Enerst Phiri & Anor v The People (SCZ Appeal Nos. 54 & 56 of 1997) [1998] ZMSC 108 (11 August 1998)

IN THE SUPREME COURT OF ZAMBIA HOLDEN AT KABWE (CRIMINAL JURISDICTION) ENERST PHIRI PAUL BANOA SCZ APPEAL Nos.54 & 56 OF 1997 APPELLANTS RESPONDENT Vs. THE PEOPLE Sakala, Ag. D. C. J.. Chirwa and Chibesakunda, JJS 11th August 1998 Coram: For the Appellants: Mr. B. ~'llmba5 Acting Senior Legal Counsel For the Respondent: Mr. J. lwanakat~e, Principal State Advocata Chibesakunda, J. S. delivered the judgment of the court J U O G M E ~ T The two aooe l lants En erst Phi ri and Pau 1 3anda stand convicted of aggr;:i\•ated robbery co,1trary to Sect ion 294 ( 1) of the P~nal Code, Cap 87 of the Laws of Zambia. The particulars of tile offence are that on 23rd of 1-\!)ril, 1995 at Cnisamba in th~ Cl1isamba District of the ·:entral Province of the Republic of Zambia. jointly a11d ~l1ilst e:cting tog2tr.~r and being armed with a gun, did rob Howard ~bthl:<<2 of a 1.1o~or v2hicl 2 na1n?ly, Toyota Hilux, Registration No.fV'.lH.2553 vall:ed .rt K35,ju0,00:) ,r.illion and at or immediately before or immediately after the time of such robbery did use or threaten to use actual violence to t11e said Hmf:ird /.'otht<s in crder to retain the said property. Before the learnea trial Judge the salient points which the court i:o ca,·ry out his pasi:oral Jui:ies. to a plgce near Chipemoi accepted as provec.i beyond reasonable douDt -~1er2 : Hm·:ard r:oth lke , a Priest was in travdlhl~, Chisamba wi1t!f1 as a yuou 3a;111Jrica11 ,1~ ciecicil:!ci co ~ive a IifT. to ·two men. Soon after these tvm men got i:ito t h2 ve hicle, on~ sitting in front of the vehicle and one sitting behind, ·the one who sat blhind ]rabbed his thr0at whilst the one sitting next to him grabbed l1is legs. He tried to free himself from this ordeal and even tri9d to escape. Unf::.irtu:ntcly this was without success. As he tried to frr2e himself one of ther,1 told l1i s friends to kill him. He then managed to bite the one •,1110 was i"iol ci ing his throat and thus freed himself bolted out from a movin'. J rr,otor v2ti icl:: c1n:l ran into the bush. According to iiO. M\M.2553 valued at r 1~gi s trutivn him He the;1 r~)ortec.i to t i13 ?uiice anc: t o his co,1gngation. Upon i(35 ,000,000 . receipt of information he in co:upany witl1 tiF;! 1);JlicG Gffic~r ·went to certain tile vehicle two men took the J2 !·Jhen U1~ t1·1O appe 11 arrts w0re epprt:!!i-::H1<.i2d the two apologized :,ouse and apprehended tile two appellants. He identified the two appellants as the assail ants. to him in tt1c-! presence of Police Officer at the PolL:2 ~-tation. The Police Officer PW.2 confirmed the story before the court and i1e went on to testify that ti12 ~wo appella11ts confessed to him that they stole the motor vehicle in question from ?W. I. Whs1 the two appellants were put on their defence, they totally df:niecl any involvement in the cor+imitting of both gave evidence ,:1.110 this offence. Mr. Mumba submittir.g on their ber1alf l"ias argued that this court should not uphold the conviction because according to him the identification wa.:. 11ot ptuperly ctone as there was He has also argued that infr1.ct th~ P.1-:.1 did not t1ave a good opportunity to 1·eal ly observe ,10 identification parade. his assail ants. court should ;,.r. i'·1wa11akatwe on th(: other llaml 1-1 ad argued tl1at in fact this have uphold the conviction of the two appellants. It is our In nis judgment he Ne have considered the argurnen ts before this court. view that the learned trial Judge based his verdict totally on the credibility of the ~lit_11ess esp~cially Pw.1. He ruled out any possibility of any mistaken ider1tity of tl1e two appellants. took intiJ account the fc:ic~. that tJ1e whole espade took place in the morning and that there was clear Evell if for argument's sake, there i,,1-3s a possibility of an honest lignt. mistakeri id.entity :rf the:~ appcdlant:., it is tr1e view of this court that P\1.1 1 s evidence rn cross examination tnat tne two r1ppel lants apologized to llim in front cf the Pol ice Offic0r supports tlls conc:usion by the l~rnrned trial Judge that the appellants committed this offence. It is something more. \~e therefore find no merit in tile appeal. !4e dismiss the appeal. As regards appeal against sentence the two convicts ware sentenced to 15 years imprison ment with hard labour 11hicl1 is the minimum mandatory sentence. We therefore cannot disturb that. ·····················~· E. L. SAKALA .. ACTI~G DEPUTY CHIEF JUSTICE .........•.. ........• D. K. CHIRWA SUPREME COURT JUDGE ··················· L. P. CHIBESAJ<UiwDA SUPREME COURT JUDGE