Mbewe v People (SCZ Appeal 133 of 1993) [1994] ZMSC 170 (18 January 1994)

ih he supreme com gf zwia / scz Appeal ao. 135 of 1993 'iOUEK AT LUSAKA (Criminal Jurisdiction) EDUARD H3EHE vs PE PEOPLE . Appellant Respondent CORAM; Chai la, Chirwa and Huzyamba JJJ. S. For the Appellant ; Hr, O. E. Ndlovu, Luso Chambers, ChIngola For the Respondent : Mr, S*A. G, Twumasi, Assistant Senior State Advocate 10th January, 1994 Chaiia, J>s. delivered the Judgment of the court, ;> • - • A The appellant was charged with the offence of aggravated robbery contrary to Section 294 of the Penal Code. The particulars alleged that he stole together with another person a lot of goods listed in the information and during the offence he threatened violence to the complainant. We would like to point out that the information did not disclose that a firearm was used during the robbery. The evidence, however, revealed that a firearm was used during the robbery and during the trial the State never applied to have the particulars changes or amended to allude to the fact that a firearm was used. The trial judge after going through the lengthy evidence produced by the State convicted him of the offence and sentenced him to death, invoking the provisions of Section 294 (2) of the Penal Code. • ■ He has appealed to this court against both conviction and sentence. When the matter appeared first in Kdoia, the court was given grounds filed by the legal Aid, but this morning the appellant withdrew the grounds and heads of argument presented by the Legal Aid department and tn their place he gave us his own written submissions. The nutshell of his grounds of /2...appeal is * 42 appeal Is that the learned trial judge misdirected himself in convicting hla firstly of a capital offence since the prosecution did not call any expert witness to establish that the offence was committed under Section 294 (2) of the Penal Code. Secondly he has submittted that the learned trial judge erred th relying on the prosecution evidence which was totally unreliable and weak* We asked the State about their position on the charge and conviction. The State Advocate has rightly conceded that the trial judge should have not invoked the provision of Section 294 (2) since the particulars of the offence did not mention the use of a firearm, On that ground alone the <• appeal against sentence will be allowed. The trial judge should have not sentenced the appellant to death when the offence did not refer in the charge or information and particulars of evidence that a firearm had bean used. As regards conviction, the evidence as adduced by the prosecution was overwhelming on the stealing of the goods, and on the force used against the complainant. The learned trial judge considered the evidence * ' ' *' ,v ■ f r'r • . ■ In detail and came to that conclusion that the offence of aggravated robbery was committed. The appeal against conviction is therefore dismissed. As to sentence, the facts or the evidence as produced by the prosecution showed that a firearm was used. The appellant was very lucky not to have been charged under Section 294 (2) of the Penal Code. We feel In this matter that the sentence of 30 years imprisonment with hard labour is most appropriate. Death sentence is therefore sot aside and • ••••**'** ■ ' * • . 7,**"’ ’»?*.• • ’ /3....in its place 03 * ■ * •Jn- f tn its place wa impose a sentence of 30 years laprlsonwnt with hard labour . . . - y<- . . r - ■- with affect froa the date of arrest. M. S. Chat la SUPREME COURT JUDGC -.*v ■ !.< ■ ■ •./ . ” ' ■ „■ . . : O. K. Chirva SUPREME COURT JUDGE i '•£ .- ■ • , • 4- : ; ■ .■ -S ! ri'S j ’ . ",."ft ;-r \, » £ . ■ ' r T! v ••, jf - ■• ■ -T A; H-/ •ZUP