IN THE HIGH COURT FOR ZAMBIA HP/180/2017

HOLDEN AT LUSAKA g c ou „yrva'

(Criminal Jurisdiction)

THE PEO ,, f 28 DEB 296 j)

l --

KEITH AKEKELWA MUKATA

AND
CHARMAINE MUSONDA

BEFORE HON MRS JUSTICE S. M. WANJELANI, THIS 28w" DAY

OF FEBRUARY, 2018

For the People Mrs. M. Bah- Matandala, Deputy Chief State

Advocate, Mrs. A. K Mwanza, Senior State
Advocate, Ms. R. Malibata, State Advocate Mrs.
S. M. Besa, State Advocate, from the National
Prosecution Authority

For the Accused : Mr. M. Katolo, Messrs Milner and Paul Legal
Practitioners with Mr. W. Muhanga, Messrs
AKM Legal Practitioners

JUDGMENT

Cases Referred to:

1. Ernest Mwaba and Others V the People (1987) ZR 19 (SC)

2. John Nyambe Lubinda V the People (1988-1989) ZR 110
3. Madubula V the People (1993-1994) ZR 91
4. Woolmington V DPP (1935) AC 462 HL

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 5. Mwewa Munono V the People (2004) ZR 207 (SC)
6. Boniface Chanda Chola and 2 Others V the People (1988 -
1989) ZR 163 (SC)
7. Donald Furnbelo Vthe People SCZ Appeal No. 476 of 2013
8. Chansa V the People (2975) ZR 136 SC
9. David Zulu v the People (1977) ZR 151 (SC)
1 O.Peter Yotamu Haamenda V the People (1977) ZR 184 (SC)
11. Dorothy Mutale and Richard Phiri V the People (199 7) Si 51
(SC)

Legislation and other materials referred to:

1. The Penal Code, Cap 87 of the Laws of Zambia
2. Phipson on Evidence, 17th Edition, 2010, Sweet and Maxwell

The Accused persons, Keith Akekeiwa Mukata (hereinafter referred to

as "Al") and Charniaine Musonda (hereinafter referred to as "A2") stand
charged with the offence of murder contrary to Section 200 of Penal
Code.
The particulars of offence allege that the Accused persons on 6th May
2017 at Lusaka, in the Lusaka District of the Lusaka Province of the
Republic of Zambia did murder Namakambwa KalUakwenda (hereinafter
referred to as the "deceased').

The Accused persons denied the charge and the matter proceeded to
trial. The Prosecution called seven witnesses after which both Accused
persons were put on their Defence. Al gave evidence on oath while A2
elected to remain silent which is her constitutional right. The Defence
further called five other witnesses.

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Collins Kabamba (hereinafter referred to as "PW1"), a security guard at
Attitude Advertising, which is next door to AKM Legal Practitioners,
testified that he reported for work around 17 hours on 6th May, 2017 and
found that Mr. Mushabati (the deceased) had already arrived at AKM
Legal Practitioners.

PW1 testified that they sat outside and at around 19 hours they opened
the gate for AKM Legal Practitioners for a lady who was driving a land
cruiser to enter. He added that thereafter Hon. Mukata, Al came
outside, chatted with them and gave them K200.00 to share for food.

PW1 testified that around 23 hours, he and the deceased decided to go to

their respective locations with the deceased going inside while he
remained outside his location. The witness stated that he then heard the
deceased shout "wena" in Lozi meaning "you" and someone shout "open
the gate", then heard three gunshots from the direction of AKM Legal
Practitioners, which he was able to recognize as such because he had
heard gunshots before. PW1 testified that thereafter, he heard Al
shouting asking for help to take the deceased to the hospital as he had
been shot. He testified that he then heard footsteps like people running
outside and he went to the caretaker behind his premises who told him
that they had also heard the shots but advised that they should not go
out as the owner of Spice Restaurant Mr. Kumar (PW3) had called the
Police.

PW1 testified further that when the Police arrived, he went to the gate of
AKM Legal Practitioners where the deceased was shot by the gate and his
body was partially in with his head outside, and this was around 00:30
hours.

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He added that although the place was not well lit, he was able to identify
the deceased by his clothes and he could tell he was shot as there was
blood where he was laying.

PW1 further added that there were a number of people, the majority of
whom were Police Officers and other people who came from the Spice
Restaurant, including the owner Mr. Kumar.

He added that he saw Al with the lady he had seen several times before
and for whom they had opened the gate earlier and whom he identified
as A2, standing by her vehicle. The witness testified that there were
other vehicles in the AKM Legal Practitioners yard including a BMW, a
Toyota Hilux, Land cruiser and a 'March'

In cross examination, PW 1 stated that he had worked from the Attitude

Advertising location from February 2017 but had since stopped. He
confirmed that there was a wall fence between the 2 locations and he
could not see but hear what was happening next door. PW1 informed
the court that there had been an earlier incident on 5th April, 2017 when
a Toyota Corolla without registration had come into the close, switched
off the lights and one person had gone towards AKM Legal Practitioners.
And because of the suspicious manner in which they behaved, he had
called his firm's Rapid Response Team as well as the Police C5, but
before they arrived, the vehicle had driven off and this incident created
fear in him.

In further cross examination PW1 stated that he did not see the person
who fired the shots and that he had given his statement to the Police on
7th May 2017 which he signed. He added that he knew the deceased as
Mr. Mushabati and not by any other name.

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PW2 was Mutengu Syalutaba, a nephew to the deceased who stated that
on 6th May, 2017, he was informed around 16 hours by the deceased's
daughter that the old man, Namakambwa Kalilakwenda had passed on.
He added that on 9th May, 2017 he was selected to go and identify the
body at the University Teaching Hospital Mortuary and after he identified
the body, it taken for post mortem. He stated that in total, there were
three people including himself, the Policeman and the person who was to
conduct the postmortem.

PW2 stated that he could not withstand watching the postmortem but
before he left, he noted a hole on the left side of the deceased neck on the
front part of the body and a lot of blood on his clothes and the nose.

He added that he did not know the deceased by any other name other
than by Namakambwa Kalilakwenda, that he had been informed that the
deceased had been shot at his place of work and that the last he had
had seen the deceased about a month before the incident, he was in good
health and aged 63 years.

PW3 was Pavan Kumar, gave his occupation as a Hotelier stated that he
was at Spice Restaurant on 5th-6th May, 2017 when he heard 2-3
gunshots from outside his premises between AKM Legal Practitioners
and Attitude Advertising and some of the 8 customers said that they had
also heard the gunshots. He stated that when he had called Mr. Mukata,
Al, to check if he was okay but that the latter's phone was engaged and
so he made a call to a Police officer, Mr. Khalifa from Central Police.

PW3 testified that he then went to peep through the pigeon hole to see if
there was anyone in the close but there was no one and that he saw light
from the gate of AKM Legal Practitioners which appeared to be coming

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from a car but the gate was closed. It was his testimony that he went
back into the yard as he was scared thinking that it was thieves and then
he heard shouts for help and when he looked into the pigeon hole, he
saw that it was Al at the gate of AKM Legal Practitioners, seeking help
that his guard had been shot.

PW3 testified that he told Al through the pigeon hole, that he had called
the Police and when the Police arrived, after about 10-15 minutes PW3
directed them to Al's gate. He added that he had called the Police as
there had been thefts in the area and there had been a theft at the
restaurant in 2016.

In cross examination, he reiterated that he had heard 3 gunshots and he

was able see AKM Legal Practitioners through the pigeon hole. He added
that he was alone when he went out to check if there was anyone in the
close and saw the peculiar lights that seemed to be coming from a car
and never reached ARM premises. He added that he signed the
statement which he identified stating that the version in the statement
where he said "we went to the AKM gate" was the same as his evidence
before Court.

In re-examination, he reiterated that he never went to the ARM gate and

heard Al asking for assistance from his gate.

PW4 was Lucas Shibalatane, a Police Superintendent from Police

Headquarters who has been involved in crime scene investigations for 3
years and his duties included crime scene reconstruction, preservation of
the crime scene, identification of the crime scene, identification of
evidence including documenting evidence and collection of evidence.

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He informed the Court that he was assigned to reconstruct a scene of
murder on 6th May 2017 and this was by the suspect leading them and
checking how the scene was before it was disturbed. He added that he
was assigned to do the photographing of the scene by his supervisor, a
Mr. Banda and the crime scene was at AKM Legal Practitioners.

PW4 stated that he went with a team of forensics to Emmasdale Police

Station where they met with Mr. Mooya (PW7), the Criminal
Investigations Officer dealing with the murder who was with the suspect,
whom he came to know as Keith Mukata, Al.

PW4 contended that the suspect, Al led the team to the crime scene after
he had been verbally warned and cautioned by PW7. He stated that at
the scene, Al showed them where he had parked the car, where he had
allegedly fired the warning shot and another position where he had fired
another 2 shots. In his further testimony, PW4 stated that Al showed
them where the deceased body was found and they found some reddish
substance that looked like blood, and a suspected bullet hole on the gate
and another suspected bullet hole on the wall.

He added that after further search of the scene, they found 2 empty
cartridges which he collected and submitted for the Ballistics for
examination.

PW4 added that on 9th May, 2017 they extended the inquiries to the
University Teaching Hospital Mortuary and inspected the body of the
deceased, which was pointed out to them by a mortuary attendant, and
found that the deceased had a suspected bullet wound on the neck and
at the back just near shoulder.

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He further stated that thereafter he compiled the photos from the crime
scene and the mortuary into a photo album that was submitted into
evidence as 'P1'. PW4 also identified the empty cartridges that were
submitted for ballistics examination collectively marked "1D2" as well as
the Accused person, Al.

