Tambwisha and Another v People (CAZ Appeal 56 of 2016) [2017] ZMSC 1 (13 April 2017)

IN THE COURT OF APPEAL CAZ APPEAL NO. 56 AND 57 OF 2016 OF ZAMBIA HOLDEN AT NDOLA (Criminal Jurisdiction) BETWEEN: ouRT I* APPEAL 3 APR 2017 CRIMINAL REGISTRY I OX 5°067 PATRICK TAMBWISHA ELVIS SHAMBOKO AND THE PEOPLE (cid:9) I. NT APPELLANT 2ND APPELLANT RESPONDENT CORAM: Chisanga JP, Chashi and Mulongoti JJA ON: (cid:9) 7th February and 13th April 2017 For the Int and 2nd Appellant: For the Respondent: K. IVIuzenga, Deputy Director, Legal Aid Board RM Khuz-ivayo (Mrs) Chief State Advocate, National Prosecution Authority. JUDGMENT CHASHI, JA delivered the Judgment of the Court. Cases referred to: Muvuma Kambanja Situna v The People (1982) ZR 115 Sammy Kambilima Ngati, Mumba Chishimba Edward and Another v The People SCZ Judgment No. 14 of 2003 Mwansa Mushala and others v The People (1978) ZR 58 Roberson Kalonga v The People (1988-1989) ZR 90 Television Chibuye v The People (1978) ZR 43 Mulenga Katete v The People - SCZ Judgment No. 10 of 2010 James Chibuye, Luckwell Ng'ambi and Penius Zulu v The People - SCZ Judgment No. 33 of 2010 Kambarage Mpundu Kaunda v The People (1990/1992) ZR, 215 (cid:9) (cid:9) (cid:9) (cid:9) -J2- 9. (cid:9) The People v Ross Ernest Moore and Hassel Shamalime - SCZ Judgment No. 1 01 2010 Legislation referred to: The Penal Code, Chapter 87 of The Laws of Zambia The Criminal Procedure Code, Chapter 88 of The Laws of Zambia The Zambia Police Act, Chapter 107 of The Laws of Zambia. The let and 2nd Appellants were convicted of the offence of Aggravated Robbery, contrary to Section 294 (1) of The Penal Coder° by the High Court sitting at Kitwe and sentenced to death after invoking the provisions of Section 294 (2) (b) of The Penal Codelo. The particulars of the offence were that the 1st and 2nd Appellants on 23" January 2013 at Lufwanyama, in the Kitwe District of the Copperbelt Province of the Republic of Zambia, jointly and whilst acting together and whilst armed with a knife, did steal three 50kg bags of maize and one 50kg bag of fertilizer altogether valued at K480.00 the property of Marcel Mulanda and at or immediately before or immediately after the time of such robbery, did use or threatened to use actual violence to Charles Musaka in order to obtain or retain or prevent the said property from being stolen. The facts of this case are mainly to be found in the evidence of Charles Musaka, PW1 and these are that on the date in question, PW1 went to sleep around 23:00 hours. He was awakened by a -J3- knock on the door which he believed was by his friend and house mate Webby Mwelwa (PW4), who was at the time not at home. According to PW1, when he opened the door, he was accosted by four men, among whom he recognised the 1st and 2nd Appellants as there was a bit of moonlight and also because the two were his neighbours, whom he had known for about a month. During that time, the Appellants used to work at the farm where PW1 and PW4 were employed as caretakers. Further, according to PW1, it was then that the 1st Appellant stabbed him in the palm and the other two assailants entered the house and started removing bags of maize and fertilizer. PW1 further testified that after struggling with the 1st Appellant he felt tired and stressed. He pleaded with the assailants to spare his life. It was then that the 2nd Appellant put a cloth in his mouth and tied his hands and left the house. It was PW1's testimony that it was only in the morning after untying himself that he went to Mr. Mumba, the Village Chairman and reported the matter. The Village Chairman instructed his son Jairos Banda (PW3) to take PW1 around in search of the assailants, in the company of some other neighbours. When they reached the 1st Appellant's house, they apprehended the 1st Appellant, whilst the 2'd Appellant, upon seeing them ran away. PW1, later learnt that the 2nd Appellant was also later on apprehended and the stolen items recovered, which he subsequently identified at the Chairman's house. It was also his testimony that his fingers have been affected by the injuries as he can no longer make a fist. PW2's evidence was that on the material date, he overheard the 1st and 2nd Appellants discussing and planning to go somewhere to steal. The 1st and 2nd Appellants are his step father and uncle respectively. That the following morning he saw neighbourhood officers who came to apprehend the 1st and 2nd Appellants. According to PW2, he was also apprehended by the neighbourhood officers and was taken to Kitwe Central Police. PW3, testified that, on 24th January 2013 around 06:00 hours, PW1, who had injuries on his hands came to his father the Village Chairman to report that he had been injured by some thieves. That according to PW1, he had been attacked by the Pt and 2' d Appellants. They then apprehended the 1st Appellant together with PW2. PW3 further testified that at the instigation of PW2, they went and apprehended the 2nd Appellant. Upon assuring the 2nd Appellant that -J5- he would not be beaten and would be set free if he showed them where the stolen goods were, the 2nd Appellant led them to the bush about a kilometer away where the stolen goods were recovered and taken to the Village Chairman's house. The Police