Victor Chigwagwabale v The People (APP.No.40/2022) [2024] ZMCA 121 (25 January 2024)

• • IN THE COURT OF APPEAL OF ZAMBIA HOLDEN AT KABWE (Criminal Jurisdiction) APP. No.40/2022 BETWEEN: VICTOR CHIGWAGWABALE APPELLANT 2 S \AN ?1174 AND THE PEOPLE RESPONDENT CORAM : Mchenga DJP, Chishimba and Muzenga JJAs On 11 th October, 2022 and 25th January, 2024 For the Appellant : Mr. E. Mazyopa, Senior Legal Aid Counsel of Messrs. Legal Aid Board For the Respondent : Mrs. Y. M. Banda, State Advocate of National Prosecution Authority JUDGMENT CHISHIMBA JA, delivered the judgment of the Court. CASE AUTHORITIES CITED: 1. Hamfuti v The People ( 1970) ZR 240 2. Mathew Kalaluka Mate & Others v The People (1996) ZR 3. Joe Banda v The People SCZ Appeal No. 183 of 2013 4. Maketo & Others v The People (1979) Z. R. 23 5. Preston v The King (1949) SCR 156 6. Lumangwe Wakilaba v The People (1979) ZR 74 7. Abel Banda v The People (1986) Z. R. 105 8. Jackson Kamanga & 4 Others v The People SCZ Appeal No. 30-34/2020 9. Robson Chizike v The People CAZ Appeal No. 94/2020 10. Benny Habulembe v The People CAZ Appeal No. 121 of 2018 11. R v Coney (1882) Q. B. D. 534 • 12. R v Rook (1993) 2 All ER 955 -J.2- LEGISLATION CITED: 1. The Penal Code Chapter 87 of the Laws of Zambia 1.0 INTRODUCTION 1.1 This is the majority decision of the court. The appellant stood charged with the offence of murder contrary to section 200 of the Penal Code Chapter 87 of the Laws of Zambia. The particulars alleged that Victor Chigwagwabale, on 16th July, 2019, at Gwembe in the Gwembe District of the Southern Province of the Republic of Zambia, did murder Timothy Siang'andu. The court below convicted the appellant of the offence and sentenced him to death. 2.0 EVIDENCE IN THE COURT BELOW 2.1 PWl, Julia Mazabuka, one of the wives to the deceased, testified that during the night of 16th July, 2019, she was asleep in her house. The deceased was sleeping in the senior wife's house. While asleep, she was awakened by the brightness of torch light being pointed into her house by a man armed with a gun. She explained that her house does not have a door, but a mere curtain for privacy. She observed that the man armed with the -J.3- gun holding the torch, was tall. The other man holding a stick was short. 2.2 As the men left her house, PWl peeped from her house. She saw that the man armed with the gun, removed matches from his pocket. He then set the senior wife's house on fire while the second man stood by. PWl fled from her house and instructed some boys sleeping in another hut to go and inform the owner who was at a funeral. As she fled, she heard a gunshot. When she later returned to the burnt house, she discovered the body of her husband. The body had a big cut on the head and the skin had peeled off. 2.3 PW2, Wishard Sing'andu, is the son to the deceased and PWl. On 24 th December, 2019, he attended a meeting at the home of the village headman, Auditor Muyuni with the appellant, Jason Moonga and Raphael Hamantheka. During the meeting, the appellant was questioned by the headman. The appellant revealed that though he was present at the time the deceased was killed, he did not participate in the killing. That he saw Steven Mazabuka beating the deceased. -J.4- • 2.4 The appellant was subsequently taken to the police station, and questioned by the Criminal Investigations Officer. He admitted that he was present when the deceased was killed but did not take part in the murder. The appellant informed the police that during the incident at the home of the deceased, he held a torch. Further that after the killing, the appellant was given some money by Steven Mazabuka who went away with a lot. 2.5 PW3, Raphael Hamatheka, is a Neighbourhood Watch Officer under Gwembe Police Post. He was directed by the village headman to take the appellant to the headman's home where he was questioned about the murder of the deceased. During the questioning, the appellant stated that he was present when the deceased died but was scared to participate. The appellant named Steven Mazabuka as the person who murdered the deceased. That the appellant stated that he did not report the matter because he was afraid of being beaten by Mazabuka. PW3 then took the appellant to the police station. 2.6 On the advice of the police, PW3 took the appellant back to the police on 3 rd January, 2020 together with the people that had implicated him. In cross-examination, PW3 explained that by -J.5- the time the meeting was held at the village headman's place, Steven Mazabuka had already died. 2.7 PW4, Detective Sergeant George Munalula testified that on 16th July, 2019, he was part of a team of officers that went to investigate the murder of Timothy Siang'andu. At the scene, they found the body of the deceased lying in a pool of blood with the face smashed to the skull. Investigations continued until 3 rd January, 2020 when the appellant was brought to the police by neighbourhood watch members. 