Fred Biela Masaku v People (SCZ 16 of 2011) [2011] ZMSC 34 (12 July 2011)

S. C. Z. JUDGMENT No. 16/2011 (359) IN THE SUPREME COURT FOR ZAMBIA APPEAL No. 123/2010 HOLDEN AT KABWE AND LUSAKA [APPELLATE JURISDICTION] BETWEEN: FRED BIELA MASAKU AND THE PEOPLE - - APPELLANT RESPONDENT CORAM: SAKALA, CJ., CHIBESAKUNDA AND PHIRI, JJS. 2nd NOVEMBER, 2010 AND 12th JULY, 2011 FOR THE APPELLANT: MR. A. S. NKAUSU DIRECTOR - LEGAL AID BOARD FOR THE STATE: MRS. F. L. SHAWA -SIYUNI ACTING CHIEF STATE ADVOCATE JUDGMENT SAKALA, C. J., delivered the Judgment of the Court. Cases referred to: 1. Nzala vs The People (1976) ZR. 221 2. Katebe vs The People (1975) ZR. 13 .1 I I t (360) 3. Bwalya vs The People (1975) ZR. 227 4. Mukwakwa vs The People (1978) ZR. 347 The Appellant was convicted of Aggravated Robbery contrary to Section 294 (1) of the Penal Code, Cap 87 of the Laws of Zambia The particulars of the offence alleged that the Appellant, on 1st January, 2003, at Marana area in the Mongu District of the Western Province of the Republic of Zambia, jointly and whilst acting together with another person unknown, robbed KI,500,000.00 in cash, the property of Ronald Musangu and used actual violence to the said Ronald Musangu at the time of the robbery. He was sentenced to 16 years Imprisonment with Hard Labour. He appealed to this court against conviction only. The case for the prosecution centered on the evidence of PW1, the complainant, and PW2, who was in the company of the complainant. The evidence of PW1 was that on the evening of 1st January, 2003, he sat in his courtyard at Marana with his nephew, PW2. As they sat chatting, he suddenly heard three gun shots going off. After the gunshots, he realized that he was illuminated by a torch in the face. Then he was hit by a club four times. One blow landed on his forearm, one on the upper arm on the left hand and the other one on the leg. He them fell to the ground. While on the ground, he realized that his hurricane lamp was still on. He saw Biela Masaku, the Appellant, who he knew before, holding a firearm. According to PW1, Masaku frequented and visited the fish camp, where he used to stay. He had known him for more than a year. PW1 testified further that after recognizing the man, the man holding the torch demanded for money or be killed. He pleaded with them not to kill him; but that he goes inside the hut and find the money there. J2 J r i I f (361) According to PW1, the man holding the torch entered the house. He came out of the house carrying a travelling bag, which contained money. They further ordered him to bring more money; but he told them that he did not have any more money. PW1 explained that in the bag there was KI.5 million. The people who attacked him went away with the bag containing the money. He then, on the 4th January, reported to the Police at Mongu. PW1 explained that the time the incident happened was 2000hours. The visibility was poor; but that there was light from the paraffin lamp, which was on. According to PW1, he recognized Biela Masaku at the time they were standing near him and they had a firearm. He said the people were with him for about 15 minutes, but that he did not record the time properly because he was frightened. PW1 further testified that on the 3rd of February, 2003, he was told by the Police that a person had been apprehended. He went to Mongu Police, where he attended an identification parade at which he pointed at Biela Masaku. When cross examined, PW1 testified that he knew the Appellant prior to the identification parade. He explained that he was dazzled by the torch that he failed to know the face of the other man. In re­ examination, he explained that he identified the Appellant because of the illumination of the hurricane lamp and because he knew the man. The evidence of PW2, who was in company of PW1, was that he was also hit two blows by a man who was holding a torch. PW2 explained that the man holding a torch and club, walked where PW1 was seated and struck the hurricane lamp using his club and struck PW1 with four blows using the club. When the man hit the hurricane lamp, it was not lighting; it went off. J 3 (362) According to PW2, he heard the man ordering PW1 saying “bring the money.” He heard PW1 saying that the money was inside the house; that the man entered the house and came out with a bag. Then, he ordered PW1 to bring some more money. According to PW2, PW1 told him that he did not have any more money. Thereafter, the men walked away. PW2 also testified that he recognized the Appellant during the robbery because he knew him before as a person who used to buy and sell fish in Mongu. He also identified the Appellant at an identification parade at Mongu Police Station. PW4, was a Police Officer, who conducted the identification parade at which PW1 and PW2 identified the Appellant as one of the assailants who robbed PW1 of his money in the sum of KI,500,000.00. PW5 was also a Police Officer, who apprehended the Appellant and subsequently arrested him for the offence of Aggravated Robbery. PW5 further explained that the Appellant had told him that at the time of the offence he was in Kalabo with one Obet Kanganja. PW5 admitted that he did not check this Alibi. In his defence, the Appellant testified that on 1st January, 2003, he left Mongu Harbour for Kalabo at about 06.00 hours, using a barge, which had an engine, whose Coaxswain was Obet Kanganja, his friend and workmate. They were carrying 42 bags of salt and 7 bales of blankets, belonging to the Hon. Queen Kakoma, a Member of Parliament for Kalabo. According to the Appellant, they arrived in Kalabo at 24.00 hours. He explained that upon his arrest, he told the Police that he was in Kalabo at the time of the offence with DW2. DW2 testified on behalf of the Appellant, whom he