Manfred Phiri v The People (Appeal 78 of 2006) [2007] ZMSC 38 (6 February 2007)

I IN THE SUPREME COURT OF ZAMBIA (cid:9) APPEAL NO.78/2006 HOLDEN AT KABWE AND LUSAKA (Criminal Jurisdiction) BETWEEN: MANFRED PHIRI (cid:9) APPELLANT Vs. THE PEOPLE (cid:9) RESONDENT Coram: (cid:9) Chirwa, Mushabati, JJS and Kabalata, MS. On 8 th November, 2006 and 6th February, 2007. For the Appellant: A. C. Nkausu - Principal Legal Aid Counsel. For the Respondent: P. Mutale - Principal State Advocate. JUDGMENT Mushabati, JS., delivered the judgment of the Court. Cases referred to: 1. (cid:9) Mugala vs. The People (19 75) Z. R.282. Legislation referred to: Penal Code, Cap.87—SS.272, 276 (a) and 294 (1). This is an appeal against conviction on a charge of aggravated robbery contrary to Section 294 (1) of Penal Code, Cap.87 of the Laws of Zambia. I (cid:9) J2 The particulars of offence alleged that the appellant on the 2l' day of February, 1998 at Lusaka jointly and whilst acting together with two persons unknown did rob Fidelis Chilala of K352,000 the property of the said Fidelis Chilala and at or immediately after the time of stealing the said property did use actual violence to the said Fidelis Chilala in order to retain the said property or to prevent resistance to its being stolen. The evidence in support of the charge was that P. W.2, Kideon Chilala, was, on 21st February, 1998 at 01.00 hours, awakened by three people who asked him for the house of P. W.3, Fidelis Black Chilala of which he did. After P. W.2 had shown them P. W.3's house he was told to go back to his house. P. W.2 went to inform P. W.1 about the three men he had led to P. W.3's house. P. W.1 woke up and went to Fidelis Black Chilala's house where he found two men, one standing behind and another in front of P. W.3's house. As P. W.1 approached P. W.3's house he heard a gun shot sound and so he pleaded with those people, he believed were Police Officers, not to shoot at him. After P. W.3 was awakened, he opened the door. Three men then introduced themselves to him as Police Officers from Mumbwa who had gone to search his house for some stolen money, amounting to K15 million. He was told to produce that money but P. W.3 denied knowledge of the said money. He was then searched and a sum of K352,000 was taken from his pocket. P. W.3 was not given any receipt for it. The three men then left and P. W.3 went to inform his brothers Kideon and Loud of what had happened. The matter was immediately reported to the Police. After reporting the matter to the Police, the complainant and his brothers went back home. Whilst at home they pursued P. W.3's assailants . This was now around 07.00 hours. They caught up with the three men who upon seeing them, the J3 appellant who was well known to the witnesses as their brother-in-law, ran into the bush. The second man also attempted to run away but was caught by P. W.2. The man who was armed with a gun did not run away. The suspect P. W.2 held called at to his friend to shoot and immediately P. W.2 heard a gun shot. P. W.2 got scared and freed that man. Hilser Chilala had been shot dead by the armed man who had not run away. Hilser Chilala's assassin was later apprehended and identified at an identification parade. The appellant was apprehended and taken to the Police Station by P. W.4. When the appellant was apprehended he appeared unsettled. At the Police Station the appellant was immediately identified as one of the suspects who had stolen from P. W.3 and later killed the late Hilser Chilala. The appellant, together with his other accomplice, who was acquitted, were arrested by P. W.5 Detective Chief Inspector Wayne Siafwa for aggravated robbery and murder. The appellant gave evidence saying on 21" February, 1998, he left his home around 06.00 hours and arrived in town around 07.00 hours. He had gone to check on one man with whom he had left some goods to sell. He did not find him and on enquiry he was told that he had shifted to Nampundwe. He was given the directions of how to get to Nampundwe and he left. On his way he met one man who, after asking him where he was coming from, told him that the road he was using was no longer used. He was then accused of being one of the cattle rustlers in the area. He tried to explain about his mission but was not believed. He was apprehended and taken to the Police Station where some people, some of whom he knew, came. He was subsequently arrested for the offences of aggravated robbery and murder. The above are the brief summaries of the evidence on record. J4 In his findings of fact the learned trial judge observed that the evidence of what happened at the scene as it related to the suspects was very poor. He further found that the appellant was