Essau Norman Mwale & 2 Ors v The People (Appeal No. 054, 055, 056/2019) [2019] ZMCA 404 (28 August 2019)

Jl IN THE COURT OF APPEAL OF ZAMBIA HOLDEN AT NDOLA (Criminal Jurisdiction) APPEAL NO. 054,055, 056/2019 BETWEEN: ESSAU NORMAN MWAL FRANCIS HAMANENGA KACHIZA TEMBO AND THE PEOPLE 1 ST APPELLANT ~~D APPELLANT I 3RD APPELLANT RESPONDENT CORAM: CHISANGA, JP, MAJULA AND NGULUBE, JJA. On 20th August 2019 and 28th August 2019. For the Appellant: Mrs. M. G. Kashishi - Ngulube, Acting Principal State Advocate, NPA For the Respondent: Mr P. Chavula, Senior Legal Aid Counsel, Legal Aid Board JUDGMENT NGULUBE, JA delivered the Judgment of the Court. Cases referred to: 1. 2 . 3. 4. s. 6. David Zulu V The People ( 1 997) ZR 151 Bwanausi V The People (1976) ZR 103 Chabala V The People (1975) ZR 1 98 Yoani Manongo V The People (1981) ZR 152 Christopher Nonde Lushinga V The People SCZ Judgment No. 15 of 2011 Machipisa Kombe V The People (2009) ZR Legislation referred to: 1. 2. 3. Section 294 (1) of the Penal Code,Chapter 87 of the Laws of Zambia Section 224(a) of the Penal Code, Chapter 87 of the Laws of Zambia Section 135 of the Criminal Procedure Code J2 1. Introduction 1.1 This is an appeal against conviction and sentence. The three appellants were convicted of one count of the offence of Aggravated Robbery contrary to Section 294 (1) of the Penal Code and one count of the offence of Grievous Harm, contrary to Section 224(a) of the Penal Code, Chapter 87 of the Laws of Zambia. 1.2 The particulars of the first count are that Essau Norman Mwale, Francis Hamanenga and Kachiza Tembo, on 11th June 2015, at Chisamba, in the Chisamba District of the Central Province of the Republic of Zambia, jointly and whilst acting together with other persons unknown and whilst armed with iron bars, stole one AK47 rifle valued at K3, 135.00 from Lawrence Mwanza, the property of the Zambia Police Service and used actual violence on the said Lawrence Mwanza to obtain or prevent or overcome resistance to the property being stolen. 1. 3 In the second count, the particulars are that the three appellants, on 11th June, 2015, at Chisamba in the Chisamba J3 District of the Central Province of the Republic of Zambia, jointly and whilst acting together with other persons unknown and whilst armed with iron bars caused grievous harm to Lawrence Mwanza with intent to maim, disfigure or disable. 1.4 The three appellants were convicted of the offences of aggravated robbery and grievous harm as charged and were sentenced to sixteen years imprisonment with hard labour on count one and ten years imprisonment with hard labour on count two. The said sentences were to run concurrently with effect from 23rd June, 2015. The appellants now appeal against both conviction and sentence. 2.0 Evidence in the trial Court 2.1 At trial, ten prosecution witnesses were called. Their combined evidence was to the effect that: 2.2 On the evening of 10th June, 2015, PWl, Lawrence Mwanza, a Police officer, was deployed to perform official guard duties at Zambia National Commercial Bank (ZANACO) Chisamba branch. He was given an AK-47 rifle as well as twenty rounds of ammunition at the Zambia Police Chisamba checkpoint •- and when he reported on duty at the bank, he found two J4 private security guards from Magnum Security company, whose names were Stanford Tembo and Austin Mweetwa. There was another Police officer who performed guard duties at the Bank that evening, this being Constable Chikamba. 2.3 They conducted foot patrols around the bank until 23:00 hours when PW 1 and the two guards from Magnum Security company entered the guard room as it was getting cold. Constable Chikamba remained outside and he sat in his motor vehicle which was parked near the Automated Teller Machine (ATM) . 2.4 At about 02:30 hours, PWl heard a loud bang and soon thereafter, two men entered the guard room. They ordered him to stand up and raise his hands and also beamed torch light into his face. He was later ordered to lie down. He did so and heard one of the men get the AK 4 7 rifle that dropped from his laps and he began to fidget with it. PW 1 peeped as he lay down and observed his assailants. 2.5 He described one of the men as having been short and light in complexion while the other man was tall. He realised that JS the men intended to harm him as one of them handled the safety catch of the firearm and he got up and attacked him by hitting him around the waist. 2. 6 PW 1 then grab bed the magazine of the AK 4 7 rifle and threw it onto the floor. He struggled with his assailants until he was hit on the head with an iron bar and he fell down. In the process, the two security guards Tembo and Mweetwa ran away as he lost consciousness. Eventually his assailants also fled. 2. 7 When PW 1 recovered from the blow that was inflicted on his forehead, he called the station officer at the Police check point who organized help and he and other Police officers went to the bank. They took PWl to Liteta Hospital for treatment as he had severe injuries. 2.8 He was eventually transferred to Kabwe General Hospital and later to the University Teaching Hospital where he was treated and was admitted for eleven days. PWl stated that the attack lasted for about twenty minutes and that he was able to see his assailants because there was light that emanated from the spot lights outside the bank and illuminated the guard house. J6 2. 