Jason Simbeye v The People (APPEAL NO:74 2024) [2025] ZMCA 106 (20 August 2025)

IN THE COURT OF APPEAL OF ZAMBIA APPEAL NO:74 2024 HOLDEN AT NDOLA (Criminal Jurisdiction) BETWEEN: JASON SIMBEYE AND THE PEOPLE L REGISTR' - APPELLANT RESPONDENT Coram: Mchenga DJP, Majula and Muzenga, JJA 12th August 2025 and 20th August 2025 For the Appellant: K. K. Kombe, Legal Aid Counsel, Legal Aid Board For the Respondent: M. Chilufya, Principal State Advocate, National Prosecution Authority JUD GM ENT Mchenga DJP, delivered the judgment of the court Cases ref erred to: 1. David Zulu v. The People [1977] Z. R. 151 2. Saidi Banda v. The People, SCZ Appeal No. 114 of 2015 3. J ohn Timothy and Feston Mwamba v. The People [1977] Z. R. 4. Makola Chilende and John Masakati v. The People, SCZ Appeal No. 165 of 2015 J2 5. Ezious Munkombwe and Others v. The People, CAZ Appeal No. 7,8,9 of 2017 Legislation referred to: 1. The Penal Code, Chapter 87 of the Laws of Zambia 1.0 INTRODUCTION 1.1 The appellant and another person, appeared before the High Court (Kamwendo, J.), charged with the offence of armed aggravated robbery contrary to Section 294 (2) of the Penal Code. 1.2 They denied the charge and the matter proceeded to trial. At the end of the trial, the appellant was convicted, while his co- accused, was acquitted. 1.3 The appellant was condemned to suffer capital punishment. 1.4 He has appealed against his conviction, and in the alternative, against the sentence. 2.0 CASE BEFORE THE TRIAL JUDGE 2.1 On 10t h July 2020, Francis Omari and Ezekiel Kimasampiana where robbed of K816, 170.00, in Nakonde. The robbery took place around 10:00 hours, when they had just left Manyanga Shop, in Nakonde, to bank the shop's sales at the local ABSA Bank branch. J3 2.2 They were attacked by three armed men. The robbers were masked and were driving a silver, unregistered Toyota Mark X, with tinted windows. 2.3 The robbers broke the window of the car in which Francis and Ezekiel were, and got the bag in which they were carrying the money they were going to bank. The robbers discharged their firearms before speeding off. 2.4 Later that day, the appellant sent Kl0,000.00, to his mother. Around 16:00 hours on the same day, he handed over a bag and some money for fuel, to his uncle Manase Simpamba. He was driving a silver Toyota Mark X, when he turned up at his uncle's house. 2.5 The appellant told his uncle that someone would come to collect the bag he was leaving with him. 2.6 Later that day, just after midnight, the police received a tip off that there was a silver Toyota Mark X, parked at Peaceful Gardens Lodge, within Nakonde. The police laid an ambush and apprehended the appellant, as he was about to open the car, which bore the Registration No. BAP 428. He was found with KS0,000, cash on being searched. J4 2. 7 Following the appellant's apprehension, the police started looking for the bag. 2.8 The arresting officer, Detective Sergeant Jere, told the trial Judge that they received information that after the bag was collected from Manase's house, it was taken to the appellant's mother's house, and thereafter, to his twin brother's house. From there, it was taken to his brother-in-law's house. 2.9 When Detective Sergeant Jere went to the appellant's brother in-law's house, he did not find him. He left word with his neighbour, that the appellant's brother-in-law should take the bag to the police station. He did not. 2.10 Word soon came through to Detective Sergeant Jere that the appellant's brother-in-law had run away. Police officers went to his house and found that he had left the bag outside his house. When they checked the bag, they found three AK4 7 rifles and masks. 2.11 In his defenc~, the appellant denied taking part in the robbery. 2.12 He admitted being apprehended at Peace Garden's Lodge. He said the Toyota Mark X he was apprehended with, was registered and he had been hired to drive it to Lusaka. He JS admitted giving his uncle some money for fuel and being found with KS0,000.00, which he said was his money for business. 2.13 The appellant however denied giving his uncle any bag. 3.0 GROUNDS OF APPEAL AND ARGUMENTS IN SUPPORT 3.1 Mrs. Kombe advanced three grounds in support of the appeal. Two of the grounds are concerned with the propriety of the conviction, while the third ground relates to the sentence. 3.2 As regards the conviction, Mrs. Kombe made reference to cases including the David Zulu v. The People 1 and Saidi Banda v . The People2 , and submitted that an inference of guilty, is not the only inference that could have been drawn on the evidence that was before the trial Judge. 3 .3 She pointed out that the appellant was linked to the robbery through a silver Toyota Mark X. However, the Toyota Mark X the appellant was found with, was not sufficiently identified to be the one that was used in the robbery. 3.4 Mrs. Kombe also submitted that the firearms that were recovered where not sufficiently linked to the robbery. She referred to the case of John Timothy and Feston Mwamba v. The People 3 , and submitted that the prosecution evidence J6 should have established that firearms that were recovered, were used in the robbery. 3.5 Finally, Mrs. Kombe referred to the case of Makola Chilende and John Masakati v. The People4 , and submitted that the recovered bag and its contents, were of no evidential value because there was a break in the chain of evidence. This was on account of the persons who handled the bag between the time it was it was left with Manase and the time it was recovered, not being called as witnesses. 4.0 ARGUMENTS IN RESPONSE 4.1 In response to the arguments against the conviction, Ms. Chilufya referred to the case of Ezious Munkombwe and Others v. The People5 and submitted that when the different pieces of evidence, forming the case against the appellant are considered together, one will find that the case against him was proved. beyond all reasonable doubt. 