Kabinda and Anor v People (SCZ Appeal 172 of 1977) [1999] ZMSC 120 (2 March 1999)

IN THE SUPREME COURT OF ZAMBIA SCZ APPEALS NOS. 172(a)(b)of 1977 HOLDEN AT NDOLA (Criminal Jurisdiction) ISALELE KABINDA MUSUMALI KATOKA VS APPELLANT APPELLANT THE PEOPLE RESPONDENT Coram: Bweupe, DCJ; Chai la and Chirwa, JJS 2nd June, 1998 and 2nd March, 1999 For the Appellants : Mrs. J. Kaumba, Assistant Principal Legal Aid Counsel For the Respondent : Mr. B. Mumba, State Advocate Chaila, JS, delivered the judgment of the court. JUDGMENT The appellants in this matter were convicted on one count of aggravated robbery contrary to Section 294(1) of the Penal Code. The particulars of the offence were that ISALELE KABINDA, MUSUMALI KATOKA and the other person who died before the trial commenced on 20th May, 1996 at Luanshya, jointly and whilst acting together and while armed with air guns, robbed the complainant MR. ROBBY MACHIYA of various properties, all valued at K1,940,500.00 and that during the commission of the offence, they used actual violence towards the complainant in order to obtain or retain the said property. The appellants were sentenced to 18 years imprisonment with hard labour. The appeal is against the conviction and the sentence. The facts, briefly as found by the learned trial judge, were that in tiie early hours of 20th October, 1996 at Luanshya, the complainant together with his family was attacked by about three men, some of those - J2 - men wore masks and were armed with at least two guns, including air guns which were recovered. During the attack the three threatened to shoot the complainant with his family if they shouted or screamed. In the process of the attack the men robbed the complainant of a large haul of property which they packed in plastic bags and they disappeared with the property after jumping over the fence. The matter was reported to the police immediately. The oolice mounted a roadblock and subsequently recovered most of the property from the mini bus on which the two appellants, including the person who has since died, were apprehended. The men were wearing shoes and clothes which had just been stolen from the complainant. The learned trial judge found further that within five hours of the robbery most of the property was recovered from the bus which the two appellants and the deceased person had boarded. The learned trial judge further found that the deceased person was wearing the complainant's jacket and a pair of trainers. The second appellant was wearing a pair of the complainant's white trainers, while the third appellant was wearing the complainant's black pair of shoes. On identification of the assailants the learned trial judge found that the prosecution witnesses had ample time to observe the appellants since there was light and the robbery took sometime. The appellants were busy ferrying property from the house to some place outside. In addition to the prosecution witnesses having ample opportunity in observing the appellants, the learned trial judge found that within three to five hours of the robbery, the accused persons, including the deceased one, were apprehended at the roadblock set up by the police. The second prosecution witness not only identified the three persons but each of them was found wearing shoes and clothes stolen from the complainant. In addition to that, almost all the stolen property was found on the bus which the three accused persons had boarded. The learned trial judge found that the doctrine of recent prossession came into play and the learned trial judge concluded that there was overwhelming prosecution evidence before him that the appellants were the persons who committed the offence. Counsel for the appellants, Mrs. Kaumba, has submitted one ground on the conviction. The ground is that the learned trial judge misdirected himself that the first appellant used an air gun in committing the offence without carefully considering the contradictory and unsatisfactory evidence - J3 - before him. The learned counsel drew our attention to the case of Manongo vs The People (1991) ZLR page 154. ilrs. Kaumba argued that the evidence of the prosecution witnesses should have been seriously tested. She argued that the prosecution witnesses, PW1 and PW2 did not inform the court of what type of the gun the appellant used in order for them to give the description of the gun. On behalf of the State, Mr. Mumba, learned State Advocate, submitted that it was not a requirement that the gun must be used. He argued that in this case violence was used. The evidence of PW1 and PW2 showed that the complainant was being threatened to be shot at, at the time of the incident. The complainant let his property go because of these threats. Mr. Mumba further referred to the evidence of PW1 and PW2 which showed that during the time of the robbery, the appellants had in their possession guns. Pk1 and PW2 were the people who saw these guns because there was light. The learned trial judge had before him the evidence of PW1 and PW2 and that of police officers, particularly PW4. The record shows that in his judgment the learned trial judge was very much alive to any possible contradiction in the evidence of PW1 and PW2. At page 9 of the judgment, the learned trial judge said: "I have no doubt in my mind that both PW1 and PW2 had ample opportunity to observe the robbers sufficiently to know and recognise them at a later stage. Of course there might appear to be differences in PW1's and PW2's evidence as to who was doing what and who was wearing what (mutton cloth) at the time but I regard these as really minor and of no consequences whatsoever." The learned trial judge continued in his judgment; "I am therefore, more than satisfied that both PW1 and PW2 have properly and correctly identified the two accused persons as part of the men who attacked their parents using the air guns and stole the property in issue." Che passages we have just quoted clearly show chat the learned trial judge was aware of minor discrepancies and he concluded that they were of no consequences. We cannot, therefore, agree with the argument of Mrs. Kaumba that the learned trial judge did not consider the contradictory evidence of the prosecution witnesses. In addition, as the learned trial judge pointed out, there was further evidence. The learned trial judge at page 9 of the judgment said: "There is further evidence which reinforces my finding above. This is that within three to five hours of the robbery the accused persons, including the demised 1st accused were apprehended at the roadblock set up by PW4. At that time PW2 not only identified the three accused persons, but also each one of them was found wearing shoes and clothes stolen from the complainant. In addition, almost all the stolen property was found on the bus which the three accused persons had boarded." The learned trial judge evoked the doctrine of recent possession. From what the learned trial judge said in his judgment, it was quite clear that in addition to the identification of the accused persons by PW1 and PW2, within a short time the accused persons were found in possession of tne stolen property and were wearing some of the clothes and shoes of the complainant. We entirely agree with the finding of the learned trial judge that there was ample evidence to justify the convictions. The appeals against convictions cannot, therefore, succeed and the appeals are dismissed. We now turn to sentences. Mrs. Kaumba submitted that the sentences were excessive since most of the property was recovered and the appellants were first offenders. When sentencing the appellants, the judge's attention was drawn to the fact that most of the proerty was recovered; that they were young and that they were first offenders. The learned trial judge took that into consideration and concluded that he could not impose a minimum sentence. The facts showed that the appellants were armed with air guns and other guns. We do not regard the sentences of 18 years of imprisonment on these facts as wrong in principle or excessive. The appeals against tiie sentences are therefore dismissed. - J5 - B. K. BWEUPE DEPUTY CHIEF JUSTICE M. S. CHAILA SUPREME COURT JUDGE D. K. CHIRWA SUPREME COURT JUDGE