Kabwe v People (SCZ Appeal 57 of 1993) [1993] ZMSC 74 (2 June 1993)

IM THE SUPREME COURT OF ZmiA SCZ Appeal Ho. 57 of m3 HOLDEM AT ^OC-LA (Criminal Jurisdiction) GEOFFREY LUPOPA KABWE Appellant VS THE PEOPLE Respondent COPAN: Sakala, Cha Ha and Huzya^a JJJ. S. 3th June, 1993. Mr. ^Ha CMtabo of CMtabo CM Inga Associates* for the appellant Mr. E. Sewanyana, Assistant Senior State Advocate for the respondent JUDGMENT Chaila, U. S. delivered the judgment of the court. The appellant was charged with the offence of aggravated robbery together with three other persons contrary to Section 294 of the Penal Coda. The particulars were that, try* apoaliant and three other persons, on 15th day of July, 1991 at Mdola In the Ndola District of the Copperbelt Province of the Republic of Zambia, jointly and whilst acting together, while armed with a firearm namely W rifle, did steal one motor vehicle namely flenz True* registration Mo. AAJ 5903 valued at <5,000,000.00 from Inambao Chapman and that at or immediately before or immediately after the time of sucn stealing did use actual violence to the said Inambao Chapman in order to obtain or retain the said property. At the end of the trial the appellant was convicted of the offence and the other three co-accused were acquitted on insufficient evidence. The appellant was given a death sentence. Briefly the facts of the case were that a Mercedes Benz truck the subject of the charge which belonged to Zambia Cooperative Federation was dispatched was dispatched to Northwestern Province Solwexl to take bags of Mize* Three drivers wore assigned to drive the truck namely, Richard Inambao Chapman, who was the driver in charge, Reuben Kantu and Jeremlan Chimwasu (PW7). The maize was duly delivered In SolwexL The truck with its trailer started off from Solwezl for Lusaka. On its return journey the vehicle and trailer were loaded with one thousand five hundred bricks valued at KISO,000.00. The truck arrived in Ndola around 10 hours on 16th July, 1991. It was being driven by Reuben Kantu. They refuelled the truck at Mako11 Filling station In Ndola and then proceeded to Masala where they picked PN8 who Joined them on their journey to Lusaka and they started off for Lusaka. They used Ndola Kabwe road and after passing Rainbow Pleasure Resort* they stopped because one of the drivers wanted to see a relation. After a while they proceeded to Lusaka. They stopped at Kilimanjaro bar where they bought some food-stuffs and cigarettes. Thereafter they left for Lusaka and the time was around 19 or 20 hours. As they were about to join Ndola/Kabwe road at Kilimanjaro, they slowed down and stopped. PW7 saw a man in army combat uniform with a gun rushing to the driver's side. He was with another man in civilian clothes. The man ordered them to talk in Chinyanja. PW8 recognised the man in civilian clothes as Pascal. The man in army uniform opened the door and pulled the driver out. His accomplice ordered him to shoot. Seeing this, PW7, PW8 and other people realised that they were in danger and scampered out of the truck. They went to Kilimanjaro bar where they informed the owner of the Bar about the robbery. The robbers then drove off in the truck. The bar had no telephone facilities. The owner of the bar organised transport and together they drove off following the truck. After some distance they found the trailer with bricks on It. The trailer was disconnected from the truck. They drove up to Rainbow Pleasure Resort, but In vain. Some poltce^?n cams to the Pleasure Resort and the robbery was reported to them. The police took them to Ndola Police station where they were kept in police cells and during that time they were assaulted. PW8 was also /3...kept in - J3 - kept in cells for a weak. He was also assaulted by the police. They were finally released then the suspects were apprehended. The appellant has filed three grounds of appeal namely;- (1) The verdict of guilt was not the only irresistible inference to have been drawn from the barely circumstanclal evidence connecting the Accused to the alleged crime of aggravated robbery. (2) The trial Commissioner erred in law and in fact In having held that the gun belonging to the appellant in his official capacity as a soldier was the one which was used in the robbery when there was no proper identification of the gun at the scene of crime. (3) That the trial Commissioner ought to have applied the provisions of Act No. 3 of 1990 that gives allowance to the convicted person who is supposed to suffer capital punishment to lead evidence of extenuating circumstances. Mr. Chitabo, counsel* for the appellant has argued that the only connecting evidence came from PW1 another soldier who claimed in his evidence that after he had been left by the appellant at Bwana Mukubwa, the appellant met him the following day and narrated to hie how they had stolen the truck. Mr. Chitabo argued that when PW1 was cross-examined on this point he said he had not told the police the detailed account of what the appellant had told him. Nr. Chitabo argued that PWl's evidence did not mention a Mercedes Benz. The learned counsel has argued further that PW1 was apprehended by the police and that since he was a soldier the police should have suspected hie and his evidence should have been treated with caution. The