Mushili v People (SCZ Appeal 124 of 1991) [1995] ZMSC 53 (14 July 1995)

OF^Amrt 4 SCZ APPSAu Jjp^ 12 4 OF 199.7 HOLDEN AT NDOLA (Criminal Jurisdiction) AARON CHIBWti MUSHIUl a-S4,’C MWhNZA A o o e 11 a n t s a t n p -j n 1 2 n t Coram: Bweupe, D. C. J on 3rd !iaroh, ’ ’ a i I a and C n I r w a J J s at Nd0i a J--^9b and 14th July,, 199b For t.ne Appellant ; 7or tn e !“lr - s.w. Cnirambo, PrincipaJ. he-’31 l:<euponden t: Mr. j, Mwanakatwe, Frincipal Senior State Advocate counsel J U D G M S N T Cnim, J. S. delivered the judgment of the court Fuo. a ■>pe 1.1.au u a we.’o ehar-eu wi tn ons count of A cv.'avated Robbery coir.rury to mtlcn 294(1) of tne Psn.tl Code Cap. 146. The particulars al lets tnac ths n ,> p e L ant s on 29 th -ley of December, 1991 at Kit we Ln the il i t w e District of tine Copperbelt Province oi t:ie Hcpubiio of Zambia jointly and whilst acting together with other persons unknown did steal four Dales of 3 ho as, one camera, one wrist watch, three radio casssttesi, car keys, one suitcase, three pairs of i o n j t r o u 3 e , and KL2,000.00 casn altogether valued at :<608,500.00 from the person of Spiro <-il iy and nt or Immediately ooforo or iminediateiy after tn? t irc of sue .i s £ sa .1 i. n n. used o r t n r sa t «nnd to use actual violence to th a c n. 1 d J ?p I r o .< a 1 1 y , i n order to *• e t a in or obtain t li e said p r o p e r t y and u p o n t h e i r conviction’ they were sentenced to 20 years imprisonment witn hard labour with effect from the date of tn•? Lr .arrest. I'ha prosecution evidence wa ? to tbs effect ■:■ iat it about 20.00 hours on 29tn Daceaimr, 1991 tie oo«p Lninant, PW1 was at hi a nouae and ne was about to leave to go and pick up his son from nis friend's noae. He sw itc;i«d off tno television set, closed tne kt. tchen door and c 10 s o d t ;'l Q b U r 7 I cr bars and al 1 the 1 i thts outside and I n s .1 d c tne n o u .-a e w e r e on and as na went to h i s car, n e saw two g ent lo r.on coming . He xd n n cl " i e d t n e ae m e n as the t w 0 des c r i. b e d one tney came he till one started bsa11n one him and cis d hi?i uc and h s :: ■> ~ t e d '■ ') L e e din? f r o m tne nose. He i3d this o a r c 1 c u 1 i r c able m a n a s the f i r a t aopellant. It m also said t n e second a o o c 11 a n t J o 1 ned his friend tn h1m up. A ft or that t i e "■ e n w e n t i n t o the u o u 3 e when -» He As a on ni<n one t;19S8 Item:? tney went later on a suites? , t40 011 trousers and a radio had been recovered by the police PW2 officer who testified chat she conducted 1 d en1t f1oation parade Oth January 3' '•/ • a i d e n t i i ro appall 3 J P a ■: o o Dace m Per, 19 on d u t y and w a i 1 s c on jut y ne w e r e s o m e men with t in i 3 n some man waom Hl t ? m s a t .n a n the w e L a oy hat on a ■; Station viJtlintees Upon •nan were a 1 o c a 1 a rad 1 o - 73 - On confronting them these men dropoad 'aoais Property nasnelv, ® -i3. 1 o o a 3.’ et . i-.:e , on•?. ca,.-ir- a > • Jo pait a of trousers, one pall’’ of tn<3 child's shoes. H * identified tneS(J items recovered a a triose oroduoed I n c ) i> ’ t wnlt h we. •■’ i d e n h i f 1 ■? cl by one complainant, as those stolen from 11 rn ;> s s o f.-v n f ]. before tney were racoverel by PW3• 7 ne last prosecution withese who arrested the an.ie 11 ants a f h ar •’ 3o th a q pBlunts denied t ne on a r x a. was 3 police O r f 1 r ’? 1* ■a b t J. n ■” 5 0 !.? 3 ■ 'an. Upon b e i n cr nu z on t heir i i r ”•. •> ,r. defence one first apool1ant denied t n a t on the 2 91.1 Deceabjr, l <11 r.e 1C the uuta L t fl 3 C 3 ?’.u Lins M u 3 n 11 i a n d t h a t ?. .> o u c i .1.0 J ■ i o u r,? :li s y J a n o r 0 t :1 0 •' cam a o y t n <» n i ,n e o f >-> i ; . < j s 1111. . 1 e e a • '7 1 •> i a • i .1 i O C a 3 .3 .3 11 -3 and that tills young brotner invited .1 1 co bo o to his p 1 a o e for ; J -• Y r a r ' n o e L e. a r a t i. o n b and h e h i d w 11 a : i tn t ■i i -i radio cassette w n e a C ' 3 7 ■;4»n 2 to a L •1 lOrib 0 l 1 d t i a t •> n i ■: w n ./ bay y met a po J. i : e o f f i e ” a n >1 r. a 1. 3 0 3 1 1 0 •3 Of J’ L .13? 3 11" t e ■ i a a c ui i t 'i e -n a i •; a w h a >? 13/ i . I u v i 0 r a d I o C 13 3 ■s t!. 0 . LI SI jwo rad that n.?, b 3 u ? n t *! * ,-> a h L 0 C M 3 o t v, J a •i d a e hid ’ 'll’ 1 os w i h h him and p r o d u c ad ,i e m. off .1 o e r s U «1 e 3 t •■'. 