In cross examination, PW4 informed the Court that he had done a 6

weeks course at Lilayi, and 3 months at Service Headquarters with local
instructors.

He stated that Mr. Mooya (PW7) had informed him that he had visited the
crime scene earlier and some evidence had been collected by other
Officers who had been there earlier and that he was not informed that
the scene was likely to have been contaminated. He insisted that a
verbal caution had been administered but not recorded to his knowledge.
He added that he was not aware that other Officers had visited the crime
scene on 8th May, 2017 or that they had inspected the body. He stated
that he took the photos of the deceased's body on 9th May 2017 in the
presence of officer Syakanyeli and Chief Inspector Vincent Chibesa, the
forensic ballistics expert, before the postmortem was conducted.

He contended that the distance between the gate and the house was
about 18m although this was not reflected in his report.

In further cross-examination, PW4 stated that he was informed that

there were other vehicles in the premises, and he had seen the BMW at
the Police Station, and he was told that something was found in it.

He stated that he examined the whole area including outside even

though he did not take photos of the outside. He admitted having gone
back to the crime scene with the Ballistic expert on 9th May, 2017 but

is
did not take any further pictures. He added that the distance between
where the body of the deceased was and the gate was 1.5m.

In re-examination, PW4 informed the Court that he accompanied the

ballistic expert the second time as the latter wanted to examine the
damage on the gate and the wall. He added that the bullet hole on the
gate showed that the material on the gate had protruded on the outside,
and that he had measuring instruments including a tape, and that his
Report was reliable despite not having distance reflected in it.

PW5 was Detective Chief Inspector Vincent Chibesa, who informed that
Court that he was a Forensic expert in the field of Ballistics with a
certificate from the University of Moscow in the field of Ballistics, a
Diploma in Information Systems and Programming and many certificates
relating to ballistics and had 13 years experience in the field. He stated
that his main duties included examining small arms, hand held guns,
cartridges, cartridge cases, projectiles, gunshot damages and anything
that related to fire arms.

PW5 testified that on 6th May, 2017, he received by hand from Detective
Chief inspector Mooya (PW7), the Criminal Investigations Officer at
Emmasdale Police:

- 1 firearm serial No. PZ2I13C

- 2 Magazines
- 7 cartridges
- 1 cartridge case.

He added that the same date, Mr. Shibalatane, a Scenes of Crime Officer
submitted 2 cartridges cases which were picked from the crime scene
and that they had written a letter in which they wanted him to:

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 1. ascertain the functionally of the firearm;
2. ascertain the caliber and state of the cartridges; and
3. determine whether the 3 cartridges cases picked from the Crime
Scene were either loaded or discharged from the exhibit firearm.

The Witness testified that in addition to the above, he decided to revisit

the crime scene on 9th May 2017, to ascertain whether the damages
which were on the wall fence and the gate were caused by gunshot or not
and he also visited the mortuary for the purpose of ascertaining the
damage on the deceased.

He stated that he observed one depression damage on the wall fence

which had well-defined shape on the inner part as well as the surface
and measuring in diameter 9.7mm on the inner depression and the outer
surface was 20.7mm.

He stated that there was one damage on the main gate which did not
have a well-defined shape and he could not even come up with a
diameter but that there was one part of the damage which was perforated
and ripped with a depression measuring 8.72mm in diameter.

As regards the visit to the mortuary to check the body of the deceased,
the Witness testified that he observed a wound on the right side of the
neck in front, whose diameter was 9.92mm, which signified the entry
point of a projectile and at the back, there was damage of the wound,
whose diameter was 18.4mm. He stated that he found that these
characteristics were in conformity with damages that are caused by
gunshots.

It was his testimony that he analyzed the items that he had received from
the 2 Officers. In relation to the firearm, he said it was a berretta pistol,

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semi automatic pistol made in the United States of America, designed to
chamber cartridges of caliber 0.04 inches Smith & Wesson which
translates into 10.2mm He added that he ascertained its working
condition by loading 4 cartridges and discharging them from the same
fire arm and also tested the firearm on the possibility of it firing without
pressing the trigger and that both tests showed that the firearm was in
good working condition.

He added that after the test fire, he obtained the same cartridges which
were to be used as tests for comparison analysis and further analyzed
the 7 cartridges, which were capable of being loaded and discharged from
the exhibit firearm.

In his further testimony, PW5 stated that he also analyzed the 3

cartridges that were picked from the scene of the murder and they all
had traces of a pin hole in their bases, indicating that that they were
loaded and fired from the same firearm and caliber of 0.04 inch Smith
and Wesson.

PW5 stated that he carried out a forensic analysis, trying to ascertain

whether the 3 cartridge cases from the crime scene were either loaded or
discharged from the exhibit firearm and used an Automated Ballistics
Identification System to put them side by side with the controls used in
the tests from the exhibit firearm. He stated that during his analysis, he
observed strong and identical characteristics of the firing pin impression
mark, the drag mark, the breech block ending marks on both exhibit
cartridge cases and the controls. He added that the strong identical
similar identification was a strong indication that both the controls and
the exhibit cartridge cases came from a common origin.

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With regard to the damage that was on the wall fence, PWS informed the
Court that the characteristics were in conformity with the damage that
could be caused by a projectile of caliber 0.04 inch Smith and Wesson,
known as dent damage. He added that the damage on the main gate was
known as perforation, with the entry from North and exit from the South
and the ripped part confirmed his conclusion beyond reasonable doubt
that the characteristics of the damages sustained on the wall fence and
the gate were caused by gunshots whose projectiles have a flat nose
whose diameter ranged from 6.24 to 6.8mm.

He added that he was convinced beyond reasonable doubt that the

wound on the deceased body had characteristics of wounds caused by
gunshots whose calibre is 0.40 inches/ 10.2mm and the dimensions of
both the entry and exit conformed to damages that could be caused by
firearm whose caliber was 0.04 inch Smith and Wesson, and further that
the shooting was done in a range between 0 to 20 metres approximately
and that the shooter was face to face with the victim and the firearm of
the same calibre was used.

In his further testimony, PWS stated that he was also convinced beyond
reasonable doubt that there was conclusive evidence that the exhibit
semi-automatic pistol, serial number PZ2113C, was the same firearm
that had loaded, discharged and ejected the 3 cartridges that were picked
from the crime scene and further that the exhibit firearm and the 7
cartridge cases were dangerous commercial weapons which were
capable of causing injury or death to any animal or human target once
they are loaded and discharged, also could cause fear or panic to any
person who was in the right state of mind, once they are challenged or
threatened. He added that in this nation, the firearm and its cartridges

J12
should only be possessed by those with valid firearm permits. PW5s
report was admitted as part of his evidence and marked "P311 .

In conclusion, he stated that the drag marks were unique characteristics

like fingerprints and internationally set standards, such that a different
gun of the same caliber would make different marks.

During cross examination, PW5 stated that he received cartridges for 2

different individuals at the lab. He added that the 2 Accused persons as
well as some Officers were present during the crime scene visit including
the investigating officer, PW7, and that he was informed that the three
cartridges were picked from the crime scene.

PW5 stated that he went to the UTH Mortuary on 9th May in the company
of other Officers from the Forensic Department including PW4 and that
the body of the deceased was identified by the Mortuary attendant and
no relative was present. He added that he used a veneer caliper to
examine the body, a digital camera and a torch from a cell phone was
used to check smaller particles which could have been found in the
wounds. He stated that the veneer caliper used to measure the size of
the wounds had digital numbers and the examination was done before
the postmortem and the pathologist was not present during the
examination. He stated that he had visited the crime scene before going
to the mortuary and compiled the report after visiting the mortuary and
submitted the report to the Arresting Officer, PW7.

PW5 stated that he did not analyze any projectile and the cartridges that
were submitted to him were 0.04 inch Smith and Wesson, whose case
was cylindrical and the projectile was flat nosed with a full metal jacket.
He added that he verified the nature of the bullet and the nature of

J13
injury. He added that wounds caused by a full metal jacket do differ in
character because when a projectile is going, it depresses the target and
as it is coming out, it causes particles to come out.

He added that there are chances of expansion upon hitting a target and
depending on the target, the wound or damage could be the same size as
the projectile whether entry or exit. He added that there were other
elements that were tested but not stated in the report, but averred that
the wound on the deceased was not a contact wound and he did see the
burns on the wounds, signifying that the shot was fired within a short
range and the distance between the shooter and the target determines
the size of the exit wound. He added that in the absence of a defined
distance, there was a margin of error of ± 5m although this was not
stated in his report.

The witness stated that he tested the firearm on the same day it was
given to him to test its functionality and he did load and fire it, adding
that he did not carry out impact on the wall or the gate as he did not find
it important to carry out those tests as testing somewhere would have
resulted in big variations due to the composition of elements being
different.

He further stated that based on what the Accused said as the position of
the deceased, the deceased was shot just where he sat and was face to
face with the shooter.

He added that he found a blood spate on the inside part of the gate and
there would be no spate if the shot was fired at 180% and also depending
on the clothes the deceased wore.

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In further cross-examination, PWS explained that he used an Automated
Ballistics Identification System which was composed of a scanner with
characteristics of a microscope, a camera and a desktop and when a
cartridge case base is scanned, it gives an enlarged image showing
clearly all the characteristics on a cartridge base. He added that a
breech mark was very important as it signified the uniqueness of a
particular gun and even if it were tampered with, it would still be unique
in characteristics. He further stated that the recovered cartridges could
not conclusively be stated to have caused the death.

