Anania Tembo v The People (Appeal 18 of 2016) [2018] ZMSC 353 (10 December 2018)

IN THE SUPREME COURT OF ZAMBIA HOLDEN AT NDOLA ( Criminal Jurisdiction) APPEAL No. 18/2016 BETWEEN: ANANIA TEMBO AND THE PEOPLE APPELLANT RESPONDENT Coram: Hamaundu, Kajimanga, and Chinyama, JJS. On the 10th April, 2016 and on the 10th December, 2018. For the Appellant: Mr J. Phiri, Senior Legal Aid Counsel - Legal Aid Board. For the Respondents: Ms S. Muwamba, Senior State Advocate, National Prosecutions Authority. JUDGMENT Chinyama, JS, delivered the Judgment of the Court. Cases referred to: 1. Simon Mudenda v The feople (2002) ZR 76 2. John Timothy and Feston Mwamba v The People (1977) ZR 394. Statutes referred to: 1. Penal Code, Chapter 87, Laws of Zambia, section 294(2) (a). 2. Firearms Act, Chapter 11 O, Laws of Zambia. Anania Tembo, the appellant was convicted on one count of Aggravated Robbery contrary to section 294(2) (a) of the Penal Code and senten ced to death. The appeal a ffects th e conviction and senten ce only so far as th ey are based on th e finding th at th e appellant and his accomplice had used fire a rms during the robbery at PW 1, Gilbert Siame's Bonanza Gaming Shop in Garden Compound in Lusaka in which Kl ,000 cash a nd gaming coins of an undisclosed value were stolen. The fact that the robbery took place a nd the appella nt was involved is not in issue in this appeal. The appella n t, however, disputes the u se of firearms. In the trial before the lower court, the evidence established tha t Joseph Lulamba, PW2, who was manning the shop was attacked just after h e had opened up the Bonanza Gaming Shop a nd the appellant and his accomplice had entered appa rently to play some games. According to PW2, h e screamed when he was bein g a ttacked and the appellant's accomplice threatened to shoot h im if he screamed again. He tried to scream again and the accomplice told the appellant to "produce a gun" so that the witness could be s hot if h e screamed. PW2 was then blindfolded. While the robbery was going on, according to PW2, a boy named Junior cam e to the shop and when he inquired about what was going on a gun was pointed at him and J2 he was threatened to be shot. Junior fled from the s hop and alerted other people in the market. One of the people alerted was PW3 , Joseph Banda who rushed to the shop with other people. In the process of the appellant a nd his accomplice trying to escape, the accomplice threatened some people on his way out at the gate with what PW3 described as a small firearm and managed to get away in a vehicle parked at the gate. The appellant was apprehended and in the process he dropped a bag. The witness saw something which looked like a plank in the bag but he was not able to see it "nicely". He learnt later that the appellant had a firearm but did not say whether that was what h e had earlier seen. PW4, Boniface Musonda, who was at his makeshift stand in the same vicinity also heard the alert and headed for the shop. Before he could get there he saw t h e appellant and his accomplice leaving the shop. The accomplice managed to escape in the vehicle. The appellant was apprehended and he dropped a black bag which h e had in his hand and it opened. The witness saw a firearm. The firearm was in pieces with a piece which looked like a plank. He J3 likened it to th ose used fo r k illin g a nimals . In court, th e wit n ess identified t h e firearm wh ich was now assembled by th e piece of "p lan k:' he claimed to h ave seen earlier. PWS, Detective Sergea nt Conrad Andeleki who was the a rresting officer learnt from PW4 wh en h e rus h ed to t h e scene of the ro bbery th at a n a ir gun h a d been recovered. He stated a lso th a t PW2 com p lain ed th at two m en a rmed wit h fir earms h ad a ttack e d and robbed him. He la ter on assembled the a ir gun and sent it to police foren s ic ba llis tics for examina tion . He stated t h at it would take a few minutes to disassemble t h e firearm . PW6, Vincent Riggy Chibesa, th e police forensic ba llistics exper t, received and examined th e firearm a nd stated th a t it was a Brazilia n m a d e Armed Ross Shotgun. He found that it was func tiona l a nd opined th a t it was cap a ble of loading and d isch a rging cartridges (bullets} of the 18. 5 mm calibre otherwise known a lso as 12 bore. The a ppellant's d efence was t h at h e knew n othing a bou t th e u se of a n y firearms during the robbery. In a n y ca se, th is appeal is not a bout th e m erits of th e appellant's defence. J4 The tria l judge regarded the evid ence of PW's 2 , 3 , 4 a nd 5 as unmistakably establishing that at the tim e of th e robbery, the appella nt was a rmed with an offensive weapon, more pa rticula rly a dangerous firearm . Having convicted the appellant she went on to impose the d eath penalty citing th e case of Simon Mudenda v The People 1 in which this Court held that the death pen a lty is m a ndatory for a n aggravated robbery committed when the accused is armed with a firearm and that the Court cannot take into consideration any extenuating circumsta n ces or pass a n y other sentence. The amended ground of appeal a lleges that the trial court misdirected itself when it convicted the a ppellant under section 294 (2) of the Penal Code wh en the evidence adduced did not establis h that a firem an was u sed in the robbery. In his written Heads of Argument which Mr Phiri, fully relied upon, h e submitted that the prosecution did not establish tha t the appellant was armed with a firearm as defined under the Firearms Act. Counsel cited the case of John Timothy and Feston Mwamba v The People2 in which this court h eld inter a lia that: JS (i) To establish a n offence under section 294 (2) (a) of the Penal Code the prosecution must prove that the weapon used was a firearm within the meaning of the Firearms Act, Cap . 