9 He sustained a cut on the head which necessitated suturing with twenty stitches. He also suffered a depression on the left side of the fore head and was partially paralysed as his spinal cord was disturbed. 2.10 He identified the medical report that was issued to him after he was treated and it was marked ID 2. He further identified the first and second accused as the two men who attacked him on the material night. 2.11 He stated that the robbers were two metres away from him so he had an opportunity to observe and see them. PWl did not attend an identification parade that was conducted at Chisamba Police station as he was admitted in hospital. 2.12 He identified a magazine that was shown to him in court as the one that he detached from the AK 4 7 rifle on the night of the aggravated robbery. He further stated that the magazine was found in the guard room after his ordeal with the robbers. 2.13 PW2, Stanford Tembo, a security guard at Magnum Security company gave sworn evidence that on the night of 11 th June, 2015, at 02:00 hours, he was performing guard duties at J7 ZANACO Chisamba branch and was in the guard room with PWl, Lawrence Mwanza who was a Police officer and another guard, Austin Mweetwa who also worked for Magnum Security company. A second Police officer, Constable Chikamba was in his motor vehicle outside. 2.14 At about 02:00 hours PW2 heard a loud bang and when the door that he was leaning on was pushed, he fell down. Two men entered the guard room and he described the first man as having been short and light in complexion while the other man was tall. They threatened to shoot PWl, the Police officer and PW2 saw the tall man engage in a scuffle with PW 1 and soon thereafter, the shorter man hit PW2 on his mouth. 2.15 Realizing that he was in danger, PW2 ran to the toilet, jumped out of the window and fled. He went to the nearest compound and called the Police. He later returned to the guard room and found that Lawrence Mwanza suffered serious injuries. PW2 was taken to the hospital at Liteta where he was treated and subsequently issued with a medical report. He identified it in court and it was marked ID3. J8 2.16 On 16th June, 2015, PW2 attended an identification parade at Chisamba Police Station. Ten men were lined up on the parade and PW2 identified the first accused as one of the robbers who attacked him and his colleagues at ZANACO Chisamba branch on the night of 11th June, 2015. 2 .1 7 He also identified the first and second accused in court as the two robbers who launched the attack on 1 I th June, 2015 at the bank. PW2 stated that he was able to see the robbers because there were security lights outside the guard room which lit the room adequately. 2.18 PW3, Austin Mweetwa gave sworn evidence that on 10th June, 2015, he reported on duty at Zanaco Chisamba branch where he worked as a guard for Magnum Security Company. He was in the company of PW 1 and PW2 in the guard room while another officer, Constable Chikamba sat in his motor vehicle outside. 2 .19 At around 02 :00 hours he heard a loud bang on the door of the guard room. Soon thereafter, he saw two men, one of who was tall and wore a black jacket enter the room. They J9 threatened to shoot PW3 and his colleagues and the tall man held an iron bar. PW3 also noticed that the short man had big eyes. 2 .20 The tall man got the Police officer's gun and a scuffle ensued between the Police officer and the robbers. PW3 saw the Police officer kick the tall man who fell down. In the process, the short man hit PWl with an iron bar. PW 3 was filled with fear and he fled from the guard room, jumping out through the toilet window. 2.2 1 The attack lasted for about 10 minutes. When he got outside, PW3 saw a third man who stood against the wall. He ran and reported the matter to Chisamba Police checkpoint. He later returned to the guard room and found that PW 1 was badly injured. 2.22 On 16th June, 2015, PW3 attended an identification parade which was conducted at Chisamba Police station. He identified two men on the parade as the robbers who attacked him and his colleagues on the night of 11 th June, 2015. He also identified the first and second accused in court as the JlO robbers he identified at the parade, who attacked him and his colleagues on the material night. 2.23 He stated that he saw three robbers that night as the third man stood outside. He identified the metal bar and the torch which the robbers left in the guard room after they fled . 2.24 PW4 was Kalelwa Mwauluka, a Police officer based at Chisamba Police whose service number was 35986. His testimony was that on 11th June, 2015, he was on duty at Chisamba Police check point when he was informed by the shift officer at about 02 :00 hours that a robbery had occurred at Zanaco Chisamba branch. 2.25 Inspector Mwanza and other police officers rushed to the bank while he remained at the check point. As he examined the motor vehicles that passed through, he saw a Toyota Corolla which was driven from the north to the south. He stopped the vehicle and noticed that it had a shattered windscreen. He then requested for a Police report as well as the driver's licence. 