PW5 stated that he could not comment on the postmortem report or

compare the measurements as measurements and language used were
different. He added that he saw the Postmortem Report about two
months later and it was not relevant to his analysis in the field he is
trained in as he had specific tasks as a ballistic expert. He stated that
the request was in relation to the firearm but extended his investigations
to the body.

In re-examination, the witness explained that a full metal jacket type of

projectile had a very soft steel one such that its flight forms a unique
characteristic as it comes into contact with a target. He added that he
measured the mark at the gate which had a part ripped. He reiterated
that the shooter was face to face with the deceased given the position of
the entry wound and the exit wound at the back.

He further stated that he could not establish the path of the wound in
the body as that was the responsibility of the Pathologist while his role
was to look at the entry and exit wound for his analysis. He added that
although the request was specific to the firearm and cartridges, it was
relevant for his professional analysis to check the damage on the

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deceased as there was an allegation of gunshot, and further that his
examination could not have affected the pathology examination.

In further re-examination, the witness stated that the ripped part of the
gate and its well defined diameter led him to believe that it was caused
by a projectile, and reiterated that the characteristics of the wound made
him satisfied that it was made by a firearm of 0.04 inch or 10mm calibre.

PW6 was CHILUFYA MARVIN, the Officer In-Charge at Northmead Police

Post under Emmasdale Command who testified that on 5th May 2017, at
around 00:40 hours he was at his house when he received a
transmission on the Police radio to the effect that there was a shooting
incident within Rhodes Park area, and given the location of the incident,
he realized that that it was within his area of operation. He added that
he rushed to the Police Post where he mobilized three Police Officers
went to the location which he discovered were Office premise for AKM
Legal Practitioners owned by Mr. Keith Mukata, MP for Chilanga
Constituency, Al and it was next to Spice Restaurant, a drinking place.

PWÔ testified that upon arrival, he found that the gate was opened on the
left side and when he entered the place, he found some other people with
other Police Officers who had arrived earlier and also noticed 2 motor
vehicles which were parked, one charcoal grey BMW parked on the right
side of the pathway and a white Land cruiser which was parked on the
far end, as well as other vehicles parked behind the building.

He added that he then discovered a male person laying unconscious on

the gate on the left side, and because of poor lighting system, he used a
torch on his phone. He said he went close to the unconscious person
who was facing up with hands in cross-check position wearing a white

J16
slumber stained with blood and inside a black sweat shirt and khaki
trousers and discovered there were no signs of movement and he was not
breathing.

It was his further testimony that with the help of other Officers a search
was conducted within the premises and he discovered an empty cartridge
at about 18m from where the body was and near the BMW motor vehicle.
He added that he tried to open motor vehicle but found that it was locked
and when he asked for its keys, he was given the keys to the Land
cruiser instead. He stated that he then made a thorough search within
the vicinity and came across the keys in a flower bed which was written
BMW, it had a red plastic key holder, which opened the vehicle

PIATÔ stated that he searched the BMW in the presence of Al and came
across a handbag which contained assorted personal belongings, among
them 2 passports, one bearing the names and photo for Al and the other
bearing the names A2, a national registration card bearing the name A2,
some cash and other personal belongings. He said upon searching the
vehicle further he came across a basket which had some plates and
under the plates, there was a firearm, which was black in color, bearing
the name Beretta and serial number PZ 2113C. He added that he then
conducted the normal safety precaution on the same firearm by removing
the Magazine which contained 5 rounds of ammunition, cleared it and
discovered that there was another bullet that was chocked in the
Chamber

The witness added that he also searched the other motor vehicle, the
white Land cruiser and discovered another spare Magazine which had
one round of ammunition, and he called for investigation officer, PW7 to

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whom he explained what transpired and handed over to him the same
firearm and magazines with 7 rounds of ammunition.

In cross examination, the witness rehashed the positions of the BMW

and the Land cruiser and stated that there was an indication that
someone could have been in the flowerbed that led him to check and
that's how he found the keys in the flowerbed behind the building. He
added that he found the basket containing the firearm in the boot and
that his investigations revealed that the motor vehicle and the firearm
were owned by Al.

He further stated that the documents belonging to Al and A2 were in the

handbag in the back seat of the BMW.

He added that he took some photographs on his phone as he was getting

concerned that the scene would be contaminated, as some of the people
on the premises were drunk and becoming unruly accusing the owners
of the premises of having killed the guard. He conceded that it was
inappropriate for him to have taken the photos as that was not his role.

He added that there was no handing over form but had improvised in a
Police notebook, which indicated handing over of the firearm, 2 magazine
and 7 rounds of ammunition but not the personal belongings. He stated
that he had secured his phone and was surprised that the Defence had
the photos and that he did not run a blog on the internet and that he
was not the only one who took photos that night.

He further stated that although he had control and armed, the people
were becoming unruly and had access to the items but circumstances
did allow to use the gun.

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In further cross examination, PWS stated that when he pressed the
button, the BMW vehicle opened, the handbag was in the backseat while
the reed basket filled with plates and the firearm underneath was found
in the boot. He added that handbag with its contents were handed over
to the criminal investigation officer.

He added that he did not pick any finger prints on the vehicle, used the
torch when checking the body but where the vehicle was parked, there
was sufficient light and that he did not take any photographs of the
vehicle but of the body.

He reiterated that he did not know whether the deceased was alive or not
but was unconscious and instructed Officers to take him to the hospital.

He added that the magazine in the Land cruiser was found in a bag
which was left in that vehicle.

He stated that was able to identify the other Officers on the scene as
coming from Lusaka Division who indicated that they had secured the
scene but he did not take their detail. He further stated that he did take
not of who was around, or any deposition or statement and did not do a
body search to ascertain who was armed. He said Mr. Kumar (PW3), was
not on the scene of the crime, but met him upon requesting to speak to
the owner of Spice Restaurant.

In re-examination, PW6 denied uploading the photos on the internet and

that he did not allow unruly onlookers to take photos and insisted that
the firearm was found under the plates in the reed basket.

PW7 was Chief Inspector MUBITA MOOYA based at Emmasdale Police

who testified that on 6th May 2017, he was asleep, when he received a
phone from Chief Inspector Chilufya Officer in Charge Northmead Police
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Post(PW6) to inform him that there was a shooting incident in Rhodes
Park area at AKM Legal Practitioners and he rushed to the scene.

He stated that upon arrival, he found a tot of people on the premises,

went to where PW6 was standing, and asked him what transpired and he
told him that one male person, a guard was shot dead and the body had
been taken to UTH Mortuary.

He added that PW6 further told him that the people he had found at the
scene where accusing Al of having shot dead the guard and he observed
that a number of people were harassing Al. He stated that he then spoke
to the people within the premises, asked them to leave so that he could
secure the place and when they did, PW6 handed over to him one black
pistol, a 0.4. Berretta, and 2 Magazines with seven rounds of
ammunition, and a reed basket which he said he had recovered from a
BMW within the premises.

PW7 further testified that he directed PW6 to take Al and A2, to the
Police Station and thereafter secured the place by, putting a white and
red tape to protect the scene so that he could call the experts examine
the scene which had been contaminated by a lot of people that he had
found at the scene.

He stated that he was given one empty cartridge found at the scene
picked by PW6 and a firearm that was recovered concealed in a reed
basket covered with plates.

In his continued testimony, PW7 informed the Court that at around 08

hours, he requested the criminal investigations office to contact the
Department of Forensic scenes from service headquarters so that they
could go for a scene reconstruction and around mid-morning, a team of

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about 8-10 Officers from Forensic Department, went to the scene with
the Accused persons. He added that after Forensics Team had finished
their work, he released the scene and he took the Grey BMW which was
in the premises Reg No. BCA 7262, to Emmasdale Police Station.

He said at Emmasdale Police Station, he interviewed the Accused

persons about what transpired, but they did not a satisfactory answer
and he detained Al at Emmasdale Police Station and A2 at Mandevu
Police Post. He added that he handed over the Pistol, 0.4 Berretta bearing
no. PZ2113C, 7 rounds of ammunition, 2 magazines and one empty
cartridge picked by PW6 to Detective Chibesa (PW5), the Ballistics Officer
from Service Head Quarters, who was among the Officers from Forensic
Scenes Department examination and requested him to ascertain, if the
empty cartridge picked at the scene was fired from the firearm that was
recovered from the BMW.

He added that Al admitted that the firearm was his and that the BMW
was registered to Agro Link Limited where he was one of the Directors,
and PW7 requested him to make arrangements to provide the
registration documents to the Police Station.

In his continued evidence, PW7 informed the Court that 8th May, 2017, a
group of Officers from the Forensic Department went Emmasdale Police
Station and requested if Al, could allow them to go back to AKM Legal
Practitioners to cut a piece from of the iron sheet from the gate He added
that Al was taken to the scene by Officers from Forensic Department
while he went Mandevu Police Station to pick up A2 and when they
arrived at the scene, they found Officers from Forensic Department
carrying out measurements with measuring tapes.

J2J.
He stated that whilst at the scene, he received a phone call from one of
the lawyers, Bonaventure Mutale telling him that the Accused persons
were ready to be warned and cautioned and he proceeded with the
suspects back to Emmasdale Police Station and the suspects were
warned and cautioned.

He further testified that he arranged for a postmortem to be conducted

on the body of the deceased on 9th May 2017 and assigned D/Sgt. Siluka
No. 35653 to attend and onlith May 2017, he went to the Forensic
Department and collected the Postmortem Report adding that the
Postmortem was conducted by Doctor Mushakanov.

