Silumbu and Ors v People (Appeal 48 of 1990) [1991] ZMSC 48 (20 February 1991)

IN THE SUPREME COURT OF ZAMBIA Appeal No. 43 of 1990 HOLDEN AT LUSAKA ’ : ' ■ ■■■■ <<■' " MUCHANA SILUMBU MATIAS KUFA MWANGELA MUKUMBUTA vs THE PEOPLE i I t i CORAM: Ngulube, D. C. J., Chaila and Chlrwa JJ. S. Mr. G. S. Phiri, Director of Public Prosecutions, for the State Mr. Henry Chanda, Senior Legal Aid Counsel, for the appellants 20th February, 1991. JUDGMENT Chaila, J. S. delivered the Judgment of the court. The appellants were charged with aggravated robbery contrary to Section 294 of the Penal Code. The particulars of the offence were that the three accused on or about-2nd June, 1987 at Mulele in Senanga District jointly and whilst acting together and while armed with a firearm did steal money and goods the property of Thomas Slmasiku and at or immediately after stealing such property used actual violence to' the watchman at Mulele shop In order to retain the said property. Briefly the facts of the case were that on 2nd June, J 1987 PW2 closed the shop around 1600 hours and locked the shop. At 2000 hours at night she was awakened by gun shots but she feared to go out of the house. There was a watchman PW5 at the shop who was alerted by a barking dog. The watchman saw three men and when they reached the shop they started firing. The watchman ran to the bush on hearing the gun shots. The watchman went to report to the Village Headman. The Village Headman and the Watchman later went to the shop and found that the shop had been ransacked. They noticed that the door to the sales-lady's house had been /2....tied up........ - J2 - tied up with wires. They discovered that many items including K10,000 had been stolen from the shop. Some cartridges were picked from the scene. Some of them were later given to the police. Later the police recovered some .1 items. The appellants were convicted of the offence and were 4 sentenced to a mandatory death sentence. Mr. Chanda appearing on behalf of the three appellants has submitted six grounds* The first ground is that the learned trial judge misdirected himself by basing his conviction on the evidence of PWs 6. 7, 8, 9 and 10. He has ■ argued that while the learned trial judge properly reminded himself of the dangers of convicting on the witnesses who had their own interests to serve the learned trial judge went ahead on relying on the evidence of PW7 and found that the evidence of PW13 corroborated the witnesses who were found with the properties allegedly stolen during the robbery. Mr. Chanda has argued that the learned trial judge misdirected himself on relying on the evidence of PW13 as corroborative. He gave reasons why the evidence of PW13 could not provide corroboration and argued further that PW13 was an officer who took confession statements which were not presented by the prosecution. He argued that the learned State Advocate decided to do away with confession statements and the . accepted that. Mr. Chanda argued that the learned trial judge should have warned himself as regards other Issues covered by PW13‘s testimony. Mr. Chanda could not offer any authority to support his argument and at the end he dropped that line of argument as regards PW13. The second ground of appeal is that the learned trial judge misdirected himself on the facts at page 13 of the record when In the judgment the learned trial judge said when the three accused persons were apprehended they were found together and that the judge made a comment that it was not a mere coincidence that the three accused were found together. Mr. Chanda argued that this was a misdirection and that the learned trial judge failed to consider the evidence of the second appellant who had said in /3..hls .......... - J3 - his evidence that he was apprehended alone by PW13. Mr. Chanda has argued that the learned trial Judge came to the mistaken conclusion that it was not a mere coincidence that the appellants were arrested together. Mr. Chanda maintained that if the learned trial judge had properly directed himself, he was not going to talk about coincidences.. The third ground of appeal was that the learned trial judge misdirected himself by falling to consider the evidence of the second appellant in his Judgment. Mr. Chanda submitted that the judge ignored the evidence of the second appellant. He has argued that the second appellant.had testified that he had bought 'Chitenge' materials in Livingstone and that his hawker's licence was with the police. Mr. Chanda argued that the learned trial judge ignored this evidence. He maintained that the prosecution should have adduced evidence in rebuttal after the second appellant had made these serious allegations against the police. He has argued that courts should take Judicial notice;that hawkers' licences are Issued by District Councils and that It was \ necessary for the prosecution to rebut the; second appellant's evidence. The fourth ground of appeal was that the prosecution's evidence was that at the scene there were some empty cartridges but the evidence showed that only 4 cartridges were taken to the police and were later exhibited in court. The evidence further showed that