2.26 The driver gave him a driver's licence, voter's card and a police report. PW4 peeped into the motor vehicle and he Jll noticed that the driver had one male passenger who looked uncomfortable. He asked the driver to park the motor vehicle off the road so that he could search it. 2.27 As he did so, he found a grinder and three cutting discs in the boot which were unused. He also found a crow bar and he asked the driver why he had all these tools in the motor vehicle. The passenger told the driver to give PW4 some money so that he could let them go. 2.28 PW4 examined further and noticed a liquid which looked like water on the crowbar and realised that it was fresh blood. He asked the driver to explain. When the driver saw this, he sped off in the direction of Lusaka and left the passenger. PW 4 struggled with the passenger until other police officers at the check point noticed this and went to his aid. 2. 29 The passenger was apprehended and taken to the office where he was searched. He was found with four detonators and a packet of matches. PW 4 later came to know his name as Essau Banda. The driver's licence and the voter's card bore the names Kachiza Tembo. PW4 produced them in court and they were admitted into evidence and marked exhibits P6 and J12 P7, respectively. PW4 went on to identify the Police report that he obtained from the driver which was issued on 10th June, 2015, at Kabangwe Police post relating to the shattered windscreen. 2.30 He also identified the crow bar and detonators that he found on Essau Banda's person. PW4 then went on to identify the grinder and crow bar that he found in the motor vehicle. 2.31 He identified the first accused, Essau Banda as the passenger that he apprehended at the check point on the material night. He also identified the third accused as the driver of the motor vehicle who drove off and fled as Accused one was apprehended. 2.32 PWS was Inspector Matafwali, whose service number was 11052, and was based at Chisamba Police Station. His testimony was that on 10th June, 2015, he was on duty at Chisam.ha Police checkpoint and was the second-in-charge there. He issued Constable Lawrence Mwanza with an AK4 7 rifle as well as twenty rounds of ammunition of Z28 size as he was going to conduct guard duties at Zanaco Chisamba branch. Jl3 2.33 PWS also issued Constable Chikamba with an AK47 rifle and twenty rounds of ammunition as he was also assigned to perform guard duties at the bank. PWS knocked off at 18:00 hours but was still on call. At 02:00 hours, he received a phone call to the effect that there was an attack at Zanaco Chisamba branch. 2.34 He rushed to the bank in the company of other Police officers and found Constable Mwanza in a pool of blood with three deep cuts on the head. He went to the guard room and found the magazine of the AK47 rifle. PW5 rushed Constable Mwanza and Stanford Tembo to the hospital but Constable Mwanza was later referred to Kabwe General Hospital due to the severity of his injuries. 2.35 When PW5 returned to Chisamba checkpoint, he found that one man had been apprehended and was remanded in custody who he came to know as Essau Banda. PWS gave the value of the AK4 7 rifle that was stolen from Constable Mwanza as US$285. He identified Accused one as the man J14 he found remanded in custody at the check point in the early hours of 11th June, 2015. 2.36 He further stated that he found an entry in the occurrence book at Chisamba checkpoint relating to the apprehension of the first accused which was made soon after the attack at Zanaco Chisamba branch. He showed the Court the entries in the occurrence book. The apprehension was recorded as having occurred at 03:30 hours. 2.37 PW5 stated that the first accused led the Anti-robbery squad police officers to Lusaka where the second accused, Francis Hamanenga was apprehended. 2.38 PW6, was Inspector Paul Mwanza, a Police Officer whose service number was 10268. His testimony was that he conducted an identification parade on 18th June, 2015 at Chisamba Police Station. Two suspects were lined up on the parade of ten men. These were Essau Mwale who was on position number five while Francis Hamanenga was on position num her nine. 2.39 The first witness, Stanford Tembo went round the line up and identified Essau Mwale on position number five. PW3 J15 identified the first accused and the second accused. He stated that the accused persons raised no complaints regarding the manner in which the identification parade was conducted. 2 .40 PW7, Mpeta Scana, Detective Constable, whose service number was 41201, a scenes of crime officer based at Chisam.ha Police Station testified that he visited the scene of crime, Zanaco Chisamba branch on 11 th June, 2015. He took photographs of the guard room at the bank where he found a magazine loaded with twenty rounds of ammunition. He also found a black mask and a metal bar. 2.41 PW7 went around the bank and noticed that a bulb was removed and put on the ground. He took photographs of his observations at the bank. He later took photographs at the identification parade that was conducted on 16th June, 2015 at Chisamba Police Station. He stated that Essau Norman Mwale was initially identified by Stanford Tembo, while the second witness, Austin Mweetwa identified Essau Norman Mwale and Francis Hamanenga. He then compiled a photographic album of the identification parade. J16 2.42 In court, PW7 identified accused one as Essau Norman Mwale and Accused two as Francis Hamanenga. 2.43 PW8, Brian Chilanzi, an engineer at Kobil Zambia Limited gave sworn evidence to the effect that on 23rd June, 2015, a Police officer known as Zimba of Chisamba Police Station informed him that his motor vehicle, Toyota Corolla, registration number ABM 2401, green in colour was involved in an aggravated robbery at ZANACO Chisamba branch. 