Nine Men Accused of Harare Murder Seek Acquittal Without Presenting Defence

The accused have filed applications for discharge and acquittal following the conclusion of the State's case in the High Court trial. They maintain that the evidence presented by prosecutors does not establish a sufficient basis for requiring them to answer the murder allegations.

The applications were submitted on Tuesday, with prosecutor Albert Masamba expected to respond by Friday. Justice Lawrence Murasi, sitting alongside two assessors, is expected to deliver a ruling on Monday.

A major issue raised by the defence concerns a pistol recovered in Beitbridge in August 2020, approximately 10 months after Ingwani was killed.

According to evidence presented by the prosecution, the firearm was discovered inside a black satchel placed in a washing basket at premises associated with one of the accused, Elisha Manhanga.

Ballistic examinations reportedly connected the pistol to cartridge cases recovered at the scene of the murder. However, the defence argues that this forensic connection does not establish who possessed or fired the weapon during the attack.

Two of the accused, Musa Taj Abdul, also known as Abdul Rahman Musa, and Charles Lundu, represented by lawyers Frederick Nyamande and Wishes Nziradzemhuka of Sande Legal Practitioners, have presented detailed arguments challenging the prosecution's evidence.

In their application under Section 198(3) of the Criminal Procedure and Evidence Act, the lawyers argue that there is no sufficient evidence upon which a reasonable court could convict their clients of murder or any related offence.

They maintain that no prosecution witness identified either Musa or Lundu as one of the armed individuals who allegedly attacked Ingwani at his property in Southview Park, Harare, on 18 October 2019.

The defence also disputes any attempt to connect the two men to the recovered pistol, arguing that prosecutors have not demonstrated that they owned, handled, possessed or knew about the firearm.

Although the ballistic findings may establish an association between the weapon and cartridge cases recovered at the murder scene, the lawyers insist that this does not establish the identity of the individual who discharged it.

The testimony of investigating officer Detective Sergeant Tirivangani Madhibha has also been challenged.

The defence argues that the detective did not witness the murder and only visited the crime scene two or three days after the incident. He also did not personally observe the original recovery of the spent cartridge cases.

Additionally, the lawyers say prosecutors have failed to produce cellphone records placing their clients at the scene or independently establishing their movements on the night of the killing.

The State also presented evidence concerning other alleged criminal activities, including a robbery in Concession and an attempted robbery in Murehwa.

Prosecutors further introduced evidence relating to a jerrycan recovered from an abandoned Toyota Hiace, which its owner reportedly identified through distinguishing characteristics, including initials and a repaired section.

However, the defence argues that evidence involving allegedly stolen property or its recovery cannot automatically establish the individual guilt of Musa and Lundu without proof of their participation.

The lawyers have also referred to previous High Court appeal proceedings in which the two accused were acquitted of charges involving unlawful possession of the same firearm.

While acknowledging that those earlier decisions do not automatically determine the outcome of the murder trial, they argue that the previous findings should be considered when assessing the prosecution's reliance on alleged firearm possession.

Another important issue concerns the legal principle of common purpose, which can allow individuals to be held criminally responsible for an offence committed during a joint criminal undertaking, even if they did not personally carry out every act.

The defence maintains that simply charging several people together, arresting them at a later stage or alleging that they were associated with a particular firearm is not sufficient to establish common purpose.

According to the lawyers, prosecutors must demonstrate that the accused knowingly participated in the alleged criminal plan or actively associated themselves with the attack.

They further argue that the circumstantial evidence presented must support guilt while excluding reasonable alternative explanations.

The wider trial has also experienced procedural difficulties. Proceedings previously conducted before Justice Munamato Mutevedzi were ordered to begin again following the death of one of the assessors and the judge's subsequent transfer to Bulawayo. As a result, the prosecution had to present its evidence afresh.

The remaining seven accused, identified as Elisha Manhanga, Tapiwa Mangoma, Prince Makodza, brothers Liberty and Godfrey Mupamhanga, Rudolph Kanhanga and Innocent Jairos, have also submitted applications for discharge through their respective legal representatives.

Monday's decision will determine whether the nine men are acquitted at the close of the prosecution case or must proceed to present their defence.

All nine remain presumed innocent unless and until the court establishes their guilt.

Source: The Herald