later picked up the stolen items. PW4's evidence was that, on the night in issue he got drunk and ended up spending the night at the Village Chairman's house where they were drinking from. The following morning he saw PW1 at the Chairman's house with a lot of blood on his hands and he stated that he had been attacked and injured by the 1st and 2nd Appellants. They then went and apprehended the 1st Appellant whilst the 2nd Appellant ran away. It was also his testimony that later on, as he was in the company of PW3 and others, they managed to apprehend the 2nd Appellant at the 2nd Appellant's neighbour's farm. According to PW4, the 2nd Appellant promised to lead them where the stolen goods were if they promised not to beat him up. He later led them to where the goods were and the 2nd Appellant retrieved three bags of maize and a bag of fertilizer from the bush. -J6- It was PW4's further evidence that he identified the stolen goods as they used fertilizer bags to pack the maize and flour bags. PW5, Marcel Mulanda's evidence was that he is the owner of the farm where the goods were stolen from. PW1 phoned him on 24th January 2013 to report that he was attacked and maize and fertilizer stolen. He also informed him that the suspects had been apprehended. Further, that on let February 2013, he was summoned by Police Officers from Kitwe Central Police Station who informed him that the suspects were in police custody and that stolen items had been recovered. He identified the goods and was informed the goods would not be released until an Order for disposal was obtained from the Subordinate Court. Subsequently the Order was obtained and the goods released. PW6 the arresting officer testified to being allocated a docket of Aggravated Robbery where PW1 was the Complainant. After interviewing PW1, he was told that two suspects had already been apprehended. He later picked up the two suspects, the let and 2nd Appellants from Luangwa Police Post and interviewed them in connection with the allegations. They later led him to the Village Chairman's house where they found the stolen goods. PW6 also -J7- interviewed the people who were keeping the goods, on how they came into possession of the same. The goods were later taken to the Police station and subsequently to the Kitwe Subordinate Court where a disposal Order was obtained. PW6, tendered the disposal Order and PW1's medical report into evidence. PW6's further evidence was that no identification parade was conducted for PW1 to identify the Appellants. According to PW6, when he was allocated the docket, he also found PW2 held at Luangwa Police Post as a suspect, but he released him after recording a statement from him. On the other hand, the 1st Appellant in his defence told the Court that on the material date, he came from the mine, between 18:00 and 19:00 hours. He passed through some drinking place, got drunk and went straight home to sleep. He slept until in the morning when he saw a lot of people at his home with sticks and stones. That after PW1 pointed at him, he was apprehended together with PW2 and they were taken to the National Service Camp where they were beaten and later taken to Luangwa Police Post where they were detained. It was also his evidence that later on, the 2nd Appellant was also apprehended. -J8- The 1st Appellant denied any knowledge about the Aggravated Robbery. He also denied hearing PW1 say that he was one of the attackers. The 1st Appellant denied ever having argued with PW1 and was shocked as to why he would implicate him. The 2nd Appellant testified that on 23rd January 2013 he was not at home and he only returned at midnight. The following day around 21:00 hrs, whilst asleep, four people went to his house and apprehended him and took him into the bush where they pointed at some maize and fertilizer saying they were the stolen items. He was later taken to Luangwa Police Post where he was detained. In the cells, he found the 1st Appellant and PW2. The 211d Appellant equally denied knowing anything about the Aggravated Robbery. Upon considering and evaluating the evidence before her, the learned trial Judge came to the conclusion that both the 1st and 2nd Appellants took part in the Aggravated Robbery and that the Prosecution had discharged its burden of proof. -J9- The learned trial Judge then went on to consider the provisions of Section 294 (2) (b) of The Penal Code10 and sentenced both Appellants to death. Dissatisfied with both the conviction and sentence, the 1st and 2nd Appellants have appealed to this Court raising three grounds of appeal as follows: The learned trial Judge erred in law and in fact when she convicted the Appellants on the single identification evidence of PW1 when the circumstances of the purported recognition were not conducive and in the absence of any corroboration or supporting evidence. The learned trial Judge erred in law and in fact when she sentenced the Appellants under Section 294 (2) (b) when they were charged and convicted under Section 294 (1) which is ordinary Aggravated Robbery and carries a maximum of life imprisonment. The learned trial Judge misdirected herself in law and in fact when she found that grievous harm was occasioned in the absence of evidence to that effect. -J10- In