Saka v People (SCZ Appeal 42 of 1990) [1993] ZMSC 43 (3 February 1993)

IN THE SUPREME COURT OF ZAMBIA SCZ APPEAL NO. 42 OF 1990 HOLDEN AT LUSAKA ^Criminal Jurisdiction) BETWEEN: TITO SAKA v THE PEOPLE Appellant Respondent CORAM: Gardner, Sakala and Chaila JJJ. S. 16th February, 1993 Mr. A. M. H. Samad, Senior Legal Aid Counsel for the appellant Mr. F. T. Mensah State Advocate for the respondent JUDGMENT Gardner J. S. delivered the judgment of the Court. The appellant was convicted of murder. The particulars of the offence being that, he on 4tn deptemoer, 1989 at Mumbwa did murder iiukela Mulonda. The evidence adduced by the prosecution was that the appellant, who was a soldier, came at nignt with a civilian to a fishing camp. There was evidence from one prosecution witness that the appellant complained that the people in the camp were making a noise and that he was going to kill them. Tiiereafter he took one man saying he wanted him to accompany him. Shortly afterwards they returned and the /appellantsaid "I am going to snoot you ' because you are making noise." He then fired a shot which went into a bag of mealie meal. The people there started running away. The appellant then fired again and a tnird time. When the third shot had Deen fired the deceased screamed and said that he had been shot, and he ultimately died. Ihe appellant in his defence gave evidence that, as a soldier, he was on operations in the Kafue National ParK and he was coming with a civilian Nathan Chisala from a road test. Nhen they reached their camp Nathan Chisala said he had lost a wrist watch and the appellant took his gun and they went back to where he had come from in the national park to Iock for the watch. 2/.... r.\ey uio not find the watcn. On their way oac* they arrived at the fishermen’s camp and aspect for tne way o&ck to the military ca^p Decause the appellant was new there. Chisala went to the toilet and whilst waiting, the appellant saw a ••nan shouting at his wife, quarrelling. Inis man had a spear In his hands and the appellant tried to separate them. Mien trie people in the camp said that they thought that the appellant and Cnisala were pretending to be soldiers tney attacxec the appellant, and one man with a spear advanced towards him. The appellant was forced to retreat until the Kafue river was Just behind nU and lie could not retreat any further. He then jumped on the ;can who had the spear to get it away from him. The gun slipped off the appellant’s shoulder and a number of people were nitting mm with sticks and pulling his combat shirt. The jun was cocked because they had u«en waUtng in the /iationai .^ark, mu, waiUt m*?y were struggling fur the gun, the gun went off three ti n^s. After the mir; tih? heard a cry from someone who had been shot ano sot toe man w;iu was struggling wim iiu Ine nan who was struggling with him for the ^un, released it and pushg ire appellant away. Tne appellant ' safety catch was not on sc .;•» .-tad to close it. Tne learned trial judge in dealing wim mu casr- muno mat ne did not believe the prosecution witness who nau said mat mu appellant nau mici ne was going to kill one of them oecause thoy were making « noUe. He found mat the appellant had no intention to kill any onu at all out. that ne was metises in firing the gun at the group. He therefore cunvlctrd the appellant of ■luroer. In dealing with the appellant’s evidence of having struggUu wim tne man with a gun, the learned judge said that the appellant could not be oelmvuu mcdusj nt had told two stories. One was that ne was struggling '. Jim a with u s^ear wnen the gun went off and hit the man with when ne was strugoling; the other was that the gun went off while he was struggling wren me rmi tarn a mom, und mat it hit somebody, tne deceased, ** had noth I ng to Jo Mm me fijhC. In fact the evidence of the appellant was solely that ae was struj.j 1 iwtm me mi who came with a spear and tne gun went off and shot m* deceased who iac nothing to oo with the struggle. Furthermore the learned trial judje srsid m 1 d no t 11 j v e i nat there was a struggle for the gun because te could not believe mat. toe r.an who was clinging to tne gun after tne first ano seconu jm snots Umr ici po wiien n? heard someone screaming, (he lea mud Jucje s^id: "Inured if inis Mbn i vared that, if he let the gun go he was going to Ju shet uy accused &ej would fifnly grasp it as the fear of being i.iiot ny accused would cc nore 1".? <snjod lane did not at any time suggest that the man who was struggling with him was afraid that the appellant would shoot him. There was no evidence to this effect at all. The evidence of the appellant was that the man did not let go until he heard a man screaming. There was nothing in this evidence to make tne evidence of the appellant incredible. Having regard to tne reasons of the learned trial judge for disbelieving the appellant, which reasons, as we have indicated were wrong, it would not be safe to allow this conviction to stand. There must be a doubt as to what occured which caused the gun to go off so that the deceased was hit. That doubt must be resolved in favour of the appellant. The appeal is allowed, the conviction is quashed and the sentence is set aside. 3. T. GARDNER SUPREME COURT JUDGE E. L. SAKALA SUPREME COURT JUDGE M. S. CHAILA SUPREME COURT JUDGE