Emmanuel Mulenga v The People (SCZ Appeal No. 37/2006) [2007] ZMSC 158 (7 March 2007)

IN THE SUPREME COURT OF ZAMBIA SCZ Appeal No. 37/ 2006 HOLDEN AT NDOLA (Criminal Jurisdiction) In The Matter Between: EMMANUEL MULENGA APPELLANT AND THE PEOPLE RESPONDET Coram : Sakala, CJ., Silomba and Mushabati JJS On 5th December 2006 and 7th March 2007 For The Appellants: Dr. J. Soko of Josias & Partners For The Respondent: Mr. C. F. R. Mchenga, Director of Public Prosecutions JUDGMENT Sakala, CJ., delivered the Judgment of the court. Cases Referred to : 1. Katebe V. The People [1975]ZR 13 2. Mulenga Vs The People, [1972]ZR. P. 272 The appellant was sentenced to death following upon his conviction for the offence of aggravated robbery contrary to Section 294 (2) of the Penal Code, Cap 87ofthe Laws of Zambia. The particulars of the offence alleged that the appellant, on 8th February 2004, at Ndola in the Ndola, District of the Copperbeit Province of the Republic of Zambia, jointly and whilst acting together with other persons unknown and whilst armed with a fire arm, robbed Peter Kaluba of one radio cassette recorder and one pair of bed sheets all together valued at K8,637,000, the property of the said Peter Kaluba and at the time of the robbery used actual violence to the said Peter Kaluba in order to retain the said property. The fact that there was a robbery at the home of Peter Kaluba on the 8th of February 2004 in which the said items were stolen was not in dispute. The evidence connecting the appellant to the offence came from PWs 1 and 2. According to the evidence of these two witnesses, at about 2030 Hours on 8th February 2004, they were in the verandah of their house when they were attacked by four people. Three of the attackers had masks on their heads while one had no mask. The one who had no mask was carrying a gun. The four ordered them to get into the house. In the sitting room, they were ordered to sit on the floor. Then the attackers started collecting the items. After collecting the items, they went outside where they fired five gunshots. According to PW1, as the attackers were going, they fired another four shots. The further evidence of these witnesses was that at the time of the attack, there was electricity light in both the verandah and the sitting room. They were able to observe one of the attackers who had no mask on. The incident lasted for two hours. The matter was subsequently reported at Twapia Police Post. Later they were called to Ndola Central Police Station where they attended an identification parade. At the parade, both PWs 1 and 2 identified the appellant as one of the attackers who had no mask on at the time of the robbery. The evidence of PW1 in cross-examination was that before he was made to sit down, he struggled with the appellant. The further evidence of PW2 was also to the effect that during the robbery, one of the three masked people mentioned the name of the one who had no mask on as “Emma.” He was advised not to shoot anyone of them. The evidence of PW3, the father of PWs 1 and 2 was that he had left his home to visit his sister at 1900 Hours on 8th February 2004. He left PWs 1 and 2 at the house. While at his sister’s house, he heard gunshots. He returned home and found the items, the subject of the robbery, stolen. PW4 was a Police Officer who conducted the identification parade on 21st April, 2004 at which the appellant was identified by PWs 1 and 2. PW5, also a Police Officer, arrested the appellant for the offence of aggravated robbery. In his defence, the appellant gave a long story of how he went about with his friends on 8th February, 2004 drinking at various bars until 2100 Hours on the same day. There after, together with others, they left to go to their respective homes. In the morning of 9th February 2004, on his way for work, he found a lot of women who had gathered. He learnt that thieves had gone to steal at Overspill the previous night. While at work, he learnt that his name “Emma” had been mentioned as one of the persons who went to steal. He explained that he was known in Twapia and people called him “Emma”. He used to drink from the old Twapia Market. He further testified that on 12th April 2004, he was apprehended in connection with the offence of aggravated robbery. He denied being involved in the robbery. He explained that he was taken from Lubuto Police Post, to Ndola Central Police Station. At Ndola Central, he was taken to room 101 where he found two Police Officers and other people seated on the bench. Later on the same day, there was an identification parade at Ndola Central Police Station. According to his evidence, while on the parade, they were given numbers. Names were written on the numbers and the Police put an X on his name. He said he was identified by two people at the parade. One of the people who identified him was one of those he found in room 101. In cross-examination, the Appellant testified that he was known as Emma; that on 8th February 2004, he moved from bar to bar within Kaela area which was far from Overspill. He returned home at 2200 Hours. Among the people he found in room 101 was PW2. He testified that the parade was unfair. He further testified that PWs 1 and 2 lied when they told the Court that they saw him at their house. The learned trial Judge found that the evidence of PWs 1 and 2, which was not disputed, established that they were attacked while at their home by four men one of whom was armed and that their attackers stole the property described in the information after threatening them; and that their attackers actually fired in the air. The Court concluded that in the circumstances, the evidence established the offence of armed robbery. The Court noted that the evidence implicating the appellant came from PWs 1 and 2; that they were attacked by four men, three of whom had masks, while one who had a gun was not masked; that at the time of the attack, there were electricity lights both in the corridor and in the sitting room; that the two witnesses had enough opportunity to observe the one who had a gun, whose face was not covered, and whom the others called Emma; and that PWs 1 and 2 identified the appellant at an identification parade without difficulties as confirmed by PW4, a Police Officer, who conducted the parade. The learned trial Judge considered the appellant’s evidence in defence. He noted the appellant denied being part of the people who attacked PWs 1 and 2; that during the night of 8th February, 2004, he was with others drinking in various bars in Kaela area, a place far from Twapia Overspill; and that PW2 identified him because he had earlier seen him in room 101 and he was shown to him. The Court found the prosecution case more credible than the case of the appellant; and that having observed the demeanour of PWs 1 and 2 on