirt and continued to run. She said thereafter she did not know which direction Shebby Chilekwa went. She said as for her, she went to the road side, and got on a Police motor vehicle. She said when she was taken to the Police Station, an officer asked her to narrate what had happened. She said, she replied that nothing had happened, because she was in fear to inform them what had transpired. She said later she saw a Police Officer , with her handbag smeared with blood. She said prior to her handbag being grabbed, there was KS, 000.00, but when she searched it, only Kl00 was recovered. And that Mbololwa was equally taken to the Police Station with a smashed head. She said Mbololwa and she were taken to the Hospital. She said she was advised by a nurse to leave the Hospital, becau se the UPND members would kill her and her colleague. She said the poll for the by-election took place on 10t h October, 2019. She said thereafter, she returned to Mongu, and later on burnt the handbag as advised by her husband, because it was stained with blood. She said two weeks after her return to Mongu, she gave a statement to the Police. She said in November 2021, she was visited by Police Officers, among them were, Mr. Uyoya (PWl 1) and Mr. Mulimba (PW14). She said Uyoya told her that the killer in the Kaoma incident was Shebby Chilekwa, and that the government would appreciate her -J28- participation in the case. She said, she retorted by advising Uyoya that, she could not change goal posts, to falsely implicate Shebby Chilekwa, for a reward. She said with that response, the officers left. DW3 was Mbololwa Nayoya, hereinbefore referred to by Bronah Lubasi (DW2). She said on the material date, she was with DW2. Her testimony is materially similar to that of DW2. She said while in Site and Service Township, they encountered a UPND motor vehicle. She said at that point, Shebby Chilekwa their driver brought his vehicle to a halt. She said a young man, wearing a Manchester United jersey, and carrying a metal bar jumped from the UPND motor vehicle, and went straight to the side of Shebby Ch ilekwa, and smashed the windscreen, and attacked Shebby Chilekwa. She said when Shebby Chilekwa was attacked, he fled from the vehicle. She added that thereafter, the attacker went to the side of Bronah (DW3), smashed the windscreen, and grabbed her hand bag, and went away with it. She said, Bronah, equally fled from the scene. And that after Bronah was out of the vehicle, she heard gunshots. She said when s h e heard the gunshot, Shebby Chilekwa had already left. She said after attacking Bronah, the you ng man, went to her side and attacked her, and she sustained a cut on her head. She said there were so many people, but they were not helpful. It was also her testimony that, when she heard the gunshot, Lawrence Banda was not on her side. According to her, Shebby Chilekwa didn't shoot Lawrence Banda. And that Mumbi Phiri was not at the scene. However, she said she didn't know who killed Lawrence Banda. And that she didn't know anything concerning the -J29- death of Lawrence Banda. She said she only saw Mumbi Phiri at the Hospital around 12:30hours. She said she was taken to the Police Station, where she met Bronah, and later went to Kaoma District Hospital for medical attention. She said she was advised to leave the Hospital by a nurse because she was going to be killed. However, she admitted that no one was killed from the Hospital. DW4 was Anne Ngebe Ngombo , a retired teacher and candidate on the PF ticket in the said by-election. And DWS was Steward Sandala Mupyaku. These two witnesses directly spoke to the alleged alibi of Mumbi Phiri. Again, given the change of circumstances, I will not recapitulate their testimonies. DW6 was Simon Tembo a former Police Officer, separated from service 1n 2022. He said from January 2019, he was the Deputy Director under the Criminal Investigations Department. And that h e was familiar with the present case. He said two matters under investigations involved a murder case and an attempted murder case. He said his Director, Mr. Nsofwa (DW7) was not satisfied with the local CID team. He said he was then tasked to constitute a team and travelled to Kaoma. He said Mr. Mulimba (PW14) was part of his team. He said the two dockets were withdrawn from Kaoma and taken to Lusaka. He said the two dockets were related. According to him, the murder case and the attempted murder case were related, because the people in one incidence found themselves in the other incidence. He said -J30- there was indication that the youth that apprehended Chola came from the murder scene. He said he read through the dockets. He said a firearm was r ecovered. He said there was no specific name mentioned responsible for killing Lawrence Banda. He added that Mr. Mulimba (PW14) indicated to him that Mumbi Phiri was not at the murder scene. He said he was a dvised by Mr. Mulimba that there was a gentleman who was alleged to have had recorded the incidence on his phone. He said he advised Mr. Mulimba to cordially cooperate with the said gentleman. He said when the video was obtained; h e h a d an opportunity to view it, which was less than ten seconds of recording time. He said the video was so quick that one could barely identify things. He said he got the phone and handed it to the CID for examination. He said h e handed over the dockets to his supervisor when h e was redeployed in 2020, and as to wha t happened thereafter, h e was not privy . He said even after h e was redeployed, investigations remain ed active. He a dmitted that he did not know Brian Mulenga (PW2), Christopher Mapulanga (PW3), Chinyama Mutti (PW5 ), including Bronah Lubasi Namata (DW2) and Mbololwa Nayoya (DW3). DW7 was Michael Nsofwa, a re tired Deputy Commissioner of Police. He said he was r etired in September 2022. He said in 2019 , he was the Director of Criminal Investigations . He said on October 6, 2019, there were two cases of interest to the present proceedings from Kaoma; one of murder and the other of attempted murder. He said wh en he asked for a report from Mr. Mulimba, the Investigations Officer, the report was not availed. He said after four days, he -J31- constituted a team to inquire as to why the case was not moving. He said h e a ppointed Mr. Tembo (DW6) to lead the team of investigators, and the team travelled to Kaoma from Lusaka. He said the murder case and the attempted murder