Mondo v People (SCZ Appeal 92 of 1997) [1999] ZMSC 105 (7 December 1999)

IN THE SUPREME COURT OF ZAMBIA SCZ APPEAL No.92 OF 1997 HOLDEN AT NDOLA (CRIMINAL JURISDICTION) ZYA MONDO Vs THE PEOPLE APPELLANT RESPONDENT Coram: Bweupe, D. C. J., Chirwa and Muzyamba, JJS 9th September and 7th December 1999 For the Appellant: Mr. S. W. Chirambo, Deputy Director of Legal Aid For the Respondent: Mr. R. Okafor, Principal State Advocate JUDGMENT Chirwa, J. S. delivered the judgment of the court. The appellant was charged and convicted with one account of aggravated robbery contrary to Section 294 (1) of the Penal Code, Cap 87 of the Laws of Zambia. It is alleged that on 25th February 1997 at Mufulira in the Mufulira District of the Copperbelt Province of the Republic of Zambia whilst acting together with others unknown did rob MICHEAL CHITUKA of 3 pairs of canvas shoes, one pair of socks, three blankets, one cardigan, one far, one tie, one pair of jeans trousers, one jar, two chickens, two handbags, some meat, a loaf of bread, one suitcase, K67,000 cash, one bag, a curtain all valued over KI million and at or immediately or immediately after stealing did use actual violence in order to obtain and retain that property. He pleaded not guilty but after trial the learned trial Judge found him guilt and sentenced him to the minimum sentence of 15 years imprisonment with hard labour. He is now appealing against that conviction and sentence. The evidence as found by the learned trial Judge is that on 25th February 1997 the complainant and his family were asleep in the house when they were awakened by loud noise on the door, people shouting, ordering him to open the door. : J2 : He-awakened his wife who was PW.2 and they switched on the lights of the house. As they were in the house some strangers entered the bedroom and one of them shone a torch on the complainant and was ordered to lie down. Whilst he was down he was ordered to give them money. He told them where the money was but was ordered to crawl where the money was and picked it up. When all this was happening his wife was around and after they had taken the money and property indicated in the information these people ran away. The evidence of the complainant's wife PW.2 is the same in as far as how the robbery took place. The evidence of the investigating officer gave evidence as to how the appellant was apprehended, hie evidence was to the effect that there was a robbery in Kamuchanga which after investigations showed that the attackers by mistake and accident shot at each other and appellant was wounded. He carried out some investigations and whilst the appellant was in Ronald Ross Hospital he got some further information which led to the recording of warn and caution statement from the appellant and the appellant led him to a number of houses where the appellant alleged he committed the offences of aggravated robbery and one of these houses was that of the complainant in this case. The identification parade was conducted where the appellant was identified by PW.2, the wife to the complainant. On the close of the prosecution case the appellant was found with a case to answer, his evidence is to the effect that on the 25th of February 1997 he came to Mufulira from Zaire to sell some of his good around 19.00 hours on his way back to Zaire he was attacked by some people who shot him. He reported the matter to Mufulira Police who took him to the hospital. When he was discharged from hospital the police picked him and put him in Police cells. He denied committing any offences and he denied leading the Police to any houses. The learned trial Judge found that the evidence of identification by PW.2 was reliable and he accepted it. He rejected the evidence of the appellant. He convicted the appellant on an ordinary aggravated robbery contrary to Section 294 (1) saying that the gun was not proved to have been used. : J3 : In arguing this appeal on behalf of the appellant Mr. Chirambo criticized the learned trial Judge in convicting the appellant on a single identifying witness. He submitted that the learn trial Judge failed to warn himself of the danger of convicting the appellant on a single identifying witness and that failure to do so warrants the appellant to be acquitted. He further criticized the learned trial Judge for rejecting in total the evidence of the appellant and accepting in total the evidence of PW.4, who was the investigating and arresting officer. Mr. Okafor for the State supports the conviction that the identifying witness PW.2 had ample opportunity to observe robbers as this robbery took about 20 minutes and the lights were on and that taking into account the evidence of PW.4 this was a proper case to use proviso in supporting the conviction of the appellant. We have considered the evidence on record and judgment of the learned trial Judge also the submissions before us and going by the evidence it is admitted that the only identifying witness was one witness, namely PW.2. It is also clear from the judgment of the learned trial Judge that he did not warn himself of the dangers of convicting on a single identifying witness that he satisfied himself that the possibility of honest mistake has been eliminated. However, taking the evidence of PW.4, which was accepted by the learned trial Judge that the appellant led this Police Officer to a number of houses where he alleged to have committed the robberies, one of these houses is that of the complainant in this case. Further, under warn and caution the appellant admitted having committed this offence. There was no objection from defence where the appellant was legally represented. We agree with Mr. Okafor that this is a proper case to use proviso that had the learned trial Judge properly directed himself on the question of a single identifying witness, he ought to have inevitably reached the same conclusion of convicting the appellant. We uphold this conviction. The appeal against conviction has no merits and it is dismissed. There is no appeal to the minimum mandatory sentence. B. K. BWUPE D. K. CHIRWA DEPUTY CHIEF JUSTICE SUPREME COURT JUDGE W. M. MUZYAMBA SUPREME COURT JUDGE