Peter Moses Phiri v The People (Appeal No. 141/2022) (24 February 2024) – ZambiaLII

IN THE COURT OF APPEAL OF ZAMBIA Appeal No. 141/2022 HOLDEN AT KABWE I (Criminal Jurisdiction) BETWEEN: 5LIC OF 24 PETER MOSES PHIRI APPELLANT \)RT OF APpcA qt. AND 'I. 0 ftl3 2024 INALREGisrR RESPONDENT THE PEOPLE CORAM: Mchenga DJP, Ngulube and Muzenga, JJA On 16th May 2023 and 20th February 2024 For the Appellant: Ms. S. F. Bwalya, Senior Legal Aid Counsel, Legal Aid Board For the Respondent: Mr. O. Siankanga, Acting Deputy Chief State Advocate, National Prosecution Authority JUDGMENT MUZENGA, JA delivered the Judgment of the Court. Cases referred to: 1. Attorney General v. Marcus Kampumba Achiume (1983) ZR 1 (SC) 2. Luckson Kacha Ngosa v. The People - SCZ Judgment No. 251 of 2012 J2 3. John Timothy and Feston Mwamba v. The People (1977) ZR Legislation referred to: 1. The Penal Code, Chapter 87 of the Laws of Zambia. 2. Firearms Act, Chapter 110 of the Laws of Zambia. 1.0 INTRODUCTION 1.1 The appellant was convicted of the offence of armed aggravated robbery contrary to Section 294(2) of the Penal Code, Chapter 87 of the Laws of Zambia. He was subsequently sentenced to death by Makubalo J. He has appealed against the conviction and sentence on the basis that the prosecution did not prove its case beyond all reasonable doubt. 1.2 The particulars of offence alleged that on 8th November 2020 at Chipata in the Eastern Province of the Republic of Zambia whilst armed with an unknown firearm, did steal from Silvia Kapenya, 1 mattress, 1 Puma blanket, 1 small blanket and a home theatre altogether valued at K2,000.00 the property of Silvia Kapenya and at or immediately before or immediately after the time of such stealing did use or J3 threaten to use actual violence to the said Silvia Kapenya in order to obtain or to prevent resistance to the property being stolen or retained. 2.0 EVIDENCE IN THE COURT BELOW 2.1 The evidence of five prosecution witnesses secured the appellant's conviction. The prosecution evidence summarised that on 8th November 2020, the appellant entered PWl's house at around 01:00 hours armed with a gun. The sister to PWl who slept in the living room screamed and ran to the bedroom where PWl was. At this time PWl was still awake, as had just taken a bath. PWl ran to the living room where the sister was fleeing from. She found a thief wearing a coat and a mask covering his face. He pointed a gun at PWl and he immediately warned her not to scream as he would shoot her. She stood facing him for 3 minutes as her neighbours kept asking her if they were okay but she never responded. The assailant then started removing things from the house. After a short while, the assailant was apprehended by PW3 the landlord to PWl. 2.2 All the neighbours came out as people shouted "thief." PWl went out of the house and found the masked thief had been apprehended. She proceeded to remove the mask and could not recognize the J4 assailant. He was later handed over to the police together with his gun. 2.3 The gun was examined by a ballistics expert who found it to have a defect with the trigger mechanism but could still fire by releasing the cocking handle. He was able to test fire it successfully. 2.4 This marked the end of the prosecution evidence. The appellant was found with a case to answer and he was put on his defence. 3.0 DEFENCE 3.1 In his defence, the appellant opted to remain silent. 4.0 FINDINGS AND DECISION OF THE TRIAL COURT 4.1 After careful consideration of the evidence before her, the learned trial judge found that the facts in the matter were mainly not in dispute. She proceeded to find that PWl was at her home on 8th November 2020 at around 01:05 hours when an intruder entered her house without her permission. 4.2 The said intruder was carrying a weapon which he pointed at PWl and threatened to shoot her if she shouted. The person who broke into her house was apprehended the same day at the scene within minutes JS of taking the property outside. All in all the trial judge concluded that the prosecution had proved its case beyond reasonable doubt. 