case were related. According to him, the shooting was a continuous process. He said a pistol and cartridges were recovered. He said the pistol and the cartridges were recovered from Chola by members of the public. He said the victim in the attempted murder case was Gift Simangolwa. He said his instructions to Mr. Mulimba was to submit the same for forensic ballistic examinations. He said Mr. Mulimba told him that he had complied with the instructions. He added that h e also directed that the PF vehicle and the UPND vehicle be recovered for forensic examination . He said his officers later a dvised him that it was difficult to recover the two motor vehicles. He said when h e was Director, there was no information coming from Chinyama Mutti (PW5). He said the report he got was that nobody saw the killer. He said according to investigations, when the shooting was taking place people were scampering. He added that there was no such information that Mumbi Phiri was at the scene. He said initial investigations were leading to a member of the PF, Muchemwa. In cross-examination he said h e did not come across the statement by Chinyama Mutti (PW5) or Brian Mulenga (PW2) . He said after his redeployment to TAZARA, h e was not privy to how the investigations were concluded. He said at the time of his redeployment, there were no additional suspects apart from Chola. -J32- DWS was Gift Simangolwa, a resident of Kaoma. He said on October 6, 2019, he was in town, and around 10: 00hours to 11:00hours his unnamed bosses directed that they get into the car, to go and rescue one of their bosses attacked by the UPND . He said they were alerted to be cautions, because the UNPD camp leader was Chola. He said he knew Chola as an ex-soldier who used to move around with a pistol. He said they headed to Site and Service Township, and he heard sounds of gunshots. He said before they reached their destination they were blocked by Chola. He said when Chola arrived; he threw away his motor bike and said he would finish the PF people. He said Chola fired gun shots, and his friends he was with in the car scampered. He said at first Chola shot at him in the leg. He said he did not fall to the ground, but charged against Chola, and hit him with a punch. He said Chola retaliated, and on three occasions shot at him, in the left arm, and in the shoulder. He said he did not give up, and resisted by punching Chola to the ground, and pinned him. He said onlookers urged him to hold on to him, because he had killed another person. He said Chola was apprehended. He said he was convinced that Chola shot Lawren ce Banda. He said he was taken to the Hospital and later evacuated to the University Teaching Hospital. He said he was surprised that his attacker was freely roaming the streets, and that he was not accorded a chance to face his attacker in court. -J33- THE CASE FOR PROSECUTION (SUBMISSIONS) The nature of the submissions were in respect of both accused persons. However, given the change of circumstances I will endeavor to summarize them in a manner solely applicable to Shebby Chilekwa. The advocates for the State kindled their submissions by arguing that, the State had proved its case against the accused person, in accordance with the required standard of proof, thus beyond all reasonable doubt. And that all the elements of murder were proved. On the issue as to whether Brian Mulenga (PW2) and Christopher Mapulanga (PW3) were witnesses with a possible interest of their own to serve. It was noted by the State that, Defense Counsel took issue with the testimonies of Brian Mulenga (PW2) and Christopher Mapulanga (PW3) by alleging that they were witnesses with an interest to serve, because they belong to the UPND and were allegedly testifying in accordance with the President's directive to the effect that, Lawrence Banda's killer must be prosecuted. The case of Kambarange Mpundu Kaunda v The People (1990-1992) Z. R. 215, was cited wherein it was held: That as the prosecution eye witnesses were relatives or friends of the deceased and could, therefore, have had a possible bias against the appellant; and as they were the subject of the initial complaint by the appellant as having attacked him and his friends, and, therefore, had a possible interest of their own to serve. Failure by the learned trial judge to warn himself and specifically to deal with this issue was a misdirection. -J34- It was noted t h at th e application of the above principle was without caution or should be jud icious. In this r egard, I was directed to the case of Yokonia Mwale v The People {SCZ Appeal No. 205/2014) in which th e Supreme Court guided as fo llows: We are of the firm view that the insistence on the position that the evidence of every friend and relative of the deceased or the victim must be corroborated, is to take the principle on this point out of context. Further recourse was h ad to the case of Katukula Trywell v The People {SCZ Judgment No. 32 of 2015), the Supreme Court held : The expression 'witness with an interest to serve' carries with it a danger of losing sight of the real issues .. .. The critical consideration should be evidence based and must focus on the particular circumstances of whether such a witness may have a motive to give false evidence. It was su bmitted that even though Brian Mulenga (PW2) and Christopher Mapulanga (PW3) may fall in the category of witn esses with a possible interest of their own to serve , as stated in the Kambarange Mpundu Kaunda case, the said witnesses had no motive to falsely implicate the accused person. That the testimonies of PW2 and PW3 were cogent and did not require corr oboration. And that, in any event, the testimonies of PW2 and PW3 were corroborated by th e testimon y of Chinyama Mutti (PWS). It was submitted that, th ere was d irect evidence from PW2, PW3 and PWS, as eye witnesses, to t h e effect that they saw Shebby Chilekwa shoot the deceased. -J35- As to whether the defence of self defence was available to the accused person, th e law as provided in section 17 of the Penal Code Chapter 87 of the Laws of Zambia was reproduced, thus: Subject to any other provisions of this Coder another law for the time being in force, a person shall not be criminally responsible for the use of force in repelling an unlawful attack upon his person or property; or the person or property of any other person if the means he uses and the degree of force