People v Mushili (SCZ Appeal 36 of 1994) [1994] ZMSC 172 (4 October 1994)

IN THE SUPREME COURT OF ZAMBIA SCZ APPEAL NO.36 OF 1994 HOLDEN AT LUSAKA BETWEEN: . THE PEOPLE .. . . State • • • • " " • VS AARON CHIBWE MUSHILI Respondent' . . • ' ;■ ; ■ ■ \ Coram: Ghaila, Chirwa and Muzyamba JJJs on 4th October . . ■■■ . ■ : For the People: Mr. S. A. G Twumasi, Acting Senior State For the Respondent^^Mr. P. Vashist, Legal Aid Counsel Advocate • : --------------- .------------- —------ ------------------------- ------------------------------------------- "A JUDGMENT Chirwa JS delivered the judgment of the court. This is an appeal by the Director of Public ; Prosecutions against the acquital of the respondent Aaron Chibwe Mushili on a charge of aggravated robbery., . The respondent was charged of aggravated robbery contrary to Section 294 of the Penal Code Cap. 146, The particulars of this charge allege that the respondent on 1st day of October, 1991 at Kitwe in the. Ki^We District of the Copperbelt Province o^the Republic of ' I ' ' ' _ ll Zambia jointly and whilst acting together with other persons unknown did steal one tooLbox valued at K45,000 from one Robert Masumba and that at or immediately before or after the time of such stealing used or threatened to use actual violence to the said Robert Masumba in order to retain or prevent the said property from being stolen. The prosecution led evidence and after the close of the prosecution case the learned trial Commissioner 1 •• 1 •. * , found that a prima facie case had been made against the respondent and upon him being put on his defence the respondent gave evidence in which his defence was that he did not commit this offence but was an innocent I - J2 passerby in that he had been at a film show in town and was going back home. On considering the totality of the evidence the learned trial Commissioner found that the evidence adduced by the prosecution was overwhelming against the respondent. However, he acquitted the respondent on the grounds that the warn and caution statements taken by PWs 5 and 6 were against the judges* rules and that they were embarrassing and prejudicial to the respondent. We have looked at the evidence on record and we totally agree with tjjfp earlier findings that the evidence against the respondent was overwhelming and on this evidence he ought to have convicted therespondent. However, we view his acquittal based on .the warn and caution statement as a serious misdirection* To begin with, the warn and caution statement recorded by PW6 was rejected after a trial within a trial and also the one recorded^ by PW5 was never led in evidence and > therefore we do not see how the evidence which was _ - rejected and never on the record could have been embarra­ ssing and prejudicial to the appellant. And as this is the only ground of appeal upon which the State has appealed and on which the learhed Counsel for the 1 1 I ■ ' •' ■ ■ -ir . . j ; respondent correctly in our view, has had ho response; ' <<■ ' we allow this appeal and we quash the acquittalof thet ’ ' ' ■ ■ ' ■ , y respondent and we substitute a conviction based onthe original charge of aggravated robbery. Coming to1 sentence, we have considered the mitigation put forward ‘. by the, respondent’s advocate and we also take into ■' account ,that the injury inflicted on the complainant was not very serious and we consider that this is a case in which a minimum sentence would apply. The respondent .therefore, la sentenced to 15. years imprisopment with I ■' \ V „ hard labour from the date of his arrest. „ hard labour w ■e j ' f I . ..-r. .v '’SaJ .if' ?-w ■- S' M;S? Chaiia SUPREME COURT JUDGE