Musasizi v Uganda (Criminal Appeal 19 of 1991) [1993] UGSC 34 (31 December 1993)

Her Survice odelle, we will discuss the dray 13 Forday

$26/11/93$ al- accu IN THE SUPERIE COURT OF UNNEA

#### AT NITGO

(CORAM: MANYHIDO - DCJ. ODOKI - JSC. $ODER - JSC$ )

#### CERTINAL ATTEAL NO. 19/91

# BETWEEN

DENON MUSASIZI: $:$ $\ddot{\cdot}$ $\overline{1}$ : $\ddot{\phantom{a}}$ : : : $\overline{z}$ $\ddot{\mathbf{z}}$ $\mathbf{1}$ $\mathbf{1}$ $\mathbf{1}$ APPELLANT

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**UGATIDA: RESPONDENT** $\ddots$ $\overline{1}$ $\overline{1}$ $11$ $\overline{1}$ $\overline{1}$ $\pm$ 1 $:$ $\overline{1}$ $\ddagger$ $\ddagger$ $\overline{1}$

> (Appeal against conviction and sentence of H/C decision holden et Kabalo (Hon. Justice J. W. N.<br>Tseekooko) dated the 1st day of<br>July 1991 from original H. C. Cr. Ss. No. $70/88$ ).

#### Judement Of The Court:

The appellant was indicted in the High Court on two counts of robbery with violence. He was convicted as charged on the first count but was convicted only of assault with intent to steal on the second count. $-\mathbf{H} \mathbf{e}$ was sentenced to death on count 1. Sentence on count 2 was deferred.

now He nw appeals against the conviction on count 1 only, on two grounds. The first ground is that the evidence adduced by the prosecution did not establish The second ground, which is clearly the offence charged. related to the first one, is that the prosecution had not proved the ellegation that a deadly weapon had been used in the robbery.

The robberg, which was not disputed, took place on 1-12-86, at about 9.00 p.m. at the houses of the complainants, Mohmain Responses (NI) and Alice Kamyongo (202) in Ruhmgiri District. According to the $M$ complainant, Inveneress, he had just retired to be/for the night when two roblems entered his house. The appellant were plain green Amy Uniform and was amed with a gam. The other robber were, mong others on Jacket. The appellant pointed his Army camouflage gun at M1's chest and ordered him to sit on the bed which he did.

Then the eppellent informed FWI, that concone hed poid him Sho. 2m, to kill him (FG1) but that he was propered to spare his life if he would pay him Sho. So. 141 told the appellant that he had no mency. The appollant's comparison than searched the house for money, while the appoints guarded IVI at gum point. A total of the. 1,190,000/- was found and taken by the robbers. That is the subject matter of count No. 1.

The appollent and his colleague than tied FUl's hendo and forced him to lead them to the house of his neighbour Alice Karyongo (IV2) so that they could overl nore noney from the. On their orders, the completent acked Karyongo to open the door which she did. Tho robbers than robbed her of maney and property. Later they returned Fil to his house to look for more money, but found none.

bed

$\mathbf{3}$

The defence case was that the appollent was employed by IMI as a text driver (which FMI denied). On the day of incident the appellant had brought FW1's texi back to Fil's home to ether with a beg which a son of FIL had put in the vehicle. FIL had found the gun in the bag and decided to frame up the present charge egainst the appellant. I to even dropped the expellant and in military uniform before handing him over to the Police. PA2 had implicated the appollant meliciously because he had impregnated her 12 year old doughter.

The ovidence of NI was corroborated in part by W 2 who stated that on the night of incident, at about 10.00 p.m. the appollent, emother man and FUL want to her house. Fil was under arrest. The speellant and the other man demanded money from her. They went away with Sho. 70,000 and some property. In the light of FW2's ovidence as to the sum of money stolen. the indictment should have been smended by outstituting the sum of She. 9000/= in count 2 with the sum of She. $70,000/=$ . While in her house the appellant had cocked his gun and threatened to shoot her and PWL. She denied the appellant's allogation regarding her doughtor. In fact she stated that the doughter has never been impregnated by anyone.