he employees in doing so are no more than is necessary in the circumstances. And based on the case of Esther Mwiimbe v The People (1986} Z. R. 15, it was argued that, the defence of self-defence was unavailable to the accused person, because it was necessary and possible for the accused person to retreat. And that the act of shooting at the deceased without demonstrating the willingness to disengage was unreasonable. On the totality of the evidence and the submissions, I was urged to find the accused person guilty as charged and convict him accordingly. THE CASE FOR THE DEFENCE (SUBMISSIONS) Counsel for the accused person in their submissions acknowledged that it was not in dispute that on October 6, 2019, Lawrence Banda was shot and died in Kaoma. According to counsel, the crux of the issue in dispute was whether the accused p erson caused the death of Lawrence Banda. At the outset, it was argued that the prosecution evidence was marred by anomalies, contradictions, regarding the shooting, and the shooter, and insufficient to warrant a verdict of guilty. -J36- It was argued that Brian Mulenga (PW2) was an in consistent witness, who was gifted with a tanker and that it was the Presid ent's d esire to pursue this case. According to Counsel, the UPND agenda in this matter was clear. PW2 was la beled a partisan witness with a possible inter est of his own to s erve . The case of Haufa v Ronaldson (2011) UGHC 64, was cited, wherein the need to treat partisan witnesses with great care and caution was overstated. I was urged to exclude the testimony of PW2, because it was suspect. Instead, I was urged to rely on the evidence of Bronah (DW2) and Mbololwa (DW3), that wh en the shooting was takin g place, Shebby Chilekwa had left the scene. Additionally, it was contended that the evidence of Simon Tembo (DW6) and Michael N sofwa (DW7) was logical, in the sense that the shootin g incidence was a continuous process from the murder scene to the attempted murder scene. And that th e only p erson with a gun at the material time, was Chola Simwaba. And that, Chola warn ed Gift Simagolwa that : "I will finish you the PF". It was submitted that Chola Simwa ba was the shooter of Lawrence Banda. Similarly, the testimony of Brian Ma pulanga (PW3) was fer vently questioned. PW3 was said to b e unrelia ble, given his supposed inconsistencies and the quality of his memory. It was argued that he could not remember what happened at the scene. And that he lied in a material way, by stating that he picked a cartridge from the scene and later changed, that he did not. The case of Shawaza Fawaz and Another v The People (1995) S . J. 2 {S. C.) was referred to , wherein th e Supreme Court stated: -J37- We would not agree that the witness was not shaken in cross examination. We appreciate that the learned trial judge meant by this that the witness was not shaken in his evidence about the participation in the disposal of the body by the two appellants, but cross examination cannot always shake the evidence of untruthful witnesses in every respect, it is sufficient to show the unreliability of a witness if he is shown to have told an untruth about an important part of the evidence. The testimony of Chinyama Mutti (PW5) was also found to be questionable. It was observed that the witness provided variant descriptions of Shebby Chilekwa, under examination in chief, and cross examination. And that the witness failed to identify Shebby Chilekwa in Court from the identification photo parade. It was argued that the quality of his observation was also questionable, as the witness alleged that he witnessed the shooting from a distance of 10 meters. And that his testimony was tainted with inconsistencies. According to Counsel, PW5 said that he heard gunshots and then saw the deceased grab the handbag. Regarding how the identification parade was conducted, it was argued that the same was unfair. The case of Toko v The People (1975) Z. R. 197, was referred to, wherein the Supreme Court held: The police or anyone responsible for conducting an identification parade must do nothing that might directly or indirectly prevent the identification from being proper, fair and independent. Failures to observe this principle may, in a proper case nullify the identification. Additionally, regard was had to the case of llunga Kalaba & Another v The People (1981) Z. R. 102 in which it was held: -J38- It is common ground that the appellants are somewhat different in height; that at the parade, they wore different clothes and their faces were slightly swollen ... all these factors the appellants ... identification of that weakened the Let it be stressed that the sole object of an identification parade is to test the ability of an identifying witness to pick out a person he claims to have previously seen on a specified occasion, and to achieve that object, those charged with the duty of conducting identification parades must ensure that such parades are free from unfairness. It was con tended th at from th e testimony of Phison Chis h ala (PW l O), it was u nclear and uncertain, if the identification parade was fair , on accou nt that PWl O acknowledged that six p eople on the parade out of eight were taller th an Sh ebby Chilekwa. The testimonies of Uyoya (PW l 1) and Mulimb a (PW14) were interrogated. It was observed that the evidence of these witnesses relied on the discredited testimonies of PW2 , PW3 and PWS. And that th e failure to p roduce the recovered pistol and cartridges, including the handbag, and the smash ed vehicle was fatal to the prosecution's case. I was directed to th e case of Phiri v The People (1978) Z. R 50 wherein it was stated that: The courts are required to act on the evidence placed before them. If there are gaps in the evidence, the courts are not permitted to fill them by making assumptions adverse to the accused. If there is insufficient evidence to justify a conviction, the courts have no alternative but to acquit the accused and when such an acquittal takes place because evidence which could and should have been presented to the courts was not in fact presented a guilty man has been allowed to go free not by the courts, but by the investigating officers. -J39- Concomitantly, the case of Charles Lukolongo and Others v The People (1986) Z . R. 115 was added, in which it was held : Where evidence available only to the police is not placed bef orethe court, the court