111, i.e. that it was a lethal barrelled weapon from which a shot could be discharged or which could be adapted for the discharge of a shot. (ii) The question is not whether any particular gun which is found and is alleged to be connected with the robbery is capable of being fired, but whether the gun seen by the eye-witnesses was so capable. This can be proved by a number of circumstances even if no gun is ever found . Learned Counsel s ubmitted that PW2 's eviden ce that the appellant and his accomplice h a d a gun [or guns) is not reliable becau se his evidence was not clear how h e saw the fire arm when h e was b lindfolded; a nd th at h e could not h ave seen the gun pointing a t Junior for the same reason. Counsel pointed out to the effect that PW3's evidence was equally not r eliable as his evidence was that h e did not see what was in the bag "nicely" s tating only th at the bag contain ed something which looked like a plank. Counsel a lso criticized the evidence of PW4 because th e firearm was not disassembled in court for the witness to confirm whether that was what h e saw during th e occurrence of t h e d ebacle and th at it fitted the appellant's b ag. It was Coun sel's contention, t h erefore, that the conn ection between the purported gun and the exhibit produced in court was not established. Counsel a dded t h at "the chain of custody" JG of the gun was not fully establis h ed beginning with th e person wh o picked up the firearm at the scen e and handed it over to the po lice. Counsel accordingly submitted that the a ppeal should be upheld a nd the death sentence set aside. In response, Ms. Muwamba contended that there was sufficient evidence to uphold the conviction under section 294(2) of the Penal Code. She contended to the effect that the evidence of PW's 2, 3, 4, 5 a nd 6 clearly established that PW2 saw the a ppellant with a gun at the time of the attack which he shortly a fter wards pointe d at Junior; that the a ppellant must have disassembled it into three parts one of which looked like a plank, and put it in the bag just before he was apprehended; that PWS confirmed that the firearm could b e disassembled within a few minutes. Counsel asserted in effect that this was the firea rm that was taken for ballis tic examination and which PW6 found "was able to fire". It was submitted that the court below was on firm ground when it convicted a nd senten ced the appellant to death. In reply to Ms Muwamba's respon se, Mr Phiri ins isted that PW2 h ad not testified at a n y time that h e saw the appella nt assemble and J7 disassemble the gun. Coun sel stated that (according to his evidence) PW2 was blindfolded and could n ot have seen Junior b ein g threaten ed with a gun. We have cons idered the single ground of app eal and the spir ited arguments from either s ide. The question to decide is whether the a ppellant and his accomplice had a firearm or firearms during the robbery. In this case we agree with the appellant that if we are to follow the sequence in which PW2 recounted the eve nts of that morning, then we must find that the witness was already blindfolded when Junior came on the scene and could not h ave seen t h e appellant point a gun at him. The evidence of PW2 is, howeve r , that the first time he wanted to scream after he was pulled to the ground and a cloth was stuffed into his mouth, the a ppellant's accomplice threatened to shoot him. The threat was soon repeated when PW2 tried to scream again and the appellant's accomplice instructed the accomplice "to produce a gun" to shoot him if he screamed again. He was then blindfolded. If this were the only evidence a dduced it would leave a lingering doubt that a firearm was u sed a t a ll, in view of the possibility that the JS robbers may only have been pretending that they were armed in order to aid the execution of the robbery. The evidence of PW3 , however, indicates the possibility that th e a ppellant and his accomplice were a rmed when he said that h e saw the accomplice with a small fire arm which he used to threaten those at the gate b efore making his escape. The witness also saw something which looked like a plank in the appellant's bag but did not see it properly, as we understood the expression "nicely" to mea n . PW4 , however, said he saw a disassembled firearm in the a ppella nt's bag when it dropped with a piece that looked like a plank. At the tria l of the matter, he identified the firearm which was now assembled by the piece of plank. It should be noted that PW3 and PW4 were at the scene at the same time and whereas they were not able to give the same or s imilar evidence of what they saw, it is clear that their eviden ce was substantially similar in the material respects confirming that at the time of his apprehension, the appellant dropped a bag which contained an object or objects whose common feature in th e eyes of the two witnesses was a piece which looked like a plank. The evidence J9 of PW4 as such confirmed the evidence of PW3 th at coming out of th e robbery th e a ppella n t was carryin g a b ag w hich con tained a dismantled firearm . From this evidence, it is clear th at this is the firearm which the accomplice told th e a ppella n t to p roduce a nd shoot PW2 with thus establis h ing th a t th e appellant and his accomplice h a d the firearm at their dis posal. We h ave n o doubt that it is the sam e firearm th at wa s in the b ag which th e a p pellant dropped wh en h e was a ppreh ended and was given to PWS , th e a rresting officer a nd onward to PW6, the foren s ic b a llistics exper t wh o confirmed that t h e firearm wa s a letha l weapon capa b le of disch argin g live ammunition of t h e requis ite ca libre . We a ls o accept th a t PW2 saw the firearm as he stated . Indeed , the a ppella n t h a d enough time to dis mantle it b efore h e tried to e s cape b earing in mind the evid ence of PW5 th a t it could b e disassembled within a few minutes . It is a lso nota b le that th ere was n o con ten tion th a t the a ppellant's accomplice was a rmed wit h a fir earm seen by PW3 which h e u sed to secu re h is geta way in the vehicle th at was waiting at the gate . JlO On the basis of the foregoing evidence we h ave no doubt that the appellant was properly con victed under section 294(2) (a) of the Penal Code and sentenced to death. We find no merit in the appeal. We dismiss the appea l and confirm the conviction and sentence of death. ~")}-" , l ' ················ ~···c·················· E. M HAMAUNDU SUPREME COURT JUDGE C. KAJ ANGA SUPREME COURT JUDGE . ······················t .............. . J. CHINY A SUPREME COURT JUDGE ' Jll