BWEUPE, J.: This case has been sent to the High Court for review.
The accused was charged with aggravated robbery contrary to section 294 of the Penal Code. On 10th October, 1984, he appeared before the subordinate court of the first class for the Lusaka District for committal to the High Court for summary trial. He was not so committed because the Director of Public Prosecutions has not issued a certificate committing the accused to the High Court for summary trial as is required by the Provisions of the Criminal Procedure Code.
On twenty-four different dates the learned Senior Resident Magistrate graciously granted an application by the Public Prosecutor for an adjournment on similar grounds namely that the Director of Public Prosecutions had not given instructions to have the accused committed to the High Court. When the 25th application was made on similar ground the Senior Resident Magistrate's, patience ran out and summed up the case in these words-
The Director of Public Prosecutions does not seem to make up his mind, I could make up their mind. The accused had been brought to court for nearly a year awaiting instructions. What is being there is perpetration of injustice through indecision. I acquit accused for want of prosecution.
I totally endorse the first part of the learned Magistrate's sentiments and concern that the learned Director of Public Prosecutions suffered from unwarranted indecision resulting in justice being denied to the accused.
However, the learned Magistrate seriously misdirected himself when he said I acquit accused for want of prosecution for two reasons:
Firstly, the Magistrate had no jurisdiction to try aggravated robbery. He cannot, therefore acquit (or convict) where he has no powers to do so.
Secondly, acquittal can only be entered where evidence has been laid or if not laid where the prosecution has offered no evidence. In this case the prosecution could not lay or offer no evidence because this case was not within the jurisdiction of the learned Magistrate.
In the circumstances of this case the Magistrate had one of the two alternatives open to him. These are:
Firstly, the learned Senior Resident Magistrate should have ordered a Preliminary Inquiry to be conducted under section 224 of the Criminal Procedure Code. And if at the end of the day the court considers that the evidence against the accused not
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sufficient to put him on his trial the court shall forthwith Discharge the accused: Section 230 of the Criminal Procedure Code refers.
It can clearly be seen that even where evidence has been adduced the Magistrate has no power to acquit for the simple reason that one can only acquit where one has jurisdiction to convict and mete out punishment.
Second, if the learned Senior Resident Magistrate satisfied himself that injustice was being deliberately perpetrated he should have simply made the observations as he rightly did and then DISCHARGE the accused.
For reasons aforegoing I hold that the learned Magistrate fell in a serious error. Under the revisionary powers conferred upon me under section 338 (1) (a) (i) of the Criminal Procedure Code I set aside the order of the Magistrate and direct that any of the procedures laid down in section 222 or 245 of the Criminal Procedure Code should be complied with.
Order set aside on review |
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