Mumba and Ors v People (Appeal 32 of 1999) [1999] ZMSC 93 (19 October 1999)

THE SUPREME COURT OF ZAMBIA APPEAL NOS. 32, 33, 34 & HOLDEN AT LUSAKA (Criminal Jurisdiction) 35 OF 1999 ISAAC MUMBA RABSON BANDA JOHN FUMBANI KALEYA HUMPHREY CHIBOLYA Vs APPELLANTS THE PEOPLE RESPONDENTS Coram: Chaila, Chirwa, Lewanika, JJS 5th October and 19th October, 1999 For the Appellants : In person For the Respondents: Mrs. E. N. Chipande, Assistant Principal State Advocate.____ JUDGMENT Chaila, JS, delivered the judgment of the court. This is an appeal by the appellants against the decision of the High Court in respect of the aggravated robbery charge contrary to Section 294(1) of the Penal Code. The court was informed when the appeal came up that appellant {Isaac Mumba), died after the conviction. It follows therefore that his appeal abates. The court remains with three appellants who will be referred to in our judgment as A2, A3 and A4, respectively. The brief facts of the case were that the appellants faced the offence of aggravated robbery and that on 2nd March, 1997 at Luanshya in the Luanshya District of the Copperbelt Province of the Republic of Zambia robbed Stephen Chikwanda of a motor vehicle registration No. AAH 9035, 1 stemson wrench spanner, 1 valve hand wheel and a hook spanner, altogether valued at K40 million the property of Zambia Consolidated - J2 - Copper Mines Luanshya Division and at or immediately before or immediately after the time of such robbery used personal violence to the said Stephen Chikwanda in order to obtain or retain the property stolen or prevent or overcome resistance to it being stolen. The evidence relied upon by the prosecution was that on 22nd March, 1997 the complainant Mr. Stephen Chikwanda went to check at around 05:30 hours water level at the power plant. He went there driving a Toyota Hilux registration No. AAH 9035 that belonged to the Zambia Consolidated Copper Mines Limited, Luanshya Division. He went to Section 5. He stopped and came out of the vehicle and went to unlock the gate. As he did so he heard a voice from behind demanding car keys. He turned and saw Al (deceased) who touched him and pointed a gun which was a short-gun and in the witness’s opinion it was a pistol. Al demanded for car keys. He was wearing blue overalls. The complainant, PW1, was scared as he was threatened to be killed if he resisted. Al got the car keys and walked back towards the car. Al drove away and went to stop at a bend where PW1 saw another man enter the vehicle on the passenger’s side. PW1 testified further that there were some security officers a distance away who later told him that they thought the man was with him. The matter was later reported to the Mine Police and the Zambia Police. At first PW1 was not believed and he was detained from morning to 12:00 hours. Later he learnt that the vehicle had been recovered and he went to Zambia Police to identify it. PW1 further testified that at the time the vehicle was stolen, there was a radio, a hook spanner, a range spanner and a handwheel for opening the valves. All these were properties of ZCCM. When he inspected the vehicle at Zambia Police, he found that it was painted Grey, the radio was missing but the other items were there. On 4th April, 1997 PW1 was called to the Roan Antelope Police Station where he attended an identification parade and he identified easily Al, deceased. On the gun, the witness said the gun was black, small and short. The police after investigations picked A2, A3 and A4. - J3 - The prosecution’s case against A2 was that A2 had spent the precious night with Al and in the morning of the incident Al escorted A2. The evidence on record showed that after Al had got the vehicle from the complainant, he stopped some distance away and picked another person and went away with him. The prosecution argued that since they had been together the previous night and in the morning, the logical conclusion to be drawn from the facts was that he was the second man picked after the vehicle had been stolen. As regards A3, the prosecution relied on the evidence of PW3 whose evidence was that on 22nd April, 1997 when he was at his place repairing radios, he was visited by the police officers. They were after a radio from him. He told the police that he had bought the radio from a Mr. Kaleya who took it to the shop. This man happened to be A3. It can be seen that A3 was connected to the offence through the radio sold to PW3. The prosecution’s case in the lower court against A4 was the pistol which was alleged to have been used during the robbery. The evidence showed that A3 had borrowed a gun from A4 to use it to escort prisoners. A4 testified that it was normal for prison officers to borrow police guns. The evidence against A4 was that he lent the gun to A3. The learned trial Judge in his judgment concluded that there was a conspiracy to commit the robbery and convicted all of them of the robbery. The appellants who appeared