2.8 Upon being interviewed, the appellant told PW4 that he escorted Steven Mazabuka to kill the deceased. He was charged with the offence because he was present when the deceased was killed and held the torch when going to the crime scene. 2.9 In his defence, the appellant stated that on 24th December, 2019, he was taken to the Village Headman's home by a neighbourhood watch officer. The next day, during the meeting, he was accused of having murdered Timothy Siang'andu. The appellant denied the accusation. The appellant was told that a witchdoctor had informed them that the appellant was present during the murder. The appellant denied any involvement. • Thereafter he was taken to the police station where he equally -J.6- denied any wrongdoing. 3.0 DECISION OF THE COURT BELOW 3.1 In her Judgment, the trial Judge acknowledged that the appellant was incriminated by his confession at the headman's house, that he was present at the scene, but did not take part in the murder. 3.2 She was of the view that, that evidence should be considered together with the testimony of PWl, that she saw two armed men searching inside her house with a torch, after which they headed where her husband was sleeping and set the house on fire. 3.3 She concluded that the two men were the appellant and Steven Mazabuka. 3.4 In her view, the fact that they were both armed showed that they had a common purpose to inflict violence or grievous harm on the person they were looking for, who was the deceased. 3.5 She rejected the defence submission that the appellant was merely present. She found that the appellant's presence at the scene, was not innocent because he was actively involved in -J.7- • checking in the house and when they did not find him, they both headed for where the deceased was sleeping. 3.6 The appellant's involvement was also confirmed by the fact that he was given a share of the money by Steven Mazabuka after the deceased was killed. 3. 7 She found that even though the appellant did not inflict the 'fatal blow' he was caught up by Section 21 of the Penal Code, because he voluntarily participated in the search of the house where deceased's wife was sleeping. Thereafter, he headed to the house where the deceased was sleeping, in the company of Steven Mazabuka. 4.0 GROUNDS OF APPEAL 4.1 One ground of appeal was advanced couched as follows that: The learned trial judge misdirected herself both in law and fact when she convicted the appellant placing reliance on a confession which he denied ever making. 5.0 ARGUMENTS BY THE APPELLANT 5.1 Heads of argument dated 3 rd October, 2022 were filed on behalf of the appellant. The sole ground of appeal seeks to challenge the reliance of the trial court on the confession statement -J.8- allegedly made by the appellant to Village Headman Ketani (Auditor Muyuni) in the presence of PW2 and PW3. 5.2 The first challenge to the confession is that the trial court omitted to ask the defence whether they had any objections to the evidence of the confession being led by PW2 and PW3. It was contended that a confession is not properly admissible unless the accused is given the opportunity to object to its production in evidence. This is regardless of whether or not the atmosphere was peaceful when the confession was made. For authority, we were referred to the case of Hamfuti v The People 111 where this court held that: "Whether or not an accused person is represented, a trial court should always, when the point is reached at which a witness is about to depose as to the content of a statement, ask whether the defence has any objection to that evidence being led." 5.3 It was further contended that other than denying having been present when the deceased was murdered, the appellant never gave any other story in court. Further, that no attempt was made to quote the exact words the appellant actually said. Therefore, the appellant was credible in his testimony in court. -J.9- 5.4 In support of this, the case of Mathew Kalaluka Mate & Others v The People 121 was cited where the court guided as follows: An allegation that no statement was made despite beatings does not raise the issue of voluntariness, but raises a question of credibility as one of the general issues. 