must presume that, had the evidence been produced, it would have been favourable to the accused. This presumption can only be displaced by strong evidence. And by way of emphasis, the case of Peter Yotamu Haamenda v The People (1977) Z. R. 184 was vouched, where it was held: Where the nature of a given case necessitates that a relevant matter must be investigated but the investigating agency fails to investigate in circumstances amounting to a dereliction of duty and in consequence of that dereliction of duty the accused is seriously prejudiced because evidence which might have been favorable to him has not been adduced, the dereliction of duty will operate in favour of the accused and result in acquittal unless the evidence given on behalf of the prosecution is so overwhelming as to offset the prejudice which might have arisen from the dereliction of duty. It was submitted that the failure on the part of the State to produce the pistol, cartridges, and the handbag, constituted a dereliction of duty, which s h ould result in the acquittal of the accused person. And that the State failed to provide a link between the weapon and bullet to the accused person to be held responsible for the alleged criminal conduct. That malice aforethought to commit murder could only have been p roved by connecting the pistol, cartridges and projectiles to the accused person. It was further contended that investigations carried out by Mulimba (PW14) were flawed . Counsel argued that PW14 neglected to interview Police Officers who were first to arrive at the murder scene and picked -J40- some cartridges. Likewise, it was alleged that PW14 neglected to interview other key witnesses, such as PF cadres who were present at the crime scene and the residents of the area present at the time Lawrence Banda was shot. The case of Nelson Banda v The People (1978) Z. R. 30 was cited, in wh ich it was held: In any given set of circumstances where there is evidence that more than one person witnessed a particular event, if the happening of the event is disputed when the first deposed to and the prosecution chooses not to call any of the other persons alleged to have been present, this may be a matter for comment and a circumstance which the court will no doubt take into account in the decision as to whether the onus on the prosecution has been discharged. It was thus submitted that, the failure to avail before the court all the necessary key witnesses be taken into consideration when determining whether or not the State had proved its case beyond all reasonable doubt. It was argued that the case was open to more than one inference. And connected to this it was submitted that, the Police did not consider the possibility of 3 rd and 4 th suspects to the shooting of Lawrence Banda. It was reiterated that, the failure to produce the pistol and the cartridges, occasioned by dereliction of duty on the part of the Police, rendered the case amenable to multiple inferences, as it was not taken out of the realm of conjecture. I was urged to find the accused person not guilty and acquit him. PROSECUTION'S SUBMISSIONS IN REPLY The State filed its reply as agreed by the parties on December 28, 2022, a day before the deadline. In reply, the State urged the Court -J41- to accept the testimonies of witnesses presented before it, rather than on statements made outside the court. And in so urging, the case of Simon Miyoba v The People (1977) Z. R. 218 was adverted to, wherein it was h eld : Neither the depositions taken at a preliminary inquiry nor statement to the police which in summary committal proceedings are furnished to the court and the defense are formally before the court and the court is not entitled to have regard to the content of such depositions or statements. Similarly, it was argued that there was no dereliction of duty on the part of the Police, to produce in evidence, the alleged exhibits, pistol, cartridges or witnesses. In this regard reference was had to the case of Green Nkutisha and Another v The People (1979) Z . R. 261, in which the Supreme Court held: The prosecution has no duty to call all witnesses. The need to call other witnesses arises when doubt is cast upon the evidence of a witness to the extent that further evidence is required to corroborate that witness and thus remove the doubt. And the case of Jack Maulla and Another v The People (1980) Z. R. 119 was also added, where again it was held : The need for the calling of other witnesses arises when doubt is cast upon the evidence of a witness to the extent that further evidence is required to corroborate that witness and thus remove the doubt, if there is no doubt about a witness, there is no need for supporting evidence nor is there any need for comment by the trial court on the absence of such evidence. It was emphasized that there was direct evidence from Brian Mulenga (PW2) and Christopher Mapulanga (PW3), that under the order of -J42- Mumbi Phiri, Shebby Chilekwa lowered the barrel of his gun and shot Lawrence Ba nda to death. That the testimonies of eye witnesses, including Chinyama Mutti (PW5) was unquestiona ble, and did not require corroboration. I must state that the defence on February 3, 20 22, filed what was dubbed: "Further Submissions in Reply . This was filed agains t the order for direction as regards the filling of submissions, and was done without the leave of the Court. I will not labour to give a summary of the said submissions. DETERMINATION In the days immediately preceding th e holding of the poll for the District Council Chairperson by-election on Octob er 10, 2 01 9, in Kaoma District, political campaigns between the main con tending parties were ch aracterized by pock ets of political violen ce. The main contending parties in the by-election were the United Party for National Development (UPND) and the Pa triotic Front (PF). It app ears it was fashionable for some unruly political cadres armed with firearms to use violen ce . Political violen ce, rather than peaceful campaigns was used to terrorize opponents and settle political differences. On October 6, 2019, two official reports involving discharge of firearms were recorde d in Site and Ser vice Township alon e. Regrettably, one turned out to be fatal, resulting in the untimely death of Lawrence Banda, who h ad travelled from Lusaka to Kaoma with his team to campaign for the UPND. -J43- .. On the morning of October 6, 2019, which