learned counsel has further argued that PW1 In his evidence never mentioned that the appellant was carrying a gun or was armed. The counsel has further submitted that the learned trial Commissioner treated PW1 as an ordinary witness. He has maintained that if the court had treated PHI’S evidence with caution or as a witness with possible Interest to serve, the court would have resolved in favour of the /4...appellant. - J4 - appellant. Mr. CMtabo further submitted that the evidence which was going to provide something more should have also been treated with caution, this was the evidence of PW2. The learned counsel has submitted that the court erred In finding that PHI was not an accomplice. The counsel has submitted that PW1 was detained and beaten and he had therefore an interest to serve. In his further argument the learned counsel has argued that PW3 another soldier had testified that PHI did not tell him about the theft of a motor vehicle. Mr. CMtabo has further submitted that the court should have treated the evidence of PW4 as suspect. Mr. CMtabo has further argued that the police were guilty of neglect of duty in not bringing before the court the person called Pascal who was identified by one of the witnesses as having been at the scene of the robbery. Mr. CMtabo argued that Pascal was conveniently left out and this was a neglect of duty on the part of the police. As regards the firearm, Mr. CMtabo has submitted that there was no evidence to Identify the gun which was used during the robbery. He has maintained that the gun which was tested by ballistics expert was taken away from the appellant many days after the robbery. Mr. CMtabo addressed the court on the interpretation of Act No. 3 of 1990. He complained that the law should allow the person convicted of aggravated robbery to argue on whether or not there were extenuating circumstances. Mr. CMtabo argued that it was unfair to allow people tn murder cases to escape death penalties and deny persons convicted of aggravated robbery to show cause why death sentence should not be imposed. The Assistant Senior State Advocate Mr. E. Sewanyana in supporting the conviction submitted that there was overwhelming evidence against the appellant. On the argument of the appellant’s counsel on PW1 being treated as a witness with possible interest to serve, the State did concede that the learned trial Commissioner should have done so. But Mr. Sewanyana has maintained that even without that there was ample corroborating evidence. He submitted that there was evidence of removing of a page in the Register from the Register book at the Road block. /S*.. That evidence J5 - That evidence was provided by PW3 who testified that the appellant ordered him to remove a page of the book. Mr. Sewanyana has maintained that PW3 was an independent witness who was never arrested for that particular offence. Mr. Sewanyana has argued that, as regards the person called Pascal there is no rule of law which requires the State to prosecute everybody Implicated in the crime: but he has further argued that the evidence showed that Pascal was arrested one month before trial. On the use of firearm, the State did concede that the use of the firearm was not strongly proved. On the interpretation of Act No. 3 of 1990, the learned Assistant Senior State Advocate commented that the matter was for Parliament and was not relevant to this case. We have considered the appellant's arguments. We have considered the evidence of PW1 who was a soldier together with the appellant. There is no dispute that on the day of the robbery of the motor vehicle the appellant and PW1 went out to Bwana Mukubwa where PW1 was left behind and the appellant went away and that they only met the following day. There is no doubt that PW1 spent a night at Bwana Mukubwa. His evidence was supported by v:. that of PW4. PW4's evidence was briefly that on or about 16th July, 1991 in the evening around 19 hours while at his house someone went there with a red Fiat 131 and another person went in a Ford car. In the Ford car there were four men and in the Fiat car there were two men. Around 20 hours the two soldiers arrived, one was armed with a gun and the other one was not. Both of them were dressed In army uniform. He knew one of the soldiers as Mr. Kabwe. He used to see him at Simunyola's farm. He used to be their customer. Mr. Kabwe is the appellant. Later the appellant and other people left leaving behind the other soldier. The appellant left with the Fiat car. The other soldier remained behind and spent a night there. PW4 further testified that he later identified the appellant and PW1 as soldiers who had gone to Bwana Mukubwa but he told the police that he identified them not as persons who had stolen the vehicle but as people who had visited his mother's house. Mr. Chitabo has /6....urged the * J6 - urged the court to treat PW**s evidence as suspect. There is no doubt that PW4 was picked up and according to his evidence he was tortured and detained. He was later released after the police wore satisfied that he was not connected with robbery. The learned trial Coaalssionor based the conviction of the appellant mainly on the evidence of Ml and PW7. Al though PIM was suspected and detained his evidence confirmed the evidence ^f PW1 and the appellant's visit to