5.5 In addition, the learned Senior Legal Aid Counsel contends that PW2 and PW3's evidence contradicted the version of PWl, the only eye witness. The said contradictions being that PW2 testified that the appellant told him that he was carrying a torch to provide light on the night the offence was committed. PW4 also testified that he was told by PW3 that the appellant carried a torch. However, according to PWl, the one who was carrying the torch was also carrying a gun and a stick. 5.6 Counsel was of the view that PWl must be believed because she was the only eye witness to what happened. Therefore, this contradiction goes to show that the said confession was not made. 5.7 With respect to the view of the trial court that the defence was an afterthought intended to prevent justice, it was argued that the appellant had a duty to inform the court what actually took place at the meeting and that he did so without contradictions. -J.10- 5.8 To fortify this argument, the case of Joe Banda v The People 131 was called in aid that an accused is entitled to bring up any issue relevant to his defence when it is his turn to give evidence in defence and that it is for the prosecution to discount it through cross-examination or some other form of rebuttal. 5. 9 The learned Senior Legal Aid Counsel went on to submit, that the appellant never made the confession. This is on the basis that Headman Ketani who interviewed the appellant was not called as a witness, and that no document embodying the confession was ever produced to show the exact words used by the appellant. 5.10 It was further submitted that the trial court misdirected itself in convicting the appellant of the offence on the basis that he was an abettor. It is contended that even if the appellant was present when the deceased was killed, the appellant did absolutely nothing in the commission of the offence to qualify as such. That PWl testified that while the man armed with the gun, stick and torch set the house on fire, the other was merely standing. Therefore, this does not constitute abetting. -J.11- 5.11 For authority, the case of Maketo & Others v The People 141 was cited where the court said: "In order to establish aiding and abetting on the ground of encouragement, it must be proved that the appellants intended to encourage and willfully encouraged the crime committed. Mere presence at the scene of crime even though non accidental does not per se amount to encouragement." 5.12 Counsel contended that mere standing at the scene of crime, though not accidental, did not in itself constitute aiding and abetting in the absence of any act directed towards the burning of the house. There had to be some act of participation on the part of the appellant to found a conviction for aiding and abetting as was decided in Preston v The King 151. 5.13 We were urged to find that the case was not proved beyond all reasonable doubt, uphold the appeal and acquit the appellant forthwith. 6.0 ARGUMENTS BY THE RESPONDENT 6.1 Mrs. Banda, the Learned State Advocate, filed heads of argument out of time with leave of court. Counsel informed us that the State does not support the conviction because the case was solely anchored on a confession statement which the appellant denied ever making. The Learned State Advocate -J.12- cited the case of Hamfuti v The People 111 which was affirmed in Lumangwe Wakilaba v The People 161 on the issue of voluntariness of the confession statements. It was submitted that the trial court did not invite the defence to raise any issue on the voluntariness of the confession when it was raised. Therefore, the evidence of the confession was improperly admitted and should be discounted. 6.2 It was contended that when the confession statement is discounted, there is no other evidence to implicate the appellant to the offence of murder. For this reason, the decision of the trial court could not be supported. 7.0 DECISION OF THIS COURT 7.1 We have considered the appeal, authorities cited, and the submissions filed herein. The State has indicated that it does not support the conviction because the case was solely anchored on a confession statement which the appellant denied making and which was improperly admitted in evidence by the court. 7.2 We have observed that there are two confessions that were allegedly made by the appellant. The first was made to the IN THE COURT OF APPEAL OF ZAMBIA HOLDEN AT LUSAKA (Criminal Jurisdiction) AppealNo.40/2022 BETWEEN: VICTOR CHIGWAGWABALE AND ··APPELLANT THE PEOPLE RESPONDENT CORAM: Mchenga DJP, Chishimba and Muzenga JJA On 11th October 2022 and 25th January 2024 For the Appellant: Mr. E. Mazyopa, Senior Legal Aid Counsel, Legal Aid Board For the Respondent: Ms. Y. M. Banda, State Advocate, National Prosecution Authority DISSENTING JUDGMENT MUZENGA, JA dissenting. Cases referred to: 1. Michelo Siangumba v. The People, CAZ Appeal No. 180 of 2. Jackson Kamanga and 4 others v. The People, SCZ Appeal No. 30-34 of 2020 3. Robson Chizike v. The People, CAZ Appeal No. 94 of 2020 4. Mwiya and lkweti v. The People (1968) ZR 53 5. Maketo & Others v. The People (1979) Z. R. 23 Statutes Referred to: 1. The Penal Code, Chapter 87 of the Laws of Zambia. 