support of the appeal, the learned Counsel for the 1st and 2nd Appellants, Mr. Muzenga, relied on the arguments advanced in the Appellant's Head of Arguments. On the first ground of appeal, it was contended that, from the evidence on record, the robbery took place at night. There were no lights and the only source of light was the moon. That PW1 was the single identifying witness and according to him there were four robbers when he opened the door and he identified two of them being the 1st and 2nd Appellants. He was then stabbed in the palm by the 1st Appellant. It was contended that the prosecution evidence in chief did not elicit the period of observation and the duration of the attack. That however, under cross examination, PW1 told the trial Court that he struggled with the 1st Appellant and it took a few seconds before the robbers entered the house and a very short time for them to steal the goods. According to Counsel, the onus to establish the conduciveness of the identification and/or recognition lies with the Prosecution and they are expected to establish through the witness, things such as the period or duration of the observation, lighting, as in how clear it was -J11- at night and the source of lighting, any special marks or features which aided such recognition, if any; how long the witness knew the assailant before the attack and how close they were or any other such things relevant to the recognition or identification. (cid:9) That the Prosecution appeared to have glossed over such important details. In support thereof, the case of Muvuma Kambanja Situna v The People' was cited in which the Supreme Court held inter alia that: "The evidence of a single identifying witness must be tested and evaluated with the greatest care to exclude the dangers of an honest mistake; the witness should be subjected to searching questions and careful note taken of all the prevailing conditions and the basis upon which the witness claims to recognise the accused. If the opportunity for a positive and reliable identification is poor, then it follows, that the possibility of an honest mistake has not been ruled out unless there is some other connecting link between the accused and the offence which would render mistaken identification too much of a coincidence" -J12- It was argued that in the case at hand, no such searching questions or details were put to the witness and that amounted to dereliction of duty which must operate in favour of the Appellants. Counsel contended that he was alive to the fact that it is competent for a Court to convict on the evidence of a single identifying witness provided the possibility of an honest mistake was eliminated. Reference in that respect was made to the case of Sammy Kambilima Ngati, Mumba Chishimba Edward and Another V The people2 and it was submitted that however in the case in casu the danger of an honest and yet mistaken identification was not ruled out. Further, the case of Mwansa Mushala it The People3 was cited where it was held that: 'Although recognition may be more reliable than identification of a stranger, even when the witness is purporting to recognise someone whom he knows, the trial Judge should remind himself that mistakes in recognition of close relatives and friends are sometimes made, and of the need to exclude the possibility of honest mistake; the poorer the opportunity for observation the greater the possibility becomes. The momentary glance at the inmates of a fiat car -J13- when the car was in motion cannot, be described as good opportunity for observation". It was contended that the circumstances in which the purported recognition was made were muddled by fear. It was at night and the lighting was from the moon. The period for observation was short and the robbery took a very short time. It was submitted that under the circumstances the evidence of recognition alone without any connecting link is not adequate to sustain a conviction for the subject offence. It was contended that the 1st Appellant was never found in possession of any of the alleged stolen goods and neither did he lead to the recovery of the alleged stolen goods. That there exists therefore no corroborative evidence or evidence of something more which could rule out a possibility of an honest mistaken identification and poor recognition. That he must therefore be acquitted. In respect of the 2nd Appellant, it was alleged that he led to the recovery of the stolen goods. That this is the evidence which would have provided supporting evidence in order to rule out the danger of mistaken identification. The alleged stolen properties were however -J14- never brought before the Court and no witness identified them to the Court as being the items which were stolen from PW 1. It was contended that in criminal matters, in which the standard of proof is very high, the trial Court cannot accept and rely on exhibits which it has not seen and which have not been produced before the Court. Further, that an accused person must be given an opportunity to cross examine or confirm whether the items so identified by the Prosecution witnesses are the ones which he or she allegedly led to recovery thereof. That a disposal Order cannot thus be a substitute of present ation of