Victor Chimuka v People (Appeal 226 of 2011) [2012] ZMSC 110 (5 December 2012)

4* IN THE SUPREME COURT OF ZAMBIA HOLDEN AT LUSAKA (Criminal Jurisdiction) APPEAL NO. 226 OF 2011 BETWEEN: VICTOR CHIMUKA -vs- THE PEOPLE APPELLANT RESPONDENT CORAM: MUMBA, AG. DCJ, WANKI AND MUSONDA, JJS On 10th July, 2012 and 5th December, 2012 For the Appellant: Mr. K. Muzeng’a, Acting Principal Legal Aid Counsel For the Respondent: Mr. T. L. Phiri, Senior State Advocate JUDGMENT WANKI, JS, delivered the Judg ent of the Court. LEGISLATION REFERRED TO: 1. The Constitution of the Republic of Zambia, Article 18(8). The appellant was sentenced to suffer death sentence following upon his conviction on one count of Murder, contrary to Section 200 of the Penal Code, Chapter 87 of the Laws of Zambia by the High Court at Lusaka. The particulars of the offence being that the appellant, on the 6th day of June, 2005 at Lusaka in Lusaka District of the Lusaka Province in the Republic of Zambia, did murder Stephen Kawina. JI The appellant’s conviction was based on the evidence of Emmanuel Phiri, PW1; Fabian Kawina, PW2; Number 28654 Constable Webster Sitali; PW3; Okay Chizongo, PW5; James Phiri, PW6; Number 31089 Detective Constable Jacob Kabwe; PW8; Number 28259 Detective Sergeant Henry Chalikosa; PW9; Tindisa Sydney Tondo Lindisa; PW10; and Number 1683 Assistant Superintendent Yobe Luhana, PW12. PWl’s evidence was that on 10th June, 2005 around 23.45 hours they went out on patrol with the appellant and Chizongo, PW5 in Chibolya area. When they reached Bafana Bafana Tavern they saw four men and one woman who was crying. When they approached them to see what was happening; two of the men took to their heels and started running away. He chased one of the men and Chizongo, PW5 chased the other man. Later, he caught up with the man he was chasing. As they were struggling, he heard a gun shot. The appellant then told him to leave the man he was struggling with. He then went to the appellant and found a person lying on the ground and the lady screaming that the police officer had killed a person. The people at the near by Lavana Night Club started throwing stones at them. The J2 appellant then told them to run away from the place and they did. Thereafter, he rushed to the Police Post where he found the appellant and Sitali. Later, after two days he gave a statement. When they left the Police Post only the appellant was carrying a firearm. The evidence of PW2 was that on 10th June, 2005 between 22.00 hours and 23.00 hours, after receiving a report from his sister-in-law that his brother had been killed he went to report at Chibolya Police Post. He found the appellant at the police and he said the police were not aware. The evidence of PW3 was that on 10th June, 2005 in the evening he was at the Police Post with other police officers who included the appellant and three Neighbourhood Watch Members; Phiri, PW1; Chizongo, PW5 and Nkwazilo. Around 23.00 hours the appellant, and two Neighbourhood Watch Members; Phiri and Chizongo went out on patrol. When they returned after sometime, he was in the office. As they were in the office with the appellant some police officers who were driving a police vehicle asked them whether they received a report of shooting. All of them, including I the appellant expressed ignorance. Later, a mob of people went J3 to the Police Post and reported that someone was shot. The appellant and the two Neighbourhood Watch Members were armed with one AK47 rifle when they went on patrol. The appellant did not mention any shooting incident when he returned from patrol. The evidence of PW5 was that on 10th June, 2005 around 23.45 hours they went out on patrol with the appellant and Phiri; PW1. When they reached Bafana Bafana Tavern they saw four people, three men and a woman. Two of the men started running when they reached where the four people were, leaving one man and the woman. He ran after one of the two men and Phiri, PW1 ran after the other man. The woman and the other man remained with the appellant who had a gun. As he was chasing the man, he heard a gun shot from the direction where the appellant had remained with the other man and the woman. Thereafter, the appellant called him. When he went where the appellant was, he found people already gathered. The evidence of PW6 was that on 11th June, 2005 at 07.30 hours he received a call from the appellant who informed him about a shooting incident at the Station. Acting on that J4 information he went to Chibolya Police Station where he found the appellant who told him that it was in fact him who was involved. When he asked him, the appellant explained that as he was patrolling somebody laid an ambush against him. Then later, this person jumped on his back and started struggling for his gun. It was at this time that the gun went off. Upon seeing that the person had fallen, he ran back to the Station. The evidence of PW8 was that he attended the postmortem on the body of the deceased at the University Teaching Hospital that was conducted by Dr. Garg. The evidence of PW9 was that as a Scene’s of Crime Officer on 11th June, 2005 he went to the Scene of Crime in Chibolya where he found the body of the deceased lying in a pool of blood. When he inspected the body he found that he was shot at the back and the bullet went through the right shoulder. Thereafter, he took the body to the University Teaching Hospital. The evidence of PW12 was that the appellant was arrested by Detective Chief Inspector Silungwe who had since passed