1.0 INTRODUCTION J2 1.1 The appellant was convicted of murder and sentenced to death. He appealed to this court against conviction. 1.2 When the matter came up for hearing, the state did not support the appellant's conviction for lack of evidence after exclusion of the offending confession. 1.3 The evidence against the appellant is anchored on his admission or confession to the headman that he was present when Steven Mazabuka killed the deceased. This confession was narrated by PW2 and PW3, who were present at the time. PW2 narrated the confession in the following words at page 31 lines 15 to 22: "Then Victor responded that yes I was present. Though I was present there is nothing that I participated in. I was just observing what Steven Mazabuka was doing. Q, What did he say Steven Mazabuka was doing? A. He said he was beating or hitting Shing'andu ........ " 1.4 PW3 narrated the confession in the following words at page 38 lines 2 to 20: J3 "Victor responded to say I was there at a place where Siangandu died from. Q. Yes? A. Then I also asked him is it true that you were there at the mentioned place or may be you were just being told. Q. Proceed? A. Victor responded to say truly I was at that place but I was scared to participate in the murder. Q. Yes? A. And he went on to say the person that I saw who murdered the late is Steven Mazabuka. Q. Yes? A. Then I asked him to say when you saw that Steven Mazabuka murdered someone what made you not report the matter to the police. Q. Yes? A. He responded to say I was fearing of being beaten by Steven Mabuka." 1.5 There is no doubt that this confession was properly admitted in evidence and the trial court correctly relied on. The gist of this evidence J4 is only to the effect that the appellant witnessed the murder of the deceased by a named person as he was present but never participated in the killing. 1.6 There is a second set of confession narrated by PW2 and PW3, relating to what the appellant told the police, and PW4 the arresting officer narrating the same admission. PW2 narrated the confession to the police in the following words at page 32 lines 15 to 24 of the record: "When we arrived at the police station he was asked by the CIO that what do you have to say about this report that has been brought to say that you were also present at the time when sing'andu was murdered, are you admitting? Then Victor Chigwagwabale responded that yes I was there but there is nothing I did. Then he was asked that what did you have at the time you were at Sing'andu's home and he said that I had a torch. Then he was asked that after murdering sing'andu what other thing happened then Chgwagwabale said he even got away his money. JS Q. Who got away with the money? A. Steven Mazabuka got away with the money my Lady. Then he was asked how much money did he get and he said I don't know. He said that he was just given a little amount. Q. At what point did he say he was given this money? A. He was given the money at Steven's home my Lady. Then he was asked that how much money were you given and he did not mention the amount he was given. That is all my Lady." 1. 7 PW3 narrated the confession to the police in the following words at page 39 lines 14 to 20 of the record: "On the 3rd January I went to pick the complainants and Victor Chigwagwabale. Q. Yes? A. And took them to Gwembe police. When the police questioned Victor he admitted to say he was J6 present at the time and place when that person was murdered but he never participated." 1.8 I agree with the majority decision in excluding the confessions as narrated by PW2 and PW3 relating to the answers the appellant gave to the police when he was interviewed at the police station by the police, including the exclusion of the arresting officer's narration of the confession. I however want to make the legal reasoning clearer for the exclusion as I believe it has not been properly stated in the majority decisionopinion of the panel. We guided recently in the case of Michela Siangumba v. The People1, that: "9.4 The appellant was in the custody of the police when he allegedly led the police to the place where the deceased's body had been found. This was the time when the appellant confessed to committing the offence herein. PW2 and PW3 were persons not in authority, who were present when the appellant confessed to the police. In the circumstances, it was wrong for the trial court to have allowed PW2 and PW3 to give confession evidence which was given to the police, notwithstanding the fact J7 • that they are not persons in authority. This was obviously an attempt by the state to sneak in a confession through the back door. The confession narrated by PW2 and PW3 must as such be excluded from the record. 