5.0 GROUNDS OF APPEAL 5.1 Unhappy with the conviction and sentence of the court below, the appellant launched the present appeal fronting one ground structured as follows: (1) The learned trial judge erred and misdirected herself both in law and fact in convicting the appellant of the offence of armed aggravated robbery when the ballistic evidence disclosed that the exhibited firearm had a malfunctioned trigger mechanism hence, not a firearm as defined in Section 2 of the Firearms Act, Chapter 110 of the Laws of Zambia. 6.0 THE APPELLANT'S ARGUENTS 6.1 In support of the sole ground of appeal, it was learned counsel's submission that the finding of fact by the trial court that the exhibited gun was a firearm is not supported by any evidence on the record. According to learned counsel, the evidence of PW4 revealed that the exhibited gun had a malfunctioning trigger mechanism hence was unable to discharge cartridges using the trigger. 6.2 It was learned counsel's contention that the evidence on the record does not reveal that at the time of the offence, the said gun had a J6 magazine or any cartridge in it. We were referred to the case of Attorney General v. Marcus Kampumba Achiume1 where it was held that: "The appeal court will not reverse findings of fact made by a trial judge unless it is satisfied that the findings in question were either perverse or made in the absence of any relevant evidence or upon a misapprehension of the facts or that they were findings which, on a proper view of the evidence, no trial court acting correctly can reasonably make." 6.3 We were urged to reverse the finding of the fact that the exhibited gun was a firearm. We were further referred to the case of Luckson Kacha Ngosa v. The People2 in which it was held that: "It must be emphasized that trial courts must bear in mind that the mere use of a firearm does not make a robbery an armed robbery unless the firearm is properly examined and that it is established it is a firearm within the meaning of the Firearms Act." 6.4 In summation, it was contended that a gun with a malfunctioning trigger system, without a magazine and cartridges in it, was not capable of being fired at the time of the robbery. J7 6.5 We were urged to uphold this appeal, quash the conviction, set aside the death sentence and substitute it with a conviction for aggravated robbery under Section 294(1) of the Penal Code. 7.0 RESPONDENT'S ARGUMENT 7.1 On behalf of the respondent, the learned counsel submitted that the trial court was on firm ground when it convicted the appellant of the offence of armed aggravated robbery as the firearm used to commit the offence meets the requirement of the definition under Section 2 of the Firearms Act. It was learned counsel's further submission that it is not the functionality of individual parts of a gun, but the firearm as a whole. 7.2 It was contended that the evidence of PW4 the ballistics expert was very clear, that despite having a defective trigger mechanism, the firearm was still capable of loading and discharging by way of cocking handle. Thus the firearm was functional and capable of discharging. 7.3 We were referred to the case of John Timothy and Feston Mwamba v. The People3 where it was held that: "To establish an offence under section 294(2)(a) of the Penal Code the prosecution must prove that the weapon used was a firearm within the meaning of the Firearms Act, that it was a lethal barrelled weapon from which a shot could be discharged or which could be adapted for the discharge of a shot. The question is not whether any particular gun which is found and is alleged to be connected with the robbery is capable of being fired, but whether the gun seen by the eye-witnesses was so capable. This can be proved by several circumstances even if no gun is ever found." 7.4 In precis, it was contended that the firearm used in the commission of the offence was recovered at the scene of the crime and subjected to an examination which proved that it was working. The firearm was also swabbed which examination revealed that it had been fired before. 7.5 We were urged to uphold the conviction and sentence of the lower court and dismiss this appeal for want of merit. 8.0 HEARING OF APPEAL 8.1 At the hearing of the appeal, learned counsel for the appellant, Ms. Bwalya, placed full reliance on the documents filed. On behalf of the State, Mr. Siankanga informed the court that the State would equally rely on the heads of argument filed before the court. 