He stated that after getting the postmortem report and having been
availed the Ballistic Report by PW5, he made up his mind to charge the
Accused Persons for the offence of Murder, and thereafter forwarded the
docket of case to National Prosecutions Authority awaiting Court
proceeding.

He added that he charged them with murder as during investigations, he

found out that the BMW SCA 7262 was driven by Channaine Musonda
and that was where the Pistol berretta 0.4 caliber was found, after a
search by Insp. Chilufya(PW6) and after Detective Chibesa's findings that
it was the same firearm which was discharged to shoot at the deceased
person Namakambwa Kaiilakwenda, and further that after interviewing
them, none of them could tell him who had fired the weapon as only
three people were in the premises when the gunshots were heard.

In his continued testimony, PW7 stated that some of the deceased's

relatives from Mukuni village inquired on how far the investigations had
regarding the deceased Mushabati, but he had informed them that the

J22
Police were investigating Kalilalcwenda but they knew him at the village
as Mushabati.

He added that other than the one empty cartridge, a reed basket, a pistol
berretta black in color handed to him at the scene, he was given a female
handbag, whose the contents he did not check, at the Police Station
which was then given to a female officer who gave it to A2s relative.
Apart from the things that were handed to him, he also found a pair of
ladies shoes and 3 transparent lunch boxes one of which has a pink cap
and an apple in the BMW.

During the scene reconstruction, he did not see but heard that 2 more
cartridges were picked from the scene by Mr. Shibalatane (PW4) and thus
in total, 3 empty cases were picked from the scene, and handed over to
the Forensics Department. He said according to PW5 the findings were
that there was no doubt that the empty cartridge submitted to him was
fired from the pistol berretta and it was the same that took the life of the
deceased.

The Firearm PZ21 13C marked 74", the 3 empty cartridges from the
scene collectively marked "P5", the four test cartridge cases collectively
marked "76", the BMW keys "PS", the reed basket "79",, the BMW
vehicle marked "PlO", the two Magazines "711", the Postmortem Report
marked '712", the white book for the BMW and RASTA Printout "P13",
and the Pacra Printout "P14" as well as the Firearm License Book "715"
were admitted as part of PW7's evidence. The Witness further identified
Al and A2 respectively.

During cross-examination, PW7 stated that the Accused Persons were

officially arrested on 10th May, 2017, while the warn and caution was

J23
done on 8th May, 2017. He added that the warn and caution statement
for Al was done by detective Sergeant Chibesa and for A2 by Woman
Detective Sergeant Banda.

He added that all the materials had been collected by 11th May, 2017
apart from the print out from PACRA and RATSA and he only effected the
arrest at the conclusion of the investigations.

He further stated that when he arrived at the scene, there were people all
over and he did not take time to search all the people and admitted that
the scene was contaminated. He added that he managed to secure the
scene in about 4-8 minutes and that he did take some statements from
PW 1 and PW3 the owner of Spice Restaurant, further that he did not
take down the identities of all the people at the crime scene and that
some of them were insulting him and harassing Al. He confirmed that
PW1 had told him that he had been sitting with the deceased till 23
hours and had seen the vehicles that had been driven in and out of the
AKM Legal Practitioners Premises.

In further cross-examination, PW7 stated that he moved the BMW from

the scene on 6th May, 2017 but returned it for the scene reconstruction,
and he had no role to play in the scene reconstruction as the Officers
from Forensic Police Department and Inspector Chilufya were
responsible.

PW7 further stated that he submitted Al's shirt to the Chemical and
Biological Unit under the Forensic Department as he wanted to find out
if the blood on the shirt was from the deceased and if there was gun
powder residue on the shirt, but the shirt was still with the said unit. He
stated that he spoke to Mr. Mutale, the lawyer involved as he had wanted

J24
to be present during the warn and caution and further that Mr. Mutale
had been informed that the Officers had picked up some cartridges
outside the yard. He added that he effected the formal arrest on 10th
May, 2017 before receiving the Postmortem Report showing the cause of
death on 11th May 2017.

In re-examination, PW7 stated that no other cartridges were picked

contrary to the allegation made by Al to Mr. Mutale. He stated that he
formally arrested the Accused before the Postmortem Report as the Order
for Postmortem indicated that the deceased had died as a result of 2
penetrating gunshot wounds and the Ballistics Report was ready on 9th
May, 2017 and the Ballistics Expert had given his opinion.

DWI was Mr. Keith Mukata, A1,who testified that on 5th May, 2017 he
went to his office at AKM Legal Practitioners situated at 4 Alex Masala
Close, off Chaholi Road, Rhodes Park, Lusaka around 14 hours and was
visited around18 hours by his friend, who left around 19 hours. DWI
stated that he then walked to the gate to chat with his guard, the
deceased who standing outside with another guard from the next door,
PW1 and he gave them K200 when they responded that they had not
eaten and went back to the Office.

DWI stated that around 19:30 hours one of his uncles, in the company
of his friend arrived at the Office and around 20:30 hours, A2 also
arrived enroute to a meeting around 21:30 hours at Radisson Blue. He
added that A2 left for the meeting after 2lhours, and returned around 23
hours while his uncle was still there. He averred that after 24 hours, his
uncle with his colleague decided to leave and A2 also indicated that she
needed to leave, and she picked her bag and a basket she had dropped
earlier in the morning.

J25
DWI further testified that after his uncle had left and while he was still
in the office, the deceased had gone to the window to inform him that he
thought he had seen some people at the servant's quarter and DWI told
him to alert his guard friend next door and go and investigate. He added
that when the deceased left, he proceeded to the main entrance at the
back and locked it and decided to call his friend, Honourable Kampyongo
about the intrusion as he had done three weeks prior when they had had
a similar incident when on a Friday while his partner was in the office
they had received several phone calls from, Mr. Kumar from Spice
Restaurant, and Mr. Mubita, a Legal Assistant that people had entered
their yard and had parked a vehicle on Chaholi road, but they had called
C5, an anti-robbery Unit of Police Officers, and were advised to lock
themselves in and that when the CS people came through, they were
briefed about catching 2 people whom they were interrogating and a
vehicle had sped off.

He stated that he had called Mr. Kampyongo who indicated that he but
would radio some Officers to come through. He added that he called Mr.
Kampyongo again at 24:34, but got no answer and called again at 24:38
hours when he picked up the call and spoke just below a minute and
just after he had finished speaking the deceased again knocked on the
window saying that he had checked around the servants quarter and
indicated that the service gate used by employees to get to Great East
Road at the back was open and he had latched it with a line as there was
no lock. DWI stated that despite being rattled by the intrusion his voice
was normal and upon reassurance that the presence of the people were
not there, Accused 2 indicated that she needed to leave and she walked
out first and he followed as he was locking up.

126
DW1 stated that when he got into his car and started heading towards
the exit, he saw the Prado A2 was using still parked by the kitchen and
when he took the turn facing the gate he saw A2 about 5 - lOm, being
held by a tall guy. He said she broke free and started running towards
his vehicle and he immediately applied the brakes as the tall gentleman
he had seen was running towards the gate. He added that when he
looked towards the gate he realized that there was another man wrestling
with the guard and he was able to recognise the guard as he was wearing
a white fluffy coat DW1 had bought him a week earlier

He added that wasn't sure whether they were the same people the
deceased had seen earlier but, what was clear to him was that they were
in a dangerous situation. He stated that he jumped out of the vehicle,
rushed forward about 2m on the right side of the vehicle, pulled out his
gun and fired 2 warning shots in the air warn those people that he was
armed and did not fire at the gate as his guard was there and as soon he
fired the two shots, he heard 2 gunshots from outside, which in terms of
sound seemed to be from a smaller gun than his and he run to where the
BMW was parked shouting for help. He said got scared because he
realized the people were carrying a weapon or weapons, and the two
intruders and the guard were inside the gate and appeared to be pulling
the guard in.

DW1 further stated that as he was screaming for help he heard the
deceased crying out in pain that he had been shot, and that point, DW1
again fired another shot in the air, towards the other gate while hiding
place near the BMW. He added that the deceased kept on screaming and
made gurgling noise, he realized the intruders had run off and he then
run to the gate, which was slightly open, closed it and rushed to the

J27
S

deceased who was laying on the left side, holding his neck and tried to
see where he had been shot and sat him up. He added that he then
rushed outside shouting for help, and did not know where A2 was at that
point.

DWI stated that he went back to his vehicle, drove it near the deceased
and tried to lift him to put him into the vehicle and take him to the
hospital but failed. He then called for A2 to help but they failed as the
deceased was heavy and was in pain. DWI stated that he then took a
risk and rushed outside to seek help and saw that the Spice Restaurant
gate open and PW3 stuck his head out, from whom Al asked for help
but the latter informed him that he had called the Police and that they
were on the way and closed the gate. DWI stated that he was
dumfounded at the action and again made a call to Hon. Kampyongo to
advise what the situation was and that the Police had not arrived. He
also called his uncle Mr. Chisembwe and then walked back to the
deceased who had had fallen on his back but still alive, and propped him
up while encouraging him to be strong.

DWI stated that it took about 3-5 mins from the he saw the men and
went to Mr. Kurnar's gate, as everything was moving fast. He added that
he then saw 3 small vehicles from Chafloli Road that came and parked,
one near Spice Restaurant and 2 on the lawn on his yard, and he went to
the gate because he thought they were Police and almost 10-12 people,
one of whom was wearing a white T-shirt, and another big one with
dreadlocks, spoke to PW3, then came to him where he was standing
outside the gate. He added that another 7 - 10 came with PW3 and the
person with dreads, demanded for his gun which he gave him.

