SHINDANO v THE PEOPLE (1972) Z.R. 155 (H.C.

HIGH COURT

CHOMBA,J.

16TH JUNE, 1972

(CRIMINAL APPEAL HNA 103 OF 1972)

Flynote

Criminal Law - Theft - Aiding and abetting - Whether person can be convicted of aiding and abetting
when alleged perpetrator of offence is acquitted.

Headnote

The two appellants were convicted by the Subordinate Court of the First Class for the Mufulira
District of the offence of theft contrary to s. 243 of the Penal Code. They were sentenced to eighteen
months' imprisonment with hard labour each. They appealed against conviction and sentence.

Held:

No man can be aider and abetter unless there is a second person whom he aided and abetted.

Legislation referred to:

Penal Code, Cap. 6, s. 243.

For the appellant: G.M. Sheikh, legal Aid Counsel.

For the respondent: E. Chisengalumbwe, State Advocate.

Judgment

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CHOMBA, J.: The two appellants in this case were convicted of the offence of theft, contrary to s.
243, Cap. 6, and were in consequence sentenced to eighteen months' imprisonment with hard
labour each.

There was an abundance of evidence on which the second appellant was convicted. In the first
instance there was a confession statement made by him at the time of his arrest and this the trial
magistrate found admissible after carefully holding a trial within the trial, an objection to the
statement having previously been made. There was then evidence of one Stone Malaya, P.W.3, who
testified that the second appellant had handed to him the tape recorder, the subject matter of the
charge, to sell for him, the second appellant. This witness had sold the tape recorder and [it was] the
buyer Mr Kayula Bonaventure, from whom it was recovered by the police. The magistrate, again
quite properly, treated Stone Malaya as an accomplice and having directed himself as to the danger
of acting on the uncorroborated evidence of accomplices found that evidence veritable and
accepted it. On the basis of this dichotomy of incriminating evidence the magistrate could not
possibly have reached any other verdict against the second appellant. The appeal against the second
appellant accordingly fails in toto.

So far as the first appellant is concerned, the only evidence found against him consisted in his own
extra judicial statement on arrest. For the sake of clarity it may be stated that the present appellants
were jointly charged with a third man, one Feruse Salamu, who was acquitted. On arrest the first
appellant is alleged to have stated, 'I deny the charge. It is not me who opened the motor vehicle. It
was Feruse who opened the motor vehicle. I was with him but I got the property when he took them
from the motor vehicle.' On the strength of that statement the first appellant was found by the
magistrate to have aided and abetted the third accused in the commission of the offence. The simple
question that falls for consideration is whether this appellant could have aided and abetted an
innocent man (for that is the effect of the third man's acquittal). In my considered opinion the
position here is analogous to that affecting two persons charged with conspiracy with each other. It
is trite law that if one such alleged conspirator is acquitted the charge against the other cannot stand
as the essence of the offence of conspiracy is the plotting by at least two people to commit the
forbidden act. Similarly no man can be an aider and abetter unless there is a second person whom
he aided and abetted. If the second person is found not guilty then the charge against the so-called
aider and abetter cannot subsist. For the foregoing reasons I uphold the appeal by the first appellant
and I order his immediate release.

Appeal allowed

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