9.0 CONSIDERATION AND DECISION OF THE COURT 9.1 Having examined the judgment of the lower court and the arguments in support of and in opposition of this appeal, it is our considered view J9 that the issue in this appeal is whether a conviction for armed aggravated robbery is tenable. 9.2 Learned counsel for the appellant has vigorously argued that the lower court misdirected itself when it found that the gun in issue was a firearm within the meaning of the Firearms Act as the trigger mechanism was defective. Learned counsel for the respondent argued with equal force that the trial court was right in its finding as the gun was in fact a firearm. 9.3 It is not in dispute that upon examination by PW4, the ballistics expert, the gun in issue had a defective trigger and as such could not fire using the trigger mechanism. The John Timothy and Feston Mwamba case supra is instructive in resolving the issue. The Apex Court held inter alia that: "(i) To establish an offence under Section 294 (2)(a) of the Penal Code the prosecution must prove that the weapon used was a firearm within the meaning of the Firearms Act, Cap 111, i.e. that it was a lethal barrelled weapon from which a shot could be discharged or which could be adapted for the discharge of a shot." (Emphasis ours). 9.4 In the case of Luckson Kacha Ngosa supra, a gun was recovered but was never subjected to ballistics examination to determine whether JlO it could load and discharge a projectile. The High Court notwithstanding the lack of expert evidence, convicted the appellant of armed aggravated robbery. In setting aside the conviction, the Supreme Court said the following: "As we stated in the case of John Timothy and Another, the issue is whether the firearm allegedly used was capable of being fired. In this case, no such evidence was led by the prosecution. In the circumstances, it would be unsafe for us to uphold the conviction under Section 294(2). We set aside the conviction under Section 294(2) and we also set aside the death sentence. Instead, we substitute a conviction of aggravated robbery contrary to Section 294(1)." 9.5 In this appeal, the exhibit gun was subjected to ballistics examination after being recovered, and this is what the ballistics expert (PW4) said about it: "The exhibit firearm is a home or backyard-made firearm that was illegally manufactured, it has no ballistic data and the material used does not meet the recommended standards; however, it was designed to chamber and discharge cartridges of calibre 12 bore or 18.5 millimetres. The exhibited firearm trigger mechanism is not in good condition.... You cannot discharge this exhibit firearm by pulling the trigger; however. it is capable of discharging cartridges by way of releasing the coking handle once it is pulled to the rearmost. which Jll was attained after test firing the exhibit firearm, one cartridge from our laboratory was loaded and discharged from this same exhibit firearm." (Emphasis ours). 9.6 It is therefore clear from the case law and Section 2 of the Firearms Act that what is cardinal in determining whether an exhibit gun is a firearm under the Firearms Act, is whether the exhibit is a lethal barrelled weapon from which a shot could be discharged, or which could be adapted for the discharge of a shot. In casu, it is clear that even though the trigger was defective, the gun could be adapted for the discharge of a shot and the test firing confirmed the finding. 9.7 From our reading of the judgment of the court below, we are satisfied that the learned trial Judge did apply her mind to the requirement set out in Section 294 (2) of the Penal Code and properly analysed the evidence before her. The findings made were supported by the evidence on the record and as such we see no reason to interfere with the same. We agree with the submission by learned counsel for the respondent that the gun which was recovered at the scene is a firearm within the definition of Section 2 of the j ' ' • J12 Firearms Act. Consequently, we find no merit in the sole ground of appeal and we dismiss it. 10.0 CONCLUSION 10.1 Having dismissed the appeal, we confirm the conviction and sentence imposed on the appellant. ············~·········-·---- -----~-------------· P. C. M. NGULUBE K.MUZENGA COURT OF APPEAL JUDGE COURT OF APPEAL JUDGE