J28
DWI averred that people did not have any form of identification and they
told him to reverse the vehicle inside but he told them that he could not
do so unless there was another vehicle to take the guard to the hospital.

He added that there were about 30 people in the crowd, the guy in
dreadlocks held him and pushed him towards the vehicle while, Accused
2 was standing by the wall fence on the right side. He averred that he
reversed the vehicle and parked by the guard house and Accused 2 was
taken towards the vehicle, he stopped the car but did not take the keys
out and was told to sit down with A2 while they were removing things
from the car including his backpack, headphones and CD Pouch which
they carried towards the BMW, where there was light and dumped them
there. DWI added that he expected help, but the atmosphere was
aggressive as the crowd was uttering insults and saying how he was
going to be fixed.

In his further testimony, DWI stated that he did not know PW6, but
when he arrived, he saw the one in the dread locks handing him his gun
and PW6, removed the magazine and cartridges it and that P1AI6 further
picked the keys to the BMW which were in the backpack, opened it and
took out newspapers, laid them on the ground and put DW1s things
including the cartridge and the magazine, and passports from the
backpack, and started taking photos, saying DWI would be
embarrassed.

DWI stated that after about 30-45 minutes, he heard a vehicle reversing
into the yard, and renlized that they were carrying the guard into the van
but he could not tell whether he was still alive. He added that shortly
afterwards, PW7, from Emmasdale Police introduced himself and DWI
complained about the people who were all over the place and harassing

J29
him but when PW7 tried talking to the people including PW6, they were
very rude and around 02hrs PW7 advised that they go to the Police
Station, leaving the vehicles unlocked and the premises unattended to.

He added that he went back to the scene with PW7 around 04hrs and on
the way there, PW7 called for a guard as they had not left anyone there,
the gate was open and the place was deserted. He added that upon
arrival, he saw PW7 go Altitude Advertising premises to speak to PW1
and later around 05hrs, PWÔ picked up the BWM, locked the gate and
left the keys and they went back to Emmasdale Police

DWI averred that he complained to PW7 about the manner the whole
incident was being conduct and that there had been no discussion,
including when he tried to tell them that he had been under attack as
per the phone calls he had made but they took him into the cells while
A2 was taken to Mandevu Police Post.

In his further testimony, DWI stated that at 08:30 hours on 6th May,
2017, he was taken from the cells to the Criminal Investigations Officer,
PW7 where he found Officers from the Forensics Department and told
that, they wanted him to accompany them to the crime scene and when
he asked to speak to a lawyer, they told him it was just to get to the
crime scene and he could talk to the lawyers later.

He stated that at the Crime Scene the Police Officers started measuring
the scene with machines, putting markers and taking photos, and asked
him what happened when he saw the intruders. He added that A2 was
taken to the scene in a bus and after they finished, they went back to
Emmasdale Police.

J30
With regard to the Photo Album, '73t, DWI stated that he did not know
when the suspected bullet hole was made on the wall, and had asked the
Officers to check the outside based on his explanation about intruders
but they told him that they knew what they were doing. On 8th May,
2017, he was called around 09 hours by PW7 and told that the Forensics
Team including PW5 wanted to cut a piece from his gate to go and carry
out tests for comparison, as they were of the opinion that the hole was
from his gun and he went with them to the scene where they took photos
and took various measurements including outside.

He added that PW7 received a phone call and told him that his lawyer
was at Emmasdale where they had scheduled to take a warn and caution
statement as they were driving out, he saw that the Forensic team,
including PWS, had 2 black markers on the bamboo tree towards his wall
fence and were taking photos outside the yard and that PW7 declined his
request to go and see what they were photographing and further that he
saw his cousin Mwa.zukeni near the Spice wall.

It was his evidence that the warn and caution statement was not taken
as both PW7 and Mr. Mutale, SC were not ready. DWI stated that he
was visited by his Legal Assistant Mwangala around 15hrs who informed
him that the Forensics Team had finished their work around 12 hours
and that his cousin Mwazukeni had seen them pick cartridges outside
the gate and he was suspicious, which information he relayed to PW7.

He added that the following day, PW7 told him that the Forensic Team
had not cut the piece of the gate but that they had confirmed that they
had found empty cartridges outside the yard on the lawn and that they
would be included in the report upon examination, which information he
relayed to DW2, who advised that he would follow it up with Police

J31
service headquarters. He added that on 10th May 2017, DW2 went to
Emmasdale Police, spoke to PW7 and told him that PW7 had confirmed
that the cartridges were picked from outside the lawn and that they
would be in the report as he was the investigating officer, and a warn
and caution statement was taken in the presence of DW2 and Accused 2
was with another Lawyer in another office and they both opted to remain
silent. He stated that PW7 told that him 9mm parabella shells were
picked while his firearm was a 0.4 inch about 10mm caliber, Smith &
Wesson. He averred that on Thursday 11th May, 2017 he was officially
arrested and charged for the offence of murder by PW7, which charge he
denied stating that no one saw him shoot the deceased, that the
deceased was alive at the point he lost contact with him and that he had
a close relationship with the deceased whom he was in the process of
employing on a full time basis as he trusted him and assisted him
financially.

He added that from the ransacking, he could not account for head
phones, CDs, money, and further that PW7 got his shirt and trousers,
without an explanation and they were not among the exhibits produced
by the Prosecution before the Court, nor were the cartridges picked from
outside the yard reflected in the Ballistics Report giving the impression
that he was the only one who had discharged cartridges.

He added that it was fair for the Police to investigate the deceased's death
and anyone reasonably suspected of being involved according to the law
but it was unfair to immediately pin it on him and A2 while allowing the
other people on the scene to leave.

J32
During cross-examination, DWI stated that according to his knowledge,
the only other person on the premises at the time of the incident apart
from himself and A2, was the guard.

He added that after firing 2 warning shots, he heard 2 shots that were
not his and then he fired a 3rd warning short. He said he was not
intending to use the same vehicle as A2, and that he was in his vehicle
when he saw A2 trying to disentangle herself from the tall intruder and
that there was another person struggling with the guard at the gate, and
he would not tell whether the gate was partially open. He added that at
the point of firing the shots, the guard was struggling with another
person at the gate.

DWI stated that he had made the call to Hon. Kampyongo to seek his
assistance to call the Police, and at the time of leaving, the situation was
normal. He added that from the guard's first knock to the time he was
shot was about 10-12 minutes.

DWI stated that Inspector Chilufya (PWÔ) and another person put the
gun in the boot of the BMW and that the keys for the BMW were in the
black back pack which the guy in dreadlocks had picked and given to
PWÔ and there was no search for the car keys. He further averred that
PW6 put A2's bag in the BMW and the firearm was not in the BMW and
out of the 5 cars, the Officers picked the BMW to dump the things in. He
added that Reed basket had been in his office and A2 had carried it out
as she was leaving.

In further cross-examination, DWI stated that the prosecution witnesses

PW1 and PW2 had stated that they had heard 3 gunshots and that he

J33
did fire 3 shots and that the Pistol marked 1P4' was his firearm as well as
the 2 Magazines picked from the scene and marked "P11".

He added that he was unable to move the deceased from where he was
and that during the period he fired the 3 gunshots was the period during
which the guard was shot but there was no evidence that the deceased
died from gunshots from his gun.

He stated that he could not have shot the deceased as they had a good
relationship, while admitting that he had heard of close relatives killing
each other. He insisted that it was the intruders that killed the deceased
and that the Police had the cartridges though he could not explain why
the Police hid the evidence.

In re-examination, DWI reiterated that the gun was taken from him by
the man in dreadlocks and not hidden in the basket and that the Police
got things from his car which they packed randomly in the boot of the
BMW as it was the nearest for purposes of storage.

It was his contention that there were 3 people in the yard initially but his
position changed when he saw the 2 intruders and heard the gun shots.

DW2 was Mr. Bonaventure Chibamba Mutale SC, a Legal Practitioner

who testified that on 8th May 2017, he was engaged as Counsel to
represent the two Accused persons who at the time were incarcerated at
Emmasdale Police Station, and, in the company of his assistant Mukusa
Bwalya, he attended upon the Accused persons on that date and took
detailed instructions as to their plight and that he was present when the
Police issued warn and caution statements against the accused persons.

He stated that he again attended upon the Accused persons on May

10th

at Emmasdale Police Station when the 1st Accused person instructed him
J34
of his concerns relating to the conduct of the investigating Officers and
suppression of information as, Al said that he had reliable information
that the investigating Officers had discovered spent cartridges both
inside and outside the parameters of the house of Mr. Mukata's firm and
that the investigating Officers were overhead debating the exclusion of
the spent cartridges that were found outside. He stated that Al
instructed him to bring the matter to the attention to the Police
command at either force headquarters or Emmasdale Police and on 10th
May, 2017, after taking instructions, DW2, in the company of Mr.
Mukusa Bwalya whose role was to record the conversation, engaged
PW7 on the issues, and PW7 assured him that investigations were going
on well and that his investigators had found spent cartridges both inside
and outside the wall parameters and further confirmed that the Police
were professional such that all the evidence collected from site would be
reflected in the report and thus DW2 saw no need of taking the matter
further. He added that PW7 stated that he had had interviews with
relatives to deceased and established that the relationship between Al
and the deceased was good.

DW2 identified both the hand written and the typed version of the same
notes authored by his assistant Mr. Bwalya.

In cross examination 0W2 stated that he did not author the attendance
notes, that there was no date stamp which was a normal practice in their
Law Firm and it was possible that the notes could have been written on
that day.

