Arthur C. Chinyemba and Anor v People (SCZ Appeal 145 of 1995) [2000] ZMSC 134 (1 February 2000)

IN THE SUPREME COURT OF ZAMBIA HOLDEN AT LUSAKA (Criminal Jurisdiction) SCZ APPEAL NO. 145/95 ARTHUR C. CHINYEMBA WILLIE SEKEKUNI BANDA 1st APPELLANT 2nd APPELLANT Vs THE PEOPLE RESPONDENT Coram: Chaila, Chirwa, Lewanika, JJs 4th January and 1st February, 2000 For the Appellants : In person For the Respondents: Mr. V. A. L. Kabonga, Assistant Principal State Advocate Chaila, JS, delivered the judgment of the Court. JUDGMENT Arthur C. Chinyemba and Willie Sekelani Banda, hereinafter referred to as “the appellants”, have appealed against the decision of the High Court convicting them of armed aggravated robbery contrary to Section 294(2) of the Penal Code and against the sentence of death imposed upon them. The brief facts of the case were that the appellants faced a serious offence of aggravated robbery, whose particulars were that they, the appellants, together with other persons on 17,h June, 1992 in Lusaka jointly and whilst armed with a firearm robbed Cecilia Mubanga of money and that they used at the time of stealing the money, actual - J2 - force on the complainant in order to retain the property or to prevent resistance to it being stolen. The prosecution’s case was that on 7th June, 1992, the complainant, Cecilia Mubanga, while employed as a cashier with Zambia Breweries Kafue Branch, prepared deposit slips after the closure of the tavern so that she could bank the day’s takings in the night safe at Zambia National Commercial Bank, Kafue Branch. She hired a taxi to take her and the security guard to go and deposit the takings for that day in the bank before the night. They drove to the Zambia National Commercial Bank around 13.00 hours. As the taxi waited for them, she and the security guard walked to the night safe. She took out the wallets from the bag and pushed one in. Before she could push in the second wallet, somebody from the back pointing a gun at her and said “ima stop”. She turned round and saw a man pointing a gun and holding a knife in the other hand. She was gripped with fear and she abandoned the bag containing the money and started to run away. When she ran for about 23 metres, she heard one of the assailants order the taxi driver to given him the keys to the taxi. She looked behind and saw that there were six (6) people. The two were standing at the place where the security guard was and the rest were underneath a tree where the taxi was. She continued to run to the police station. As she ran she saw a white Peugeot 504 coming in her direction. At first she thought she would seek assistance from that motor vehicle, but she realised that in fact that motor vehicle was being used by the attackers and it was speeding in a different direction. She continued running to the police station. She got to the police station and made a report. She was kept at the police station until the following morning when the police apprehended the 1st and 2nd appellants. On the money she testified that at the time she was ordered to stop, she had only deposited KI 50,000. The police held an identification parade and she recognised the 1st and 2nd accused persons during the trial who happened to be the appellants. According to her, the 1st appellant was the one holding an AK 47 and he was the one who collected the money bag from the bank. The 2nd appellant was the one who pointed a pistol at her and ordered her to stop. The guns involved were exhibited and were identified. Her evidence was collaborated by the security guard. The - J3 - police investigated the matter after receiving the report of the robbery of Zambia National Breweries money which was about to be banked. The report was made to the Commander of the Flying Squad. The Chief Inspector from the Squad testified that when he received a report about the robbery, he directed all vehicle belonging to his department to monitor vehicles coming from Kafiie as it was reported that the people who had been involved in the robbery had driven off from Kafue and were coming to Lusaka. He had all the details of the motor vehicle in question and he communicated that information to his members. The Chief Inspector himself, Mr. Lilungwe, jointed the search party. He started off for Kafiie. When he passed Andrew’s Motel, he noticed one of the patrol cars chasing a Peugeot 504 which fitted the description of the vehicles being used by the suspects. He gave instructions to his men to deflate the tyres. Unfortunately, his men accidentally shot the driver of the Peugeot 504 used by the robbers and the driver died immediately. Other passengers in the Peugeot 504 tried to get out of the car and took to their heels. The police who were very close pounced on the two passengers, i.e. 1st appellant and 2nd appellant, the other two managed to escape. The Chief Inspector searched the car and found in the boot an AK 47 in a bag serial No. 105298. The Chief Inspector also found 27 rounds of ammunition, a toy pistol and a knife. He also found another bag wrapped in a red jersey containing K556,990. The Chief Inspector produced all the exhibits which were marked. These were AK 47; pistol; blue bag; red jersey; pink beret and a black cap. The police held an identification parade where the appellants were identified. The appellants in the lower court denied being involved and maintained that they were wrongly apprehended when they were doing normal business of buying and selling eggs. The learned trial Judge considered the evidence before her and concluded that the evidence of PW1 and PW2 was very impressive and that they were credible witnesses and the appellants were duly convicted and they were sentenced to death. The appellants have appeared in person. They have submitted their written grounds and have relied on these written submissions. They have in their submissions raised one main ground and this is that the police were guilty of dereliction of duty in that - J4 - they failed to produce the money which was allegedly stolen by them. They have further complained that the learned trial court failed to request for the motor vehicle which was used by the robbers. They have argued that the failure to produce the vehicle used in the robbery mounted to dereliction of duty. They have complained further that the photographs taken at the identification parade were not produced. They have further complained that the anti-robbery squad witnesses who apprehended them were never called to testify and that there was no police officer from Kafue Police Station to come and testify. The Assistant Principal State Advocate in support of the conviction argued that there was overwhelming evidence against the appellants. On the money, the learned Assistant Principal State Advocate argued that the money went missing at the police station and although the money went missing, there was other evidence to prove that the offence was committed. In her judgment, the learned trial Judge considered the evidence of the prosecution. She further considered the evidence of the appellants. She analysed the issues involved and concluded that the evidence of the prosecution witnesses was very credible. We have read and considered the evidence on record and the judgment of the learned trial Judge. The evidence shows that when the robbery was committed it was during the day time. The prosecution witnesses, i.e. PW1 and PW2, had an opportunity to observe the appellants. Their evidence showed that there was a pistol and AK 47 and that the robbers were using a Peugeot 504. The evidence of the Chief Inspector of the Flying Squad collaborated the evidence of PW1 and PW2. The Peugeot 504 which answered the description of the vehicle the robbers were using was shot at and the driver was killed. The Chief Inspector inspected the vehicle and found an AK 47, a pistol and money. The appellants were seen coming out of the vehicle and were apprehended. PW1 and PW2 identified the appellants on the parade. The evidence clearly showed that PW1 and PW2 were very reliable witnesses. We agree with the submissions of the learned Assistant Principal State Advocate that there was ample evidence to justify the conviction. The appellants have complained about the exhibits and money. Some of the - J5 - exhibits were produced. The learned Assistant Principal State Advocate argued that although the money was missing, there was other evidence to justify the conviction. There was, from the record, ample evidence that money was stolen and that PW1 was threatened with an AK 47 and a pistol. Although the money went missing at the police station, there was from the record, ample evidence that the money was stolen. We find that the learned trial Judge was on a firm ground in convicting the appellants. The appeal against the conviction is dismissed. As to sentence, we find that there was no other sentence the learned trial Judge could impose in this case and the appeal against sentence is also dismissed. M. S. CHAILA SUPREME COURT JUDGE D. K. CHIRWA D. M. LEWANIKA SUPREME COURT JUDGE SUPREME COURT JUDGE