2.44 He stated that the motor vehicle was with his driver, Brian Zulu as he kept it at his home. PW8 stated that sometime in May, 2015, he went to Brian Zulu's house and found that the windscreen of the motor vehicle was shattered. The driver told PW8 that his wife threw a stone onto the windscreen during a marital dispute and damaged it. PW8 asked the driver to repair the windscreen but did not hear from him for about a month until he was summoned to go to the Police Station. J17 2.45 He went to Chisam.ha Police Station where he found his motor vehicle and presented the white book. 2.46 PW9, Brian Zulu gave sworn evidence that in June, 2015, he drove a motor vehicle Toyota Corolla, green in colour whose registration number was ABM 2041 as a pirate taxi. The vehicle belonged to Brian Chilanzi. He stated that the windscreen of the motor vehicle got shattered after his wife threw a stone at it. The third accused who he knew very well requested to hire the motor vehicle and offered to repair the windscreen. 2.47 PW9 then took the motor vehicle to the third accused who kept it for some days until he went to find out if the windscreen had been repaired. He did not find the third accused after searching for him. 2.48 Eventually, he was traced and PW9 found out that the motor vehicle was at the Police Station as it was used in an aggravated robbery. He identified the third accused as the person that he gave the motor vehicle to for the purpose of replacing the shattered windscreen. PW9 identified the motor vehicle at Kasanda Police Station and showed the court the J18 identifying features. 2.49 PWl0, David Zimba, Detective sergeant based at Chisamba Police Station gave sworn evidence that on 11th June, 2015 he was allocated two dockets. One was for the offence of aggravated robbery while the other was for the offence of grievous harm with intent to disfigure or maim. 2.50 This was in relation to an aggravated robbery that occurred at Zanaco Chisamba branch in which a Police officer, Lawrence Mwanza was injured after he was attacked by four robbers who were armed with iron bars. In the process, an AK4 7 rifle was stolen from the police officer. 2.51 PWl0 went to the scene of crime where he found the Police officer who was bleeding and had severe injuries, with several cuts on the head. PWl0 also found a security guard at the scene who also suffered injuries during the said aggravated robbery. He found an iron bar outside the bank. 2.52 He discovered that the alarm system at the bank was cut and the corner of the wire fence was also cut. He picked up a J19 magazine which was loaded with twenty rounds of ammunition in the guard room. 2.53 When PW 10 returned to Chisamba Police check point he found that a man had been apprehended, suspected of having been part of the group of robbers that staged the aggravated robbery at the bank. He came to know the man as Norman Essau Mwale. As he was searched, he was found with four detonators. 2. 54 The first accused led PW 10 and other Police officers to Chazanga compound in Lusaka but they failed to locate the suspect that they were looking for. He further led the Police to Misisi Compound where Francis Hamanenga, the second accused, was apprehended. 2.55 PWlO identified the first accused as Essau Norman Mwale and the second accused as Francis Hamanenga in Court. PWlO conducted investigations which led to the apprehension of Kachiza Tembo, the third accused who was the driver of the Toyota Corolla. He fled from the checkpoint at Chisamba and left his driver's licence and voter's card with PW4. J20 2.56 Further investigations revealed that PW9, Brian Zulu was the pirate driver of the motor vehicle, registration number ABM 2401 who gave it to the third accused so that he could repair the shattered windscreen. 2.57 PW9 led the Police to the apprehension of the third accused in Chazanga Compound. He in turn led the Police to a car park within the compound where the motor vehicle, Toyota Corolla registration number ABM 2401 was parked. PWl0 found a grinder in the boot of the vehicle. He later recorded warn and caution statements from the three accused persons. They were charged and arrested for the offences of aggravated robbery and grievous harm and they all denied the charges. The AK47 rifle was not recovered . 2.58 The two medical reports that PWl0 issued to Lawrence Mwanza and Stanford Tembo were admitted into evidence. The various exhibits were admitted into evidence and duly marked. 2.59 In his defence, the first accused's evidence was that he was apprehended by Police officers at town centre on 11th June, J21 2015 and taken to the CID offices at Lusaka Central Police station for interrogations. He was eventually taken to Kabwe Central Police cells with the second accused. They were both taken to Zanaco Chisamba branch and were accused of having staged an aggravated robbery there which he denied. 2.60 He further denied leading the Police to the apprehension of the second accused. He maintained that his name was Norman Mwale and not Essau Banda as the Police alleged. 2.61 The second accused, Francis Hamanenga's testimony was that on 11th June, 2015, he was at his home in Misisi compound. He was only apprehended on 14th June, 2015 at Misisi market as he was on his way to buy beer for sale in the bar where he worked. He met the first accused at Lusaka Central Police Station after he was apprehended, who he saw for the first time. 2. 