DW3 was Mukusa Bwalya, a Legal Practitioner with Messrs Ellis &
Company whose testimony was similar to DW2, save to add that his role
was to take notes of the discussions where he was present with his

J35
Principal DW2. He stated that he recorded a statement where in
response to the cartridges, PW7 indicated that they had received
information that they had retrieved cartridges outside the gate and that
they had received information from a Mr. Mwangala that a cleaner had
overhead the experts debating whether or not to include those cartridges
in the Report. The Attendance Notes were identified and admitted as
part of the evidence and marked "Dl.

DW3 conceded that there was nothing to show that PW7 said what was
recorded and that it was possible he could disagree with the contents.

DW4 was Dr. T. Mushakanov, the State Pathologist who testified that he
has been a Pathologist for about 45 years, and a Forensic Pathologist in
the Ministry of Home Affairs for 6 years attending to postmortem
examination and exhumation examination.

He stated that on 9th May, 2017, based on an Order from a

Magistrate,"D3", he conducted postmortem examination on
Naznakambwa Kalilakwenda, 63 years who had died 6th May, 2017. He
added that he did the postmortem at UTH Mortuary in the presence of a
mortuary attendant, a Police officer and a number of students and
prepared the postmortem report marked "712". He stated that he
conducted the external examination and the entrance bullet wound was
0.5 x 0.5 cm in diameter with flame burn. He stated that he could not
state measuring instrument used as there is no special machine and it
was the mortuary attendant who measured but DW4 saw and recorded.

He stated that flame burns arise from gunshot fired from 35cm to 2
meters and not beyond while at a distance below 35 cm, there is soil or
soot. He added that no pictures were taken while he was conducting the

J35
 C-

postmortem, which he did after the deceased had been dead for three
days. DW4 stated that the body could change due to decomposition and
the wound size could decrease but not where the body had been
refrigerated and he could not tell if another person had touched the
body. He added that ballistic experts use pathologist report to make
conclusion on the type of gun used and had never seen the ballistic
expert do measurements on a body. He added that 0 5cm and 9.92mm
were different measurements and if the measurements were done at
different times the same day, the measurements would be the same.
according to DW4, the cause of death was "cardio respiratory arrest due
to right haemothorax due to gunshot bullet penetrating wound right side
neck and upper right lob lungs bleeding due to entrance gunshot on
anterior neck and exit back side thorax.

Under cross examination, DW4 stated that there was mild decomposition
but he could not tell if someone had tempered with the body and could
not tell whether the instrument had changed the size of the wound. He
added that the deceased could have been shot from a sitting position at a
distance of between 35cm to 2 meters.

DW5 was THOMAS FREDRICK WULMARNAS, a Ballistic Expert for

approximately 48 years, having worked in various places including the
United Nations under the Criminal Tribunal of the Former Yugoslavia
and as a Commissioned Officer in the South African Police Service for, a
total of 26 years and having an involved in a lot cases as an expert
witness

He stated that Al contacted him and requested him to be involved in the

matter including to reconstruct the crime scene, as well as regards the
Ballistics Report by PW5 and the Postmortem Report, adding that his

J37
assignment was to determine the Doctor's findings in regard to the flame
burns on the neck. He added that, that type of observation by the
Pathologist was of significant value as it would guide the Ballistic Expert
to go and do imperial test to determine the distance between the muzzle
of the gun and the skin when it was fired, not the distance between the
shooter and the victim.

DW5 stated that the size of the wound as stated by the Pathologist of 0.5
x 0.5cm, circular entrance wound, meant that it was not a ricochet
wound.

He defined a contact gunshot wound as one where the muzzle of a gun is

placed next to the skin and could, as a result of the hot gases leave a
burn imprint around the wound whose particles cannot be washed off.
He added that he conducted about 7 empirical tests with similar
ammunition with the similar firearm to see the result on thicker piece of
paper at different distances and concluded that the wound on the
deceased showed that it was a flame burn from a gunshot fired at a very
short range of a distance of approximately 10 cm and that the results
further showed that from im, the distance from which the gun was fired
could not be determined. The Distance Determination Tests were
admitted into evidenced and marked "D5a to g" respectively.

DW5 added that the Forensic report confirmed the face to face shooting
but, other factors in the postmortem report made it difficult to determine
that the shot was fired face to face, as the entrance wound on the
postmortem report shows the shot was fired at a downward angle
considering the exit wound.

J38
DW5 stated that the face to face, the downward angle would be very
difficult or the person must have been in a crouch position.

He contended that he had never used a term of beyond reasonable doubt

as it means that it is the only way it should have happened and the
features of the wound were such that a determination of beyond
reasonable doubt could not be made. He further stated that there were
no set class of characteristics of the wound and the different
measurements by the Pathologist and the Ballistics expert gave different
characteristics. He averred that if empirical tests had been done, the
Ballistics' expert would have found that burn marks would not have
occurred if the gun was not fired from 20m. He added that the size of the
wound is critical in determining the caliber of the bullet but cannot be
used to determine the firearm used as different types of firearms use the
same caliber bullet.

He added that he also did a test on the scene wall at the premises where
the incident happened and a pick was used to make a similar hole,
though not exactly the same. He added that smears of the mark should
have been taken to see if there were smears of copper and lead in that
hole as a bullet that penetrated the wall would have left a trace of copper
and lead and as such it was impossible to state what made the hole in
the wall.

In his further testimony, DW5 stated that he also did tests on the cut a
piece of the gate using the same ammunition and even used a piece of
wood to assimilate the effect but was not successful. He further averred
that he tried to prove whether it was high velocity or low velocity damage
and the dent on the gate was not round or square but just a dent,
indicating that something had made contact with that material and there

J39
was nothing to indicate that that mark was caused by a flat nose bullet
and in his opinion, it was a low velocity object, maybe a car reversing
into the gate. He further stated that he had carried two pieces of metal
onto which he fired 3 shots at 30,60 and 90 degree angles respectively,
as well as one through wood which he missed due to instability of the
wood and that the 3 bullet holes were round and then gradually oval as
they came out.

He contended that the measuring of the wound was wrong as the caliper
should not have been inserted in the wound as skin is elastic but should
have been placed on top to get the correct measurements and the
ballistics expert should have consulted the Doctor
regarding the differences in measurements. As there was need to clear
the discrepancy and that it is necessary for the ballistics expert to look at
the Postmortem report. He argued that there was insufficient evidence to
come to a conclusion of beyond reasonable in relation to bullet holes.

Under cross examination DW5 stated that he had never torched a body
as a Ballistic Expert and did not know if there was an internationally
accepted measuring instrument. He added that he was able to do a
distance determination test and determined that it was shot range but
not at definite range. He disagreed with the Pathologist's findings that
the shot was between 35cm to 2 meters. He insisted that his results are
valid as he used a similar firearm, with similar weight and ammunition.

DW5 further stated that he could not tell whether the damage on the wall
was caused by a bullet or not as no swab were taken which would have
revealed lead or copper residue.

J40
He stated that by doing a comparison, it would be possible to determine
the type of firearm that was used based on the cartridges picked from the
scene. He stated that he disagreed with both the Pathologist and
Ballistic Expert (PW5) as he alleged that distance cannot be determined
after one meter and that face to face means really close not at some
distance.

DW5 further stated that there could be difference in measurements

depending on how the wounds were measured. He contended that there
would be no difference between a small piece cut off from the gate and
the main gate and the size or impact.

In reexamination, he stated that weather such as hail storms would

have an impact only in terms of direction of the bullet, but in this case,
the conditions were normal.

DWÔ was Bwembya Boniface Bwaiya, an Assistant Registrar at the

Health Professional Council, Zambia who stated that the Council is
mandated to register and regulate the conduct, license facilities and
monitor the quality of care and approve health programs, all health
professionals are registered with the Organization. His evidence was to
the effect that legally only registered persons could tender medical
evidence.

In cross examination, DW6 stated that they do not regulate Ballistics'

Experts but medical personnel including Pathologists and that a non-
medical Practitioner is not authorized to examine a body in the mortuary.

At the close of the case, both the Prosecution and the Defence filed
submissions which I shall not reproduce herein due to their volume, but
will refer to them where relevant. The gist of the Defence submissions is

141
that there is no proof of malice aforethought as the evidence shows that
the Al interacted with the deceased on the fateful day and gave him
money for food, and further that the basis of arresting the Accused
Persons was the Ballistics' Report admitted into evidence as "P3' which
was shown to be unreliable, untruthful, discredited and manifestly
misleading as no empirical tests were conducted. It was contended that
Al's gun could not be connected to the wounds on the deceased and that
Al was also at the time, at risk of being murdered by the intruders and
further that the State had suppressed evidence that was favorable to the
Al while A2 was exonerated by Al as he stated that at no time did she
operate a firearm and reference was made to the case of Ernest Mwaba
and others V the People(Il It was further contended that there was
dereliction of duty by the Police as they did not produce the plates
beneath which the gun was alleged to have been hidden, that they did
not include measurements of the distances during scene reconstruction
and further that the BMW was not taken for scene reconstruction despite
these factors being critical to the case. It was contended that had these
things been done or produced, they would have proved favourable to the
Accused and that this should work against the prosecution and reliance
was placed on the case John Nyanibe Lubinda V the People(2) and
urged the Court to acquit the Accused persons.

The gist of the Prosecution submissions is that the deceased died due to
gunshot wounds and the ballistic evidence produced shows that exhibit
"74' loaded and discharged the three cartridges collectively produced as
"PS", found at the scene and the person knew or ought to have known
that firing a loaded gun would result in death or grievous injury to
someone. It was argued the alleged discrepancies in the Prosecution
witnesses evidence of PW4 and PW7 as regards the BMW being at the
J42
scene of reconstruction did not affect the evidence that the firearm was
found in the vehicle belonging to Al and the Court was referred to the
case of Madubula 'V the People(3), for the position that minor
discrepancies that do not go to the root of the case are not fatal to the
prosecution case.