real exhibits before a trial Court. That in fact there is no law which allows the disposal of an exhibit before it is produced in Court. It was contended that Section 355 of The Criminal Procedure Code", deals with disposal of exhibits and it is very clear and specific. The reason why an exhibit can only be disposed of by a Court afte r production into evidence is to ensure that the Court sees the exhibit, witnesses properly identify it and foundation for production is established to the required standard. It was argued that should this Court allow the substitution of real evidence with disposal Orders, that would be a recipe for disorder and -J15- an affront to the well established principles of criminal law and it would interfere with an Accused person's right to a fair trial. It was submitted that, real evidence not presented before the Court cannot be relied on. The evidence of the 2nd Appellant having led to the recovery of the goods not presented before the trial Court must thus be discounted completely. We were accordingly urged to quash the 1st and 2nd Appellant's conviction and set them at liberty With respect to the second ground of appeal, it was argued that the learned trial Judge erred in law and fact when she sentenced the Appellants to death in accordance with Section 294 (2) of The Penal Code° when they were charged under Section 294 (1). The Supreme Court's case of Roberson Kalonga V the People4 was cited where the Appellant was convicted of Aggravated Robbery and sentenced to death, when he was not charged with Armed Robbery under Section 294 (2). The Supreme Court had this to say: "We agree with the learned Director that it is essential when there is an allegation of armed robbery that an accused person must be notified with such an offence. In. this -J16- particular case there was no notification to the Appellant and therefore, as we will say later in this judgment, he will not be subjected to the death sentence". The Supreme Court went on to hold inter alia that: "It is essential when there is an allegation of armed robbery that an accused be notified that he stands charged with such an offence" It was contended that it is clear from the aforestated authority that an accused must be notified that he is at peril of suffering a death penalty. The Prosecution must thus put him on notice that the Aggravated Robbery with which he has been charged is not ordinary Aggravated Robbery but one linked with Subsection (2) (b). It was submitted that in the case at hand the statement of offence in the information, read Aggravated Robbery contrary to Section 294 (1). Further, the particulars of the offence never alleged that grievous harm was occasioned to PW1. Additionally, it was argued that, Aggravated Robbery under Subsection (2) is more serious or severe and as such a substitution thereof, even pursuant to section 181 of the Criminal Procedure Codell is untenable, unless the opposite was the case. -J17- It was contended that the learned dial Judge fell into grave error when she sentenced the Appellant under Subsection (2) (b). We were urged to allow the appeal on this ground and set aside the death sentence and substitute it with a reasonable sentence for ordinary Aggravated Robbery. On the third ground of appeal, it was submitted that according to the medical evidence before the trial Court, the Doctor found cuts on both hands which were caused by a sharp instrument. There was no medical evidence which took the severity of the injury beyond assault or unlawful wounding. Our attention was drawn to Section 4 of The Penal Code10 which defines grievous harm as: "Any harm which endangers life or which amounts to a maim or which seriously or permanently injures health or which extends to permanent disfigurement, or to any permanent or serious injury to any external or internal organ, member or sense". That in the case of Television Chibuye v The People% Cullinan, J in considering the definition of grievous harm held inter alia that: -J18- "The legislature did not intend to give a strained interpretation to the term "grievous harm". The legislation intended that the harm must be really serious." It was submitted that the injury suffered by PW1 cannot certainly be classified as amounting to grievous harm; hence the trial Judge misdirected herself. On the other hand, the learned Chief State Advocate, Mrs. Khuzwayo informed us that the State was conceding the second ground of appeal and would have loved to submit on the third ground of appeal, but since it stemmed from the second ground of appeal, she would not belabour the point. As regards the first ground of appeal, she informed us that the State was supporting the convictions of the Appellants as the learned trial Judge was on firm ground by convicting the Appellants under Sub Section 1 of Section 294 of The Penal Code". It was her submission that the trial Court warned itself before accepting the sole evidence of PW1 on identification, on the danger of false implication and also the need for corroboration. Our attention was drawn to page 79, J15, line 5, where the Court addressed the need for warning itself and made a finding that there was no evidence -J19- suggesting that PW 1 had a grudge against the Appellants and therefore