62 He was accused of having been among a group of robbers who staged a robbery at Zanaco Chisamba branch. He also met the third accused at Chisamba Magistrate Court for the first time when they were jointly charged. He knew nothing about the robbery. J22 2.63 The third accused, Kachiza Tembo's testimony was that his cousin, Brian Mwanza, PW9, asked him to drive some customers to Chisamba and he did so. The men left him at a night club within Chisamba and went away for their business. 2. 64 After a while, Norman M wale, the first accused returned and told him to drive back to Lusaka as business was not good. He further told the third accused that the other men would find their own transport back to Lusaka. 2.65 They drove back towards the Chisamba Police checkpoint where the Police stopped them and inquired about the shattered windscreen that the vehicle had. He left his driver's licence, voter's card and ATM card with the Police and they allowed him to return to Lusaka but he left the passenger at the checkpoint. He was later apprehended in Lusaka and charged with the offence of aggravated robbery. 3.0 Trial Court's findings 3.1 Upon analysing the evidence before it, the court found that the prosecution had proved its case against all three accused J23 persons for the offences as charged and they were convicted accordingly and sentenced to sixteen years imprisonment with hard labour on count one and ten years imprisonment with hard labour on count two, the sentences to run concurrently. 4.0 Grounds of appeal 4.1 The three appellants now appeal against both conviction and sentence on the following grounds of appeal - 4.2 The first ground of appeal is that the learned trial Judge erred and misdirected herself both in law and in fact when she convicted the third appellant in the absence of evidence beyond reasonable doubt that he participated in committing the subject offences. 4.3 The second ground of appeal is that the trial Judge misdirected herself both in law and in fact when she erroneously found that there were three witnesses namely PWl, PW2 and PW3 who identified the first and second appellant at the scene of crime at the identification parade, thereby wrongly convicting the second appellant. .. J24 4.4 The third ground of appeal is that the learned trial.judge erred and misdirected herself both in law and fact when she relied on the evidence of identification from PW 1, PW2 and PW3 in convicting the 1st and 2 n d appellants when the said evidence had inconsistences and hence was unreliable. 5.0 Appellants' heads of argument 5.1 In support of the three grounds of appeal, the appellants advocates filed heads of argument. 5.2 On ground one, it was submitted that at page 327 of the record of appeal, the learned trial Judge held that the third appellant was convicted of the subject offences by virtue of his participation in the driving of the motor vehicle that carried the first and second appellant to Chisamba where the said offences were committed. 5.3 It was argued that this was the only reason discernible from the record on which the third appellant was convicted. It was contended that there was no evidence on record which proved that the robbers who attacked the bank had a motor vehicle nor was there evidence that the vehicle that was driven by the third appellant was spotted near the bank at the time of the J25 robbery. 5.4 Counsel contended that the third appellant was convicted based on circumstantial evidence which was not cogent to permit an inference of guilt. It was argued that there are other possible inferences which can be drawn from the evidence on record which are favourable to the third appellant. 5.5 We were referred to the case of David Zulu V The People 1 where the Supreme Court stated that a Judge must be satisfied that the circumstantial evidence has taken a case out of the realm of conjecture so that it attains such a degree of cogency which can only permit an inference of guilt. 5.6 Counsel contended that the mere fact that the third appellant drove the vehicle in which the first appellant was a passenger does not imply that he took part in the robbery. Counsel argued that the third appellant could have been an innocent transporter who had no idea of the intentions that the passengers who hired him had. 5.7 We were referred to the case of Bwanausi V The People2 on the drawing of reasonable inferences on the evidence before J26 the court. It was argued that the possibility of the third appellant having been an innocent transporter could not be regarded as mere speculation. 5.8 Counsel argued that the third appellant gave a very reasonable explanation in his defence and is therefore entitled to an acquittal because doubts were raised regarding his participation in the commission of the subject offence. We were referred to the case of Chabala V The People3 which states that the court is required to consider whether the explanation that an accused person gives might reasonably be true. 5.9 Counsel argued that the court did not comment on the veracity of the evidence of the third appellant and did not show that it adequately considered his evidence. We were urged to quash the third appellant's conviction, set aside his sentence and set him at liberty. 