Edward Kamwinda and Anor v People (Appeal 15 of 2005) [2007] ZMSC 123 (8 November 2007)

IN THE SUPREME COURT OF ZAMBIA APPEAL NO 15 OF 2005 HOLDEN AT KABWE (CRIMINAL JURISDICTION) BETWEEN: EDWARD KAMWINDE 1st APPELLANT AND MUDANYA CHIPAPA 2nd APPELLANT VS THE PEOPLE RESPONDENT Coram: On 7th August, 2007 and 8th November, 2007 Sakala, CJ., Silomba and Mushabati, JJS. For the Appellant: For the Respondent: P. Mu tale - Principal State Advocate A. C. NKausu - Principal Legal Aid Counsel JUDGMENT Mushabati, JS., delivered the Judgment of the Court. Cases referred to: 1. Chola Vs. The People [1975] Z. R. 142 2. Mkandawire Vs. The People [1978] Z. R. 46 3. Chizu Vs. The People [1979] Z. R. 225 4. AU and Another Vs. The People [1973] Z. R. 232 Legislation referred to: Penal Code, Cap. 87 - S. 294 (1) This is an appeal against both conviction and sentence. The appellants were charged and convicted of one count of aggravated robbery contrary to Section 294 (1) of the Penal Code, Cap. 87 of the Laws of Zambia. J 2 The particulars of the offence were that the two appellants, on 1st October, 2002, at Lusaka in the Lusaka District of the Lusaka Province of the Republic of Zambia, jointly and whilst acting together with other persons unknown and whilst armed with firearms, did steal from Dr. Parchai Ramesh one motor vehicle, BMW Registration No. AAT 6002, one camera, one music system, one video deck, one cell phone, one wristwatch, five gold chains, one trimming set, one bicycle, one wall clock, one televisions set, one bag, three pairs of shoes, US$ 2,500 and K300,000 cash altogether valued at KI 15,457,000 and at or immediately before or immediately after the time of stealing did use or threatened to use actual violence to Panchai Ramesh in order to obtain the said property or to prevent or to overcome resistance to it being stolen. Each of the appellants was sentenced to 25 years imprisonment with hard labour. The undisputed facts of this case are that the complainant was robbed of his goods on the material day and that most of the stolen property was not recovered except for the vehicle. The vehicle itself was not recovered from any of the appellants. Use of violence or threats was also not in dispute. The dispute was whether the appellants were the thieves or robbers who robbed P. W.l of his property. The evidence in support of the charge was that P. W. 1, Ramesh Panchai, a medical doctor, was dropped by the gate, by an official car, when he went for lunch. He knocked on the gate but nobody came to open it for him until his wife, P. W.2, arrived in her BMW car Registration No. AAT 6002. The gate was opened after his wife had sounded her horn. P. W. 1 asked the servant who opened the J 3 gate why he did not open the gate when he was knocking. As P. W.l was walking towards his house, he heard someone shout "hold on, stop," of which he obliged. P. W.l saw a man who was pointing a gun at him and later went to the car and pulled out P. W. 2. He, (P. W.l), and his wife were then both ordered to lie down. P. W.l had his hands tied behind his back. Later on one man, brandishing a screw driver, ordered P. W.l and P. W.2 to go into the house where P. W.l was again ordered to lie down whilst his wife was told to sit on a sofa. They were threatened to be killed by a man who had a firearm. P. W.l told his assailants that he was going to co-operate with them. They then demanded for some money which they took after being shown where it was. This was US $ 2,500, R 5000 Indian Rupees and some assorted notes in British Pounds and South African Rand. The armed man then demanded for Zambia Kwacha and P. W1 told him where to find it. The two men, one armed with a screwdriver and the other one armed with a firearm, were later joined by a third man, who appeared to be in an angry mood. The third man hit P. W.l with the butt of his gun on the shoulder. P. W.l promised to give them all that they wanted but asked them why he was subjected to beatings. Several items, which included a cell-phone, video camera and many others, were stolen. P. W.l and his wife (P. W.2) were locked up in the bathroom. They were rescued, from there by some men from Armcor Security Company. When they were rescued none of their servants was around. P. W.4, Jerico Malumbe, one of the servants, who opened the gate for P. W.l and P. W.2, I J4 saw three men who emerged from some flowers nearby. Two of them were armed with firearms and he was ordered to lie down. He was blind folded and had his hands tied behind and put in a vehicle. Later the armed men drove away from P. W.l's home. P. W.4 was dumped and abandoned in the bush around Chongwe. He, (P. W.4), and his co-worker, one Jason Banda, were detained by the police for three weeks as suspects. The two workers helped the police in apprehending the two appellants. An identification parade, according to P. W.3, the arresting officer, was conducted at Chelstone Police Station after the two appellants were apprehended. P. W.l was able to identify both appellants but P. W.2 identified only the first appellant but said under cross examination that she did not identify anybody at the parade. P. W.l was informed by the police of the recovery of his vehicle and he found and collected it from Kabangwe Road Block. The two appellants were arrested by P. W.3 for the subject offence after an identification parade. The two appellants were put on their defence and each one of them gave evidence. The first appellant told the court that he was picked from his home, where he was found sleeping, on 18th October, 2002. The police searched his house but nothing was recovered from there though he was not told what they wanted. He was then taken to Chelstone Police Station where he was detained for some time before taken into an office where he found four Indians and three blacks. It was at that stage that he was