described as his cousin. According to DW2, on the material day of 1st January, 2003, he went to Kalabo to deliver crates of beer and coca-cola belonging to J 4 (363) the Hon. Queen Kakoma, a Member of Parliament for Kalabo. They left Mongu Harbour with the Appellant at about 06.00 hours and arrived at Kalabo at about 24.00 hours and delivered the goods. DW2 testified that he was surprised that the Appellant was arrested for the offence of Aggravated Robbery, when he was with him in Kalabo on the date he is alleged to have committed the offence. The learned trial Judge considered the evidence and found that it was not in dispute that on the 1st January 2003, PW1 and PW2 were attacked by two men at their camp house, one of the two men, according to the evidence, had a firearm and the other had a torch and a club; that the man with a fire arm fired about three times before they entered the house; and that the man with a torch hit PW1 with a club about four times; while he demanded for money. The Court further found that, one of the men went into PWl’s hut and got a traveling bag containing KI,500,000.00; before they went away. The Court also found that there was no doubt that PW1 was robbed of his money as charged by two men, who apart from firing a gun, one of them also assaulted PW1 with a club. The Court accepted the evidence of PW1 and PW2 that one of the robbers was the Appellant; that the two witnesses recognized him by a hurricane lamp, which was on, and that in addition, they knew the Appellant before the day of the robbery. The trial Court noted that the Appellant had raised the defence of alibi that at the time the offence was being committed, he was nowhere near the place of the offence as he was in Kalabo with DW2; and that he had informed the Police about this alibi at the time of his apprehension. J 5 (364) The learned trial Judge then reviewed the decisions of this Court that have dealt with the defence of alibi. The Court pointed out that according to the case of NZALA VS THE PEOPLE,1 it is the duty of the Police to investigate an alibi given by an accused on apprehension or arrest; but that in the present case, the Police were given the alibi by the Appellant and his witness, DW2. The Court pointed out that in the case of KATEBE VS THE PEOPLE,2 where a defence of alibi has been raised, and there is some evidence of such alibi, it is for the prosecution to negative it, as there is no onus on the accused person to establish his alibi. On the evidence on record, the trial judge accepted that the Police did not investigate the alibi, although they were informed of it. This, according to the trial judge, was a dereliction of duty. But the Court observed that the alibi raised by the Appellant had a serious flaw in that, while the Appellant testified that they were delivering forty-two bags of salt and seven bales of blankets, DW2 testified that they were delivering crates of beer and coca-cola. The Court observed that these items were easily identifiable and could not easily be mistaken for the other. According to the trial judge, the story of the trip to Kalabo was far from being the truth; that no credence should, therefore, be attached to the alibi, as it was merely created by the Appellant and was false. The trial judge, while relying on the case of BWALYA VS THE PEOPLE,3 observed that although the Appellant gave a false alibi, it did not mean that he was guilty of the offence, as a person charged with an offence may seek to exculpate himself on a dishonesty basis even when not involved in the offence. In the instant case, the Court noted that there was still the evidence of identification by PW1 and PW2 as conceded by the Appellant that the two witnesses knew him and he knew them. * J 6 (365) According to the trial judge, the evidence of the Hurricane lamp at the time of the robbeiy was not challenged. The Court pointed out that it was alive to the fact that mistakes in recognition of close relatives and friends are sometimes made; and that there was need to exclude the possibility of an honest mistake in the identification of an accused person. The Court found that this was not a case falling within the mistaken identification dictum, as PW1 and PW2 had an opportunity to positively identify the Appellant as one of the two persons, who attacked them and robbed PW1 of his money. The Court ruled out the question of an honest but mistaken identity. The Court held that the prosecution had established the guilt of the Appellant beyond all reasonable doubt and convicted him as charged. I On behalf of the Appellant, Mr. Nkausu the learned Director of Legal Aid, filed two grounds of appeal, namely:- • that the trial judge misdirected himself when he ruled out the question of an honest but mistaken identity of the Appellant; and • that the trial judge erred in law and fact when he rejected the alibi which was firmly established. The learned Director, on behalf of the Appellant, filed written heads of argument on which he relied based on the two grounds. The gist of the written heads of argument, based on ground one of misdirection in ruling out mistaken identification, is that a careful examination of the evidence in this case did not rule out the question of an honest, but mistaken identity; that there were two identifying witnesses, PW 1 and PW2, who stated that the offence occurred at night at about 2000 hours; that the light available was 'from a hurricane lamp held by PW1 and a torch held by one of the assailants; that there was evidence showing that the assailants struck down the hurricane lamp during the attack; that the light from the torch was used to illuminate directly in the face of PW 1; that the evidence from the two witnesses J7 (366) also showed that they were subjected to fear by threats of death and