Katyetye v People (Appeal 117 of 1993) [1993] ZMSC 95 (16 November 1993)

IN THE SUPREME COURT OF ZAMBIA APPEAL NO. 117 OF 1993 HOLDEN AT LUSAKA BE F W E E N: PATRICK KATYETYE APPELLANT Vs THE PEOPLE RESPONDENT CORAM: GARDNER. SAKALA AND MUZYAMBA DOJS., 16th November. 1993 Mr. M. H. Samad Senior Legal Aid Counsel appeared for the appellant. Hr. W. Wangor Principle State Advocate appeared for the State. JUDGMENT Gardner d. S. delivered the judgment of the court. The appellant was convicted of aggravated robbery, the particulars of the charge being that ne and another on the 20th of October, 1991) at Xitwe jointly and whilst acting together with other persons unknown did steal K300.00 from dostave Mwlla and at the time of such stealing did use actual violence. The prosecution evidence was that of tne complainant who said that ne wwas talking home from a club when he was attacked Dy four men and beaten by them. X300.00 was stolen from aim and we was aole to eaten one of the assailants by the leg. At this stage PW2 arrived and answered nis call for help. The other assailants ran away, and PNs I and 2 took the man they iwJ caught, who was alleged to be the first appellant, to the U.d. I. P. office. At that office tie man ran away out not before ms shirt was grabbed from him. Cho matter was reported to the police and PH3, the police officer on duty, said that he was called out and together with others he apprehended two men who were alleged to nave taken part in tae robbery. At Loe trial the appellant gave evidence on oath, wnen ho said he was ■Hssi'ig by Che scene wtora he was grabbed by tbr^d people who ussaul ted hl.:! but .ir •../as uole co escap'j. :ie said caut ne riimselr maue a complaint. co a pulic?: station out chore was no evidence from my police to confirm that this complaint was made. ?:!2, Lae .itan woo had come to tin assistance of the complai<i<.:K, gave evidence that the appellant was wall known to aim, anti, at the trial, tna learned 2/........ J2 trial judge accepted that tne appellant was properly identified as the man who had been caught by the leg and had run away from PWs 1 ana 2. Mr. Samad on behalf of the appellant has argued that there was no need for an identification parade at which PW2 identified tne appellant. We agree that in those circumstances the identification by PW2, as a person who knew the appellant well, rendered an identification parade unnecessary. Mr. Samad further argued tnat although the prosecution witnessess had been able to take the shirt from the appellant no money had been found, and if he had been taking part in the roboery he would surely have had the money on his person when he was caught. Hr. Samad argued tnat as the appellant was only passing by when he was caught by the prosecution witnessess ho should nut have uien charged with robbery. We are satisfied that there was ample evidence that tne appellant was Caugnt as one of the people who ware attacking P?li. The question of Identifica­ tion is immaterial because the appellant himself agreed that he is the person who was caught at the scene. As to tne suggestion That the appellant himself was a compli inant of essaulr, by tne otners, the learned trial judge having heari the witnessess was satisfied chit the prosecution witnessess were to be believed about tne circumstances of cho apprehension of the accused. In arriving at that decision he did not misdirect himself in any way. There are no grounds upon which the appeal against convinction could succeed and that appeal is disnissed. As to tne sentence there was evidence tnat the appellant was twenty years old the time of the offence and Hr. Samad drew our attention to tne provisions of Section 27 (2) of the penal code. That section provides chat where any person under the age of twe;ity-o;ie years is convicted of any offence punishable by imprisonment for atty term exceeding tnree months a court may in its discretion order him to be caned in addition to or in substitution for such imprisonment. i-1r. Samad argued tha; this was an appropriate case for the exercise of such discretion. ;bere., as in this case, tile section under which a purser is convicted provides ^or '* ‘nmioimni- sentence,, the words:- “shall be sentenced to irnpriso’inm ^or a period cf hot less than" prevent the exercise of any Jiscro’cion, u;id s. 27 (2) cannot apply. Tliw appeal against sentence is also d i siii i sse-d. 3/........ B. T. GARDNER SUPREME COURT JUDGE E. L. SAKALA SUPREME COURT JUDGE W. M. HUZYAMBA SUPREME COURT JUDGE