Justine Mutale and Anor v People (SCZ Appeal 64 of 2000) [2001] ZMSC 90 (16 December 2001)

IN THE SUPREME COURT OF ZAMBIA SCZ APPEALS NO. 63 & 65 OF2000 HOLDEN AT NDOLA (CRIMINAL JURISDICTION) JUSTINE MUTALE MORGAN ZULU VS THE PEOPLE 1ST APPELLANT 2nd APPELLANT CORAM: LEWANIKA, AG. D. C. J., CHIRWA AND CHIBESAKUNDA JJS ON 6th JUNE AND 16th OCTOBER 2001 For the Appellant: Mr. R. Malupenga, Ellis & Co. For the Respondent: Mr. F. C. R. Muchenga, Senior State Advocate JUDGMENT Chirwa, J. S. delivered judgment of the Court: - The two appellants, JUSTINE MUTALE (herein referred to as 1s' Appellant) and MORGAN ZULU (referred to as 2nd Appellant) were convicted on two counts. The first count was that of aggravated robbery contrary to Section 294 (2) of the Penal Code Cap. 146. The particulars on this count were that the appellants with other persons on 29,h March 1996 at Lusaka in the Lusaka District of the Lusaka Province of the Republic of Zambia, jointly and whilst acting together did rob Teddy Mulonga OF ONE PISTOL SERIAL No. 81982 and K150,000-00 cash and at or immediately before or immediately after the time of the robbery did use or threatened to use actual violence to the said Teddy Mulonga in order to obtain or retain the said properly. The second count is that of attempted murder contrary to section 215 of the Penal Code, Cap 146. The particulars of this count were that the appellants on 29th day of March 1996 at Lusaka in the Lusaka District of the Lusaka Province of the Republic of Zambia whilst acting together unlawfully attempted to cause the death of Teddy Mulonga. Upon their convictions the : J2 : appellants were sentenced to the mandatory death sentence in the first count and 7 years imprisonment with hard labour on the second count. They appealed against both convictions and sentences. The prosecution evidence, which the learned trial judge accepted was that the complainant, Teddy Mulonga, at about 2200 hours on 29,h March 1996, was coming with his wife from a meeting going to his house in Ibex Hill. As he was driving he observed a car following them. On arrival at home he parked his motor vehicle behind his house and woke up two boys from the house whom he was keeping. As he was waiting for the boys to open for him, he observed that the car that had been following him stopped on the road. He asked his guard to check on the car and the guard came back and reported that there was no car. The boys woke up in the house and he asked them to off-load some things he had in the vehicle and he asked one of the boys to open the gate to the garage so that he parks the vehicle in the garage. After parking and as he was locking the vehicle he saw his guard and two boys run into the house saying there were thieves around. Suddenly he saw one man armed with a gun which looked like an AK47 who came and held him up and asked for the car keys which he gave to this armed man. The man called his friend to whom he handed the keys. The complainant was ordered to lie down by the armed man which he did facing up looking at the man. He was searched and they took K150,000-00 which was in one pocket and a pistol which was in the other pocket. The complainant was threatened and after that he was ordered to stand up and as he started walking he noticed another man. He was ordered to lie down. He then heard gunshots and he realized that he had been shot. In the meantime PW1, one of the boys the complainant was keeping came out of the house with a shotgun and he observed that the complainant was held at gunpoint. He fired the gun at a man who was in the complainant’s vehicle and killed this man. The other attackers ran away. The neighbours to the complainant came to his rescue and took him to the hospital where he was admitted and treated for gun shot wounds. The appellants were apprehended and arrested after some information was obtained at the funeral house of the funeral of one of the attackers killed at the complainant’s house. The appellants denied been involved in the crimes and that they were never near the scene. : J3 : The learned trial judge further found that the place where the complainant was attacked was well lit and that he and PW1 had ample opportunity to observe the attackers. The learned trial judge rejected the evidence of the appellants. In arguing the appeal before us Mr. Malupenga submitted that the learned trial judge misdirected herself in finding the appellants guilty of the offences charged. It was submitted that there was insufficient evidence to convict of armed robbery as it was not clear on the evidence what typed of a gun was used and no empty cartridges were recovered from the scene. It was said that not even K150,000-00 was recovered to link the appellants to the crime. As for the second appellant it was argued that he was identified by one witness and the possibility of mistaken identity was not removed. It was also argued that the identification parade was unfairly conducted as the witnesses saw the appellants at Police Headquarters and Kabwata Police Station before the parade was conducted. On behalf of the State, Mr. Muchenga supported the findings of the learned trial judge saying that there was overwhelming evidence against the appellants. It was submitted that both complainant and PW1 had ample opportunity to observe the attackers and robbery took about 10 minutes in a well-lit area thereby eliminating any possible mistaken identification. Also the complaint on identification parade was properly dealt with by the learned trial judge. We have considered the evidence and judgment on record and submissions made by learned counsel. The evidence touching the appellants and connecting them to the crimes is that of PW1 and PW4. Both these witnesses described the state of the light. PW1 identified the first appellant as the one who pointed a gun at the complainant and told the Court that he did not shoot at him, as he was afraid of shooting his uncle, the complainant in the process. The evidence of first appellant been at the scene is supported by PW4 who confirmed that it was the first appellant who had a gun pointing at him. Further PW4 identified the second appellant as the one who searched him and got the pistol and K150,000-00. When the second appellant was trying to get the pistol the complainant held him trying to resist but was threatened by the first appellant. These are the instances of opportunity to observe clearly. On this evidence, we cannot fault the learned trial judge in her findings that both PW1 and PW4 had ample opportunity to observe the two appellants. The place was well lit giving good chance for the witnesses : J4 : to observe and although the second appellant was identified by one witness, this witness had ample opportunity to observe so as to eliminate any possible mistaken identity. The complaint on the identification parade was properly considered by the learned trial judge and the complaints were properly dismissed as an afterthought. On the question of no evidence of armed robbery, we are satisfied that this was armed robbery. There is medical evidence on the injuries sustained by the complainant and the possibility of PW1 having shot the complainant is also eliminated by his evidence that he could not shoot at the man who had a gun as he was afraid of shooting the complainant who was held at gunpoint by the armed man. The gunshot wounds sustained by the complainant could therefore only have come from the attackers. On the totality of the evidence on record, there are no merits in these appeals and they are dismissed. D. M. LEWANIKA ACTING DEPUTY CHIEF JUSTICE D. K. CHIRWA SUPREME COURT JUDGE L. P. CHIBESAKUNDA SUPREME COURT JUDGE