Hassan Samson Phiri v People (Appeal 92 of 2000) [2001] ZMSC 151 (6 March 2001)

IN THE SUPREME COURT OF ZAMBIA APPEAL NO. 92 OF 2000 HOLDEN ATNDOLA (CRIMINAL JURISDICATION) BETWEEN: HASSAN SAMSON PHIRI APPELLANT AND THE PEOPLE RESPONDENT CORAM: NGULUBE,CJ, CHIBESAKUNDA, JS AND MAMBILIMA, AG. JS On 5th December, 2000 and 6th March, 2001. For appellant - Mrs. J. Kaumba, Assistant Principal Legal Aid Counsel For respondent - Mr. D. B. Mupeta, Senior State Advocate JUDGMENT Ngulube, CJ, delivered judgment of the Court. On 5th December, 2000, when we heard this case, we allowed the appeal, acquitted the appellant and quashed his sentence. We said we would give our reasons later, and this we now do. The appellant was sentenced to undergo fifteen years imprisonment with hard labour after being found guilty of aggravated robbery. The particulars of the offence alleged that on 12th December, 1998, at Ndola, the appellant with others unknown and whilst armed with an iron bar robbed the complainant of K60,000 in cash. The evidence showed that initially this was actually a case of pick pocketing by a sole thief who had come up from behind but was spotted by PW2, the complainant’s wife. She said this thief was wearing blue jeans and tropical sandals popularly called patapatas. She informed her husband who immediately gave chase and who claimed not to have lost sight of the thief in that apparently crowded place. The complainant said another person came and advised him not to pursue the thief as he may have confederates who would harm him. Either the person that came or the thief struck the complainant with an iron bar, inflicting a wound on the head; but the complainant held on to the person he had caught who was subsequently delivered to the police. The appellant said he was the person mistakenly caught by the complainant for the thief he was chasing. He, the appellant, was an innocent passerby who was wearing brown shoes and not patapatas. This fact was borne out by the Arrested Persons Property Book (the APPB) which was produced by the police officer DW2 who was called to support the appellant’s defence. There was no suggestion that the thief had stopped to change shoes or that he had any such opportunity when he was chased by the complainant. What is more, if he was caught without being lost sight of by the complainant, as the latter claimed, the stolen money and the weapon used should have been found on him. Yet the learned trial Judge glossed over such evidence - which was favourable to the appellant - and held that what the appellant was wearing was of no consequence at all. It was infact vitally important and of much consequence; it was conclusive of guilt or innocence since serious doubts should have been entertained about the patapata wearing thief being the same as the appellant who wore brown shoes. We agree with Mrs. Kaumba that the possibility of an honest but mistaken identification had not been ruled out. In sum, it was unsafe to allow the conviction to stand. It was for the foregoing reasons that we allowed the appeal and acquitted the appellant. M. M. S. W. Ngulube, CHIEF JUSTICE. L. P. Chibesakunda, SUPREME COURT JUDGE. I. M. C. Mambilima, SUPREME COURT JUDGE.