Kabwe v People (SCZ Appeal 57 of 1993) [1993] ZMSC 68 (8 June 1993)

IM THE SUPREME COURT OF WIA SCZ Appeal No, 57 of M3 HOLtO AT MOOLA (Criminal Jurisdiction) GEOFFREY LUPUPA KA3ME Appellant VS THE PEOPLE Respondent CORAK: Sakais, Chai!a and^ Huzy«sba JJJ. S. 8th June, 1993. Hr. Swiia Chlubo of CM t a bo CM Inga Associates, for the appellant Mr. E. Sewanyana, Assistant Senior State Advocate for the respondent ........................ .................... ................................................................................ ................................................................................................................................................ ...........'.................................... .... ................................. .......... JUDGMENT Chai la, 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 Code. The particulars were that, the appellant and three other parsons, on 15th day of July, 1991 at MdoU in the Kdola 01 strict .of the Copparbelt Province of the Republic of Zambia, jointly and whilst acting together, while arsed with a flreara namely AK47 rifle, did^steal one motor vehicle naanly Benz Truck registration Ho, AAJ 5933 valued at K5,000*000.00 from Inambao Chapawn and that at or inmdfatoly before or imaedlatoly 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. ■y:®- : . ’ Briefly the facts of the case were that « Mercedes Benz truck the subject of the charge which belonged to Zambia Cooperative Federation ! I i was dispatched to Northwestern Province Solwezl to take bags of maize. - j? - .... • Three drivers wore assigned to drive the truck namely, Richard Inwbao Chapman, who was ths driver in charge, Reuben Kantu and Jeremlan Chlawasu (PW7). The maize was duly delivered in Solwezi. The truck with its trailer started off from Solwezi for Lusaka. On its return journey the vehicle and trailer were loaded with one thousand five hundred bricks valued at £150,000,00. The truck arrived in Ndola around 10 hours on 16th July. 1991, It was being driven by Reuben Kantu. They refuelled the truck at Hakoli Filling station in Ndola and then proceeded to Masala where they picked PW8 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 Chinyenja. PW8 recognised the men in civilian clothes as Pascal. Thd «an 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, ;|he bar bad ng 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, Soso policemen came 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. PUB was also 73., kept in I I kept in cells for a week. He was also assaulted by the police. They were finally released then the suspects were apprehended* The appellant has filed three grounds of appeal namelys- (1) The verdict of guilt was not the only irresistible inference to have been drawn from the^barely circumstantial 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 hiOow they had stolen the truck. Hr. Chitabo argued that when PM was cross-examined on this point he said he had not told the police the detailed account of what the appellant had told him. Mr. Chitabo argued that PW1*s evidence did not mention a Mercedes iBenz... 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 him and his evidence should have been treated with caution* The learned counsel has further argued that PHI 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 PHI as an ordinary witness. He has maintained that if the court had treated PWVs evidence with caution or as a witness with possible interest to serve, the court would have resolved in favour of the < • . * ** * .' /4. B.appellant. •4/? • ■ ’ •• ■. ; V-A \ .r, ir - ’■ : - {J. WK ■ ajp&i# ? ■ -■ -r. < .' : * ‘ 4^: • ■ c • .■■;"><-•- - J4 - ..,<3 ■ ■ ■ t--^ ' appellant* Mr. Chitabo further submitted that the evidence which was going to provide southing 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 Ml was not an accomplice* The counsel has submitted that Ml was detained and beaten and he had therefore an interest to serve. in his further argument the learned counsel has argued that PM3 another soldier had testified that Mt did. not tell him about the theft of a motor vehicle* Mr* Chitabo has further submitted that the court should have treated the evidence of M4 as suspect* Hr. Chitabo 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. Hr. Chitabo 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. Chitabo 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. Hr. Chitabo 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. Hr. Chitabo argued that It was unfair to allow people in murder cases 'Ito 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 PHI being treated as a witness with possible interest to serve, the State did concede that the learned trial Commissioner should have done so. But Hr. 