5.10 In arguing ground two, it was submitted that PWl did not attend the identification parade at which the first and second appellants were identified. It was argued that only PW3 identified the second appellant at the identification parade. J27 We were urged to reverse the court's findings of fact on the identification of the second appellant by PWl and PW2 and accordingly acquit him. 5.11 Counsel argued that apart from the identification by PW3, the single identifying witness, there is no evidence that connects the second appellant to the aggravated robbery as nothing was recovered from him. It was con tended that the identification parade was not fairly conducted as the men on the parade were made to wear head socks of different colours. 5 .12 Counsel accordingly prayed that the second appellant be acquitted because he was identified at an identification parade which was conducted unfairly. 5.13 On ground three, it was submitted that the conviction of the first and second appellants was full of inconsistences and was therefore unreliable. 5.14 It was contended that PWl did not give a description of his assailants when he gave his statement to the Police but described his attackers in court which was inconsistent with what he initially told the investigating officer. J28 5.15 Counsel further argued that although PW3 stated that the taller of the two robbers wore a mask, PW 1 and PW2 did not state that the attackers wore any head gear. 5.16 Counsel contended that due to the said inconsistences, the evidence of PW3 is unreliable and he argued t hat the case was not proved beyond the requisite standard in criminal law. We were referred to the case of Yoani Manongo V The People4 where the court stated that- "the evidence of all prosecution witnesses should be tested and if it is found to fall short of the required standard in criminal cases, namely proof beyond all reasonable doubt, an acquittal must follow." 5.17 Counsel argued that although PW2 only identified the first accused at the identification parade, in court he purported to identify two accused persons, the first and the second accused. It was contended that PW2 was inconsistent and unreliable as his version of his testimony in court was J29 contradictory to his earlier evidence of failing to identify the second appellant. 5.18 Counsel contended that the evidence of PWl, PW2 and PW3 was seriously shaken during cross-examination and revealed inconsistences in relation to the aspect of identification. 5.19 As such, it was argued that it was not safe to convict the first and second appellants without something more connecting them to the offence. 5.20 Counsel prayed that the appeal be allowed, the convictions be quashed, the sentences set aside and that the appellants be set at liberty forthwith. 6.0 Respondent's Heads of Argument 6.1 Responding to ground one, it was submitted that the learned trial court did not misdirect herself in law and in fact when she convicted the third appellant as there was evidence beyond all reasonable doubt that he participated in the commission of the subject offences. 6.2 It was submitted that the evidence that shows that the third appellant drove the first and second appellant was on record and that it connected the appellant to the commission of the J30 offences. 6.3 Counsel submitted that the actions of the third appellant on the night in question were those of a guilty person. We were referred to the evidence of PW 4 who stated that when the appellant was stopped at the Chisamba Police check point, he told PW 4 that the windscreen of the motor vehicle was broken by .a friend of his with a bottle of beer. However, this was contrary to PW9's testimony who stated that the windscreen was broken by his (PW9's) wife during a marital dispute. 6. 4 Counsel further submitted that as PW 4 questioned the 1st and 3rd appellants at the checkpoint, the 1st appellant told the third appellant to just give the Police officer a bribe so that he could let them go. 6.5 It was contended that the first and third appellants knew each other so well that the 1st appellant asked the third appellant to bribe the Police officer. 6.6 Counsel further submitted that as PW4 was questioning the first appellant, the third appellant drove off and left his driver's licence, voter's card and ATM Card. - . J31 6. 7 It was contended that the third appellant's conduct that night was not of an innocent transporter and that the only possible inference that could be drawn from his behaviour was that the third appellant was part of the group of robbers that attacked and robbed PWl at the bank that night. 6 .8 We were referred to the case of Christopher Nonde Lushing a V The People5 where the court stated that- "trying to escape when one has been arrested for an alleged offence is inconsistent with innocence" 6.9 We were further referred to the case of Machipisa Kombe Vs The People6 where the Supreme Court stated that "odd coincidences constitute something more and represent an additional piece of evidence which the court is entitled to take into account." 6.10 Counsel contended that it could not reasonably be true that the third appellant volunteered to leave his driver's licence, voter's card and ATM card with PW 4 when he drove off and left the first appellant at the check point. J32 6.11 It was submitted that the learned trial court did consider the third appellant's evidence and made reference to it in the Judgment. 6.12 We were urged to uphold the third appellant's conviction and sentence and dismiss the appeal for lack of merit. 