on. He produced the postmortem examination report. J5 The appellant in his evidence on oath stated that, on 10th June, 2005 at around 23.45 hours he went out on patrol with two Neighbourhood Watch Members; PW1 and PW5. He carried a rifle with twenty rounds of ammunition and Police Motorola. As they were patrolling, they saw people in front who scampered in different directions upon seeing them. The two Neighbourhood Watch Members chased them. As he was following he was attacked by three men who emerged from a near by dark corner. One of the attackers, tried to pull the gun that he was carrying. They then started struggling for the gun. As they were struggling, he heard a gun shot and immediately his attackers ran away. Later, as he was looking for the motorola radio and the magazine that had come off the gun he discovered somebody lying on the ground behind him. At that point, people started throwing stones at him, They later left the place with PW1 as he sensed danger. Thereafter, he informed his Superiors at Lusaka Division Control and the Officer-in-charge, Inspector Phiri, PW6 as to what happened. On 12th June, 2005 he went to Lusaka Central Police Station where he was detained. Thereafter, a warn and caution J6 statement was recorded from him and later he was arrested for the subject offence. The trial Judge after considering the evidence found that the deceased was shot and killed at the appellant’s feet; that the appellant never rendered any assistance and never reported this killing anywhere; and that he lied to his Officer-in-charge. The trial Judge further found that the evidence given by the appellant was nothing but a carefully arranged afterthought which cannot possibly be classified as a reasonable and probable explanation; that in fact the appellant’s explanation is so unreasonable that it cannot possibly be true; that the truth that had been established beyond reasonable doubt in this case is that the appellant, a police officer on duty and carrying a police firearm deliberately shot and killed a completely innocent person at a very close range and that person neither argued with him nor attempted to run away; and that the person killed was not involved in any crime or any other matter worth police attention. The trial Judge therefore found that the prosecution has established the charge of murder against the appellant and J7 convicted him as charged. He then imposed the statutory death sentence on the appellant. The appellant being dissatisfied with his conviction and sentence appealed to this Court against his said conviction and sentence. The appellant has advanced four grounds of appeal namely:- The trial Court erred in law in fact in convicting the appellant on the charge of murder when the evidence or facts before it did not establish any elements of the offence of murder as defined by law. 2. The trial Court erred in law and in fact by relying on unsupported circumstantial evidence when it found that the appellant shot the deceased when there was no evidence that the exhibit (firearm) produced in Court was even used in the shooting of the deceased, a finding which was contrary even to the expert witness PW1, whose testimony was that he could not conclude that the firearm produced in Court was used in the murder unless the empty cartridge was recovered from the Scene, but a live bullet was picked by the deceased’s brother from the Scene and the appellant accounted for all the bullets drawn from the Police Station on the material date. There was also no evidence adduced of the type of bullet or firearm used in the killing of the deceased. 3. The trial Court erred in law and fact when it found that the appellant deliberately shot the deceased and that the deceased never had an argument with the appellant nor decided to run away, and further that the deceased was shot in the presence of his wife, when no such wife, who would have been the key witness to the shooting and would have described to the police and the Court what transpired was even produced. Such a person was not produced as a witness and therefore the evidence of a crucial witness was withheld from the Court. The Court even recorded that such a person was never even interviewed by the police. No explanation was even given by the prosecution for the failure to produce the wife as a witness J8 in the murder of her husband. This witness would have told the Court the person who actually fired the shot. 4. The trial Court erred in law when it faulted the appellant on his conduct after the shooting incident and ascribing the said conduct to guilt. The appellant filed heads of argument in support of the grounds of appeal. In support of the first ground of appeal, the appellant pointed out that he was charged with the offence of murder, contrary to Section 200 of the Penal Code, Chapter 87 of the Laws of Zambia, and he outlined the particulars of the offence. He submitted that, the facts before the Court below are clear. None of them show any malice aforethought on his part on the particular day of the incident that led to his being charged with the offence of murder. The appellant argued that he did not plan to go and meet the deceased and neither did he, nor even those that were with him know they were going to encounter the deceased and the people he was found with, who even ran away at the sight of the police. He contended that the evidence of PW1 who also struggled with a suspect that had been with the deceased and who also ran away shows the circumstances and the disposition