There was also the evidence of Reshunbusha (383) and Kakoki (1914), both imediate neighbourn of 1911. During the attack they rushed to the house of FM1. On arrivel the appollent cocked his gun and ordered them to sit down which they did. Apparently this was after the attack on FW2. The appellent's collegue then struck FW3 on the hand with a metal wire.

$1000/4$

# $4 \quad \blacksquare$

As the appellant and his collegue were leaving the place, FW3 grabbed the appellant disammed him and arrested him. The gun had 12 rounds of ammunition. The second man escaped. That account was confirmed by $PV4$ .

In our view, prosecution evidence amply established the fact that the appellant had participated in the robbery. His defence was no doubt false. The witnesses did not know him before this incident. If he had been employed by PVI and even resided at PVI's house before this incident, as he claimed, PW2, PW3 and PW4 would have confirmed that fact. On the contrary. they denied the allegation. The first ground of appeal has no merit. It feils.

The gum which the appellant had was never fired during the robbery. After his arrest the appellant and his gun and its 12 rounds of ammunition were immediately taken to Detective Inspector of Police David Eakehemura (FV5) at Rukungiri Police Station. FV5 re-arrested the appellant and detained him. He then examined the gun. His testimony on the point is as follows:-

> " The gun can fire. I examined it and formed the view that it can fire. It was clean inside - BO I believed it could fire. I have hendled firearms for 20 years. (After checking it by handling the trigger which clicked, this<br>gun can fire even without oiling īt). "

In his judgment the triel Judge stated this:-

I asked him (FW5) to prove that it (the gun) was capable of firing even by now. It looked rusty. He examined it and when he pulled the trig er, it clicked.<br>He assured us it can fire. In the In the consequence both counsel and I gave up the idea of test firing it." (sic).

$\mathbf{5}$

Counsel for the appellant has argued that unless the gun is fired during the robbery or is test-fired subsequently, it is not a gum. The case of: Shaban Eirumba and Another v Uranda, Cr. Appeal No. 32 of 1989, (Supreme Court) was relied on. He also submitted that a Police Officer is not a firearm expect so that the evidence of FW5 was of no consequence. Gacheru $\sigma$ /o Nierwara v R (E. A. C. A.) Criminel Appeal No. 938 of 1954 was cited in support. We do not find Shaban (supra) relevant here. In that case the gun was never recovered and so it was never examined.

That is why the Court could know whether or not it was capable of discharging in bullet. In the case before us the gun was recovered and later examined by PW5. Contrary to the submission made by Counsel for the appellant. Gachera (supra) in fact decided clearly that a Police Officer engaged on operational work for a long time acquires sufficient practical experience or knowledge to qualify him to speak as an expert on guns. In that case the appeal succeeded only because the Court was not satisfied with regard to the practical experience or knowledge of the Police witness.

$\bullet \bullet \bullet \bullet \bullet /6$

In our opinion there can he no such doubt with regard to K5.

6 \*

this case the evidence of K'5, showed clearly that the the Penal Code. fells. k u-Tt is to he proved gun ms in good working order. That meant that it was a deadly weapon within the moaning of Section 273(2) of Accordingly ground tv.o of appeal also The point perhaps is this. that the gun discharged a bullet or that it is capable of discharging a bullet.^ V.e think that it is enough for the prosecution to establish, sjn expert evidence, that the gun is capable of discharging a bullet, although the best course to take would be to test - fire the gun. Tn

In the result the appeal io dismissed.

DATED at Mango This:; 1593. Day of:.?........

> S. T. MAKYHTDO DEPUTY CHIEF JUSTICE

> > E. 0. ODOKI

JUSTICE Or THE SUPLUSE COUTT

# A. 0 ODER

JUSTICE OF THE SUPEHSE COURT