could not falsely implicate them. It was further submitted that there was corroboration from the evidence of the Prosecution, the first being from the confessions to persons not in authority, that the 2nd Appellant made to PW3, PW4 and others, that they should not beat him, and he would lead them to the items. It was contended that if the 2nd Appellant was not one of the robbers, he would not have known where the recovered items were in the bush and therefore the trial Court cannot be said to have misdirected itself in finding the Appellants guilty of the subject offence. On the issue of the disposal Order for the maize and the fertilizer and the submission by Mr. Muzenga that the consequence of not producing the stolen items before the Court was that the prosecution did not prove their case, Mrs. Kuzwayo submitted that Section 355 (2) of The Criminal Procedure Code11 allows for the disposal of the items which are subject of speedy or natural decay and it is common knowledge that maize and fertilizer do not take long to decay and also that capital offences take time to dispose of. -J20- It was further argued that the Appellants did not take issue with the absence of the stolen items in the Court below. It was therefore absurd that the Appellant would at this stage be insisting on the production of the said items before the trial Court. According to Counsel, the trial Court did not err in convicting the Appellants and she urged us to confirm the convictions. She opted to leave the issue of sentence for the Court's determination. In reply, Mr. Muzenga submitted in respect to Section 294 (2) of The Penal Cadens, that what the learned trial Judge did was unprecedented. It was submitted that even in cases where there has been severe violence, where a charge is made under Section 294 (1), no findings of grievous harm have been made in the past by trial Courts, the reason being that Subsection (2) imposes or gives a right to an accused person to extricate himself from either the fire arm under Subsection (2) (a) or grievous harm under Subsection (2) (b). That therefore, no matter how violent, or whether a firearm was used, the trial Court cannot return a verdict under Subsection (2) because of issues of fair trial and notice to the Accused person, that he is at peril of suffering a death penalty. -J21- Counsel submitted that, where a person is charged with Aggravated Robbery with a firearm under subsection (2), the Court can return a verdict under Section 294 (1) using Section 181 of The Criminal Procedure Code11, because it is a minor offence and that applies to grievous harm under Subsection (2) (b), but the Court cannot do vice versa. As regards the provisions of Section 355 (2) of the Criminal Procedure Code11 it was submitted that it only relates to an instance where the exhibit has been produced in evidence before the Court. An application can then be made by the Prosecution to have the exhibit disposed of We have carefully considered the submissions by both learned Counsel as well as the authorities cited. Although the first ground of appeal was argued first, we intend to begin with the second ground of appeal which is related to the third ground for the obvious reason that it was conceded to by the State. Counsel for the 1st and 2nd Appellants on this ground cited the case of Roberson Kalonga v The People. In that case the Appellant was convicted of Aggravated Robbery and sentenced to death. He was not -J22- charged with armed robbery. Neither did the particulars of the charge allege the use of a gun. The particulars of the offence were that on 14th September 1984 at Choma, the Appellant jointly and together with other persons unknown, stole a large quantity of goods from one Bernard Namatomo and at the time of such stealing used violence. There was no notification to the Appellant that he would be subjected to the death penalty. The Supreme Court held that: "It is essential when there is an allegation of armed robbery that an accused be notified that he stands charged with such an offence". The Supreme Court had occasion to revisit the decision in the Roberson Kalonga v The People4 case in the year 2010 in two separate cases. In Mulenga Katete v The People', the Appellant was convicted of one count of Aggravated Robbery contrary to Section 294 (1) of The Penal Codelo. -J23- He was however sentenced to death by the High Court at Livingstone under Section 294 (2) of The Penal Code10. The particulars of the offence were that the Appellant on 29th October 2005 at Monze, jointly and whilst acting together with three other persons unknown, stole K16,000,000 and US$ 6,000.00 cash, altogether valued at K32,000,000 from one Kenny Hanyumbu and that at or immediately after the time of such stealing used actual violence. The learned trial Judge after evaluating the evidence found the Appellant guilty and sentenced him to death. The Appellant appealed against both conviction and sentence. Of interest to us in that case was the second ground of appeal which was that: "The learned trial Judge erred in law and in fact when she convicted the Appellant for armed aggravated robbery and sentenced him to death". Counsel for the Appellant argued that the trial Judge should not have convicted the Appellant