It was further contended that claim of intruders was an afterthought as

no cartridges were picked from outside and hence there was no threat to
the Accused person to warrant the application of Sections 16 and 17 of
the Penal Code.

I have considered the evidence adduced before me and the detailed

submissions by the respective Counsel as well as the cited authorities
therein. I bear in mind the fact the burden to prove the case against the
Accused persons beyond reasonable doubt is on the Prosecution as
alluded to in case of Woolmington V DPP(41 and further that the legal
burden of proving every element of the offence charged, and consequently
the guilt of the accused lies from beginning to end on the prosecution as
stated in the case of Mwewa Murono V the People(5)

Murder is defined in Section 200 of the Penal Code as:

"any person who of malice aforethought causes the death of

another person by an unlawful act or omission is guilty of
murder".

The ingredients of the offence are causing of the death by an unlawful act
with malice aforethought.

The Accused Persons denied the charge. Al testified, inter alia, that on
the fateful night, as he was about to drive out, he saw a tall intruder
wrestling with A2 by her vehicle but she managed to escape and when
J43
he looked towards the gate, he saw the deceased wrestling with another
intruder. He stated that he then got out of his car, fired two warning
shots, heard 2 gunshots fired from outside in response and then he hid
near the BMW vehicle, heard the deceased cry out that he had been shot
before firing a third warning shot. He said thereafter, he went to where
the deceased was to get him into the car but failed to lift him because he
was heavy and even assistance from A2 did not help so he went outside
the gate shouting for help. He further stated that when the Police finally
came, one of them asked for his gun, which he gave to the one with
dreadlocks and then the Police went to his car and started removing stuff
including a backpack which had a gun magazine and keys for the BMW
as well as his passport and A2's passport, which they put on a
newspaper on the ground together with the gun. He also stated that
there were a lot of people in the premises and they were taking photos of
their personal items and all these items were then deposited in the BMW
for storage.

PWo, Chilufya Marvin, on the other hand, testified that when he got to
the scene, he saw a male person laying by the gate unconscious and not
breathing. He added that with the help of other Officers a search was
conducted within the premises and he discovered an empty cartridge at
about iSm from where the body was and near the BMW motor vehicle
which was locked and when he asked for its keys, he was given the keys
to the Land cruiser instead. He added that he then made a thorough
search within the vicinity and came across the keys in a flower bed
which was written BMW, it had a red plastic key holder, which opened
the vehicle. He added that he searched the BMW in the presence of Al
and came across a handbag which contained assorted personal
belongings, among them 2 passports, for Al and A2 and some cash. He
J44
added that in the boot of the same vehicle, he found a basket with some
plates and a black Berretta firearm serial Number PZ 2113C underneath
the plates. This firearm was found to belong to Al and had been
registered to that effect.

It is evident that there is conflicting evidence regarding where the gun

and the keys for the BMW were found. I am cognizant of the fact that the
Accused does not bear the burden of proving his innocence but has the
evidential burden of proving the allegation he makes and for the Court to
make a finding of fact. During cross-examination of PW6, the issues
raised by Al in his defence that the BMW keys together with the
passports were in his back pack taken from the Land cruiser and that he
had given his gun to a dreadlocked Police Officer were not brought up.
The only questions that were asked were in relation to where PW6 had
dismantled the gun from and where the plates found in the reed basket
where. In addition, none of the witnesses testified to the Prado
apparently driven by A2, being searched to account for her handbag and
the basket she had collected, being among the items put in the BMW for
storage by the Police as alleged by Al. I have considered the possibility of
PW6 having a motive for giving false evidence against the Accused
persons. In the case of Boniface Chanda Chola and 2 Other V The
People(6) the Supreme Court stated inter alia

"In the case where the witnesses are not necessarily

accomplices, the critical consideration is not whether the
witness did in fact have interests or purposes of their own to
serve, but whether they were witnesses who, because of the
category into which they fell or because of the particular

J45
 circumstances of the case, may have a motive to give false
evidence".
I find that nothing was adduced to show that PWÔ had an interest in the
matter or motive to give false evidence. In addition, PW6's demeanor
when giving evidence showed that he was a credible witness as he was
consistent in his testimony and even acknowledged that he was wrong to
take photos of the exhibits on his phone. I thus find that the version of
events as given by Al to be an afterthought and the actual position is as
stated by PWo, that is that the keys for the BMW were in the flowerbed
while the gun was hidden in the basket in the boot of the BMW. I am
fortified in disbelieving Al's version of events by the case of Donald
Fumbelo V the People'7', wherein the Supreme Court stated:

"In trying to ascertain what weight should be attached as

testimony of a witness on a particular issue, an important
factor that should be considered is the consistency of the
testimony. Hence a lot of weight will be attached to the
testimony if the witness starts showing at the earliest
opportunity, his version on the issue. In the case of a witness
who is an accused person, it is indeed very important that
he must cross examine witnesses whose testimony
contracts his version on a particular issue. When an
accused person raises his own version for the first time
only during his defence, it raises a very strong
presumption that his version is an afterthought and,
therefore, less weight will be attached to such a version.
Therefore in a contest of credibility against other
witnesses, the Accused is likely to be disbelieved."

J46
As regards the cause of the dent on the gate and on the wall, I note that
no evidence was adduced by either side to show what significance these
had on the shooting of the deceased. In addition, DW5 stated that he
carried out tests on the piece of the gate that he had cut and fired at 30,
60 and 90 degrees respectively and they showed clearly how bullet holes
looked. However, he did not indicate at what distance he was firing from
or what the result would look like if the bullets passed through some
obstruction as he indicated that he had missed the shot where he had
fired through wood. PW5 also did not indicate the distance or angle from
which the gunshots that he stated had caused the damage on the gate or
wall were fired from. In the circumstances, this Court will not speculate
and not fill in the gaps for either party and I further find that these
damages have no impact on the ingredients of the offence as will be
shown later herein.

The key point in my view is to determine where the deceased was shot
from? Al testified that he saw a tall intruder struggle with A2 who
managed to free herself and when he looked towards the gate, he saw
that there was another intruder wrestling with the deceased inside the
gate He then fired in the air twice and there were two reports from
outside near the gate He added that he heard then deceased screaming
that he had been shot, and he then fired a third shot warning in the air
towards the other gate from his hiding place near the BMW.

In cross examination, PW5 had averred that that the wound on the
deceased was not a contact wound and he did see the burns on the
wounds, signifying that the shot was fired within a short range, that is
from 0 to 20meters, plus minus 5 metres. He further stated that based
on what the Accused said as the position of the deceased, and the

J47
position of the entry and exit wounds, the deceased was shot just where
he sat and was face to face with the shooter and further that he had
found blood splatter on the inside of the gate.

According to the Pathologist, DW4, there is soil where a gunshot is fired

at a distance of between 0 to 35cm while he observed a flame burn on
the deceased's wound which suggested that the gun was fired from a
distance of more than 35cm and between lm to 2m. He added that the
entry and the exit wound positions and the movement of the bullet
suggested that the deceased could have been shot from a sitting position.

According to DW5, the other Ballistics' expert, the results from his
empirical tests with similar gun and ammunition led him to conclude
that the wound on the deceased was a flame burn from a gunshot fired
at a very short range, a distance of approximately 10cm and disagree
with DW4's finding that the shot was between 35cm and 2m. He
however, stated that the Forensic report confirmed the face to face
shooting although the downward angle would be very difficult or the
person must have been in a crouch position.

From the evidence of the Pathologist, DW4 and the Ballistic experts DW5
and PW5, it is common cause that the deceased was facing his killer
when he was shot and in a crouch or sitting position. However, given the
varying opinions of the experts in terms of the distance from which the
shot was fired, I sought counsel from the Supreme Court in the case of
Chansa v the PeoplelS) where it was held as follows:

"When an expert gives evidence it is the duty of the court to

come to a finding and the experts evidence is merely there to
assist the court in coming to its conclusion."

J48
In the premise and based on the experts' evidence, I find that the
deceased was inside the gate at the time of the shooting, that he was
shot from inside the gate as evidenced by the blood splatter on the inside
of the gate and further that he was face to face with the shooter. I
therefore find that the deceased could not have been killed by gunshots
fired from outside the gate. This is further confirmed by PW3's testimony
that after hearing the shots, he peeped through his pigeon hole and then
opened his gate, took two to three steps outside and saw a light from the
gate of AKM Legal Practitioners which was closed

With regard to the issue of the gunshots from outside the gate, PW1 the
security guard next to AKM Legal Practitioners and PW3, the Owner of
Spice Restaurant on the other side of AKM Legal Practitioners informed
the Court that they heard three shots fired that night while DWI stated
that he first fired two warning shots in the air, then he heard two
gunshots fired from outside, he went to hide near the BMW and fired
another shot. In total, DWI heard five gunshots. PW6 stated that he
picked up an empty cartridge near the BMW on the night in issue while
PW4 stated that he picked up two empty cartridges near the Wall fence
as depicted in the Photographic Album marked "71" Photograph No. 9.
DW1 informed the Court that on the second visit to the crime scene, as
they were leaving he had seen his cousin, Mwazukeni standing by the
Spice Restaurant wall and that the ballistics experts had put some
markers outside his lawn but he was not given an opportunity to find out
what had been discovered. Al had added that later on the same day, his
Legal Assistant Mwangala had informed him that a cleaner at the Law
firm had overheard the ballistics experts saying that they had picked up
empty cartridges from outside but debating whether or not to include
them in the report. This issue was raised by Al with PW7 and again by
J49
DW2, Mr. Mutale SC during his meeting with PW7 who stated that he
had received the information and that it was the duty of the experts to
include everything in the report. However, when giving his evidence PW7
denied that empty cartridges were picked from outside the gate and he
had not received such feedback from the ballistics experts. The Defence
contends that the Police have suppressed this evidence that was
favorable to the Accused Persons.

