Mpandashalo v People (SCZ Appeal 13 of 1996) [1996] ZMSC 40 (17 April 1996)

IN THE SUPREME COURT OF ZAMBIA sex APPEAL No.13 OF 1996 HOLDEN AT KABHE (Criminal Jurisdiction) JOHN NPANDASHALO APPELLANT VS THE PEOPLE RESPONDENT Coras: Bweupe, D. C. J., Chaila and Muzymaba, JJS 17th April, 1996 For the Appellant: V. A. L. Katanga, Director of Legal Aid For the Respondent: J. Munakatwe, Principal State Advocate _________________ JU DGME NT____________________________ ______ Hizyamba, J. S. delivered the judgment of the Court. The appellant was convicted of aggravated robbery Contrary to Section 294 of the Penal Code, Cap 146 of the Laws of Zambia and sentenced to death by hanging. The particulars of the offence were that John Mpandashalo, on the 11th day of January, 1995 at Ndola in the Ndola District of the Copperbelt Province of the Republic of Zambia did rob Tarchisio Chomba of 11 tolectric pressing irons, 34 dozen of underpants, 40 dozens of caps, 16 dozens boys shirts and shorts, 152 dozens of skippers and shorts, 24 travelling bags, 6 dozens of shirts, 192 pairs of sandals, 15 pairs of canvas, 140 pairs of shoes, 2 sets of dining sets, 6 dozens of dress material, 15 dozens boys Jeans, 4 radios, 50 sets of bed covers, 3 jack pot electric irons, 10 wall clocks, 4 television sets, 15 walk man radios, 35 pieces of chitenge materials, 6 dozen of men's skippers, 2 cartons of cigarettes, 1 dozen of towels, 8 packets of good-morning tablets, 12 pockets of tooth brushes and 12 mosquito nets altogether valued at K7,219,100-00n the property of Zambia Suitcase Company, and at or immediately before or immediately after the time of such robbery, did use or threatened to use actual violence to the said tarclsio Chomba In order to obtain or retain the said property. The brief facts of the case were that PW.2 Tarclsio Chomba, while guarding the premises of PW.i, Vallie Umarjl Adam was attacked by a group of men who stole the various items listed in the information. A report was made to the Police who carried out investigations and recovered some of the item? from the appellant. The appellant gave evidence on oath and explained how he came in possession of the items. He said he bought them from a youngman who was wearing a uniform written Trinity Security and that he obtained a receipt for one of the items, the television set but did not obtain one for the other J2/... : J2 : items. He produced the receipt in evidence. He gave the name of the young man as Joseph Mulenga and that he paid him K140»000. He called two witnesses who confirmed his story. The learned Principal State Advocate, Nr. Mwanakatwe did not support the conviction for the offence charged but said he would support a conviction for the lesser offence of receiving stolen property. As to whether or not the evidence supported the lesser offence, the learned Director of legal Aid Mr. Kabonga left it to the court to decide. We have considered the facts of this case and we entirely agree with Mr. Mwanakatwe for the course he has taken in not supporting the conviction for aggravated robbery and we must commend him for that because first, the information is defective in that it does not allege that the appellant acted jointly with others unknown or that he was armed with a gun and second, the evidence on record does not support the offence charged. However, although the appellant gave an explanation of how he came in possession of the goods he did not, except for the TV set have a receipt for them and no doubt the quantity of goods he allegedly bought would have put any prudent businessman on his inquiry for the amount that he paid for them. We are therefore satisfied that the evidence on record did support the lesser offence of receiving stolen property. We accordingly allow the appeal against conviction and set aside the death sentence and we substitute a conviction for receiving stolen property Contrary to Section 318 (1) of the Penal Code, Cap. 146 of the Laws of Zambia and sentence the appellant to 7 years imprisonment with hard labour effective from the date of his arrest. B. K. BWEUPE DEPUTY CHIEF JUSTICE M. S. CHAILA SUPREME COURT JUDGE W. M. MUZYAMBA SUPREME COURT JUDGE