Wamunyima Pumulo v The People (Appeal No. 96/2022) [2024] ZMCA 211 (20 February 2024)

IN THE COURT OF APPEAL OF ZAMBIA HOLDEN AT LUSAKA (Criminal Jurisdiction) Appeal No. 96/2022 BETWEEN WAMUNYIMA PUMULO APPELLANT AND THE PEOPLE RESPONDENT CORAM: Mchenga DJP, Majula and Muzenga, JJA On 18th January 2023 and 20th February 2024 For the Appellant: Mr. M. Makinka, Senior Legal Aid Counsel, Legal Aid Board For the Respondent: Ms. M. Hakasenke, Senior State Advocate, National Prosecution Authority JUDGMENT MUZENGA JA, delivered the Judgment of the Court. Cases referred to: 1. Bwalya v. The People (1975) ZR 125 (SC) 2. Kapesh and Another v. The People (2017) Vol. 2 ZR 319 3. Yokoniya Mwale v. The People - SCZ Appeal No. 285 of 2014 4. Lubinda v. The People (1973) ZR 43 5. Katebe v. The People (1975) ZR 13 J2 6. Ilunga Kabala And John Masefu v. The People (1981) ZR 102 Legislation referred to: 1. The Penal Code, Chapter 87 of the Laws of Zambia. 1.0 INTRODUCTION 1.1 The appellant was convicted of one count of the offence of murder contrary to Section 200 of the Penal Code Chapter 87 of the Laws of Zambia. He was subsequently sentenced to death by Chawatama, J. 1.2 The particulars of the offence alleged that on 13th October 2019 at Kaoma in the Western Province of the Republic of Zambia, the appellant jointly and whilst acting together with other persons unknown murdered Bowas Kalenga. 2.0 EVIDENCE IN THE COURT BELOW 2.1 The appellant's conviction was secured by the evidence of three prosecution witnesses. A summary of the prosecution evidence was that the appellant was a witch doctor/finder who was called to conduct a divination ceremony in Chilombo Compound of Kaoma following the death of a young girl. J3 2.2 According to PW1, the deceased's wife, cadres picked the deceased up from his house and took him to the courtyard where the appellant named him a wizard. PW2 (the deceased's son) asked the appellant for evidence of why the deceased was named a wizard and the appellant captured him and started beating him. They were later released. The following day the deceased was summoned back to the divination ceremony venue. PW1 and PW2 were not allowed to escort the deceased. Upon being queried, the deceased confessed that he was a witch and he was badly beaten by the appellant and his people. In the evening, the deceased was carried back home on a bicycle by Njamba, Nguvu and Mutelo as he could not walk. 2.3 PW1 and PW2 informed other children of the deceased of the injuries the deceased sustained following the beatings so that they travel to see him. Upon arrival, they reported the assault to the police after which call-outs were given to them to serve the appellant. In the meantime, they took the deceased to the hospital. He was attended to and after returning, the sons attempted to serve the call-out on the appellant. The appellant's squads assaulted them forcing them to go back to their village. J4 2.4 The following morning between 10:00 and 11:00 hours, the appellant and a group of people went to their village, forcing PW1, PW2 and the other sons to run away from the village, leaving the deceased alone in one of the houses. They hid about 30 metres in the grass at a safe distance as they watched the happenings. They saw the appellant directing Nguvu, Mutelo and others to burn all the houses in the village and the deceased was screaming for help from inside the house. 2.5 They ran to the police station to report the incident. The deceased was discovered burnt in one of the houses. Later the police managed to arrest Mutelo who has since been convicted and the appellant was only arrested in 2020. According to PW3 the arresting officer, the people in the community were happy with the death of the deceased and no one was willing to come forth and give information. He later found out that the appellant's real name was Wamunyima Pumulo. 2.6 This marked the end of the prosecution case. The appellant was found with a case to answer and he was put on his defence. 3.0 DEFENCE 3.1 In his defence, the appellant opted to give sworn evidence and did not call any witnesses. He told the trial court that on 2nd September 2019, . ,, JS he was requested to carry out a divination ceremony at Patson Lukela's residence in Chilombo Compound. He carried out the ceremony on the 7th of September 2019 and on the 13th of September 2019 he summoned the deceased to inquire into the allegations of him having bewitched the late Mubanga Lukela. 3.2 The appellant went on to tell the court that the deceased confessed and admitted that he was the one responsible for the death of the young girl. He told the deceased to go back home and return the following day for another ceremony. It was his further testimony that the following day, he went into the bush to look for more medicine and when he returned he found people had fought and burnt houses. He denied going to the deceased's village to point out which houses and shops should be burnt. He confirmed that when he named the deceased as a witch, a mob beat the deceased. 