6.13 Responding to ground two, it was submitted that there was no erroneous finding of fact regarding the identification of the first and second appellant. 6.14 It was submitted that PWl identified the first and second appellant in court as his assailants on the night in issue while PW2 identified the first appellant at the identification parade as the person who hit him and went on to identify the first and second appellant in court. 6.15 PW3 on the other hand identified the first and second appellants in court as well as at the identification parade as the robbers who attacked him and his colleagues at the bank on the material night. . . . J33 6.16 Counsel submitted that PWl, PW2 and PW3 had ample time and clear visibility to observe the first and second appellant who they observed for at least ten minutes. 6.17 It was further submitted that the identification parade was conducted in a fair manner and that PW6 made the men wear head socks to cover the injuries that second appellant had on his head. 6.18 Counsel submitted that the first appellant led the Police to the apprehension of the second appellant in Misisi compound. 6.19 Based on the evidence of identification by PWl, PW2 and PW3 we were urged to dismiss ground two of the appeal for lack of merit. 6.20 Responding to ground three, it was submitted that PWl gave a valid reason why he did not attend the identification parade which was that he was admitted to the intensive care unit at the University Teaching Hospital (U. T. H). 6.21 On the evidence of PWl, PW2 and PW3 being inconsistent, it was submitted that each of the witnesses observed the J34 incident from different angles as they sat at various places in the· guard room prior to the attack. 6.22 We were urged to dismiss ground three of the appeal, and uphold the convictions and sentences of the lower court. 7. 0 Decision of the court 7. 1 We have carefully considered the evidence on record, the Judgment of the trial court and the submissions by both learned Counsel. In particular, we have considered the three grounds of appeal advanced on behalf of the appellants. 7.2 On ground one, the gist of the argument is that the learned trial Judge misdirected herself when she convicted the third appellant on inconclusive evidence that he participated in committing the subject offences. 7.3 In support of this ground, the learned Senior Legal Aid Counsel contended that there was no direct evidence on record to the effect that the robbers who attacked the officers at the bank had a motor vehicle nor was there evidence that the motor vehicle which was driven by the third appellant was spotted at the bank. 7.4 The evidence against the third appellant is that of PW4 who J35 stated that after he stopped the motor vehicle that the third appellant drove on the material night, he asked the third appellant for his driver's licence. He gave PW4 his driver's licence, voter's card, ATM card and the Police report relating to the motor vehicle's shattered windscreen. 7.5 However, as PW4 questioned the first appellant on the suspicious items in the vehicle, the third appellant fled and drove off, leaving his driver's licence, voter's card, ATM card and Police report. The third appellant did not report the matter to the Police upon arrival in Lusaka. He was only apprehended after Police investigations led to his apprehension when PW9, the person who gave the third appellant the motor vehicle to drive led the Police to him. 7. 6 When he was apprehended, the third appellant then led the Police to the recovery of the motor vehicle in Chazanga where it was hidden. 7. 7 The undisputed fact is that the third appellant was the driver of the motor vehicle in which the first appellant was a passenger on the night in issue. ' • 7.8 We are of the view that the third appellant's conduct that J36 night when he sped off and returned to Lusaka was not that of an innocent transporter. The circumstantial evidence against the third appellant has taken the case out of the realm of conjecture to permit only an inference of guilt. The test of circumstantial evidence as laid down in the case of David Zulu V The People has been satisfied. 7.9 We are therefore unable to accept the arguments in ground one of the appeal and are further fortified in this position by the facts of the case which were clearly established. We are satisfied that there was sufficient evidence on record to warrant the conviction of the third appellant. The trial Judge cannot be faulted in finding as she did. We accordingly dismiss ground one of the appeal for lack of merit. 7.10 In ground two, the contention is that the second appellant's conviction was erroneous on the ground that it was arrived at through an erroneous finding of fact that PW 1, PW2 and PW3 identified the first and second appellant at the scene of crime and at the identification parade. J37 7. 11 We take note that the learned trial Judge misdirected herself when she found that PW 1 identified the first and second appellants at the identification parade. 7 .12 The evidence is that PW 1 identified the first and second appellant in court because he was in hospital when the parade was conducted. The evidence on record is further that PW2 identified the first appellant at the identification parade while PW3 identified the first and second appellants at the said identification parade. 7. 