of the deceased and his friends when they were J9 found (pages 9-11) of the record of appeal. He pointed out that similar evidence of the circumstances was given by PW5, pages 26 to 28 of the record of appeal. The appellant further contended that, there was also no unlawful act or omission testified to in the evidence before the Court. The Court did not even identify this element of the offence so as to conclude that he had caused the death of the deceased. He submitted that the Court’s finding was therefore not in accordance with the offence as defined by law and on the evidence and the facts before it. In the premises he urged the Court to see that this was rather harsh and reckless on the part of the Court below to find that the offence of murder had been established when in fact not. The appellant referred to Article 18(8) of the Constitution which provides that:- “8 A person shall not be convicted of criminal offence unless that offence is defined and the penalty is prescribed in a written law.” He submitted that his understanding of this provision is that the Courts are interpreters of the law as defined and will see to it that it is applied as intended by the law makers for the J10 benefit of the public. The appellant contended that the Court below did not do that. He implored the Court to accord him this right and see the wrong done to him by the wrong finding of guilt against him which was not in accord with the Law. In relation to the second ground of appeal, the appellant pointed out that, there was no evidence that the firearm he carried was fired on the material date. He questioned how the Court could find contrary to the evidence before it, that he had shot the deceased with the firearm which he had in his custody. The appellant pointed out that the evidence of the ballistic expert was also crucial in the case, he did not confirm that the firearm had been discharged which he could have established by examining it in the manner he knows. He further pointed out that the ballistic expert said that he could not establish that fact as there was no empty cartridge picked. The appellant argued that, this doubt should have been ruled in his favour. He contended that the Court should have seen that at the time of the struggle, he thought that it was his firearm that had discharged. He submitted that, the discovery of the live bullet, however, is proof that his gun never went off, but a different Jll firearm. The appellant further submitted that the Court should not fault him on his being truthful. The fact that he accounted for all his bullets was never challenged. The appellant argued that the evidence of the wound did not also establish whether it was caused by a large firearm, for example, a rifle or a small firearm such as a pistol. He contended that, this was crucial especially that he told the Court that he was struggling with the deceased, and it would not be easy to fire a rifle in those circumstances. He further contended that, there was also no trust worthy evidence to show that the deceased was shot at point blank range as determined by the Court below. The appellant pointed out that the postmortem examination report does not show that, (pages 79 to 80) of the record of appeal. He contended that, the finding that, he shot the deceased at a very close range (page 74, paragraph 17 of the record of appeal) is a finding based not on expert evidence. It was submitted that, the Court made its own expert conclusions as at paragraphs 1-4 at page 74 based on the statement of a relative of the deceased. J12 The appellant contended that, that was evidence that could have been biased. This creates a doubt that should have been ruled in his favour. In respect of ground three of appeal, the appellant contended that the finding by the Court below that, the truth had been established beyond reasonable doubt that he had deliberately shot and killed an innocent person and that that person never argued with him nor attempted to run away, was not based on any witness statement. He submitted that, the person who should have given that statement should have been the “wife”, who the Court alleged that he shot the deceased in her presence (page 75, paragraphs 23, 24). It was pointed out that, this witness was never questioned by the police and neither was she brought to Court as a witness in the matter. He submitted that, this was a key witness, but was deliberately or inexplicably withheld. Instead of the Court stating as at page 75 of the record of appeal, it should have ruled in his favour because the evidence that the said wife would have given, and which has been withheld from the Courts, the Courts always assume would have been in his favour. J13 The appellant further pointed out that the Court found that there was no struggle between the deceased and himself, page 72 paragraphs 17-21. He submitted that, the fact is that, both PW1 and PW5 ran off in different directions leaving him and the deceased and the woman. It was contended that, they would not have known if a struggle had ensued after they ran off. The person who would have testified to that effect was not brought before Court to testify. Therefore, the Court should not have drawn this inference against him, but should have admitted his evidence and ruled in his favour. In relation to ground four of appeal, the appellant pointed out that, the evidence of PW1 and PW5 shows that the situation after the incident leading to the death of the deceased was very volatile. He submitted that, he could