for armed aggravated robbery and sentenced him to death under Section 294 (2) of The Penal Codelo when the Appellant was charged and tried under Section 294 (1). That it was -‘124- therefore wrong at law to sentence the Appellant on the charge of armed robbery under Section 294 (2), the offence he was not charged with. Interestingly the learned Chief State Advocate, Mrs. Khuzwayo appeared on behalf of the State in that matter as she now does in this appeal and in conceding to that ground of appeal, she cited the lialonge case and submitted that had the particulars of the offence referred to firearm, the Appellant could have been convicted under Section 294 (2) but that unfortunately the information only referred to Section 294 (1). After consideration, the Supreme Court had this to say: "We find this ground of appeal to be straight forward as the Appellant was sentenced for armed aggravated robbery under Section 294 (2) of the Penal Code, the offence that he was not charged with as he was tried for aggravated robbery under Section 294 (1) of the Penal Code. Mrs. Khuzwayo correctly, if we may say so, conceded to this. It is also a fact that the particulars of the offence did not allege or mention the use of a firearm even though the evidence on record showed that PW1 and his family were attacked by a gang of armed men on the night in question. There was also -J25- evidence before the trial Court that a firearm was used in the robbery as can be seen from the evidence of PW1 and PW2". The Supreme Court went on to state that there was however no amendment to the charge or information. The case of Kambarage Mpundu Kaunda v The Peoples was cited where it was stated that: "A Court has power either on its own motion or at the instance of either the prosecution or the defence, to amend an indictment by or for instance, upgrading the offence originally charged; substituting a different offence for that originally charged, or even including an additional Count or an offence not originally charged". They went on however to caution by stressing that it was advisable that an amendment should be made as early as possible during the course of trial as a late amendment may, in some cases, cause injustice to an accused person. The Supreme Court then went on to quote from the case of R v Johal and Rams (5) at page 354 where the Court of Appeal in England stated that: -J26- "The longer the interval between arraignment and amendment, the more likely it is that injustice will be caused, and in every case in which amendment is sought, it is essential to consider with great care whether the accused person will be prejudiced thereby". They observed that in the Kambarage Mpundu Kaundas case, the amendment was made at the no case to answer stage. The Court however found that no injustice was thereby caused to the Appellant especially that a proper procedure as regards the Appellant's rights was observed at the time, by the learned trial Judge and the Appellants' defence of self defence was not prejudiced by the amendment. In the Katete6 case, they found that no amendment was made and therefore agreed that it was a misdirection to sentence the Appellant under Section 294 (2) when he was charged under Section 294 (1) of The Penal Code". In re-affirming their holding in the Kalonga case, the Supreme Court set aside the death penalty in the Katete6 case. In the second case, that of James Chibuye and Others v The People7, the High Court sitting at Chipata, convicted the three -J27- Appellants with one Count of Aggravated Robbery contrary to Section 294 (2) of The Penal Code10. The particulars of the indictment were that the three Appellants on 17th January 2005 at Chipata, jointly and whilst acting together and whilst being armed with firearms robbed Koekemoer Jacobus of a Toyota Hilux Pick up, registration number ABC 6125, 1 laptop computer, US$ 450, 25,000 Malawian Kwacha, 3 million Zambia Kwacha, I Nikon Camera with a charger, 2 remote controls for a television set and a DSTV decoder, 2 cell phones and 2 compact discs. The three Appellants appealed on the ground that the trial Judge misdirected himself when he held that the two stood charged with Aggravated Robbery contrary to Section 294 (2) of The Penal Code10 and convicted pursuant to that provision. Counsel for the Appellants argued that the Appellants were charged under Section 294 (1) and that no attempt was made by the State to amend the information or to amend or substitute the charge at the end of the Prosecution's case. The Court therefore, it was argued misdirected itself when it held that the Appellants stood charged under Section 294 (2) of The Penal Code10 and convicted them under that Section, instead of Section 294 (1), as Aggravated robbery under Section 294 (2) is not a minor offence to Aggravated Robbery under Section 294 (1). -J28- Mrs. Khuzwayo appeared for the State and in response submitted that the aspect of being armed was brought out and that from inception, all three Appellants were aware of the charge they were facing and as such did not suffer any prejudice. After considering this ground of appeal, the Supreme Court had this to say at page 28 of the Judgment: "The information in this case appears on page 5 of the record of appeal. It