was a Sunday, around 10:00hours to 11 :00hours, the UPND team inter alia comprising Brian Mulenga (PW2), Christopher Mapulanga (PW3), and the deceased, Lawrence Banda in a UPND branded Toyota Land Cruiser GX, came face to face with the PF team driven by Shebby Chilekwa in a white Toyota Hilux registration mark BAD 5864, in a narrow dusty road in Site and Service Township. This encounter came about because the UPND team followed and cornered the PF team, after receiving reports that, earlier that morning, the PF raided and looted the UPND campaign centre within Kaoma District. It is not true as alleged by Shebby Chilekwa that the registration mark of the Toyota Hilux he was driving was BAD 5588 . His dissociation with the actual vehicle involved is unsurprisingly, given PWl, Frank Mwamba's testimony regarding the murky history of the said Toyota Hilux BAD 5864, which Shebby Chilekwa was driving on the material date. Antecedent to the Kaoma shooting, PWl used to receive reports from the Police alleging that the said motor vehicle was connected to some shootings in Lusaka, prompting him to seek redress from the PF Secretariat, for the latter to take up true ownership of the motor vehicle to avoid being held answerable to things he was not privy to. Reverting to the real issues at hand, it is clear from the evidence that Lawrence Banda armed with a metal bar was the first to step out of the Toyota Land Cruiser GX, and in a combatant manner, approached the Toyota Hilux, BAD 5864 and its occupants. He smashed the front windscreen of the Toyota Hilux and grabbed a -J44- • handbag claimed by Bronah Lubasi (DW3). And in the process of that scuffle, he was shot in the h ead. And one of the videos recorded on the Phantom 5 Techno cellular phone recorded by Manji Siamasiku, clearly shows Lawrence Banda laying on the ground with his faceup to the skies, stained with blood, and b eside him was a seemingly feminine handbag. When PW6, Dr. Mucheleng'anga, the State Forensic Pathologist took to the stand as a witness, h e was crossed examined at length by defence counsel, as to the p ossibility of an alternative cause of death, other than by gunshot wound. PW6 in his testimony and his postmortem examination report was steadfast that the cause of death was a gunshot wound to the head. Magnanimously, defence counsel in their submissions acknowledged that Lawrence Banda was shot and died in Kaoma. It is clear that Lawrence Banda while in Site and Service Township was shot in the head, and shortly thereafter died at Kaoma District Hospital. The nature of the gunshot wound to the head, was in m edical terms described as a key hole deformity, implying that the entry and exit point of the projectile was the same. The inescapable question for determination is who killed or murdered Lawrence Banda. The learned authors of Archbold: Criminal Pleading, Evidence and Practice, Forty-third Edition Vol. 2, at paragraph 20-2 unveil the definition of murder in the following statement: -J45- The crime of murder is committed where a person of sound mind and discretion unlawfully k i lls ... with intent to kill or cause grievous bodily harm ... The codification of this definition is spelt out in section 200 of the Penal Code, which provides that: Any person who of malice aforethought causes the death of another person by an unlawful act or omission is guilty of murder. And section 204 of the Penal Code, provides circumstances under which, intention to kill or to harm, otherwise called malice aforethought, may be deemed to be present, by stipulating that: 204. 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; (c) an intent to commit a felony; (d) an intention by the act or omission to facilitate the flight or escape from custody of any person who has committed or attempted to commit a felony. In the present case, like in any other criminal matter, the trial court is invariably faced with two conflicting evidential positions or testimonies. On the one hand, testimonies or evidence adduced by the prosecution alleging the commission of an offence by an accused, -J46- and on th e oth er hand, testimonies or evidence by the defence alleging oth erwise. I am reminded by the case of Attorney General v Kakoma (1975} Z. R. 212, that in such a situation, th e trial court, is entitled t o m ake findings of fact where the parties advance directly conflicting stories. An d the court must make those findings based on the evidence b efore it, h aving seen and h eard the witnesses giving evidence. The fact-finding process in th e judicial s ense inevitably requires an assessm ent regardin g credibility of witnesses. A j urist, Evans Bell in his publication titled: An Introduction to Judicial Fact Finding (Commonwealth Law Bulletin 2013, page 519) lu cidly describes the challen ges generally associa ted with assessment of credibility, that is to say: There are no rules of law for assessing credibility anymore than there are rules for assessing relevance. There is no formula for doing it. The evaluation is essentially a subjective judgment as a result of a number of factors whose varying weight depends upon the circumstances. In general, the factors to be taken into account in assessing credibility are : demeanor , character , reliability, consisten cy, veracity, and motive. A fur t h er consideration on the issue, worth noting is discern able from th e case of Mushemi Mushemi v The People (1982) Z. R. 71 in which th e Supreme Court guided as follows: The credibility of a witness cannot be assessed in isolation from the rest of the witnesses whose evidence is in substantial conflict with that of a witness. The judgment of a trial court faced with conflicting evidence should show on the face of it why a witness who has been seriously contradicted by others is believed in preference to others. -J47- Needless to say, in presiding over this m a tter, I was mindful of being faithful to judicial values a s prescribed by the Judicial (Code of Conduct} Act No. 13 of 1999. It is also compelling to make referen ce to remarks voiced by Lord Denning in Jones v National Coal Board (1957} 2 Q. B.55, to the effect that: "A judge's part is ... to hearken to the evidence, ... and at the end to make up his mind where the truth lies ... " In the s earch for the truth, I cannot shy away from acknowledging th e fa ct that the quantum of public and social media interest in this matter was understandably