IN THE HIGH COURT OF MALAWI
CRIMINAL APPEAL NUMBER 267 OF 2005
WATER PATEL ……………………………………………APPELLANT
THE REPUBLIC ……………………………………… RESPONDENT
HONOURABLE JUSTICE M. L. KAMWAMBE
M/S Ng’ong’ola of Counsel for the State
Mr Kamkwasi of Counsel for the
Mr Kamanga Official Interpreter
The appellant has appealed to this court from the decision of the lower court sitting at Blantyre Magistrate’s court before
the Senior Resident Magistrate. The appellant was charged and convicted of being found in possession of prohibited weapon contrary
to section 16(1)(a) of the Firearms Act Cap. 14:01. He was sentenced to 12 years I.H.L. It is alleged that the applicant conspired
with other two persons to buy the gun and own a gun. They bought the gun which was kept at the premises of the principal offender
from where it was retrieved by the police upon being directed by the appellant.
The appellant is relying on mainly two grounds in his appeal. The first ground is that the trial magistrate erred in law to find
that the State had proved beyond reasonable doubt the fact that the 1st accused (the appellant) co-possessed the gun with PW2 (the prosecution key witness who is also an accomplice) in that:
It was PW2, one Wells Chimpeni who was found with the gun at his house and it was his testimony that the gun belonged to one Masalimo.
The trial magistrate did not analyse evidence to discuss and give reasons for finding the 1st accused guilty of co-possessing the gun with PW2. The trial magistrate purported analysis of the testimony is only contained on part
II of the hand written court record in 18 lines. The trial magistrate ought to have relied more on section 4 of the Penal Code rather
than section 22 of the Penal code.
M L Kamwambe
The second ground of appeal is that the sentence imposed of 12 years I.H.L. is manifestly excessive owing to the circumstances of
the case in that it was not the appellant who was found with the gun and that the appellant co-operated with investigating officers.
Let me put it clear that Masalimo is the one who possessed the gun originally from who the appellant, Mamba 2nd accused and Chimpeni (PW2) acquired the gun. After their acquisition of the gun they agreed that it be kept by PW2. PW2 put it clearly
that the two accused (appellant inclusive) knew that he, PW2 was in custody of the gun and that they agreed to sell the gun.
Even if section 4 of the Penal Code was not mentioned the facts show that appellant possessed the gun in the spirit of section 4.
He did not have physical possession but he knew who possessed the gun and under what circumstances. In his own words the appellant
says before he was arrested he saw the gun and that when he saw it he knew that the gun was a prohibited weapon. It is important
to note that the appellant did not challenge the evidence of PW2 at all who said he got the gun from Masalimo and that the appellant
told PW2 to keep the gun because it was not possible for him to keep the same.
In my view it was necessary for the lower court to refer to section 22 of the Penal Code not in substitution for section 4 of the
code but in dealing with the issue of common design or joint enterprise in prosecuting an unlawful purpose. This nicely captures
the circumstance of the appellant, Mamba and PW2 in that PW2 kept the gun on his own behalf and on behalf of the others.
It is argued that the lower court relied on accomplice evidence. The State argues that even if conviction should not be grounded
on accomplice evidence but by looking at the whole evidence, there was corroboration of such accomplice evidence, hence the conviction.
Firstly it was evidence of PW1 the policeman that he was tipped that the appellant wanted to buy a rifle from someone and after inquiries
appellant was arrested. Secondly it was appellant himself who led the police to the house of PW2 who had custody of the gun. When
PW2 testified that he had the gun which belonged to all three, the appellant never challenged it. It is a matter of practice and
not law that corroboration is required hence section 242 of the Criminal Procedure and Evidence Code states that an accomplice shall
be a competent witness against an accused person; and a conviction shall not be set aside merely because it proceeds upon the uncorroborated
testimony of an accomplice. In the case of Decoy and Karan v The Republic [1971 – 72] ALR vol 6 p 223 it is stated that it is generally unsafe to convict an accused on the uncorroborated evidence of
an accomplice; but if it concludes that the evidence is true, then even though it is uncorroborated it may be used as the basis of
In respect of sentence the appeal must succeed as the sentence of 12 years I.H.L. is grossly excessive and I do not think that the
appellant was the worst offender to warrant such an atrocious sentence. Of course the aggravating factors are that the offence was
committed by a group of persons or in the company of others and that he pleaded not guilty. The principal offender who pleaded guilty
to the offence was sentenced to 4 years I.H.L. The appellantcannot deserve less than that. I have looked at the case of The Republic v Tione Chavula Criminal Appeal No. 93 of 2005 where the sentence of 6 years imprisonment was reduced to 4 years. The maximum sentence for this offence
is 14 years imprisonment. It is observed that there is proliferation of firearms around the territory of Malawi and beyond. This
poses a scare to society. A meaningful sentence ought to be meted on the appellant. In the case of Tione Chavula (supra) the appellant
had pleaded guilty. In this case he had not. I therefore set aside the sentence of 12 years imprisonment and substitute it with one
of 5 years imprisonment. It is so decided.
Made in Chambers this 29th March 2007 in Blantyre.