not stay at the Scene and had to flee together with his colleagues. It was further pointed out that, there is evidence from the Officer-in-Charge that he reported to him. However, he could not assist the deceased from the Scene due to the volatile situation, which also affected the Police Post where there was an angry mob. J14 He contended that, it was not possible to render any assistance for fear for his life. In the circumstances, it was not fair to find that that was an unlawful act. It was submitted that, the Court has always held that in the circumstances similar to the one he found himself in. He could therefore, not be faulted for failing to render assistance. Also, at the time, the deceased as he later learnt, was already dead before he fled the Scene. The appellant contended that all in all, the Court below relied heavily on circumstantial evidence to convict him and also ignored most rules regarding taking care to rule any doubts in his favour. He further contended that, the Court also did not ensure that the ingredients of the offence had been established before it could reach the conclusion that he was guilty as charged. In the premises, the appellant prayed the Court to consider his argument on all the grounds and acquit him. In augmenting the grounds of appeal and the heads of arguments on behalf of the appellant, Mr. Muzeng’a, Principal Legal Aid Counsel pointed out that, it is clear from the record of appeal that, there was no eye witness to the shooting as the only eye witness who was said to have been with the deceased, was J15 not called and no reasons were advanced for the failure. He submitted that in the absence of that, the only evidence as to what transpired was that given by the appellant. The Principal Legal Aid Counsel further pointed out that, the appellant who was on patrol with two others came across four people one of whom was crying. Upon seeing the officers the people scampered and the appellant remained alone. He contended that the appellant was attacked; during the struggle he heard a shot. Later, the appellant discovered the magazine of his firearm was not on his firearm and the deceased lying. As he was looking for the items PW1 and PW5 returned. The lady was at that time crying that the police had shot someone; and at the time people started throwing stones at them and they had to leave the place. He further contended that the existence of the struggle is supported by the findings. Mr. Muzeng’a pointed out that, there is no evidence to contradict the evidence given by the appellant. He further pointed out that, there is no dispute that the appellant withdrew twenty rounds of ammunitions and that he surrendered J16 nineteen rounds; with picking of one round the following day, the rounds of ammunitions became twenty. He argued that, the question that ought to have been determined was as to who fired the fatal shot. Mr. Muzeng’a contended that, it shows that there was someone who could have discharged the fatal shot. He submitted that there was no scientific evidence as to what type of gun from which the fatal shot was discharged. He finally submitted that, in the light of the evidence given by the appellant, the Court erred to have found as it did. He therefore urged the Court to allow the appeal. In response, on behalf of the respondent, Mr. Phiri, Senior State Advocate informed the Court that he would begin with ground two of appeal. He conceded that, there was no expert evidence regarding the proximity of the firearm which fired the fatal shot to the deceased. The Senior State Advocate submitted that, the trial Court was on firm ground when it found that, there was no evidence to suggest that there was a struggle and that the appellant shot the deceased. J17 He contended that from the evidence it appears the appellant was not consistent. At one time, he admitted that his firearm was fired, in another breath he says his firearm was not fired. He contended that, the trial Court was on firm ground. Mr. Phiri therefore submitted that, ground two of appeal fails. In relation to ground three of appeal, Mr. Phiri submitted that, the respondent discharged its duty. There was no dereliction of duty on the part of the respondent. In the premises, ground three of appeal fails. With regard to grounds one and four of appeal, he submitted that, these should also fail as he is trying to rely on technicalities. In reply, Mr. Muzeng’a submitted on the issue of inconsistencies that, the statement attributed to the appellant to his Superior. He implored the Court to look at the circumstances prevailing at the time; there was confusion and an attack on them. We have considered the appeal; the grounds of appeal; the appellant’s heads of argument; the submissions on behalf of the appellant and on behalf of the respondent; and indeed the Judgment of the Court below appealed against. J18 In ground one of appeal, the appellant has challenged his conviction on a charge of murder when the evidence or facts before it did not establish any of the elements of the offence of murder as defined by law. It was argued that, none of the facts before the Court below established malice aforethought on his part. According to the evidence and the findings of the trial Court, the deceased was shot at point blank range to an extent that the gun powder from the fired ammunition caused the inlet of the gun shot wound to burn; the truth that has been established is that, the appellant a police officer on duty and carrying a firearm deliberately shot and