reads Aggravated Robbery (contrary to Section 294 (1) of The penal Code, Cap 87 of the laws of Zambia)". The particulars allege that the Appellants robbed Koekmoer Jacobus of items listed therein "whilst acting together and whilst being armed with firearm weapons". The record shows that the charge was fully explained to the Appellants and the 1st Appellant remained mute. It is clear that while the statement of the offence referred to Section 294 (1) of The Penal Code the particulars given to the Appellants clearly alleged armed robbery, an offence under Section 294 (2). The record shows that the matter was tried as an armed robbery case in that the firearms that were found with one of the suspects were brought to Court and identified by witnesses. A ballistic expert gave evidence on -J29- the nature of the said firearms. They were firearms within the meaning of The Firearms Act". In distinguishing the Chibuye7 case from the Kalonga4 case, the Supreme Court stated that in the Kalonga4 case, although the Supreme Court was faced with a similar argument, the Appellant in that case was not charged with armed robbery in accordance with Section 294 (2) of The Penal Code10 , and the particulars did not allege the use of a firearm. It was in that case held that it is essential, when there is an allegation of armed robbery, that an accused be notified that he stands charged with such an offence. That, whilst in the Chibuye7 case, although the statement of the offence referred to Section 294 (1), the particulars clearly alleged armed robbery. The record clearly showed that the charge was fully explained to the Appellants in Court. They must therefore have been aware that they were being accused of having robbed the complainant whilst being armed with firearms. The charge with particulars of armed robbery having been fully explained to the Appellants, they could not claim to have been prejudiced in any way. They knew from the beginning the charge that they were facing. -J30- The case in casu has similarities with the Kalonge case as well as the Katete case, in that the Appellants were sentenced under Section 294 (2) of The Penal Codel°, under an offence they were not charged with. They were charged and tried for Aggravated Robbery under Section 294 (1) of the Penal Code. The particulars of the offence did not allege that grievous harm was occasioned to the complainant, PW1. Further, no amendment was made to the charge or information. We therefore are of the view and agree with Counsel for the Appellants and also as rightly conceded by the State that there was misdirection on the part of the trial Judge to sentence the Appellants under Section 294 (2) (b) of The Penal Code°. The second and third grounds of appeal are therefore allowed. We now turn to the first ground of appeal which was that the trial Judge erred in law and fact when she convicted the Appellants on the single identification evidence of PW1, when the circumstances of the purported recognition were not conducive and in the absence of any corroboration or supporting evidence. We note that the trial Judge warned herself that since there was no identification parade and only PW1 was able to point out the -J31- assailants, she had to treat the evidence of PW1 with caution and ensure that the danger of false implication was removed before it was safe to convict on PW1's evidence. Having thus warned herself, she expressed satisfaction with PW1's ability to recognise his assailants. In our view the circumstances in which PW1 viewed his assailants rendered reliable identification improbable. Thus the identification evidence required corroboration in a material particular. It is settled law that where the evidence of identification was weakened, all that needs to be done, is to look elsewhere for evidence to support and reinforce the weak identification evidence. We are therefore of the view as was the trial Judge that as regards the 2nd Appellant, his leading of people not in authority to the place where the stolen goods were recovered leads to the inescapable conclusion that he was one of the robbers and that strengthens the issue of identification. However, the same cannot be said of the 1st Appellant. The only evidence which could have strengthened the identification of the 1st Appellant was the evidence of PW2, who the trial Judge -J32- correctly treated as an accomplice as he was also detained with the Appellants and his evidence found to be unsafe to rely on. Regarding the 2nd Appellant, Counsel ingeniously raised the issue of lack of real evidence before the trial Court, arising from the fact that, the bags of maize and the bag of fertilizer were not brought before the trial Court as exhibits, as they were disposed of by the Subordinate Court under a disposal Order. Counsel's contention was that the disposal Order cannot be a substitute for real evidence in this case as the evidence was not presented before the trial Court. It cannot be relied upon. A perusal of the record shows that this issue was not raised before the trial Court and was only raised on appeal. An issue not raised in the Court below, cannot be raised on appeal. We further note that the production of the disposal Order as evidence before the trial Court was not objected