Kabeka v People (SCZ Appeal 12 of 1994) [1994] ZMSC 145 (7 June 1994)

INTHE SUPREME COURT OF ZAMBIA SCZ Appeal Ko>12 of 1994 HOLDEN AT HDOLA (CriBinal Jurisdiction) JOHN KABEKA Appellant. V0 . .• THE PEOPLE ■ Respondent ■ ■:/•/■• , ; Coroot Sakala, Chaila and Chlrwa JJJs on 7Ch June, 1994 For the Appellant t Hr. J. P. Silva, Assistant Senior Legal Aid Counsel ; For the Respondent^ Mrs. M. Sitali, Assistant Senior State Advocate .. ••?/ \ ' . ■ >’• JU DGME» T ■ - ’ - 1 m? '‘.w Chirva J. S delivered the judgment of the court. The appellant vm charged and convicted of aggravated robbery contrary co section 294(2) of the penal Code. The particulars of the offence were that/ ho, on 24th October 1992 at Hufulira in the Mufulira ■ ?*;■ -/ •• • ■■ ■ ■■ District of the CopperbeIt Province of the Republic of ' Zambia, jointly end whilst acting together with other persons unknown and whilst arced with a .'rifle did a fecal 93 x 6 metres chitenge materleIs and other goods valued < at 2372,000.00 the property of Sarah Changwe and at or immediately before or iasaedlately after the time of such stealing did use actual violence in order to obtain and '■ ■■■ ■• ■ <■ • • ■■? "> ■ ■ ■ • •• ■ retain the said property. Upon his conviction he was Mnc«w« CO dMCh. ■ ■ ■ , . ' . .rv’ .■ ' ' ■ 1 ■/ Mr. Silva for the appellant has argued one ground of appeal namely that the learned trial judge erred in basing the applicant’s conviction solely on the un­ corroborated evidence of Maggie Hack Hongo, FW3, as she was a witness with an interest of her own to serve. '. S? j'1'-' ’* ’ 2/«..ln expanding J2 - In expanding thia argument Mr. Silva high lighted the aspects of her evidence and conduct which makes her as an accomplice witness with her own interest to serve. Firstly, ho pointed out that this witness was in police custody for one week, and thereafter two weeks in remand prison. Further in her evidence she admitted that!she sold some of this stolen property and some property was found in her house. Further the gun was also found in her house and as the learned trial judge found her as a woman of loose morals* there were so many people staying in this house anj^he appellant unfortunately was found by the police in this bouse and as there io no corroborative evidence to support PV2 the .learned trial judge erred in not bolding thia witness so an accomplice and as such there is no other evidence on which co base the conviction. v'j Mrs. Sltali for the State in supporting-'the , . w- conviction, conceded that the learned trial judge should have considered PW3 as a witness with interest of her own to serve, but she submitted that there wascorrobotstion in this matter. Firstly, chat at the time of ths robbery, a gun was used and a gun was found in the house of FW3 which upon its examination was found to have been che gun that was fired at the time of C^e,; robbery. She • ■WWl-'- submitted that this la some corroboracive evidence. She further submitted that cho way in which >93 gave evidence clearly showed chat she was not involved In this natter and alsohor evidence showed that the appellant exonerated her as being involved in thia matter. . This piece of evidence it was submitted was never challenged in cross-examination. Further she submitted that FW2 stated that she was robbed by about four people ahd also that PW3 stated cbet the accused in the ,company of , three others left cho bouse ac night of the day of the robbery and they came back with the materials which were later Identified as chose scolon from FW2. ■ : •■••..■ ■ . K-, - "• . ' -. W 3/... Wc have considered - 1^’ ■• - . - JJ i - ■* We have considered Che evidence on record and also . Jift W Che submissions cade In thia appeal* We agree with both counsel that the learned trial judge ought co have treated PW3 as an accomplice or a witness with an interest of her own to serve* We have to consider the evidence i further in thia matter and see if tberels any coorobo- racive evidence or something more* We have noted from the evidence and it cannot be argued that the robbery Cook place in the early hours of 26tb October 1992 and that the appellant and hie colleagues came back to the bouse of PW3 in cb^early hours of 26ch October 1992 with two sacks which later-on revealed to contain chitange materials and these materials were later identified by PW1 as the property she left with Sarah l. Chilambe. Furthermore it cannot be argued that.at the u.1 time of the robbery the firearm was used and the empty -41 ■ " ’ ■ *' cartridge found on the qcono proved to have been fired . from the gun found;? in the house of PW3. We further note that when PW3 gave this piece of evidence that property was brought in by the appellant and his friends, and also when she said that wb<n pbe was In the police custody, the appellant exonerated her* she was never challenged In cross-examination. We further note that it could be coo nucb of a eoincidan<?bb^ testified that she was robbed by four pebpiej^ the early hours of 26 th October 1992 Chat the appellant should come back to the house of FW3 with the property stolen from PW2. Looking at the evidence on record, had the learned trial judge considered FW3 as an accomplice, be would still have reached the same conclusion be did and we are of the view that this is a proper case in which to use the proviso* Using this proviso we therefore find that there la no meric in this appeal* The appeal ]