multitudinous. Court proceedings were discreetly recorded and uploaded on many different media platforms, attracting commentaries of all shades. This undoubte dly, is a clear manifestation of the realities and digital space which the present day judiciaries face in the adjudication process. Nevertheless, the case must b e decided based on the m erits of the evidence adduced, and in accordance with a conscientious understanding of the law. Incidentally, I do not in any sense perceive it wrong or a misfeasance for a p erson in authority, or a fair-minded citizen, includin g the President, to dutifully voice-out that the killer, or killers of Lawr ence Banda should face justice. In any case, it is the judicial process that vindicates those unfairly or wrongly accuse d, and for t hose found guilty for their criminalities, h eld accountable for th e proper maintenance of law and order. Having made the above general observation, I now proceed to d etermine the lia bility or otherwise, of Shebby Chilekwa. The prosecution eviden ce from the individual and collective testim onies -J48- • of Brian Mulenga (PW2), Christopher Mapulanga (PW3) and Chinyama Mutti (PWS), attest to the fact that, the person that shot Lawrence Banda to death was Shebby Chilek:wa. As the Court of fir st instance, I had an opportunity to judiciously listen, observe and assess the demeanor, truthfulness and reliability of the prosecution's key witnesses, Brian Mulenga (PW2), Christopher Mapulanga (PW3) and Chinyama Mutti (PWS) . And I have no doubt whatsoever that they were truthful in the witness box and corroboratively consistent; that, they severally saw Shebby Chilekwa shoot Lawrence Banda. In the case of PWS 's testimony, in particular, his identification of Shebby Chilek:wa was contentious. The factors to be taken into account as regards identification of an accused person were impressively stated in the case of Chimbini v The People (1973) Z . R. 191, by stating that: [W}here the evidence in question relates to identification, there is the additional risk of an honest mistake, and it is therefore necessary to test the evidence of a sing le witness with particular care. The honesty of the witness is not sufficient; the court must be satisfied that he is reliable in his observation. Many factors must be taken into account, such as whether it was daytime or night-time and, if the latter, the state of the light, the opportunity of the witness to observe the appellant, the circumstances in which the observation was alleged to have been made (i.e. whether there was a confused fight or scuffle or whether the parties were comparatively stationary). Most importantly it is relevant to consider whether the witness knew the accused prior to the incident, since there is the greatest difference between recognizing someone with whom you are familiar, or at least whom you have seen before, and -J49- • seeing a person for the first time and atte mpting to recognize and ident ify him later from observations made in circumstances which are no doubt charged with stress and emotion. It is clear and obvious that, it is not only the witness's truthfulness that matters, but the reliability of the witness as well; reliability means the witness's ability to observe or remember events about which he or she is giving evidence to: (see E. Bell, An Introduction to Judicial Fact-Finding, 2013 page 525), And causes of inaccuracy in a witness's testimony include: imperfect observation, faulty memory, an over-active imagination, emotional disturbance, self interest and other biases (see E. Bell, supra). The shooting in the present case happened 1n broad day light. Although it is apparent that Brian Mulenga (PW2), Christopher Mapulanga (PW3), and in particular Chinyama Mutti (PW5) had no previous encounter with Shebby Chilekwa before October 6, 2019. It is worth noting that PW2 and PW3 had an earlier encounter with Shebby Chilekwa before he shot Lawrence Banda, regarding the earlier indiscriminate discharge of a firearm on that day associated with the occupants of the Toyota Hilux, BAD 5864. PW2, PW3, and PW5, had an impressive opportunity to observe Shebby Chilekwa. In fact, PW5, even verbally confronted Shebby Chilekwa as to why he was trigger happy. The fact that PW5 engaged Shebby Chilekwa and questioned his nefarious conduct, does not speak to a person who was emotionally destabilized, but to a mentally balanced person, despite the violent atmosphere. In fact, it was Bronah Lubasi (DW2) and Mbololwa Nayoya (DW3) who were -JSO- ,., emotionally wrecked, such that they claim not to know who was shooting and who was shot, making DW2 and DW3 considerably incompetent to speak to circumstances as to h ow Lawrence Banda met his death. It is not true that the shooting took place after Shebby Chilekwa vanish ed from the scene. Th e compelling reality is that Shebby Chilekwa on ly vanished from the scene after shooting Lawrence Banda. An identification para de was constituted in February 2022. And Chinyama Mutti (PW5) was the only identifying witness at the parade. In the cas e of Peter Yotam Haamenda (supra) the Supreme Court a dopted the guidelines unpacked by Lord Widgery CJ., in R v Turnbull {1976[ 3 ALL E. R. 547, con cerning th e duty on the part of the trial judge, whenever a case against an accused turns wholly or substantially as to the correctness of one or more identifications. In R v Turnbull it was h e ld: (a)Firstly, that the judge should warn the jury of the special need for the caution before convicting the the correctness of the accused identification; and reliance on in (b) secondly, the judge should direct the jury to examine closely the circumstances in which the identification by each witness came to be made. The Suprem e Court in the case of Peter Yotam Haamenda contextualized the above guidance a s follows: In this country where the jury system does not exist the warning and the discretion mentioned in Turnbull must be to the trial judge. -JSl- I render myself governable to the above guidance. I agree with defence counsel that an identification parade must be conducted in an atmosphere void of impropriety, partiality, and unfairness. However, having regard to the testimonies of Phison Chis ala (PW 10), the parade commander, and Marcel Mulenga (PW12), the scenes of crime officer, who produced the photographic album of the identification parade, I find nothing compelling to discredit th