killed a completely innocent person at a very close range. The foregoing finding of the trial Court in our view, establishes malice aforethought or intention on the part of the appellant to cause the death of the deceased. The appellant a fully trained police officer with an experience in firearms knew or ought to have known that shooting the deceased at a point blank range would cause the death of or to do grievous harm to the deceased within Sub-section (a) or the appellant could be said to have had knowledge that his act of shooting the deceased at a J19 point blank range would probably cause the death of or grievous harm to the deceased within Sub-section (b) of Section 204 of the Penal Code. In the circumstances, we find no merit in ground one of appeal. We, accordingly, dismiss ground one of appeal. In ground two of appeal, the appellant has attacked the trial Court for relying on unsupported circumstantial evidence when it found that, the appellant shot the deceased when there was no evidence that the firearm produced was ever used. We have considered the appellant’s heads of argument in support of ground two of the appeal, and the evidence on record that the trial Court relied on in its Judgment. From the evidence of PW1 and PW5 who were with the appellant on the fateful day, the appellant remained with a man, the deceased and the woman, after hearing a shooting in the direction where the appellant remained with the two they found the deceased lying on the ground. There was also evidence from PW6 that the appellant told him that he was involved in a shooting incident as he was struggling with someone who attacked him. The appellant himself told PW6 that he was involved in a shooting incident. It was J20 because of the shooting incident the deceased lost his life. Therefore, there was evidence from the appellant himself that he was involved in a shooting incidence. That coupled with the evidence that the appellant was left alone with the man who was later found shot was sufficient evidence on which the appellant was convicted. On the evidence available, the trial Court cannot be faulted for finding that, the evidence established that the deceased was shot at point blank range. We, therefore, find no merit in ground two of appeal, it is accordingly, dismissed. In ground three of appeal, the appellant attacked the trial Court when it found that, the appellant deliberately shot the deceased and that the deceased never had an argument with the appellant. It was argued that, the trial Court’s holding that, the appellant deliberately shot and killed an innocent person and that the person never argued with him was not based on any witness statement. The person who should have given that statement was the wife who the Court alleged the appellant shot the deceased in her presence. J21 We have considered ground three of appeal and the arguments; in support and in response. From the record of appeal, the trial Court made the finding that has been attacked after considering the evidence before it, both that on behalf of the prosecution and that given by the appellant. The trial Court at page 74 stated that in the face of all this overwhelming evidence from the scene of shooting, I have found the evidence given by the accused person to be nothing but a carefully arranged afterthought which does not make sense and which cannot possibly be classified as a reasonable and probable explanation. The finding of fact that has been attacked is based on the evidence before the Court, as such we have found no basis or justification for disturbing the said finding. We therefore, find no merit in ground three of appeal. It is, accordingly, dismissed. In ground four of appeal, the trial Court has been attacked when it faulted the appellant on his conduct after the shooting incident and ascribing the said conduct to guilt. It has been pointed out that, the evidence of PW1 and PW5 show that the situation after the incident leading to the death of J22 the deceased was volatile. The appellant could not stay at the scene and had to flee together with his colleagues. It was contended that, there is evidence that he reported to his Officer­ in-charge. The trial Court in its Judgment commented on the failure of the appellant to render assistance and to report any where; and his telling a lie to his Officer-in-charge. Further, the trial Court commented on the presence of a live bullet cartridge near the deceased’s legs on the ground which it said shows an attempt by the appellant person to conceal this murder right from the beginning soon after he committed it. The foregoing observations were based on the evidence and facts. The appellant did not report the shooting upon his return to the police post until he made the un-anonymous call to PW6; he also denied knowledge of the shooting of the deceased when PW2 went to the Police Post. Further, the live ammunition found at the Scene the following day, could have not fallen from the magazine of the gun the appellant carried. As the trial Court found it, could have been put there in an attempt by the appellant to conceal the murder. J23 * In any case, we do not see the relevance of ground four as it has no effect on his conviction. We therefore, find no merit in ground four of appeal. It is accordingly, dismissed. In the light of the foregoing, we find no merit in the appeal. It is dismissed. The appellant’s conviction and sentence are confirmed. F. N. M. Mumba, ACTING DEPUTY CHIEF JUSTICE SUPREME COURT JUDGE SUPREME COURT JUDGE J24