9.5 We wish to guide that, a good prosecutor must be familiar with his or her case before appearing in court to prosecute. He or she must be familiar with the type of evidence they want to present before court in order to secure a conviction. If it comprises of a confession statement given to the police, that evidence must be presented through a person in authority as defined in the case of Abel Banda v. The People6 , and not through civilian witnesses in the vicinity. This is because there are different rules applicable in terms of confession evidence. Prosecution must be well thought out and organised, not prosecution by chance, coincidence or accident." • J8 1.9 Therefore, the trial court should not have allowed PW2 and PW3 in casu, to recount the appellant's confession to the police. It should have been presented through the arresting officer in order to meet the threshold for its admission. On that score, we expunged the offending evidence in the Michel Hangumba case supra. We also expunge the evidence of PW2 and PW3 relating to the confession by the appellant to the police. 1.10 On the arresting officer (PW4's) narration of the confession to the trial court, we note that the trial court did not ask the appellant if it was voluntarily given or not. This was a serious misdirection which inevitably leads to the exclusion of the arresting officer's evidence of the alleged confession. This was the holding and effect of the decision of the Apex Court in the case of Jackson Kamanga and 4 others v. The People2 , and our own decision in the case of Robson Chizike v. The People3 . 2.0 THE DISSENT 2.1 As already observed the majority decision correctly excluded the confessions made to the police as can be seen in paragraph 7.9 of the • J9 judgment. It is surprising that they subsequently in paragraph 7.18 refer to the portion of the already excluded confession. 2.2 In justifying the appellant's conviction, the majority had the following to say in paragraph 7.25 of the judgment: "In this case, the appellant turned up armed with a stick in the company of Steven Mazabuka who was also armed. He was involved in the searching of the house and voluntarily witnessed Steven Mazabuka assault the deceased. He did not attempt to prevent the crime or express his dissent. Neither did he communicate to Steven Mazabuka that he was withdrawing from the commission of the offence and was just there to see what was going to happen." 2.3 To begin with, I am of the view that some portions of the above quotation contains assumptions and some dangerous statements, with the potential of altering the prevailing rules of law on parties to a crime. There is no rule of law which compels a person to prevent someone from committing a crime. A person can witness a crime and that does not make him or her to be a party to the crime. No one placed the JlO appellant at the scene apart from his own admission. No one saw the appellant do anything or carry out any tasks apart from what he narrated to the headman. There is further no evidence that the appellant agreed to commit the offence with Steven Mazubuka to require him to communicate his withdrawal to commission of the offence, neither is there evidence that he did not show any dissent nor that he never withdrew. All these are assumptions. 2.4 In our jurisdiction, the prosecution have the onus to lay evidence to prove the commission of the offence beyond all reasonable doubt. The court must not be sympathetic or replace its feelings or thoughts outside what has been presented by the prosecution. It is my considered view that a court must simply apply the law and the facts as they are, whether the result is undesirable to a court or not. Whenever there is doubt, the doubt must be resolved in favour of an accused person and he or she must be acquitted. It appears to me that the majority decision was influenced by the excluded confession in drawing in its conclusions and the above quotation. 