4.0 FINDINGS AND DECISION OF THE TRIAL COURT 4.1 After careful consideration of the evidence before her, the learned trial judge found that the facts in this matter were mainly not in dispute and that the appellant contradicted himself during cross-examination. J6 The trial judge also found that the appellant's alibi was not supported by any evidence. 4.2 The learned trial judge further found that the prosecution had proved its case beyond all reasonable doubt and that there were no extenuating circumstances in this matter. The appellant was later sentenced to death. 5.0 GROUNDS OF APPEAL 5.1 Disconsolate with the conviction and sentence, the appellant launched the present appeal fronting two grounds structured as follows: (1) The trial court erred in law and in fact when it held that the appellant failed to meet the required requisite of establishing an alibi. (2) The court erred in law and in fact, when it held that there were no extenuating circumstances on the facts of this case, belief in witchcraft having failed to be established by the appellant. 6.0 THE APPELLANT'S ARGUMENTS 6.1 In support of ground one, learned counsel for the appellant submitted that the trial court misconstrued the full import of the holding in the case of Bwalya v. The People 1 . According to counsel, the appellant discharged his duty to establish the alibi firstly having mentioned that J7 he was in the bush and secondly by mentioning the names of the people that he was with. Counsel contended that there was a dereliction of duty on the part of the police to investigate the alibi put forward by the appellant. We were urged to allow this appeal, quash the conviction, set aside the sentence and set the appellant at liberty. 6.2 In support of ground two, learned counsel for the appellant contended that although the appellant denied participating in the burning or beating of the deceased, there is evidence fit to be left to the jury that the reasons why the deceased was arraigned before the appellant was on the ground that he was a suspected witch. It was submitted that the deceased's confession that he was a wizard amounts to a grave and sudden provocation bringing this case under the ambit of the Abedinegal Kapesh and Another v. The People. 2 We were urged to allow this appeal, quash the conviction, set aside the sentence and set the appellant at liberty. 7.0 RESPONDENT'S ARGUMENT 7 .1 On behalf of the respondent, learned counsel contended that the trial court rightfully found the evidence of PWl and PW2 credible despite them being related to the deceased. The trial court addressed its mind J8 to the possibility of false implication and discounted it on the basis that there was no evidence on the record that they had a motive to falsely implicate the appellant. In support of this argument, we were referred to the case of Yokoniya Mwale v. The People. 3 7.2 It was learned counsel's further contention that the trial court was on firm ground when it disregarded the appellant's alibi. We were referred to the case of Lubinda v. The People4 where it was held inter alia that: "Quite plainly it would have been the simplest thing in the world if there lead been a responsible officer investigating this case to have gone to the commanding officer and asked to see, not merely Nyambe and Matomola, but every person who was in the mess that night. In that way, it would have been possible to test the truth or otherwise of this alibi. In this case we are faced by the fact that the whole evidence for the defence has been seriously prejudiced by a dereliction of duty on the part of the Had an investigation of the alibi taken place it might have been in favour of the appellants. We do not consider that the evidence given for the prosecution was such that it was so overwhelming as to offset the prejudice which might have arisen from the dereliction of duty." investigating officers. 7.3 It was counsel's further submission that the alibi raised by the appellant did not cover the entire window when the offence could have possibly occurred. That the appellant merely mentioned that he went J9 into the bush to look for medicine and no further information was provided. According to counsel, there was no dereliction of duty by the police. 