Lubinga v People (Appeal 9 of 1988) [1988] ZMSC 74 (13 September 1988)

IN THE SUPREME COURT OF ZANBIAl Appeal No, 9 of 1988 HOLDEN AT kNDOLA»1 dunce aga-nsi. Um appellant' In this case is the (Criminal Jurisdiction) of fAct that PW.1 has been shown to . a ' ujrre? Isble witness as to the question of SUNDAY) LUBINGA in . Ms care. Appellant . ^Mdenc? u to what the • : . THE iPEOPLEce station (Respondent - CORAM: Ngulube, D. C. J., Gardner,J. S.,andChalia^ 13th September, 1988 ~~~ J U D GHENT Gardner, J. S., delivered the judgment of the court. ..; : i . ' •. / ■ The appellant was convicted of aggravated robbery; the particulars of the offence were that he and a co-appellant, who we are informed has died in custody, on the27th of April, 1983, at Ndola stole one wrist watch and K30.00 together valued atK330.00 from Protasio Mulenga and at the time of such stealing used actual violence. The evidence adduced by the prosecution was'to the'effect’that’*’ the complainant, PW.1, was leaving a bar when he was accosted by a group of ten people two of whom took his wrist watch and K30.00 in cash. PW.1 gave evidence to the effect that he recognised the appellant as one of the people who had atfahked him.*'However when he was cross-examined he agreed that he had;made atstatement to the police to the effect that he had been Informed by others that it was the appellant who had attacked him. . The learned trial judge found that this was not a case of mistaken identification because, the appellant had recognised the man who had attacked him. The learned trial judge misdirected himself by Ignoring the evidence that in fact the complainant had admitted that he had been informed by others as to the identitity of one of the attackers. Mr. Okafor on behalf of the State argued that, in any event, despite this misdirection there was evidence from PW.1 that when he accompanied the appelMt on the way to the police station the appellant had admitted to PW.1 that he had stolen the money. f .../JZThe - J2 - fifE ■?-'■ v,.;T Of OrWIA Appeal Ng. 9 Of t9S$ JJM,, ir "II •* •».'•, t * 'i •.....................................*-' *\.-4,•■;*/ ’ \ : . The only evidence against the appellant In this case is the ^evidence of PWH. In view of the fact that PW.1 has been shown to be a completely unreliable witness as to the question of Identification, which is a vital issue in this case, we cannot V accept that the same witnesses evidence as to what the ,, . . , . TtW J>F(W « appellant said on the way to the police station can be Prtsn/mjnnt , ;. relied upon. In the event therefore there rlsno Tellable >■ evidence against the appellant KUh September. KW The appeal is al lowed,' the'$phv,|ctlon4 .quashed and the •7 .. sentence is set aside. - —-------------- - ------- $ , erf court • cf aggravated robbery! the ■ ■ that !te and a co-appellant^ «—— ft i* A,ho. we t " 'E* $ ' ’ T If vr ' IT’*’ W7®1 M. S. Ngulube '''-"A’ u DEPUWCHIEF 'JUSTICE K330. M fiW Pt Lino a v.- u^i of such stealing used actual ^oletice. j f ■ > ■. he, ,V4tWJ'. Wv. av. /A XV. AWViX XVX * • ; ’T -.'■vz!. SUPREME' COURT' JUDGE .xu jW.t ■ =. •?. took his wrist watch and KM. GO ; ■ ..\ .• uB,. T, ,Gardner, bv In car r-M. 1 gave evictee to the effect that he recognised the < M. S. Cha 11a, ACTING SUPREME COURT JUfiGE \ .,;, J be?n infonfi&<d by others thst It was th Ilant who had attached him. l^ar^d-trial judge found that this was not a case of jL: & mist.akep identification because the appellant, had recognised thetf (tad wiw hod attacked hin;. The learned trial judge misdirected by ignoring ths evidence that in fact t^e complainant had ■,' that he had tmn isrforeed by others as to the identitity - ' of cf attackers. ' . . ciE'/Gr on behalf of Uw State argued that, in any event, this Redirection l.horc was evidence from PWJ that when n.x it? t.'ne en Mte way to the police station . had ad-i ttnd t.o that he had stolen the money. ' - ■ ■ ■ <U|R .../JSThe