Qwana Kukubwa and on M1 spending a night at Swana Mukubwa. There is the evidence of PW3, another soldier who was not a suspect witness. His evidence was to the effect that the appellant instructed him to go and tell Sergeant Chlngebe at the camp where he was going to remove the paper from the register book where they were recording motor vehicles going through the rood block. PW3 went to the camp and found Sergeant Chlngebe who was A4. M3 told him wnat Al had told him l.e. he should remove a paper from the register. Sergeant Chlngebe said he was aware and know what he was doing. A4 removed the paper from the book which was being used to register motor vehicles. He saw A4 remove the paper, crumpled it squeezed the paper and threw it on fire. M3 then went back to the camp. That evidence confirmed what PHI had told the court that the appall mt had told him to remove the paper from the register. Another place of evidence connecting the appellant case from the police officer, Mil who investigated the matter. Mil testified that the appellant some time in July 1991 led him to the scene at Kilimanjaro Bar. The appellant showed him the route they had used and that before Indent Refinery, they turned right into the bush, up to a certain place near their camp, where the appellant handed over the motor vehicle to Ksnyanga. PW1 in his evidence also spoke of the appellant having told him that he handed the vehicle to Kanyanga. That evidence by Mt has been confirmed by Mil. In addition there ts evidence of leading M11 to the place where the vehicle was stolen. We are satisfied, taking the evidence Into account, that although the learned trial Collas loner had misdirected himself in not treating the evidence of Ml as suspect or with possible interest to serve, his evidence has been /7...confirmed - J7 - confirmed by the evidence of other witnesses. Mr. Chitabo has complained about the police failure to bring the person called Pascal before the court. That natter was raised during the trial. The learned trial commissioner considered that matter and he came to the conclusion that it was not fatal to the prosecution's case. We entirely agree with his conclusion, w$ are satisfied that the evidence of PW1 was sufficiently supported by the evidence of other witnesses already referred to. The conviction was mainly supported by the evidence and was wholly Justified. For the reasons we have given the appeal against conviction Is therefore dismissed. We now turn to the question of a firearm. Mr. Chitabo has complained that Vie firearm which was tested by the expert and later accepted by the trial court to have been the gun used In the robbery was taken many days after the robbery. Mr. Chitabo has argued that there was no evidence to identify the gun used during the robbery. The evidence of PW4 Is simply to the effect that he saw the appellant at Swans Mukubwa armed with a firearm. PW4 did not Identify the particular gun the appellant was carrying. The evidence of PW4 was to the effect that he saw a soldier in army uniform with another man in civilian clothes. The soldier was In combat armed with a firearm but did not know what type of firearm. The evidence of PM3 was to the effect that he saw some people armed with sticks and iron bars. PW8 did not make any mention of a gun. In his judgment the learned trial Commissioner concluded that the gun used during the robbery was the one which was taken away from the appellant. In his judgment the learned trial Commissioner said: "from the above evidence 1 find that conluslon is inescapable and irresistible that the first accused Is the same person who was armed with a gun and was wearing army uniform during the robbery." Coming to this conclusion the learned trial Comissloner was relying on the evidence of PV7, PW7 said, he saw a soldier in army uniform with a civilian but did not know what type of the gun he had. In considering Ws evidence the learned trial Commissioner completely ignored the evidence of PW8 who spoke of sticks and iron bars, and none of the witnesses spoke of AK47 which was Z8...taken by - J8 - taken by the police and later examined by the ballistics expert. The evidence on the linkage of the gun taken by the police and the gun alleged used by the robbers was vary weak. The evidence of PW3 further provided a conflict on what was used In the robbery. It is our view, the learned trial Commissioner should have given the benefit of doubt to the appellant. We agree therefore with the argument of Mr. CMtabo that there was no sufficient evidence to link the gun which was examined to the gun that was used in the robbery. The appellant should have been convicted of staple aggravated robbery. The appeal to that extent succeeds. The conviction of aggravated robbery involving a firearm is quashed and the death sentence is set aside and in Its place the appellant Is convicted of simple aggravated robbery. The appellant, although being a first offender, was an army officer entrusted with heavy responsibilities. He abused the trust and teamed up with other law breakers. The facts are quite aggravating which merit severe sentence. The appellant is therefore sentenced to 25 years Imprisonment with hard labour with effect from the date of arrest. E. U Sakai a COUM M3. Chain SdpR^couaTA©^ W. H. Muzyamba SUPREME COURT JUDGE