7.4 In responding to ground two of the appeal, it was contended that there was no extenuating circumstances in this matter as there was no immediate danger on the appellant to amount to sudden provocation for extenuation to be extended to him. Counsel submitted that the appellant was the witchfinder, it was not him or his immediate family in danger of allegedly being bewitched, so as to cause sudden provocation. He was instead, the instigator and took part in the atrocious act that caused the death of the deceased without justification. In support of this argument, we were referred to the case of Abedinegal Kapesh supra. 7.5 We were urged to dismiss this appeal and uphold both conviction and sentence by the court below. 8.0 HEARING OF THE APPEAL 8.1 At the hearing of the appeal, learned counsel for the appellant, Mr. Mankinka placed full reliance on the documents filed. On behalf of the JlO state, Ms. Hakasenke informed the court that the state would equally rely on the filed heads of argument. 9.0 CONSIDERATION AND DECISION OF THE COURT 9.1 We have carefully considered the evidence on the record, the arguments by counsel and the judgment sought to be assailed. We shall deal with the grounds of appeal in the order in which they were filed. 9.2 In respect of ground one, learned counsel for the appellant argued that the police failed to investigate an alibi put forward by the appellant. Counsel further went to submit that the failure amounted to a dereliction of duty which should operate in his favour. It is trite that when an accused person raises an alibi, the police have a duty to investigate the alibi. In the case of Katebe v. The PeopleS, the Supreme Court held inter alia that: (iv) Where a defence of alibi is set up and there is some evidence of such an alibi it is for the prosecution to negative it. There is no onus on an accused person to establish his alibi; the law as to the onus is precisely the same as in cases of self-defence or provocation. (v) It is a dereliction of duty for an investigating officer not to make a proper investigation of an alleged alibi. Jll 9.3 When PW3, the arresting officer, was cross-examined, he admitted having been told by the appellant that he had gone to the bush to look for charms with a person called Lukela (a person who had invited him to perform the divination ceremony), at the time the police call-out was brought and at the time the houses were being torched, leading to the death of the deceased. The officer never investigated the alibi. We therefore have no hesitation in holding that the failure amounts to a dereliction of duty which must be resolved in favour of the appellant. 9.4 However, in the case of Ilunga Kabala And John Masefu v. The People6 the Supreme Court held inter alia that: "In any criminal case where an alibi is alleged, the onus The is on the prosecution to disprove the alibi. prosecution takes a serious risk if they do not adduce evidence from witnesses who can discount the alibi unless the remainder of the evidence is itself sufficient to counteract it." 9.5 In this case, although the appellant raised an alibi, there was eye witness evidence from PWl and PW2 to the effect that they saw him together with 3 others torching the houses. This was in broad daylight, around 11:00hours. This strong evidence offsets the prejudice I< J12 occasion to the appellant by the failure to investigate the alibi. In any case, the appellant stated that he returned from the bush around 11:00hours and this is the same area where the torching was taking place. Having placed himself back in the vicinity during the period of the torching, his identification by the witnesses cannot be said to have been mistaken. In the circumstances, we find no merit in this ground of appeal and we dismiss it. 9.6 We now turn to consider ground two. Learned counsel for the appellant submitted that the deceased was arraigned before the appellant on allegations of being a practitioner of witchcraft. It was contended that the deceased's confession that he was a wizard amounted to a grave and sudden provocation bringing this case under the ambit of the Abedinegal Kapesh case supra. We have failed to appreciate how the deceased's admission that he was a wizard became provocative to the appellant. The appellant being the master in wizardly or having the power to catch people who practice witchcraft is obviously supposed to be greater than the wizards he purported to be catching. He was therefore in no danger, neither was any threat directed to him. We agree with learned counsel for the respondent J13 that it was not the appellant or his immediate family in danger of allegedly being bewitched so as to cause sudden provocation . Ground two equally fails. 10.0 CONCLUSION 10.1 Having found no merit in both grounds of appeal, we dismiss the appeal. The conviction and sentence imposed by the court below is upheld. DEPUTY JUDGE PRE IDENT ......... · lrMAl. P. ............ . - -,~-... ,~ I~ COURT OF APPEAL JUDGE COURT OF APPEAL JUDGE