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. /5*.. That evidence That evidence was provided by PM3 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 Ji* that of PW4, PW4’s evidence was briefly that on or about 16th July, 1991 In the evening around 19 hours while at.hls 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 Flat 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 Flat 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 urged the court to treat PHVs evidence as suspect. There is no doubt that PM4 was picked up and according to his evidence he was tortured and detained. Ha was later released after the police ware satisfied that he was not connected with robbery. The learned trial Commissioner based the conviction of the appellant mainly on the evidence of PWJk and PW7. Although PW4 was suspected and detained his evidence confirmed the evidence «f Pin and the appellant*! visit to Bwana Mukubwa and on PW1 spending a night at Swans Hukubwa. There is the evidence of PW3, another soldier who was not a suspact witness. His evidence was to the effect that the appellant Instructed Mm to go and tell Sergeant CMngebe at the camp where he was going to remove the paper fro® the register boot whore they were recording motor vehicles going through the road block. PM3 went to the camp and found Sergeant Chingebe who was A4. PW3 told him what Ai had told him l.e» ha should remove a paper from the register. Sergeant Chlngebe said he was aware and knew what be 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 throw it on fire. PW3 than went back to the camp. That evidence confirmed what PW1 had told the court that the appellant had told him to remove the paper from the register. Another piece of evidence connecting •. - -v. •- the appellant came from the police officer, PWI1 who investigated the matter, PH11 testified that the appellant some time In July 1991 led Mm to the scene at Kilimanjaro Bar. The appellant showed him the route they had used and that before Indent Rofinary, they turned right intothe bush, up to a certain place near their camp, where the appellant handed over the motor vehicle to Kanyanga. PHI in Ms evidence also spoke of the appellant having told him that he handed the vehicle to Kanyanga. That evidence by PHI has been confirmed by PM1. In addition them is evidence of leading PW11 to the place where the vehicle was stolen. Me are satisfied, taking the evidence into account, that although the learned trial Comaisstoner had misdirected himself tn not treating the evidence of PHI as suspect or with possible Interest to serve, Ms evidence has been /7...confiraad confirmed by the evidence of ether witnesses* Nr* Chitabo has coaplalnod about the police failure to bring the person called Pascal before the court* That natter was raised during the trial. The learned trial comissloner 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* We are satisfied that the evidence of PWI was sufficiently supported by the evidence of^ether 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. Hr* Chitabo has complained that the 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* Nr* 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 Bwana Mukubwa armed with a firearm. PW4 did not identify the particular gun the appellant was carrying. The evidence of PM4 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 PH8 was to the effect that he saw soma people armed with sticks and iron bars* PH8 did not make any mention of a gun* In his Judgment the learned trial Caamissionef concluded 7 ■ that the gun used during the robbery was the one which was taken away from the appellant. In his judgment the learned trial Ccmtsslondr said: ’from the above evidence 1 find that conlusicn is inescapable and Irresistible that the first accused is the sama person who was armed with a gun and was wearing army uniform during the robbery** Coming to this conclusion the learned trial Commissioner was relying on the evidence of PH7* 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 PH7's evidence the jepmed trial Commissioner completely ignored the evidence of PW8 spoke of sticks and iron bars* and none of the witnesses spoke ofAK47 which was /fl*i*taken by I -■ ,‘; - ■ ■ :$WW ■ f ■ w < : kiHI : , r • > taken by ths police and later examined by ths ballistics expert. Ths evidence on the linkage of the gun taken by the police and the gun alleged used by the robbers was very weak. The evidence of further provided a conflict on what was used in the robbery. It is our view/ii^ the learned trial Cosmissioner should have given the benefit of doubt to the appellant. We agree therefore with the argument of Mr. Chitabo that there was no sufficient evidence to link W.gun which vat examined to the gun tint was used in the robbery. The appellant should have been convicted of simple aggravated robbery. The appeal to that extent succeeds. The conviction of aggravated robbery involving a fl ream is quashed and the death sentence j 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 teased 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 £*U Sakela supreme court juose '•4' * -t O' Jfe M. S. Chaila SWftBie COURT JUDGE ■.3 ' ■'v-s-? W. H. Muxyaaba SUPREME COURT JUDGE