2.5 The only question we ought to have asked is: on the evidence of the confession to the effect that the appellant was present when the • Jll offence was being committed by a named person, can he properly be classified as a party to the crime in terms of Section 21 of the Penal Code? 2.6 In the case of Mwiya and Ikweti v. The People4, the Court of Appeal, the precursor to the Supreme Court held inter alia that: "(iii) In order to establish aiding and abetting on the ground of encouragement, it must be proved that the appellants intended to encourage and wilfully encouraged the crime committed. Mere presence at the scene of crime even though non-accidental does not per se amount to encouragement." 2.7 The foregoing principle of law was restated by the Supreme Court in the case of Maketo & Others v. The People5 (a case also referred to in the majority decision). 2.8 From these, very clear and binding authorities, it is certain that mere presence at the scene of crime, whether intentional or accidental, is not sufficient to make one a party to the crime. The prosecution must establish to the required standard the role one played in the commission of a crime. This is the reason, where a number of people • J12 are charged with the commission of a crime, the state must lead evidence as to what a particular individual did in committing the crime. 2.9 In casu, there is no other evidence save for what the appellant stated. He was present at the scene of crime but never participated. He named the person who committed the crime. Would we say this evidence establishes beyond all reasonable doubt that the appellant committed the within crime? Certainly not. 2.10 I therefore hold the firm view that the learned court below erred in law and in fact when it relied on the confession made to the police in convicting the appellant. I have no doubt that without relying on the confession to the police, the trial court would certainly not have convicted the appellant. 2.11 I hold the view that the prosecution were on firm ground in not supporting the appellant's conviction. I would in the premises quash the conviction and set the appellant at liberty. ·············~········· K. MUZENGA COURT OF APPEAL JUDGE -J .13- village headman in the presence of PW2 and PW3 on 24 th December, 2019, and the second was made later to the Criminal Investigations Officer in the presence of PW2. 7.3 With regard to the first, the said confession was made by the appellant to one Auditor Muyuni in his capacity as Village Headman Ketani in the presence of Wishard Siang'andu (PW2), Jason Moonga and Raphael Hamantheka (PW3), a Neighbourhood Watch Committee member. The Learned Counsel for both parties have submitted that the trial court ought to have invited the defence to raise any objections that they might have had as to the voluntariness of the confession made by the appellant to Headman Ketani before the trial court admitted it in evidence and relied on it. 7.4 The question that arises is whether a village headman is a person in authority who should only receive a confession from an accused after administering a warn and caution to him. The Supreme Court settled this question in the case of Abel Banda v The People 17 1 when it held that: "A village headman is not a person in authority for purposes of administering a warn and caution before interrogating a suspect, since his normal duties do not pertain to investigating crime." -J.14- 7.5 In so holding, the Supreme Court reasoned as follows: " ... On examination of the Judges' Rules it is clear that those rules were designed to guide police officers in dealing with suspects and prisoners in the course of investigating crime. This court takes judicial notice that the training of police officers includes instructions in administering the warn and caution. There is no suggestion that these rules are intended to apply to persons other than those whose normal duties pertain to investigating crime. We are unaware of any law or convention which constitutes a village headman as an officer charged with responsibility of investigating crime. In practice when a person suspected of committing a crime is reported to a village headman this is essentially for the purpose that the headman should use his good office to cause the suspect to be conveyed to the authority of the police; he is the intermediary between the inhabitants of his village and the police, sometimes through his chief. A typical headman therefore is a man who would not know, nor should he be expected to know, what creature the warn and caution is. On a careful review of the position we are satisfied that the Judges' Rules do not contemplate, as persons who should administer the warn and caution to suspects, persons like village headmen because it is not their normal responsibility to investigate criminal cases. " 7.6 Therefore, we find that the trial court was not under any obligation to invite the defence to raise any objection when PW2 and PW3 testified on the confession made by the appellant to -J.15- the headman for the reason that neither the headman nor PW2 and PW3 are police officers. In any case, the Judges Rules do not apply to PW2 and PW3 as they are not trained police officers. Defence counsel in the court below properly guided themselves by only challenging the voluntariness of the confession in cross- examination. 