I have considered these allegations. According to the record, the issue of

cartridges being picked up from outside the gate was relayed to Al by his
Legal Assistant Mwangala who had been told by Al's cousin, that
cartridges had been picked outside and that the same Legal Assistant
had been told by a cleaner at the Law Firm that the experts were
debating on whether or not to include in that in their report. Al informed
the court that he told PW7 about this and not being satisfied, he told his
Counsel, DW2, Mr. Mutale SC, to follow it up. This was covered in the
meeting between PW7 and DW2 as illustrated in the notes exhibit "D4"
but PW7 informed the Court that he had not received any feedback
regarding the same.

The witness(es) who purportedly saw and heard the experts debating the
cartridges being picked up outside were not called to testify, leaving only
what is hearsay evidence for the Court to make a determination on. As
alluded to, there is evidence from PW 1 and PW3 that they heard three
gunshots and considering that they were within close proximity to AKM
Legal Practitioners, J am of the considered view that they would have
heard the other two gunshots purportedly fired by the intruders before
hearing the last one fired by Al. In addition, three empty cartridges were
picked up inside the premises, supporting the fact that three shots were

J50
fired. I find that no evidence has been adduced to show that PW1 and
PW3 had motive to false evidence in this serious matter because they had
not differed with the Accused persons and there is no evidence that the
said witnesses connived to tell the same story. Further, no motive or
reason has been advanced or demonstrated before me as to why the
Police Officers would suppress the evidence.

Thus based on the foregoing, I fmd that there were three gunshots fired
that night as heard PW1 and PW3 and confirmed by the three empty
cartridges picked inside the premises and further by Al who stated that
he fired three warning shots but he heard a total of 5.

The next issue is whether it was one of the shots fired that night killed
the deceased. The evidence clearly shows that no one saw who shot the
deceased and hence the case rests on circumstantial evidence. In this
vein the Supreme Court offered guidance on how circumstantial evidence
should be dealt with in the case of David Zulu v the People (9) where it
was held that:

(I) It is a weakness peculiar to circumstantial evidence that by

its very nature it Is not direct proof of a matter at issue but
rather Is proof of facts not in issue but relevant to the fact in
issue and from which an inference of the fact in issue may be
drawn.

(ii) It Is Incumbent on a trial judge that he should guard

against drawing wrong inferences from the circumstantial
evidence at his disposal before he can feel safe to convict. The
judge must be satisfied that the circumstantial evidence has
taken the case out of the realm of conjecture so that It

151
 attains such a degree of cogency which can permit only an
inference of guilt.

DW4, the Pathologist described the entry wound as 'gunshot wound size
of 0.5x0.5cm in diameter with flame burn on surrounding skin PW5
stated that he measured the entry wound on the deceased to be 9.92mm
in diameter while the exit wound was measured at 18.49mm in diameter
and went further in his conclusions in exhibit "73" to state that he was
convinced beyond reasonable doubt that these wounds, based on their
characteristic, were caused by gunshots whose caliber was
0.40inchs/ 10.2mm. DWS on the other hand stated that the size of the
wound was critical in determining the caliber of the bullet but cannot be
used to determine the firearm used as different types of firearms can use
the same caliber bullet, (see Pages 16-17 of exhibit "D7). He however did
not state in his findings what caliber bullets caused the wounds on the
deceased based on the Postmortem Report. It must be noted that there is
a difference in the measurements between the Pathologist DW4 and PW5
and further that DW4, 0W5 and DW6 opined that PW5 was not
authorised to measure the wound as that was the role of the Pathologist.

Thus in the absence of an agreed position regarding the caliber of the

bullet that caused the injury, I find that the wounds on the deceased
were caused by a gunshot of unknown caliber.

The evidence on record reveals that the Police Officers collected a firearm
serial No. FZ2113C, exhibit "74" licensed to Al and 3 empty cartridges
were picked from the crime scene. PW5 stated that he carried out a
forensic analysis, trying to ascertain whether the 3 cartridge cases were
either loaded or discharged from "74" and used an Automated Ballistics
Identification System to put them side by side with the controls obtained

J52
I

from the exhibit firearm. He stated that during his analysis, he observed
strong and identical characteristics of the firing pin impression mark, the
drag mark, the breech block ending marks on both exhibit cartridge
cases and the controls, indicating that both the controls and the exhibit
cartridge cases came from a common origin as reflected in Photos 3,4,5
and 6 of exhibit 'P3".

Having found that the deceased died from a gunshot wound and that he
was inside the premises at the time of the shooting and further that the
three cartridges found at the scene were discharged from the "P4", the
only inference I can draw is that the deceased was killed by a gunshot
discharged from exhibit "P4" by Al.

This being the case, was there malice aforethought? Section 204 of the
Penal Code provides:

"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;

J53
(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"

There is evidence on record that Al did give PW1 and the deceased some
money for food on that fateful night and had tried to lift the deceased
after he was shot to put him in the car to take him to the hospital but
had failed despite A2 assisting as the deceased was heavy and had been
injured. Further, PW1 and PW3 testified that they heard Al shouting for
help that his guard had been shot and PW3 told him to wait for the
Police whom he had called. I find that Al did try to assist the deceased
after the said shooting and this would ordinarily disprove malice
aforethought.

PW1 testified that he had heard footsteps of people running outside and
away from the direction of AKM Legal Practitioners, which according to
the Defence confirmed the presence of intruders. I have already made a
finding that the gun was found hidden in the basket under the plates
and the keys for the BMW were picked up from the flower bed after a
search. These actions to deliberately conceal the gun and the keys dispel
the assertion that there were intruders. I find that despite efforts to
assist the deceased after the shooting, Al, a licensed firearm holder knew
the consequences of firing a gun, in this case being exhibit "74" which
according to PW5 was in a perfect working condition. I therefore find that
statutory malice aforethought has been established as provided in
section 204 of the Penal Code. I am satisfied that the circumstantial
evidence has taken the case out of the realm of conjecture so that it has
attained such a degree of cogency which can permit only an inference of
guilt, in line with the David Zulu v the People() cited herein.

J54
The Defence raised the issue that there was dereliction of duty by the
Police Officers as they allowed the crime scene to be contaminated by the
people that went onto the premises from whom no statements were taken
rendering the investigations a sham and that the results of the tests on
Al's shirt from the Chemical and Biological Unit were not brought to
Court and thus such dereliction of duty should work in favour of the
Accused persons. In aid of this submission, the case of Peter Yotamu
Raamenda V the People(101 where it was held that:

"Where the nature of a given criminal case necessitates that a

relevant matter must be investigated but the Investigating
Agency fails to investigate It 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 an acquittal unless the evidence given
on behalf of the prosecution is so overwhelming as to offset
the prejudice which might have arisen from the derelictions
of duty."

I do agree that it was unprofessional for the Police Officers allow the
scene to be contaminated by not securing the crime scene promptly and
to take or allow the people that had come on the premises to take the
photographs of the Accused persons items and have the same uploaded
on social media. However, having made the findings that I have made
herein, I find that 'the evidence given on behalf of the prosecution is so
overwhelming as to offset the prejudice which might have arisen from the

J55
derelictions of duty" as guided in the Haamenda('°) case cited by the
Defence.

In addition, I am of the view that the chemical results would have shown
that the shirt had the deceased's blood as Al had stated that he had
tried to lift him to take him to the hospital and further, there was no
dispute that Al had fired a gun and thus gun powder residue would have
been present on the shirt.

As regards the assertion about discrepancies in the Prosecution

witnesses on whether the BMW was there during the scene
reconstruction or not, I find that this aspect does not go to the root of the
case as it has no impact on the ingredients of the offence as alluded to in
the Madubula v the People (3) case, and thus not fatal to the Prosecution
case.

Thus on the totality of the evidence adduced before Court, I find that the
Prosecution has proved the case beyond all reasonable doubt and I find
Al GUILTY of the offence of murder contrary to Section 200 of the Penal
Code, and I CONVICT him accordingly.

With regard to A2, the evidence in this case as earlier alluded to is

circumstantial. In relation to her, it was shown that she was in the
premises at the time of the shooting However, no evidence was adduced
to show that she actively participated in the shooting or in trying to
conceal the gun or the BMW keys. This leaves the Court to draw
inferences including that she actively participated in trying to conceal the
evidence or that she did not. In the case of Dorothy Mutale and Richard
Phiri V the People (11), the Supreme Court held, inter alia that:

J56
 "Where two or more inferences are possible, it has always
been a cardinal principle of Criminal Law that the Court will
adopt the one that is more or less favorable to an Accused
Person, if there is nothing to exclude that Inference. Where
there are lingering doubts, the Court is required to resolve
such doubts in favour of the Accused Person."

Thus on the foregoing facts and authority, I am not satisfied that the
circumstantial evidence adduced is such that the only inference I can
draw is that A2 is guilty. As such, I find that Prosecution has failed to
prove its case beyond all reasonable doubt against A2 and I find her,
NOT GUILTY and I ACQUIT her forthwith.

Leave to appeal is granted.

Delivered at Lusaka this 28th day of February, 2018.

S.M.WAN LANI
HIGH COURT JUDGE

J57