Tembo v People (Appeal 96 of 2004) [2005] ZMSC 42 (1 November 2005)

IN THE SUPREME COURT OF ZAMBIA HOLDEN AT LUSAKA (CRIMINAL JURISDICTION) APPEAL NO 96 OF 2004 RODRICKTEMBO MUTEMWA MUTOLEKA 1st Appellant 2nd Appellant THE PEOPLE Coram: Chirwa, Chibesakunda and Chitengi on 17th May 2005 and 1st November 2005 For the 1st Appellant: Mr R K Malipenga, of Malipenga & Company For the 2nd Appellant: In Person For the People: Mr J Mwanakatwe, Deputy Chief State Advocate JUDGMENT Chirwa, JS delivered the judgment of the Court: - Case referred to: 1. Chimbini v The people [1973] Z. R. 191 The appellants, Rodrick Tembo and Mutemwa Mutoleka (hereinafter referred to as 1st and 2nd Appellant respectively) were jointly charged with two others with one Count of Aggravated Robbery, contrary to Section 294 (2) (a) of the Penal Code, Cap. 87. The particulars of the offence alleged that the appellants and two others on 1st January 2001 at Lusaka, in the Lusaka District of the Lusaka Province of the Republic of Zambia, jointly and whilst acting together with other J2 unknown persons and whilst being armed with firearms did steal from FAHEEMA KHAN K8 million cash, 1 gold chain, 1 wrist watch, 1 brief case altogether valued at K9,250,000.00 the property of HACKIM ABDEL and at or immediately before or immediately after stealing did use or threaten to use actual violence to the said FAHEEMA KHAN in order to obtain or retain the said property or to prevent or overcome resistance from its being stolen. Upon their conviction, they were sentenced to death. They have now appealed against both conviction and sentence. The evidence against the appellants was mainly from PW 1 the complainant who testified that on the Is’ January 2001 between 08 : 00 hours and 09 : 00 hours she was in the kitchen in her house cooking when five men entered the kitchen. Three of these people were dressed in Police uniforms and they had two AK 47 rifles. They introduced themselves as officers from the Drug Enforcement Commission (DEC) and they wanted her husband and that they were looking for drugs. She told them that her husband was not around and that they were not drug dealers. They then pulled and dragged her in the sitting room where she and her maid were made to sit down. A gun was pointed at her head. Three of these men went to search the rooms while two of the armed men remained guarding her. They did not find what they wanted. They then demanded money and she pointed at the brief case in which there was K8 million. They took the case, her gold bungle and wrist watch. They then locked them in the bathroom and they left. The whole episode took between twenty and thirty minutes. The matter was reported to the Police. Few days later she attended an identification parade where she J3 identified two men. She identified these men because they were the ones that were guarding her. One was holding her shoulders and the other was pointing a gun at her head. The two she identified are the two appellants. The second prosecution witness was a Police officer who conducted the identification parade who confirmed that the complainant identified the two appellants at the parade. The last prosecution witness was the investigating and arresting officer. He testified that on 1st January 2001 he received a report of armed robbery that occurred in Makeni. He visited the scene. The following day he got some information that those involved were Police officers from Chunga Police Post. In the course of his investigations he apprehended the 1st appellant who led him to the other people who were jointly charged with the appellants but acquitted. He also recovered from the 1st appellant’s house a brief case and K250,000.00. The brief case was later identified by the complainant as the one stolen from her in which she had K8 million. Later he arrested the appellants and the two others. On being put on defence, the two appellants gave evidence on oath. The 1st appellant in his defence testified that on 7th January 2001 he knocked off from his Chunga Police Post at about 09 : 00 hours having worked the whole night and went home to rest. He slept and at about J4 12 : 00 hours he was awakened by his wife saying there were his workmates who had come to see him. He went outside and found seven Police officers and out of these he identified two as his workmates. They told him that they had come to search his house and he allowed them. In the house, the officers went straight to the table on which he had put his wallet containing <250,000.00, his December salary. From there he was taken and detained at various Police stations and on 12th January 2001 he was put on identification parade where no one identified him. He was later jointly arrested and charged with the present case. He denied that a brief case identified by the complainant was found in his house. The 2nd appellant testified in his defence that on 10th January 2001 around 05 : 30 hours Police officers came to his house and they asked him about the gold chain, wrist watch and <8 million. He