4.2 The appellant gave money to his mother and uncle, shortly after the robbery; he was found with the silver Toyota Mark X that was used in the robbery; and he left the bag in which the stolen money was being carried at the time of the robbery, with his J7 uncle; and when the bag was opened, it was found to contain firearms. 4 .3 Finally, Ms. Chilufya submitted that there was no break in the chain of eviden ce and the case of Makola Chilende and John Masakati v. The People4 , was therefore not applicable to the facts of this case. 5.0 CONSIDERATION OF THE APPEAL 5.1 It is common cau se that the case against the appellant is anchored on circumstantial evidence. 5.2 In the case of case of David Zulu v. The People 1 , it was pointed out that circum stantial evidence is not direct proof of a m atter in issue, but is proof of facts that are relevant to the matter in issue, and from which an inference of the matter in issue, may be drawn. 5.3 The principle that in a criminal case, the matter in issue must be proved beyond all reasonable doubt, equally applies to proof of facts that are relevant to the issue. They must also be proved beyond all reasonable doubt. 5.4 In this case, the facts that incriminated the appellant were as follows; three armed and masked robbers, driving a tinted silver Toyota Mark X, staged the robbery; they stole money that was JS being carried in a bag; later that afternoon, the appellant drove a silver Toyota Mark X to his uncle's house and handed him and his mother, some money; the appellant also handed to his uncle the bag which contained the money that was stolen at the time of the robbery; later that night, the appellant was apprehended when he was trying to open the silver Toyota Mark X that was used in the robbery; at the time of his apprehension, the appellant was found with some money; and when the police retrieved the bag that the appellant handed over to his uncle, it was found to be holding 3 AK47 rifles and masks. 5.5 On behalf of the appellant, Mrs Kombe has submitted that the motor vehicle that the appellant was found with, was not sufficiently identified. She has also submitted that a break in the chain of evidence, rendered the recovered bag inadmissible. 5 .6 We will first deal with the motor vehicle. 5. 7 Although Francis told the trial Judge that the robbers where driving an unregistered, tinted silver Toyota Mark X, the motor vehicle he identified during the trial, was a registered, silver Toyota Marx X and its windows, were not tinted. J9 5.8 Ezekiel who was carrying the money with Francis at the time of the robbery, mentioned a silver tinted Toyota Mark X in his evidence. However, he did not identify the recovered motor vehicle during the trial. 5.9 Manase, the appellant's uncle, told the trial Judge that the appellant turned up with an unregistered silver Toyota Mark X. He did not identify the recovered motor vehicle during the trial. 5.10 The other witness to the robbery, was Emmanuel Asajile. He recalled seeing a silver unregistered Toyota Mark X with tinted windows. He did not identify the recovered motor vehicle during the trial. 5.11 Francis, the only person who identified the r ecovered silver Toyota Mark X, did not give evidence on the feature(s) by which he was able to identify the recovered motor vehicle, which no longer had the tint and bore a number plate at the time of recovery, as being the one that was used in the robbery. 5.12 This being the case, it is our view that had the trial Judge properly assessed the evidence linking the recovered motor vehicle to the robbery, he would have come to the conclusion JlO that it was not satisfactorily proved that the recovered car was used in the robbery. 5.13 As regards, the recovered bag, Francis told the trial Judge that t he bag in which the money was being carried had some white and black colour on it. He did not identify any bag or masks, during the trial. Similarly, Ezekiel, the person he was with during the robbery, did not identify any bag or mask during the trial. 5.14 During the trial, Manase identified a red and black bag, as being the bag that the appellant gave to him on the day of the robbery. He also told the trial Judge that although it was heavy at the time he received it, he did not know what it contained, because he did not open it. In addition, he told the trial Judge that he did not know who collected it from his house. 5.15 As indicated earlier on, the evidence of Detective Sergeant Jere, was that after the bag was collected from Manase's house, it passed through the hands of three persons, before it was found abandoned outside a house, and containing guns and masks . Jll 5 . 16 None of the persons who are said to have had custody of the bag, were called as witnesses. All the evidence that Detective Sergeant Jere gave in connection with the movement of the bag was therefore hearsay evidence. 5.17 Further, since the persons who were robbed of the money did not identify the bag, it cannot be said with any certainty, that the bag that the appellant handed over to his uncle, is the bag that contained the money that was stolen during the robbery. 5.18 It is our view, that the prosecution evidence did not prove, to the required standard, that the motor vehicle that the appellant was found with, is the motor vehicle that was used during the robbery. Similarly, it is our view that it was not proved, to the required standard, that the bag that the appellant handed over to his uncle, is the bag that was stolen during the robbery and that it contained the guns and the masks, at the time it was handed over. 5.19 With the exclusion of these two facts, we find that the proved facts fall short of evidence on which a court could have come to the conclusion that an inference of guilty, is the only inference that could have been drawn on the evidence before it. 5 .20 In view of the conclusion that we have just arrived at, the J12 ground of appeal against sen tence, is rendered otiose and we will not deal with it. 6.0 VERDICT 6.1 We find merit in the appeal. We find that the appellant's conviction is not safe and we set aside it aside. We a lso quash the sentence and acquit him . . DEPUTY ajula COURT OF APPEAL JUDGE YSOOb K. uzenga COURT OF APPEAL JUDGE L REGISTR'