e said identification parade. Shebby Chilekwa did not conspicuously stand out in terms of physical appearance so as to make his identification by Chinyama Mutti (PW5) too clear and obvious. The apparent inconsistent description of Shebby Chilekwa by PW5 in terms of height and body in the witness box was insignificant; what is material is that, PW5 identified Shebby Chilekwa from the identification parade on more than one occas10n. The misidentification of Shebby Chilekwa by PW5 in the court room based on a b lack and white photo, copied from the original photo, did not 1n any material sense discredit the identification parade. Comparably, in Ali and Another v The People (1973) Z. R. 232, it was held that, a courtroom identification has little or no value. There is no possibility of mistaken identity, especially that it was not in dispute that Shebby Chilekwa was at the murder scene, dubbed scene one. It is without doubt, the killer of Lawrence Banda was the driver of the Toyota Hilux, registration mark BAD 5864, and that driver was Shebby Chilekwa. I am mindful that Brian Mulenga (PW2) in h is statement to the Police, obtained in November 2019, is alleged to have implicated Francis -J52- . • Muchemwa as the killer of Lawrence Banda, before that sentence was erased from his statement. The resolution of this apparent discrepancy lies in what was reasoned by the Supreme Court in the case of Simon Miyoba v The People (supra) . The Supreme Court eruditely guided that: The general rule is that the content of a statement made by a witness at another time, whether on oath or otherwise, are not evidence as to the truth thereof; they are ammunition, and only that, in challenge of the truth of the evidence the witness has given at the trial. I am not privy as to what motivated Brian Mulenga (PW2) to say the killer was Francis Muchemwa to the Police at the material time. However, PW2 in his testimony before court, which ordinarily should prevail, was categorical that the killer of Lawrence Banda was Shebby Chilekwa. His testimony is authenticated by and in accord with the testimonies of Christopher Mapulanga (PW3) and Chinyama Mutti (PW5), in particular. Even if, I was to some extent, exclude the testimony of PW2, and render it unreliable or attach less weight to it, the evidence of PW3 and PW5 is still sufficient to secure a conviction against Shebby Chilekwa. It was also argued that Brian Mulenga (PW2) and Christopher Mapulanga (PW3) should be treated as witnesses with a possible interest of their own to serve. And that their respective testimonies require corroboration. The affinity of PW2 and PW3 to the late Lawrence Banda cannot be doubted . Equally, their partisan inclination given the political environment in which the murder occurred, cannot be glossed over. However, I am content that despite the foregoing, PW2 and PW3 were truthful in their respective -J53- testimonies, void of any danger of false implication. The allegation that PW2 was a beneficiary of a tanker to falsely implicate Shebby Chilekwa was without proof and unfounded . In any case, corroboration of PW2 and PW3's testimonies as to the identity of the gunman and the commission of the offence is not farfetched to unearth. It is to be attained from the testimony of Chinyama Mutti (PWS). The testimony of this independent witness unambiguou sly stated that, Lawrence Banda was killed by Shebby Chilekwa. Above all, I find no conspiracy that the three witnesses connived to falsely implicate Shebby Chilekwa. It was argued by defence counsel that the case was open to multiple inferences, and that the resolution of these inferences should turn out in favour of the accu sed person. The supposed sanctuary for this proposition is th e case of Doroth Mutale and Another v The People (1997) S. J. No. 51 wherein it was held: Where two or more inferences are possible, it has always been a cardinal principle of the criminal law that the Court will adopt the one, which is more favorable to an accused if there is nothing in the case that exclude such inference. It was theorized that the death of Lawrence Banda was connected to the attempted murder case, at scene two, allegedly perpetuated by Chola Simwaba. And it was postulated that Chola Simwaba killed Lawrence Banda. This statement is an artificial interpretation of the real facts in the present case. Firstly, there is no room for drawing of such inferences, because the evidence before court is not strictly -J54- inferential or circumstantial, but direct evidence based on what PW2, PW3 and PW5 perceived at the murder scene. Secondly, the facts relating to the murder case are far distinct from facts in the attempted murder case. Even though the two cases took place in the same area, separated by houses and a distance of about 200 to 500 meters, the cases happened at two different intervals of time involving different perpetrators and victims. The events were not contemporaneous, but had a considerable lapse of time . The murder case was earlier in time, it took place around 10:00hours to 11:00hours, and terminated, whereas the attempted murder case independently took place around 12:20 hours to 13:00hours. Gift Simangolwa was not an eye witness to the murder of Lawrence Banda. Therefore, his statement that he was convinced that his attacker was also Lawrence Banda's killer was profoundly unfounded and an imagination of non-existing even ts. Chola Simwaba was transcendently remote to the murder of Lawrence Banda. Therefore, it is naive and unresponsive to accept the false notion, that despite the Police suspecting Chola Simwaba to be the killer, they willy-nilly left him scot-free. I am not aware of any "invisible immunity'' which frustrated his arrest for homicide, if truly he was the killer. What is true is that, Chola Simwaba was arrested and detained for the offence he allegedly committed, that is to say, attempted murder against Gift Simangolwa. Meanwhile, the killer of Lawrence Banda was at large, supposedly because, at the material time, key witnesses were indifferent to h elp the Police with investigations. -JSS- The testimonies of former Police Officers, Simon Tembo (DW6) and Michael Nsofwa (DW7) motivated to secure an acquittal, was not based on hard facts, but armchair analysis of the dockets void of any interaction with the witnesses. As rightly observed by the State, there was no basis for them to make such unfounded conclusions, because they were redeployed before investigations in this matter were concluded. And more crucially, to this extent, DW6 and DW7 are unreliable; they did not even have an opportunity to obtain statements from key witnesses, namely Brian Mulenga (PW2), Christopher Mapulanga (PW3) and Chinyama Mutti (PWS) . It is, therefore, sensible to appreciate the context of Uyoya's lamentations, as one of the investigation officers, that initial inquiries in this case were not free from interferences. The repeated remonstration that the State was guilty of dereliction of duty to produce in evidence the recovered pistol, so as to invite a determination in favour of Shebby Chilekwa, is debunked. The pistol recovered in the attempted murder case, had no b earing to the present murder case. There was no firearm recovered in the present case. In the case of Gilbert Chileya v The People (1981) Z . R . 