7. 7 As regards the second confession made to the police in the presence of PW2, we find that the Judges' Rules apply. We are guided by the Supreme Court decision of Jackson Kamanga & 4 Others v The People 18l and our decision in Robson Chizike v The People 19l. In both these decisions, confessions made to the police without the appellant being warned, were excluded because the appellant was never given an opportunity by the trial court to challenge their voluntariness when the prosecution introduced them in evidence. 7.8 In Benny Habulembe v The People 1101 , we stated as follows: "Whether or not an accused is represented, the record shou ~d state whether the allegedly free and voluntary character ofl a statement was challenged, the subsequent proceedings on the issue and the ruling of the court. These steps are not mere formalities; failure to take them is a serious irregularity which will lead to the setting aside of the conviction unless the appellate court is satisfied that, on the remainder of the -J, 16- evidence, the trial court must inevitably have come to the same conclusion." 7. 9 Therefore, the second confession made to the police as told by PW2 must be excluded. However, the first confession made to the village headman as told by both PW2 and PW3, stands. 7.10 Having excluded the second confession made to the police, we set aside the trial Judge's finding that the appellant's involvement in the killing of the deceased was confirmed by his admission that he received a share of money from Steven Mazabuka after the deceased was killed. This is because the admission to being paid was allegedly made in the excluded confession. 7.11 We shall now address the ground of appeal. The first issue that the trial court should have asked the defence whether they had any objections to the evidence of the confession being led has been dealt with. 7 .12 The second issue raised was that the appellant denied having been present when the deceased was murdered, that he never gave any other story in court and that no attempt was made to quote the exact words the appellant actually said when the confession to the headman was made. -J.17- 7 .13 While the appellant denied, when testifying in his defence, having been present when the deceased was killed, there is on record his confession to the headman. This was testified to by PW2 and PW3 who were present at the time. PW2 told the court below that when the appellant was questioned by the headman, he revealed that he was present when the deceased was killed and observed Steven Mazabuka beating the deceased, but that he did not participate in the killing. 7 .14 As for PW3, his testimony was to the effect that during the questioning, the appellant stated that he was present when the deceased died but was scared to participate because he was afraid of being beaten by Mazabuka. The appellant named Steven Mazabuka as the person who murdered the deceased but that he did not report the matter. 7.15 Though PW2 and PW3 did not state the exact words uttered by the appellant during the questioning, there can be no doubt that the appellant admitted accompanying Steven Mazabuka to the home of the deceased and was present when Mazabuka killed the deceased. By his confession, the appellant placed himself at -J.18- the crime scene. This confession confirms the evidence of PW 1 that she saw two people at the crime scene on the fateful night. 7.16 As regards the alleged contradiction in evidence on what the appellant and Mazabuka carried as told by PWl on the one hand, and PW2 and PW3 on the other, we are of the view that it does not go to the root of the case. 7.17 Lastly, citing the case of Maketo & Others v The People 141 it was argued that the mere presence of the appellant at the crime scene without him participating and willfully encouraging Steven Mazabuka to commit the offence, does not amount to aiding and abetting. That the appellant should have been seen engaging in some positive act to be said to have been aiding and abetting the murder of the deceased. 