to by the Appellants We however, note that an interesting aspect of the law was brought up by Counsel for the Appellant in the heads of arguments and it attracted submissions from both sides. The arguments were centred on the provisions of Section 355 of The Criminal Procedure Code11, being the only provision of the law which deals with disposal of goods -J33- under the said Act. The said Section provides as follows: "(1) Where anything which has been tendered or put in evidence in any criminal proceedings before any Court has not been claimed by any person who appears to the Court to be entitled thereto within a period of twelve months after the final disposal of such proceedings or of any appeal entered in respect thereof such thing may be sold, destroyed or otherwise disposed of in such a manner as the Court may by Order direct and the proceeds of any such sale shall be paid into the general revenues of the Republic. (2) (cid:9) If anything which has been tendered or put in evidence in any criminal proceedings before any Court is subject to speedy and natural decay the Court may, at any stage of the proceedings or at any time after the disposal of such proceedings order that it be sold or otherwise disposed of but shall hold the proceeds of any such sale and if unclaimed at the expiration of the period of twelve months after the final disposal of such -J34- proceedings or of any appeal entered in respect thereof shall pay such proceeds into the general revenues of the Republic. Notwithstanding the provisions of subsection (1) the Court may, if it is satisfied that it would be just and equitable so to do, order that anything tendered or put in evidence in criminal proceedings before it should be returned at any stage of the proceedings or at any time after the final disposal of such proceedings to the person who appears to be entitled thereto, subject to such conditions as the Court may see fit to impose. Any order of a Court made under the provisions of Subsection (1) or (2) shall be final and shall operate as a bar to any claim by or on behalf of any person claiming ownership of any interest in such thing by virtue of any title arising prior to the date of such order." Counsel for the Appellants was emphatic in his submissions that according to Section 355, exhibits can only be disposed of by the Court after production into evidence. -J35- On the other hand, the learned Chief State Advocate was of the view that Section 355 (2) of The Criminal Procedure Code11 allows for the disposal of items which are subject of speedy or natural decay. The Supreme Court in the case of The People v Ross Ernest Moore and Hassel Shamalime9 had the opportunity of interpreting the provisions of Section 355 of The Criminal Procedure CodeII and clearly stated that it relates to disposal of exhibits tendered in trial. What obtained in the matter before us, is that the exhibits were disposed of by the Subordinate Court before commencement of the proceedings before the trial Court as they were said to be subject to speedy and natural decay. We had a look at the disposal Order which was tendered in evidence before the trial Court and noted that it did not disclose under what provisions of the law, the exhibits were disposed of As a matter of guidance, we would urge the lower Courts in all situations to disclose the provisions of the law under which the disposals are done, in order to curtail proliferation of uncertainties and for the avoidance of irregularities. -J36- We however note that in advancing their respective arguments, both Counsel were oblivious to the applicable law in respect to disposal of exhibits before the trial Section 44 (1) of The Zambia Police ActI 2 deals with disposal of property subject to decay and it states as follows: "If the Subordinate Court is of the opinion that any property mentioned in Section forty-two is subject to speedy or natural decay or if the Court is of the opinion that its immediate sale would be for the benefit of the owner, the Court may at any time direct that such property be sold and on the completion of the sale the right of any person to take legal proceedings for the recovery of the property sold shall cease". The said Act also provides for the prescribed form FP Form 2 under the schedule. Although we note that the aforestated Section 44 (1) was not strictly complied with, this issue is neither here nor there because as earlier alluded to, it was not raised in the Court below. The sum total on ground one is that the 1st Appellant succeeds while the 2nd Appellant fails. S (cid:9) -J37- The 1st Appellant's conviction is therefore quashed and the sentence set aside. He is set at liberty forthwith. The appeal as regards the 2nd Appellant on ground one is dismissed. The second and third grounds of appeal having succeeded, we accordingly confirm the conviction of the 2nd Appellant for Aggravated Robbery contrary to Section 294 (1) of The Penal Code10 the offence that he was charged with. We set aside the death penalty and substitute it with the sentence of twenty (20) years imprisonment with hard labour effective from the date of arrest. F. M. CHISANGA JUDGE PRESIDENT COURT OF APPEAL J. CHASHI J. Z. MULONGOTI COURT OF APPEAL JUDGE COURT OF APPEAL JUDGE (cid:9)