denied any knowledge of those things. From there they took him into Police custody. On 12th January 2001, he was put on an identification parade but no one identified him. The 1st appellant called one witness who testified to the effect that 1st appellant's house was searched and the Police collected a radio and <250,000.00 and he produced a document purportedly written by PW 3 indicating the goods seized from the 1st appellant’s house. The learned trial judge considered the evidence and made some findings of fact. He found as a fact that robbery had been committed. He found as a fact that this was a case of a single identifying witness and J5 concluded that she had ample opportunity to identify the two appellants. He accepted that the complainant's brief case and <250,000.00 were found in the 1st appellant's house. He rejected the 1st appellant's evidence that the <250,000.00 found in his house was his December salary. He found that the evidence against the two appellants was overwhelming and convicted them. The only ground advanced on behalf of the 1st appellant is that there was no proper identification of the appellants and that there was dereliction of duty by the Police in that they did not lift finger prints from the brief case allegedly found in the 1st appellant's house. It was argued that the appellant denied ever being identified at the identification parade and that this could have been cleared had the pictures taken at the identification parade been produced in Court. It was further argued that there was dereliction of duty by the Police in that they did not lift finger prints from the brief case allegedly recovered from the appellant's house. The 2nd appellant filed detailed written heads of arguments in which he is also attacking his identification submitting that although PW 1 stated that he was with the 2nd appellant for about 20 minutes, she never gave his description to the Police and that in fact PW 1 was forced to give evidence against him. He submitted that this was a single identifying witness case and the witness ought to have given his description to eliminate possible honest mistake. With this poor identification and as J6 nothing was recovered from him, there is no link to connect him to the crime, it was submitted. We have considered this ground of appeal. It is a fact that this is a case of a single identifying witness and as such the possibility of an honest mistake must be eliminated. As we said in CHIMBINI V THE PEOPLE (1), it is always competent to convict on the evidence of a single witness if the evidence is clear and satisfactory in every respect; where the evidence in question relates to identification there is the additional risk of an honest mistake, and it is therefore necessary to test the evidence of a single witness with particular care. This, learned trial judge was very much aware and he warned himself of this danger. According to PW 1, the only identifying witness, the whole episode took about 20 - 30 minutes and it was during broad day-light. The people who came to raid her house were five. While three of them were searching her house, the two appellants remained guarding her. One in Police uniform was holding her shoulder and she identified the 1st appellant as the person involved. She identified the 2nd appellant as the one who was pointing a gun in her head. She identified the two at an identification parade conducted by PW 2 who confirmed the identification. In addition to this identification there is further evidence against the 1st appellant; a brief case stolen during the robbery was found in his house. Further as against the 1st appellant, it is too much of a coincidence that he is in fact a Policeman. Both appellants denied being identified at an identification parade. Why should PW 1 and PW 2 tell lies about the identification when there is evidence that PW 1 only picked the two of them out of a line of 14 J7 people. It was a matter of credibility of the witnesses and the learned trial judge in his finding found that PW 1 had ample opportunity to observe her attackers. We therefore find no merit in the appeal against the conviction and it is dismissed. Upon their conviction, the appellants were sentenced to death under Section 294 (2) of the Penal Code. The learned Deputy Chief State Advocates does not support the sentence as no evidence or proof that the appellants were armed with a firearm as defined under the Firearms Act. This is a proper stand taken by the State. We squash the death sentence. In considering the proper sentence, we feel that this is not a case in which a minimum sentence can be passed. The offence is aggravated by the fact that there was the use of security (Police) uniform in this case. The appropriate sentence is 20 years. The appellants are therefore sentenced to 20 years I HL with effect from the date of arrest. To this extent, the appeal against sentence succeeds. D K Chirwa JUDGE OF THE SUPREME COURT L P Chibesakunda JUDGE OF THE SUPREME COURT P Chitengi JUDGE OF THE SUPREME COURT