7.18 In her judgment, the learned trial judge found that the presence of the appellant at the crime scene was voluntary and that he was united in purpose and action with Steven Mazabuka and hence the reason he was given a share of the money by Mazabuka after the deceased was killed. -J.19- 7 .19 She found that the appellant was caught in the prov1s1ons of section 21 of the Penal Code Chapter 87 which provides for principal offenders and states as follows: 21(1) When an offence is committed, each of the following persons is deemed to have taken part in committing the offence and to be guilty of the offence, and may be charged with actually committing it, that is to say: (a) every person who actually does the act or makes the omission which constitutes the offence; (b) every person who does or omits to do any act for the purpose of enabling or aiding another person to commit the offence; (c) every person who aids or abets another person in committing the offence; (d) any person who counsels or procures any other person to commit the offence. 7.20 The judge also considered the case ofR v Coney 1111, cited in the Maketo case, where Hawkins, J., said at p. 557: "In my opinion, to constitute an aider and abettor some active steps must be taken by word, or action, with the intent to instigate the principal, or principals. Encouragement does not of necessity amount to aiding and abetting, it may be intentional or unintentional, a man may unwittingly encourage another in fact by his presence, by misinterpreted words, or gestures, or by his silence, or non-interference, or he may encourage intentionally by expressions, gestures, or actions intended to signify approval. In the latter case he aids and abets, in the former he does not. It is no criminal offence -J.20- to stand by, a mere passive spectator of a crime, even of a murder. Non-interference to prevent a crime is not itself a crime. But the fact that a person was voluntarily and purposely present witnessing the commission of a crime, and offered no opposition to it, though he might reasonably be expected to prevent and had the power to do so, or at least to express his dissent, might. under some circumstances, afford cogent evidence upon which a iury would be fusti(ied in finding that he willfully encouraged and so aided and abetted. But it would be purely a question for the fury whether he did so or not." (emphasis added) 7.21 In the English case ofR v Rook 1121 the appellant with 2 of his associates agreed with a man to kill that man's wife at a fee. On the agreed day and at the agreed place, the man turned up with his wife and the appellant's associates also turned up and killed the woman. The appellant did not turn up. 7.22 In his defence, the appellant claimed that he never intended that the woman be killed. All he had wanted was to get an advance payment on the agreed fee and then disappear. He also said that he absented himself on the day the offence was committed because he thought his associates would not go ahead in his absence. 7 .23 Upholding the conviction, the Court of Appeal held, inter alia, that a person who has changed his mind about participation in -J.21- the comm1ss1on of an offence but who has failed to communicate his intention to the other persons engaged in the offence, does not thereby effectively withdraw from the commission of the offence and is liable as a secondary party. In order to escape liability for the commission of the crime, the secondary party has at least to unequivocally communicate his withdrawal to the other party. 7.24 It was held that the fact that the appellant had absented himself on the day of the murder, did not amount to unequivocal communication of his withdrawal from the murder. 7.25 In this case, the appellant turned up armed with a stick in the company of Steven Mazabuka who was also armed. He was involved in the searching of the house and voluntarily witnessed Steven Mazabuka assault the deceased. He did not attempt to prevent the crime or express his dissent. Neither did he communicate to Steven Mazabuka that he was withdrawing from the commission of the offence and was just there to see what was going to happen. -J.22- 7 .26 Although there is no evidence of when he left, he remained at the scene until after Steven Mazabuka had assaulted the deceased. 7.27 We are satisfied that the court below was justified in holding that he aided and abetted the appellant in the commission of the crime. 7.28 Therefore, we find that there was sufficient evidence on record proving beyond all reasonable doubt that the appellant was party to the commission of the murder in this case. 7.29 We find no merit in the appeal and dismiss it accordingly. We uphold the conviction and sentence of death imposed on the appellant by the court below. F. M. Chishimba COURT OF APPEAL JUDGE