however, properly identified at the scene of murder by three witnesses who were his brothers-in-law. The trial judge concluded that the appellant was one of the robbers who robbed P. W.3 of his money and hence he convicted him of that charge. On the charge of murder the trial judge found him not guilty becuase at the time the late Hilser Chilala was shot dead, he was not there. This appeal was argued on one ground only namely: That the court erred in convicting the appellant of the charge offence of aggravated robbery. In his submission Mr. Nkausu argued that the charge of aggravated robbery was not proved because the suspects merely masqueraded as Police Officers who never threatened any violence against the victim. He argued that the only offence proved against the appellant was that of theft from person because the firearm was never used at the scene of crime. On the other hand the Principal State Advocate argued that the mere fact that the three suspects were armed with a pistol at the material time, was sufficient proof that the said pistol was intended to instill fear into the mind of the complainant and so violence was constructively proved to have been used. We have carefully considered the evidence on record and the submissions by both counsel. It is common place that the complainant (P. W.3) had his money stolen by three men who posed as Police Officers. We are also satisfied that at the time the money was taken away from P. W.3 no actual violence or threats were used against P. W.3. J5 We are further satisfied that when the complainant, in company of his brothers, pursued his assailants he caught up with the three men, one of whom shot at the late Hilser Chilala, thus instantly killing him. The appellant was not caught at the scene. However, his involvement in the theft has not been argued, so we are satisfied that he was properly linked to the charged offence by the evidence of his brothers-in-law, who saw him run into the bush as he and his accomplices were being pursued. We agree that the evidence of identification at the scene was poor but the defect was 4D (cid:9) rectified by the evidence of the witnesses of how they pursued P. W.3's assailants and how they caught up with them and ended in the unfortunate death of one of the brothers. In fact we must comment here that his co- accused was fortunate to have got away scot-free on both charges of murder and aggravated robbery. The question that is left to us to decide is whether the appellant was guilty of the charged offence of aggravated robbery or of the lesser offence of theft from person contrary to Sections 272 and 276(a) of the Penal Code. The undisputed brief events of 21s' February, 1998 were that P. W.3 had his money stolen from him under the pretext that the suspects were Police Officers. Shortly after, the suspects left. The complainant, with the assistance of his brothers went to report the matter to the Police. Upon their return to their home they pursued the suspects until they caught up with them. It was at this juncture that violence was used, resulting into the unfortunate death of Hilser Chilala. One of the suspects that had been apprehended by P. W.2, Kideon Chilala, was left free after he (the suspect) had shouted at his friend to shoot and indeed a gun shot, that killed Hilser Chilala, was heard. It was at that stage that P. W.2 freed the suspect he had apprehended. J6 We have no doubt that the events of that day could not be separated. They formed one continuous sequence of events. This case is therefore distinguishable from the case of Mugala vs. The People (1). In that case no violence or threats were used hence we said: To prove a charge of aggravated robbery in terms of Section 294 (1) of the Penal Code, Cap.146 (now Cap.87), it is necessary for the prosecution to show that violence was used in order to obtain or retain the thing being stolen. In the instant case before us we are satisfied that the violence that was used when the three suspects were about to be apprehended was intended both to frighten the witnesses and to retain the money which they had stolen from P. W.3. The offence that was committed went beyond mere theft from person. Had the events ended at the time when the suspects left, we would have had no difficulties in agreeing with Mr. Nkausu's argument but this was not the case here. Mr. Nkausu's argument though sounded plausible cannot, for reasons we have given above, be sustained. The only ground of appeal in this case fails. The appellant was properly convicted. The appeal is therefore dismissed. The conviction for aggravated robbery is confirmed. D. K. thirwa SUPREME COURT JUDGE (cid:9) C. S. Mushabati SUPREME C URT JUDGE _____ (cid:9) A'l SUP V I COURT JUDGE ata (cid:9)