actual beatings and that a firearm was fired; that PW1 was actually beaten and fell to the ground. It was contended that under the foregoing circumstances, both PW1 and PW2 could not be said to have had a good opportunity to observe their attackers, as to rule out the question of an honest, but mistaken identity. The case of MUKWAKWA VS THE PEOPLE,4 was cited in support of the contention. It was submitted that the trial judge glossed over the evidence, which clearly showed that PW1 and PW2 had no good opportunity during the robbery for the proper observation of their assailants and therefore the trial judge misdirected himself when he ruled that an honest, but mistaken identity had been ruled out, when the evidence showed that PW1 and PW2 had been traumatized during the robbery. It was submitted that ground one had merit and should succeed. The summary of the written heads of argument on ground two, based on the rejection of the alibi, is that the trial judge found as a fact that the Appellant had raised an alibi; that the Appellant had not just raised an alibi, but that he had also given the Police information as to the witness who could support his alibi; that the trial judge conceded that on the authority of Nzala1 case, it was the duty of the Police to investigate the alibi; but that they did not, and the onus was not on the Appellant to establish his alibi. It was submitted that in the present case, The trial Court resorted to the Appellant’s and his witness’ evidence to reject the alibi, which had not been investigated and negatived by the prosecution. It was contended that this was an error in law and in fact and that ground two must also succeed and conviction quashed. Mrs. Shawa-Siyuni, the acting Chief State Advocate, on behalf of the State, supported the conviction. She submitted that the Appellant’s case centered on the issue of identification by two witnesses; that the evidence showed that PW1 and PW2, eye witnesses, were with the J 8 (369) “Q: Now this time about 2000 hours when this incident happened what would you say about the visibility? A: The visibility was poor but I would say there was light from the lamp that was on." Then later he was asked and answered as follows “Q: Now from the time these people came to the time they left what would you say they were there for how long? A: About 15 minutes though I did not reckon the time properly because I was frightened," This was the evidence in chief by PW1. PW2 in his evidence in Chief, among other things said "....... He hit the hurricane lamp so it was not lighting." The learned trial judge did not make any reference to his evidence in his judgment. We agree with the submission that in the circumstances of this case, the trial judge of glossed over the evidence, which clearly showed that PW1 and PW2 had no good opportunity during the robbeiy for the proper observation of their assailants. We are, therefore, satisfied that, as a result, the trial judge misdirected himself, in the face of the evidence before him, when he ruled that an honest, but mistaken identity should be ruled out. Ground one of appeal has merit and must succeed. On ground two, relating to the rejection of the alibi, the trial judge accepted that the Police were given the alibi by the Appellant and that he gave them the name of his witness, DW2. But in rejecting the defence of alibi, the Court had this to say:- “As the evidence has showed it, the Police did not investigate the alibi although they were informed of it. This was a dereliction of duty. Notwithstanding, the alibi raised by the accused has a serious flaw. While the accused testified that they were J11 (370) delivering forty-two bags of salt and seven bales of blankets. DW2 testified that they were delivering crates of beer and coca-cola. All these items are easily identifiable and cannot easily be mistaken for the other. It is clear that this story of the trip to Kalabo is far from being the truth (although they may have made such trips on other occasions other than on the day in issue.) No credence should therefore be attached to the alibi as it was merely created by the accused and is false. That the accused gave a false alibi does not of necessity mean, that the accused should be guilty of the offence. As it was observed by the Supreme Court in the case of BWALYA VS THE PEOPLE,3 a man charged with an offence may well seek to exculpate himself on a dishonest basis even though he was not involved in the offence." The contention on behalf of the Appellant was that where a defence of an alibi has been raised and there was evidence to support it, it is for the state to negative it; that the onus is not on the accused to establish his alibi. The submission was that the trial judge relied on the evidence of the Appellant and his witness to reject the alibi, which was raised but not investigated. We agree with this submission. In our view, the alibi raised was not based on whether the Appellant delivered bags of salt and bales of blankets or crates of beer and coca-cola; but that the Appellant was in Kalabo at the time the offence charged was alleged to have been committed in Mongu. This was the alibi and not what was delivered in Kalabo. J12 (371) The Court correctly found that the Police did not investigate the alibi and that this was a dereliction of duty. The Court, having made that finding, should have found in favour of the Appellant that he was not in Mongu at the time of the offence; but in Kalabo. This ground of appeal must also succeed. The two grounds of appeal having succeeded, the appeal is allowed. The conviction is quashed, and the sentence is set aside. The Appellant is, accordingly, acquitted and set at liberty. E. L. Sakala CHIEF JUSTICE L. P. Chibesakunda SUPREME COURT JUDGE G. S. Phiri SUPREME COURT JUDGE J13