Syamibila v People (Appeal 50 of 1991) [1991] ZMSC 31 (6 August 1991)

IN THE SUPREME COURT OF ZAMBIA Appeal no. 50 of 1991 HOLDEN AT KABWE (Criminal jurisdiction) z FJANYANGA EMMY SYAMIBILA Appellant -V- THE PEOPLE Respondent $ CORAM: Ngulube, D. C. J Sakala, and Challa, JJ. S On 6th August, 1991 For the appellant, in person For the Respondent, Mr. G. S. Phiri, Director of Public Prosecutions JUDGMENT Ngulube, D. C. J. delivered the judgment of the court The appellant was sentenced to fifteen years imprisonment with hard labour in consequence, of his conviction on a charge of aggravated robbery The particulars were that on 28th October, 1988, at Luanshya . and while he was armed with a pistol he stole a mercedes benz car from the complainant. At the conclusion of the trial the learned trial judge was not satisfied that he had used a real firearm and for that reason he was convicted of ordinary aggravated robbery. • • The facts of the case were that on the eyenipg in question ■ ’ ’ ■ the complainant who had been visiting a friend, just drove out of the yard when he was accosted by a person who was brandishing a gun. According to the complaint, as supported by-the watchman who was. on duty at the gate, a shot was actually fired and the complainant, ordered to surrender the car. The lone bandit then drove off at great speed. But the friend of the complainant at whose house the robbery took place, immediately decided to give chase. He chased this person and fortunately for the complainant and unfortunately ' for the robber, the stolen car ran off the road into a ditch. The complainant's friend went to collect the police. Meanwhile PWl-and - - a friend of his, who happened to be walking by, saw this car go into a ditch. He also saw the driver get out of the car and begin to run away. Thinking that the man was merely confused they ran after him to catch him. The man struggled and the police found the witness struggling with this person. The man again ran away. The police who had arrived shot him. According to the witness, PW3, and to the police officer, PW5, this person was the appellant now before us. The appellant has filed a number of grounds of appeal. The burden of the groundsis that he was an innocent passerby who became f a victim of circumstances^when he was mistaken for the robber. He had been walking along a bush path and only found that he had been shot. That was the defence which the appellant had advanced at his - trial and it was a defence which did not go very far with the learned; trial judge. The possibility1 that PW3 had lost sight of the person ■, he was chasing was canvassed by the trial judge and occupied a considerable portion of his judgment. The description of the events at the scene of the crash by PN3 showed that the person who ran out of that car which had ditched at a place which was well lit was. immediately chased by the witness»and his friend. They got hold of .. him and struggled with him when again he broke loose and ran. The 'V- person who broke loose and ran was the one who was shot by PW5. This was the fleeing driver who turned put to be the appellant. At the scene of the struggle between PW3 and the appellant, the police recovered a number of the complainant's items and documents. They also recovered a coat and a hat which was identified by the security guard, PW4, as the same things the lone bandit was wearing at the gate when he took the car. On the evidence as narrated by PWs 3 and 5, we do not see how the contention by the appellant that he was innocently passing by could even be considered. The police also recovered from the vicinity of the chase an actual pistol as;well as a toy pistol. In the complainant's car was found another toy pistol.’: .. ■ . sure on what basis the finding that a firearm was not used was reached in this case which should have attracted a very severe penalty indeed. For the moment we do not • ' ■ ' ■ - . . , '• ; _ - _; v O / '' nrnnnQa A/--'- propose to interfere but we do have to say that the evidence against this appellant was so strong and his defence so thoroughly disproved that the appeal against conviction cannot possibly be entertained. The appeal against conviction is dismissed. No appeal lies against the compulsory minimum sentence £ ''C. I - A. -4U r-T M. M. S. W. Ngulube DEPUTY CHIEF JUSTICE E. L. Sakala SUPREME COURT JUDGE M. S.1 Chai la SUPREME COURT JUDGE V: o & ■