in person, in their written arguments submitted that the learned trial Judge misdirected himself in concluding that the four appellants had conspired to commit the robbery. A2 maintained that he was not involved with Al although he had spent a night with him. A3 maintained that he was not involved in the commission of the offence. He submitted further that the radio could not connect him to the offence. He was not found in possession of the radio. A4 agreed that he lent the gun to A3 which according to him was normal and was not a party to the plan that the gun could be used in a robbery. - J4 - The learned Assistant Principal State Advocate Mrs. Chipande supported the convictions in respect of A2 and A3. She did not support the conviction of A4. On A2 she submitted that the evidence showed that Al and A2 spent a night together prior to the robbery. She submitted that A2 had worked for the Mines as a Police Officer before the robbery and that at the time of the robbery he was retired. She argued that the circumstances at that time of the committal of the robbery were that A2 was the person who remained at a corner and later joined Al in the vehicle. She argued that A2 was the person who had put himself on the scene. She argued further that the only reasonable inference to be drawn from the facts was that he was together with Al. As regards A3, Mrs. Chipande argued that there was the evidence of the radio and from the possession of a radio, one would conclude that A3 was one of the participants. We have seriously considered the submissions and grounds put up by the three appellants and we have further seriously considered the submissions and arguments of the learned Assistant Principal State Advocate. The facts clearly showed that an armed robbery had been committed. It was committed by one man having a firearm. The evidence on record showed further that there was another person not very far from the place where the crime was committed and who was picked by Al. There is no doubt that Al was properly convicted. He was properly identified. There is however, no direct implication of A2. The prosecution relied on the circumstantial evidence. Al and A2 were together the previous night and in the morning A2 was escorted by Al to the gate. The prosecution further relied on the fact that A2 had been a police officer prior to the robbery. The prosecution argued that the only reasonable inference to be drawn from the facts was that A2 was the second person who was picked by Al after the robbery had been committed. As regards A3, The prosecution relied on the radio which was found with PW3. PW3 had at first denied that he had bought the car radio then later implicated A3. PW3 was a witness with a possible interest to serve. PW3 was found in possession of a radio and at first he denied being involved His evidence needed some collaboration on who gave him the radio which had been taken away from the vehicle. The evidence - J5 - showed that the vehicle had been abandoned. The possibility of another person having removed the radio could not be ruled out. The learned trial Judge did not consider as regard A3 the possibility of A3 being a receiver rather than a thief. It was necessary to take into consideration the possibility of being a receiver when the evidence showed that the offence was committed primarily by two people. The learned trial Judge misdirected himself in not considering whether or not A3 was a receiver rather than concluding at once that he was part of the people who stole the vehicle. A4 was connected to the offence through the gun. The gun was not proved to have been used. It was not concluded whether or not it was a pistol or a short-gun. A4 gave an explanation on how he lent away the gun. The learned Assistant Principal State Advocate decided not to support the conviction of A4. She made a correct decision. The appeal by A4 is therefore allowed. The conviction is quashed and the sentence is set aside. As regards A2, the State has argued that the only reasonable inference to be drawn from a set of facts was that A2 was with Al. We have seriously considered the facts and we are unable to agree with the learned Assistant Principal State Advocate that the only inference to be drawn was that A2 was with Al. There is a very strong suspicion but suspicion alone cannot lead to a conviction. For A3, we have already stated that the radio was not found in his possession and that PW3 was a witness of possible interest to serve and that the learned trial Judge did not warn himself on the dangers of relying on the evidence and that the learned trial Judge did not consider A3 of being an innocent receiver. For the reasons we have given, it would be unsafe to allow the convictions of A2 and A3 to stand. Their appeals are therefore allowed and the convictions are quashed and sentences set aside. - J6 - M. S. CHA I LA SUPREME COURT JUDGE D. K. CHIRWA SUPREME COURT JUDGE D. M. LEW ANIKA SUPREME COURT JUDGE