charged with the offence of aggravated robbery which he denied. J 5 The second appellant stated that he too was apprehended on 18th October, 2002 at or about 07.00hours. He was asked to lead the police officers into his house, of which he did. The police officers did not tell him what they were looking for. Nothing was recovered from his house, but he was taken to the police station where he was detained. He was taken from the cells on 25th October, 2002 to an office where he was charged with the offence of aggravated robbery. He denied attending any identification parade. At the conclusion of the trial, the two appellants were convicted of simple aggravated robbery because the learned judge was not satisfied that the alleged firearms which were used were capable of firing. This appeal was argued on one ground; namely: That the trial judge erred in law and in fact when he held that the appellants were identified by P. W.l and P. W.2. Mr. Nkausu argued that the first appellant did state that he never attended any identification parade. The evidence relied on, for conviction, was that of P. W.l and P. W.2. However, P. W.l said, elsewhere in his testimony at page 7 of the record in particular, that he and his wife were merely shown the suspects at the Police Station. The counsel further argued that the evidence of these witnesses could not be relied upon in the absence of further evidence linking the appellants to the charged offence. In reply Mr. Mutale, the Principal State Advocate, said, on behalf of the state, that he did not support the conviction because the only evidence against the appellants was that of identification, which was not supported by any other J 6 independent piece of evidence. The stolen vehicle was not tested for possible finger-prints on it. We have considered the evidence on record and submissions by both counsel. We are satisfied that a robbery took place in this case and that several items were stolen. We are also satisfied that despite several items having been stolen only the vehicle was recovered but how it was recovered is not clear. P. W.l merely said that he was informed of the recovery of his vehicle and that he went to Kabangwe Road Block to collect it. No evidence of its recovery was adduced. The Court was not told where it was found and whether it was recovered from anybody. The evidence relied upon by the trial judge was that of identification which was disputed. Indeed, the Police Officer who conducted the said identification parade, was not called to give evidence. The appellants contended that no identification parade was conducted. Mr. Nkausu buttressed his argument on this piece of evidence by what P. W.l said at page 7. He said: I was called in first and shown the suspects. I identified two of them who were the ones armed on that day. My wife was also called. The question is what did P. W.l mean in the foregoing statement? Our understanding is that P. W.l must have been taken into an office where he was shown the two appellants. If the two appellants were first shown to the complainant; then no useful purpose was going to be served by an identification parade. This case is distinguished from the case of Chola Vs. The People (1) in which we said there is no need for an identification parade to be J 7 conducted if an accused person is seen and identified at the Police Station if the identification is unsolicited for. It may so happen that a complainant walks into a Police Station to make a formal report of a committed crime and he finds and identifies the suspect on his own. This was not the case here because P. W.l, in his own words, said " I was called in first". We are surprised that the officer who conducted the identification parade, if at all one was ever held, was not called as a witness and no reason was given why he was not summoned. In our view the evidence of identification was generally poor. Where the evidence of identification is poor there must be some connecting link between the accused person and the charged offence, such as recovery of some recently stolen property from him or with his help. We said in Mkandawire Vs. The People (2) that evidence of a single identifying witness must be treated with greatest caution because of the danger of an honest mistake being made. This possibility cannot be ruled out unless there is some connecting link between the accused and the offence which would render a mistaken identification too much of a coincidence. In so saying, we must not be understood to mean that a conviction cannot be based on the evidence of one identifying witness because we clearly said in Chizu Vs. The People (3) that there was no rule of practice or law for the corroboration of the evidence of a single witness and there was nothing improper in allowing the conviction to stand on the evidence of one prosecution witness alone. J 8 We are unable to follow the latter case in the instant case, though we are satisfied that P. W.l had been robbed at gun point during day time, because he did not have sufficient opportunity to identify his assailants, more so the holding of an identification parade itself was doubtful. In the absence of proper evidence of identification, the Court below was left with mere evidence of courtroom identification by both P. W.l and P. W.2 which, on its own, has little or no value at all as we said in AH and Another Vs. The People (4). We accept Mr. Nkausu's submission that it is unsafe for this Court to allow the conviction and sentence to stand. The learned Principal State Advocate conceded and rightly so, that the state did not support the two appellants' convictions. For reasons we have given above, the convictions are set aside and sentences quashed. The two appellants are acquitted and are set at liberty. E. L. Sakala CHIEF JUSTICE S. S. Silomba SUPREME COURT JUDGE C. S. Mushabati SUPREME COURT JUDGE