33, the Supreme Court amplified the meaning of dereliction of duty, by holding that: Dereliction of duty is failing to make a test which could conclusively prove one way or another the claims of the contending parties would result in a presumption, albeit a rebuttable one in favour of the applicant. -JS6- And I conscientiously appreciate the principle stated in case of Charles Lukolongo. That is to say: where evidence available only to the Police is not placed before the court, the court must presume that,had the evidence been produced, it would have been favourable to the accused. Indeed, from the murder scene, the Police recovered some cartridges, but the actual firearm used by Shebby Chilekwa was never recovered. And since the firearm used by Shebby Chilekwa was not recovered, I am at sea to appreciate how production of the said cartridges would have changed the course of this case to favour Shebby Chilekwa, against the compelling and conclusive evidence of Brian Mulenga (PW2), Christopher Mapulanga (PW3) and Chinyama Mutti (PW5). And as regard the handbag, the witness for the Defence, Bronah Lubasi (DW2) said the handbag in issue was burnt, because she felt uncomfortable to endlessly retain it with blood stains. It is disingenuous and unthinkable for the Defence to argue that the handbag should have been produced when their own witness said it was no longer in existence, and by her own volition after receiving counsel from her husband, decided to burn the handbag. I am at large to comprehend, how production of the said handbag would have been relevant to Shebby Chilekwa's defence, when he utterly denied killing Lawrence Banda, neither did he raise a defence of self-defence. Generally, it is without doubt that, to attain a fair trial, the State is duty bound to make disclosure of material evidence and produce the same before court during trial. However, it should be remembered that the true spirit of the principle in Charles Lukolongo is not for -J57- the cour t to make injudicious presumptions in favour of an accused, based on fanciful grounds in the name that there was dereliction of duty on the part of the Police to produce certain exhibits. There can be no dereliction of duty, if su ch evidence even if produced would have had no material impact on the overall outcome of the case. Parenthetically, I desire to restate that, the defence of self-defence is unavailable to Shebby Chilekwa, because it was not pleaded in his defence . I am not aware of any law that confers on this Court the discretion suo moto to raise a defence favourable to an accused, which the accused consciously refused to raise , by opting for an absolute denial to the commission of the offence. In the present case, the aforem entioned resolve is fortified by the fact that, the Defence took a swipe at the prosecution's argument dissuading the Court from entertaining the possibility that Lawrence Banda was killed in self-defence. Ironically, defence counsel described the approach by the State in this regard as: "an abstract of the prosecution's arguments". The reward to an accused of the defence of self-defence, where it is successful, is to exonerate an accused, by incapacitating the mens rea, malice aforethought or the guilty mind to commit the crime, notwithstanding the existence of the criminal act (actus reus) of causing death (see R v Gladstone (1984) 78 Cr. App. R. 276). In the case of Kenious Sialuzi (supra), it was held that, an accused that wishes to rely on a particular defence, he or she is obligated to adduce evidence to that effect. In the case of the defence of self-defence, it is necessary to specifically p lead it, and adduce -J58- evidence. Its attainability in the main, requires a subjective assessment as to the accused's disclosed honest belief to the occurring facts and reasonableness of the reaction thereof. If not pleaded, and there is nothing in the alternative suggesting such a defence from the accused, the court cannot impose the defence on an accused who denied committing the offence. Perhaps, the circumstances thereof may be considered under sentencing as extenuating circumstances. An extenuating circumstance in a murder case, is any fact associated with the offence which would diminish morally the degree of the convicted person's guilt: (see section 201(2)(a) of the Penal Code). Extenuating circumstances do not absolve a convict of his or her criminal responsibility or liability, but only militate against a death sentence or a substantial term of imprisonment, if successfully mitigated. CONCLUSION As I conclude this judgment, I am in no doubt that at the time Shebby Chilekwa was pursued by the Police to face justice; he remained elusive to the Police, until after some time when he was finally smoked out from a house of a senior Police Officer through intelligence gathering. His association with the senior Police Officer, as it were, did not warrant a disproportionate reprisal from the Police at the time of his arrest and detention. All in all, I find the case of murder involving the death of Lawrence Banda against Shebby Chisenga Chilekwa proved beyond all reasonable doubt. And for the avoidance of doubt, at the time Shebby -J59- Chilekwa intently committed the offence, he was of sound mind. And the offence was committed without lawful justification. Therefore, I find Shebby Chisenga Chilekwa guilty as charged and convict him accordingly. DATED THE 5TH DAY OF APRIL, 2023 . .. ~ ........... §'. ..... :::s .. .-::-: .. ;: .. THE HON. MR. JUSTICE CHARLES ZULU -J60-