the other two empty cartridges were not given to the police. Mr* Chanda argued that the reason which was given by the police was not reasonable. He maintained that the evidence regarding cartridges should be treated as suspect. The fifth ground of appeal was that the learned trial Judge misdirected himself when he held that the appellants were dressed in similar clothes, necklaces and sun-glasses. Mr. Chanda has argued that the learned trial Judge held that was an odd coincidence. Mr. Chanda has maintained that can not be called an odd coincidence. He has argued that in small areas people have got very limited facilities. It is common, /4..that people.... - J4 - that people In those areas would be found wearing; similar clothes. The sixth ground of appeal was that the record did not have direct evidence to link the appellants to the scene of the crime. Mr. Chanda argued that the learned trial judge misdirected himself by accepting the evidence of the watchman that he saw three men. Later in his argument Mr. Chanda conceded that the watchman saw three people. Mr. Chanda further argued that the money allegedly stolen was kept in a steel trunk. He argued that the steel trunks had smooth surfaces from.wiiere finger-prints could be lifted. Mr. Chanda abandoned this line of argument when it was brought to his attention that during the trial the question of finger-prints was not raised. Mr. Chanda further submitted that on the totality of the evidence before the lower court, it was unsafe to convicted the appellants and urged the court to acquit the appellants. Mr. G. S. Phlrl the learned Director of Public Prosecutions in supporting the convictions has submitted that the record showed that the learned trial judge approached the evidence of PWs 6, 7, 8, 9 and 10 with caution. The learned Director of Public Prosecutions maintained that the learned trial judge found that those fiyewitnesses were credible witnesses and that they were supported on recovery of goods by PW13. The learned Director of Public Prosecutions maintained that PW13's evidence showed that each of the appellants showed the police where the goods were sold. He has argued that PW13's evidence did not only support the witnesses but corroborated their evidence. The learned Director of Public Prosecutions has argued that on the arrest of the appellants the learned trial judge relied on the evidence of PW13. The evidence of PW13 clearly showed that the three appellants were wearing similar clothes at the time of the arrest. Mr. Phlrl has further argued that the learned trial judge did examine the evidence of the second appellant but the evidence was rejected. /5... We have...... - J5 We have considered these arguments put forward by the learned senior legal counsel Mr. Chanda and by the learned Director of Public Prosecutions. The learned trial judge approached the evidence of witnesses who had been sold materials with extreme caution. The learned trial judge went out to look for supporting evidence and he found that in the evidence of PW13. The evidence of PW6. 7, 8, 9 and 10 was sufficiently corroborated by the evidence of PW13. We find therefore that the learned trial judge did not misdirect himself in his conclusion on the evidence of the prosecution witnesses j*ho had purchased the materials. The learned trial judge made a comment on the clothes found on the three appellants. He made that comment and came to the conclusion that it was an odd coincidence for the appellants to wear similar clothes. We do not agree that the learned trial judge misdirected himself on this point. The prosecution evidence showed, that the goods were recovered from the prosecution witnesses as a result of leading of the police by the three appellants to various people. The second appellant gave evidence; his evidence was considered and was rejected by the court. It is not true therefore that the judge completely ignored the second appellant’s evidence. Mr. Chanda did advance an argument on cartridges found on the scene. The evidence showed that four empty cartridges were given to the police and that two empty cartridges were given to the headmasters in the area. Those were not exhibited. There is no ground on which the learned judge could threat the evidence of cartridges as suspect. The prosecution advanced a reason for not giving all the cartridges to the police. Although the reason may not be reasonable that does not make evidence suspect. The evidence on record showed that the watchman saw those three men. When the watchman realised that they were armed, he went to hide himself. Mr. Chanda’s argument that the watchman never saw them cannot seriously be considered as he himself later in the argument abandoned that Une of argument. We are satisfied that the learned trial judge properly analysed /6..the evidence.... the evidence before him and properly came to the conclusion; that the three appellants were the people involved in the crime. For the forefoing reasons we find that the three appellants were properly convicted and their appeals are therefore dismissed. M. S. Ngulube DEPUTY CHIEF JUSTICE M. S. Chaila SUPREME COURT JUDGE D. K. Chirwa SUPREME COURT JUDGE