Mali v People (Appeal 92 of 1985) [1987] ZMSC 41 (15 September 1987)

1H THE SUPREME COURT Of ZAMBIA HOLOEN AT KD0U (Criminal Jurisdiction) Appeal He. 92 of 1985 HAK05ON MALI Appellant THE PEOPLE Respondent CORAM: Nguiube. D. C. J.> Gardner and Sakala. JJ. S.. 15th September, 1987. S. K. HunthaM. Senior Legal Aid Counsel, for the appellant R. O. Okafor, Senior State Adeodftte, for the respondent JUDGEMENT Gardner, J. S.. delivered the Judgment of the court. Cases referred to! 10 Timothy and Anor. ¥ The People (1977) Z. R. 394 (2) Kalebu Banda v The People (1977) Z. R. 169 The appellant was convicted of aggravated robbery contrary to section 294(2) of the Penal Code. The particulars of the charge were that on the 24th of February. 1985. at Kltw®, he, whilst acting together with other persons unknown and whilst armed with a pistol, robbed Gov indan Kutty Mwnon of a Mazda Saloon motor car and items of personal property to the total value of K8,345.00, and at the time of the robbery used or threatened to use actual violence. The facts adduced by Wprosecution in support of the charge were that the coatplainant, who ts a medical practitioner, was called out at night in order to attend to a patient. He drove his car out of the gate of his house, and, when he stopped the car In order to lock the gate, he was confronted by three mon one of whom pointed e pistol at him, and. under the threat of being shot, he surrendered the car to the three men . Some seventeen days later he attended an identification parade and identified the appellant At having been one 2/of of the three men who robbed him of his car and as having boon the maw who pointed the pistol et Ma. This witness also said that e pistol produced in ccowrt was similar to the one which was<used on the night of the robbery, Tnere was evidence from Pw.z that twelve days later the robbery s'» had seen the appellant tn company with three other men drying the vehicle which was subsequently identified as belonging to the ‘xuayjThere was evidence from police witnesses that seventeen w/j after ’.be date of the robbery, acting on informail^ received* tho police crested the appellant in tits house, and. when they did three. other wen ran away and hid la nearby fields. The three men w^re alkgeJ tn have run away frees a Tou^e jtdjcini-ng that which was *?y th^ j&lke officer! said, that later in the vee day they were told that the three men who had run away, with th® wifs of the appellant, we hldl^ in a matte field. They therefore searched tho ma Ise field and saw the three rwn and the wife of the appellant. The police were fired tm. and In consequence th^y returned ch* fire as a result of which one of the ra»n was It HIM iWMdiaUiy wa Another died later in iwiui and the wife of th* souellint was Also injured. On th© boey of the mao who was killed at the scone there was found a pistol which th-a comptslf-*^ said watK^tJ similar to the one which was points at him at the time of the robbery and which wa& tested by a ha! Hatten expert fwrd t.o be capable of firing live rounds within the definition o? a Hnwm under the Firearms Act. Tne a^JUnt w.?s convicted armed rebbory on the grounds that ho was an associate of the three men who had run sway Into the matte field. and, as the firearm which was found on on^tho dead men was found to be capable of being fired, it was prestm^d that It wm the same 5«n which the appellant pointed at teh complainant the tt«e. *f the robbery. On h;!k f rf iht !>rt v ‘‘r. has -.i^vad that thare urr tnRi‘ff!c!’rt evtder.:-’' ?’• rcnM?’1 the of gun 00 the c’r.-^jsat man «!t* tM aoprlTent’s t;ss of 3 go- H time- of the rctitniry, The appellant h>rs^’f !r written grounds of appeal argued that ther® was « possibility of en honest mistake in hts Identification I ■*» ifKia * » * r ♦ ♦ by the complainant. As to this last ground of appeal we are satisfied that even if the identification by the complainant should be doubted in any way it was amply corroborated by the fact that the appellant was seen driving the stolen motor vehicle. That ground of appeal therefore cannot pcst'WJy succeed. As to the connection between the gun found on the deceased man and the gun used at the time of the robbery Mr. Okafor argued on behalf of the State that it was too much of a coincidence that one of the men who ran away from one of the houses next door to the appellant's should have a ;,gun other than the one that must have been used at the time of the robbery. Mr. Munthali in support of his argument that there was insufficient evidence to connect the gun found in the robbery, drew our attention to the case of Timothy and Another v The People (1), in which this court said:at p. 396 "...but PW.2 gave an accurate description of the gun and identified the gun that was found as being similar to the one used by the robbers. This in itself would not be sufficient to establish that the gun Sound was the one used." In that case there was other evidence to ^connect the gun which was found with the robbery referred to in the case. In this case however, there is no such connecting evidence. Mt. Munthali has also referred to the fact that there was no evidence of any fingerprints having been taken from the gun found on the deceased man. In the case of Kalebu Banda v The People (2), we held that failure by the police tc take fingerprints from a surface which was capable of bearing, such prints was a dereliction of duty and resulted tn an assumption that an accused person's fingerprints were not found on such an article. We made it. clear of course that such a presumption was rebuttable by other evidence. Mr. Okafor has argued in this case that there was a very definite possibility that a number of people may have handled the gun after it was found tills making it impossible to take fingerprints from it. We arc not prepared to make an assumption contrary to theinterest of the appellant and instead we take judicial notice of the fact that a trigger of a pistol is capable of receiving fingerprints and therefore 4/ in......... - 4 in this case the presumption referred tmin Knlebu Bandais case must operaU in favour of the appellant. H^re not satisfied that there is sufficient evidence that the gun that wau found in the pocket or cn the body of the deceased person was the gun that was used by the appellant Upoint at the complainant urn the night of the robbery, it is settled law that no person nay be convicted of using a gun in an aggravated robbery unless there Is evidence that the gun used is capable of being fired wlWtir the definition of the Firearms Act. In this case there is no such evidence and consequently this ground of appeal succeeds. The appeal against conviction for arsed rubbery contrary to section 294(2) of the Penal Code Is allowed. That conviction is quashed and sentence is set aside. In its place we substitute a conviction of aggravated robbery contrary to section 294(1) of the Penal Code. As to sentence we take Into account the fact that this agqrwmt robbery was carried out by a gang of four sen. according the sentence must exceed the minimum laid down by statute. We Impose a sentence of eighteen years Imprisonment with hard labour with effect from 13 th March, 1933. M. S. Hgulube deputy Chief justice 8. T. Gardner Suprcmp Court ?udge E.l. Sakala