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Tambwe & Another v People (S.C.Z. Judgment 3 of 1987)  ZMSC 7 (10 March 1987);
KABUKALA ABU TAMBWE & SHAFIKO HACHI v THE PEOPLE (1987) Z.R. 15 (S.C.)
|SUPREME COURTNGULUBE, D.C.J., GARDNER, J.S., AND SAKALA, JJ.S.9TH DECEMBER, 1986 AND 11TH MARCH, 1987 (S.C.Z. JUDGMENT NO. 3 OF 1987)|
|Criminal Law and Procedure - conviction - Particulars - Substitution of by Supreme Court.|
|The appellant was convicted of aggravated robbery on his own on the ground that he was armed with a gun. There was no proof that the weapon was a gun within the meaning of the Firearms Act. However, there was ample evidence that a number of people took part in the robbery. The appellant appealed against conviction of robbery.
|GARDNER, J.S.: delivered the judgment of the court and, after dealing with matters which are not the subject of this report, continued.
In respect of the second count it is noted that, although the Statement of Offence refers to aggravated robbery contrary to section 294 of the Penal Code, the particulars refer to robbery by the first appellant on his own. Robbery by a person on his own is not aggravated robbery unless he is armed with an offensive weapon or instrument and, although in this case there was an allegation in the evidence that the appellant was armed with a gun, there was no proof that the weapon was a gun within the definition of the Firearms Act. In consequence the appellant can only be convicted of aggravated robbery if he was in the company of another person or persons. There is ample evidence that a number of people took part in the robbery referred to in the second count and a conviction for aggravated robbery is justifiable in law. This court, in Kanagaza v The People (2), said that this court had, under section 15(2) of the Court of Appeal for Zambia Act, power to amend the particulars in that case to read:
On the first count we dismiss the appeal against conviction. On the second count we dismiss the appeal against conviction and substitute a judgment of guilty of the offence of aggravated robbery whilst acting together with persons unknown.