one hand and that of the appellant on the other hand, the demeanour of the prosecution witnesses was impressive than that of the appellant. The trial Judge was impressed with PWs 1 and 2 as honest and truthful witnesses who were not shaken in cross-examination. The Court found no reason to doubt their evidence whereas on the other hand the Court found that the appellant was not impressive as a good witness. According to the trial Judge, the appellant gave him an impression that he was capable of telling lies to save his skin. The Court found it difficult that the appellant and others spent the whole evening of 8th February 2004 shuttling between bars. The Court found as a fact that the appellant was properly identified as having been at the scene of the robbery and as being the one who was carrying the firearm. The trial Judge rejected the defence of alibi as an after thought. He accepted the evidence of PWs 1 and 2 that the appellant was the one who had the gun and he fired in the corridor through the roof; that as they were leaving, the appellant fired some more shots; and that five empty cartridges were picked the following morning by PW1 and handed to the Police. Although the prosecution did not call expert evidence to establish the use of a gun, the Court was satisfied on the evidence of PWs 1 and 2, confirmed by the evidence of PW3 that a fire arm was used in the commission of the offence. The Court found the appellant guilty of armed robbery, convicted him and sentenced him to the mandatory death penalty. The appellant has appealed to this Court against both conviction and sentence. On behalf of the appellant, Dr. Soko filed written heads of argument. The gist of the arguments was that there were many serious discrepancies in the evidence of PWs 1 and 2; that according to the evidence of PW1, the attackers fired five gunshots as they were going and another four shots, bringing the total number of shots fired to nine; that while PW1 claimed to have picked five cartridges, he identified six empty cartridges in Court; and that PW5, the arresting officer also claimed to have kept six rounds of ammunition. Counsel submitted that these witnesses contradicted themselves on the number of cartridges picked and cartridges identified in Court. He also submitted that the evidence of PW1 should be treated with suspicion because he did not give full description of the appellant and the clothes he put on; that this was a grave case of dereliction of duty; and that there were a lot of contradictions and discrepancies. Dr. Soko argued that the question of the identity of the appellant and the alibi were not properly analyzed by the trial Court; that the summing up in the judgment was a grave miscarriage of justice. On the question of dereliction of duty and alibi, Dr. Soko relied on the case of Katebe V. The People(1) where the Court held that where a defence of alibi is set up, it is a dereliction of duty for an investigating officer not to make a proper investigation of an alleged alibi. Counsel submitted that the trial Court had no basis to doubt the demeanor of the appellant. Dr. Soko contended that the dereliction of duty should have been resolved in favour of the appellant as per the case of Mulenga Vs The People.(2) He also argued that the identification parade was not fairly conducted because the appellant had been shown to the witnesses before the parade. Counsel cited a number of cases on the issue of identification in support of the submissions on identification and demeanor. Mr. Mchenga, Director of Public Prosecutions, supported the conviction of the appellant. He submitted that there was sufficient evidence of identification by PWs 1 and 2 who had good opportunity to observe and identify the appellant as one of the four robbers who attacked them. Mr. Mchenga pointed out that although the robbery occurred at night, there was sufficient light in the house and that the robbers took long before they left with the stolen property and that the appellant was also identified at the parade. Mr. Mchenga pointed out that the issue of alibi raised by the appellant was an after thought. He also contended that although the firearm was not recovered, there was ample evidence from PWs 1 and 2 and the recovery of empty cartridges that a firearm was used. We have carefully considered the evidence on record and the Judgment of the trial Court. We have also considered the submissions by both learned counsel. The material and salient facts in this case were not in dispute. The fact that there was a robbery at the home of PWs 1 and 2 was common cause. The only issue for determination was the identity of the perpetrators of the robbery. At the time of the robbery, according to the evidence of PWs 1 and 2, there was electric light in the corridor, where the attack first started and in the sitting room of the house where the witnesses were ordered to sit down. According to the evidence of both witnesses, one of the attackers was not masked while the others were masked. The attacker who was not masked was the appellant. This attacker was subsequently identified at an identification parade as the appellant. The appellant’s defence was one of alibi and that he spent the evening of 8th February 2004 drinking from bar to bar with others. The learned trial Judge found that this was an after thought. We agree with him. In our considered view, we find no dereliction of duty in this case. The use of the firearm was established by the finding of five empty cartridges at the scene. We accept that there was a discrepancy as to the actual number of empty cartridges found at the scene; but this did not go to the root of the prosecution case. The evidence of PWs 1 and 2, supported by that of PW3 of hearing gunshots, conclusively established the use of a firearm. There was further evidence of a bullet whole in the roof of the verandah. We are satisfied that there was ample evidence of the identity of the appellant as one of the four attackers who was armed and who had no mask on at the time of the robbery; that at the time of the robbery, PWs 1 and PW2 adequately observed the appellant and had ample opportunity of identifying him. There was light in the verandah where the first attack was done and in the sitting room where the second attack was done. It is also too much of a coincidence that a person who was called “Emma” at the scene of the robbery should turn out to be the appellant. The evidence connecting the appellant to the charge was overwhelming. We find no merit in the appeal against conviction. The appeal against conviction is dismissed. There being no appeal against the mandatory death sentence for armed robbery, the appeal against sentence is also dismissed. E. L. Sakala CHIEF JUSTICE S. S. Silomba SUPREME COURT JUDGE C. S. Mushabati SUPREME COURT JUDGE