13 We do not see any inconsistency in the evidence of PW 1, PW2 and PW3. What is clear is that PWl identified the first and second appellants in court while PW3 identified the first and second appellants at the identification parade as well as in court. PW2 identified the first appellant at the parade. 7 .14 We are of the view that the identification of the second appellant by PWl, PW2 and PW3 does not raise substantive issues that would lead to the question of whether or not there was weak evidence of identification. .. J J38 7.15 All three witnesses stated that the visibility in the guard room was good that night as there were two spot lights outside the bank which also lit the guard room. 7.16 We are of the view that the identification by PWl, PW2 and PW3 was sufficient to warrant the conviction of the first and second appellant and that no miscarriage of justice was occasioned. Further, the evidence on record shows that the identification parade was properly conducted and that the first and second appellants did not raise any complaints to the Police after the said parade. We do not find any cause to interfere with the findings of fact regarding the first and second appellants' identification. We find no merit in the second ground of appeal and we dismiss it. 7. 1 7 The third ground of appeal relates to the question whether the learned trial Judge was on firm ground when she relied on the evidence of PW 1, PW2 and PW3 which was full of inconsistencies. It should be noted that although PWl, PW2 and PW3 experienced the traumatic incident, it is normal for them to perceive things differently during the attack by two assailants. •. ! 7.18 We do not think that the complaint about their testimonies J39 being inconsistent is a cogent argument. PWl did not attend the identification parade because he was admitted to hospital in the intensive care unit. On the issue of the head sock, it was PW3's evidence that one of the robbers wore a head sock which fell off during the attack. 7. 19 We do not see this as an inconsistency as PW3 in his observation saw that one of the robbers wore a head sock while the others did not. We are of the view that the evidence of PW 1, PW2 and PW3 was so reliable that the court was on firm ground when it convicted the three appellants for the offence of Aggravated robbery. 7.20 We do not find merit in ground three of the appeal and it is accordingly dismissed. 8.0 Joinder of Counts 8.1 As the information indicates, the three appellants were charged and convicted of two counts, one is the offence of aggravated robbery contrary to Section 294(1) of the Penal Code while the other is the offence of Grievous harm contrary to Section 224(a) of the Penal Code. . ' .. J40 8.2 Both offences anse from one incident. Section 135 of the Criminal Procedure Code provides as follows- (1) Any offences, whether felonies or misdemeanors, may be charged together in the same charge or information if the offences charged are founded on the same facts or form, or are a part of a series of offences of the same or similar character. 8.3 The question that arises in this matter is whether the three appellants committed the offences of aggravated robbery and grievous harm when they attacked and rob bed PW 1 on the material right. 8.4 An aggravated robbery is committed when a thief who 1s armed with an offensive weapon, or is in the company of another thief, uses of threatens to use violence before, during or after stealing. On the other hand, the offence of grievous harm is committed under Section 224(a) of the Penal Code. 8. 5 The evidence that was before the trial court shows that the three appellants set out to rob the Zanaco Chisamba branch armed with an iron bar. They beat up PWl and PW2, but injured PWl so badly that he suffered a spinal injury and had J41 to be admitted to the Intensive Care Unit at the University Teaching Hospital (U. T. H). They also took away PW l's firearm after they disarmed him. 8.6 The beating of PWl did not amount to a separate offence of grievous harm because it is an ingredient of the offence of aggravated robbery, the use of violence to overcome resistance during a theft. 8.7 We are of the view that the prosecutor should have properly assessed the evidence and charged the three appellants with one count of aggravated robbery. 8.8 We are of the view that the information was defective as there were two charges when there should only have been one for the offence of aggravated robbery. These were components of the robbery at the bank. 8.9 We accordingly set aside the three appellants' conviction for the first and second counts. The sentences imposed for the said offences are accordingly set aside. 8.10 In their place, we convict the three appellants of one count of aggravated robbery at Zanaco Chisamba branch on 11th June, 2015. " . .. J42 8.11 The evidence on record shows that PWl suffered serious injuries such as a depression on his head and partial paralysis due to the injuries that were inflicted by the appellant. We find the sentences imposed on the appellants by the lower court rather shocking. 8.12 Since there is incontrovertible evidence that PW 1 suffered severe injuries which left him partially paralysed with a depression on the head, and noting that the three appellants attacked and robbed a Police officer in uniform, we hereby sentence the three appellants to sentences of forty-five years' imprisonment with Hard Labour with effect from their respective dates of arrest. JUDGE PRESIDENT - COURT OF APPEAL COURT OF APPEAL JUDGE COURT OF APPEAL JUDGE P. C. M. NGULUBE