Review Cases No.10/99 CR13/99
Review Order No.1/99
IN THE HIGH COURT OF LESOTHO
In the matter between:-
REX
vs
TATISO MONEHELA LILLO MONEHELA
Thaba-Tseka District
REVIEW ORDER
On the 25th January 1999, the two accused appeared before the Thaba-Tseka Subordinate Court facing two charges. On the first count it was being alleged that they attempted to kill one Nkune Monehela by firing gun shots at him on the 20th October 1998 at or near Liseleng, Thaba-Tseka. On count two it was alleged that they unlawfully and intentionally had in their possession one AK 47 rifle with eleven rounds of ammunition in contravention of section 3 (c) (1) of Internal Security (Arms and Ammunitions) Act No.17 of 1966.
The two accused pleaded guilty to both charges and after the prosecutor had given a lengthy outline of the facts supporting the charge and after the accused had accepted these facts as outlined, the learned magistrate convicted them accordingly (C.P.E. section 240) and sentenced them each to four (4) years on count one and to M400.00 or one year on count two.
I was not happy with the conviction and sentence on count one.
The facts as outlined show that there exists a long standing family dispute over inheritance between the accused and the complainant. On the 20/10/98 there was a confrontation between the accused on one hand and the complainant on the other; and when accused one called the complainant, the latter took to his heels and one of the accused fired in the direction of the complainant. He was not hit. The pursuit followed
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and one of the pursuers hit the complainant with a stone in the kidney region. Though a medical report was handed in by the prosecutor, it is important to note that the accused were not charged with this stone assault. It is clear that the accused shot at but missed the complainant.
In my view, this is a case where the provisions of section 188 (3) of the Criminal Procedure and Evidence Act of 1981 should have been applied. It reads:-
"If at the trial of any person on a charge alleging that he killed or attempted to kill or assaulted any other person, it has not been proved that he committed the offence charged, but has been proved that he pointed at the person against whom the offence is alleged to have been committed, a firearm, airgun or airpistol, in contravention of any law, the accused may be convicted of having contravened that law."
I am not convinced that the crown proved that the shot or shots were aimed at the complainant or into the air in order to compel him to stop. The facts as outlined show that the provisions of section 25 (1) the Internal Security (Arms and ammunition) Act 1966 were contravened. The section reads:-
"(1) Whoever uses or attempts to use any firearm or ammunition with intent unlawfully to endanger human life or cause injury to any person or property shall be guilty of an offence and liable on conviction to the penalty prescribed in section 43."
The facts of this case and the interests of justice require that the conviction on count one be altered, as I hereby do, to a conviction under section 25 (1) above. But in view of the fact that the complainant did not suffer any physical injury and regard being had to the fact that the accused both pleaded guilty and in mitigation stated that nothing was being done to mediate in the family feud, I am of the view that a portion position of the sentence imposed should be suspended. For attempted murder, suspension of sentence cannot be ordered (CPE - section 314). I therefore order that three of the four years be suspended for a period of three years during which the accused should not be convicted of an offence involving violence to person or pointing or use of a firearm, in respect of which he is sentenced to a term of imprisonment in excess of six months without an option of a fine. I also order that the sentences in both counts run concurrently.
S.N. PEETE
JUDGE
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CC: The Magistrate - Thaba-Tseka
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O/C Prison - Thaba-Tseka
O/C Central Prison
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Director of Prisons
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