5 t n .i t ’J 3 St H t -3 4 f thia a r! 1 o •'■ u r b a e r t a a a •? a s t h I\ 1 •■■ ... U • ■ b h c p a L L o e C 3 1 r. a t t h c polios station b JC a u a a it was not 5 .ife b o ’< !i e p i t Ln t h o c o m p ou n d a n d t ha t t ‘i i a co H c e o f f 1 0 °r r to ok tie r ’i din o 1-13? t t and went with Lt at ths polic® atat i 0 (1 . f 11 i w e r a 1 ? t to ;<0 a n d a nd on 3 ’J t n 9er. 3m t>e a e n d h i i sBt nr ? au tin |» w ? a t b s •; to Eric’s i louse a n d they a t a y o 1 t a e r e f o o t a rec ays and after tnat tney went b ?. c i.< to their no me. 1’han on 2 61 h January, 1992 ne waa tn a tarva.i around 19-f 0 hoo. rs in i W ii 1 3 t. there he was apprenended by poll ■?,e of f icats ancl inter on out on an identification parade aid later i.rr jsti.1 ro'’ tii.-' . SHbjooc ef’^ncco He denied rot>51;i<» ' u ? cornp L ii n in b. )''? d nled that tie rrdl-o cassette wn led. war, witn fri. o war n t :: L e n a e C ' ' c h ' d t h e c c <? » i. p t:? . Til a f I '• a ■> '-'■•' : J ' ; c ) ■> / c' :■ ? ■•■ 'i I - ’ t -'■! • .. ) ' L lb rd tn.e -••ilio C’i.nettj ■. t quH-Jo” was a : -i !■■ ' halt ' . . c-1 n from '’ill' sin io " '■• t'.’ ■ im * c , e ■ s - - ■* : ? 11.) -•■ n by v n I .■- t ippoiL^ni: and ’■?.?.■? L -■■, ■ ,■■ ■, > j >:■. . '. : o 7 ■-1 . ? ’ •■ : i <1.1 nar '■’ - .fo? n a ? b i e to a ••oluce them ■ » i' n ~ 3 ■; o on .1 i p o •.? 1 I :» ' '■ . ■; a to r e m j .1 n I !. 2 a o v h i. c >1 The Last, ground was t n a t t ne second aopelUnt was wrongly identified on an irregular identification sot un 'J'f ?Wa. de subaittad that the Ldentifia 11 o n in a o o 1 i c a r. ell w a s improper and therefore the identtfioatton of the second appellant nhou1d be disregarded. On sentence be submitted that as more property was recovered and the appellants we"e first offenders, 20 years imnr 1 sonnent wita hard Labour was g ri 1^7 « ji A Tn r e o 1 v Hr. Mwanakacwe supported the ?onv’otiors and said the e v 1 d encc ?. ..< a i n s t z h i a o p e 1 ■•- in t s w a o v •? r w ho I m i n " and further tnat tne procae di n'-io cannot be ;? a - d to be a nullity is no olea was taken. The o"cmi snLon to taka P in? i f any was not prejudicial to the appellants as they ware awa>,e with tne offence for which they ire cna ?ged. 0n the issue of identification it was submitted that both appellants were properly identified by P WI. The possibility of anhonest m1stakc did not arise 33 PW1 had ample onp0"tun11y to ob9»rve these assail ant a. He i ds n t1 f i t? .! tie 1 00 el. Lanta at the identification parade. Although Lt had been said that the identification was unfair, there w’s no evidence led to make this identification parade unfair. Both appellants were seen in possession with stolen property shortly after the robbery. They were seen by PW3 and wnen he challenged them, they dropped the pronerty and .13 ae had .<nown toe a0□ e 11 ant.-a before and no too had ins □ pportuni cy to 0b;c.-v» the appellants because of t.ne electricity of the .1 i grits, the Identification of the appellants could not be faulted. We have seriously considered tin e'/’dn.noe on record, the judgment of the learned fcr*i <1 J’jd;e and »l«o the submit? st on a made by the learned counsel in tris court in support of their cages. We had a serious look at the evidence of PW1 under which the circusstanoo he w3 s a 11ac'•< ?d . Tt Let clea” from I:is evidence that security lights around thia house were on o.nd he was able to see tne cw0 p«opie come and. twp r>eopie b«et h i m and in the process he lost on? toonn. 6 7/ any othe” method and fair method should be used to request the complainants or any other witnesses to try to Identify c ne suaoe s ts, We a r a satisfied t a a t the o i ecuss tanoea of tn is case, the evidence is overwoelmin? against Doth appellants and appeals a ? a 1n s t convictions are dismissed. Comln? to sentence; the attack on the complainant was brutal, He lost a tooth in the process and with such b beating, the anpellants deserve more than the minimum prescribed statutory sentence. We, therefore, see nothin? wrong either in principle or in law, the sentence of 20 years imprisonment as imposed on the appellants. ”he appeal against sentence is also dismissed. B. X. ?>'.iw>e DEPUTY CHIEF JUSTICE M. 3. C n a 11 a SUPREME COURT JUDGE D. K. C h i r w a SUPREME COURT JUDGE