Chansa and Anor v People (Appeal 619 of 2013) [2017] ZMSC 252 (1 February 2017)

• f IN THE SUPREME COURT FOR ZAMBIA HOLDEN AT KABWE (Criminal Jurisdiction) BETWEEN: APPEAL No. 619,620/2013 DAVID CHITIKA CHANSA LAWRENCE KAUNDA 1st APPELLANT 2nd APPELLANT AND THE PEOPLE RESPONDENT Coram: Phiri, Wanki and Muyovwe, JJS On 12th August, 2014 and 1st February, 2017 For the Appellant: Mr. M. Kabesha, Messrs Kabesha and Co., and Mr. J. B. Then, Messrs Mwansa Phiri & Partners For the Respondent: Ms. M. S. Ziela, Deputy Chief State Advocate (standing in for Mrs. C. L. Phiri, Acting Deputy Chief State Advocate), NPA JUDGMENT MUYOVWE, JS, delivered the Judgment of the Court Cases referred to: 1. Lubinda vs. The People (1988-1989) Z. R. 110 2. Simon Miyoba vs. The People (1977) Z. R. 218 3. Chola vs. The People (1988 -89) Z. R. 163 4. Haonga vs. The People (1976) Z. R. 200 5. Chuba vs. The People (1976) Z. R. 279 JI 6. Maseka vs. The people (1972) Z. R. 9 7. Kalebu Banda vs. The People (1977) Z. R. 169 8. Robertson Kalonga vs. The People (1988-1989) Z. R. 90 9. Musole vs. The People (1963-1964) Z. R. 180 10. Ivess Mukonde vs. The People (S. C. Z Judgment No. 11 of 2011) 11. The People vs. Prince Mwiya Maiba Liwali (2010) Z. R. VOL.2 302 12. Gilbert Arnold Chizu vs. The People (1979) Z. R. 225 13. Charles Lukolongo and Others vs. The People (1986) Z. R. 115 14. Machobane vs. The People (1972) Z. R. 196 15. Chansa vs. The People (1975) Z. R. 136 16. David Dimuna vs. The People (1988-1989) Z. R. 199 17. Major Masanga vs. The People (2009) Z. R. 242 18. William Muzala Chipango vs. The People (1978) Z. R. 304 19. Toko vs. The People (1975) Z. R. 196 When we heard this appeal, we sat with Hon. Mr. Justice Wanki. He has since retired and, therefore, this judgment is by the majority. The appellants were tried and convicted by the Lusaka High Court of the offence of murder contrary to Section 200 of the Penal Code Cap 87 of the Laws of Zambia. It was alleged that on or about the 11th September, 2010 jointly and whilst acting together, they murdered Gladys Maketo Mabenga Chitika (hereinafter called "the deceased"). We do not consider it necessary to give a detailed narrative of the evidence in the court below but we propose to give a summary J2 I of the evidence adduced in the court below. The prosecution called fourteen witnesses while the defence called four witnesses. The 1st appellant was the husband to the deceased while the 2nd appellant is a nephew to the 1st appellant. According to PW1, who was the live-in maid to the family, on the 10th September 2010, the 1st appellant came home around 02:00 hours and instructed the 2nd appellant to lock the gate and the house and keep the keys. When the deceased asked him why he came home late the 1st appellant got incensed and slapped her. The deceased who was already dressed in a night dress tried to leave the house but was discouraged from doing so by PW1 and the 2nd appellant who feared for her safety. A confrontation ensued between the 1st appellant and the deceased as the 1st appellant wanted the deceased and her children out of his home. The 1st appellant started beating the deceased in the sitting room in full view of PW1. At one point, he put her head in between his legs while beating her with his fists in the ribs and he dragged her to the bedroom where he continued beating her. PW1 could hear the deceased screaming and when she tried to intervene, she was told that she was just a maid. PW1 said around 03:00 hours, she heard a loud bang and there was silence. J3 Around 04:00hours the 1st appellant came out of the bedroom to beg her not to tell anybody what had happened and he offered her K5,000,000 (unrebased) and that if she told anybody she would also be killed in the same manner. He then grabbed her phone and went to the 2nd appellant's room. In a short while Mr. Kawandami arrived and together with the 1st and 2nd appellant they entered the main bedroom. PW1 was standing in the doorway to the main bedroom and could see all that was going on. They undressed the deceased who was dressed in a night dress and dressed her in a black trousers, white blouse and leather jacket. At this time, the deceased was making groaning sounds and when they finished they dragged her into the bathroom where they made her sit on a red bucket. The 1st appellant tied her neck with a scarf which was then tied to a window while she was in a semi-standing position. When the 1st appellant realised that the deceased was still breathing, he squeezed her neck. At this time, PW1 was standing by the bathroom door. The 1st appellant told her that she should not tell anyone that Mr. Kawandami was present as she would be killed like Mr. Kawandami's wife. Then Mr. Kawandami left. J4 After this, the 1st appellant told her and the 2nd appellant to go back to sleep but she could not sleep. Early in the morning, PW1 woke up the 2nd appellant to open for her so that she could go outside to open the tap at the water metre. After she opened the water, she heard water running in the bathroom and she told the 2nd appellant to wake up the 1st appellant to close the water in the bathroom. When the 1st appellant went into the bathroom he started crying upon seeing the body of the deceased hanging in the bathroom. According to PW1, the 1st appellant called his sisters who came to the house and they all went into the main bedroom. The 2nd appellant was sent to inform the neighbours who advised him to report the matter to the police. The 2nd appellant reported the matter to the police at Chilenje Police Station who rushed to the scene. PW2, PW4, PW5, PW6 and PW7 all relatives to the deceased testified that they found the deceased’s body hanging in the bathroom tied to a burglar bar of a window by a scarf and the jacket hooked on to the window. According to PW5, the brother to the deceased, the 1st appellant told him that he did not know what had J5 happened as he was only awakened by the children who found the body in the shower. PW6 took photographs of the body of the deceased which he later shared with the police. These witnesses all disputed that the deceased committed suicide. However, according to PW8, the sister to the 1st appellant, she was told by her brother (the 1st appellant) that the deceased had suicidal tendencies. Several police officers who were involved in the investigation of this case disputed that the deceased had committed suicide after visiting the scene of crime. In the main bedroom, the bed was cleared and no one knew where the beddings were. According to PW11, she managed to get the pillows which were blood stained from the main bedroom and the same were sent to South Africa for analysis. However, the results of the analysis, if any, were not produced during the trial. No finger prints were lifted from the scene. In sum, the evidence from Dr. Musonda, the pathologist who performed the first post-mortem examination was that the cause of death was heart and respiratory system failure as a result of J6 asphyxia. Dr. Musonda's report was inconclusive as to whether the deceased committed suicide or she was hanged by someone. He however, opined that it is possible for a person to hang themselves in a sitting or squatting position. According to Dr. Musonda, Mr. Mabenga, the father to the deceased accused him of insinuating that his daughter had committed suicide because he was related to the Chitika family. On the other hand, Professor Nkanza who conducted the second post-mortem examination on the body of the deceased concluded that the cause of death was mechanical asphyxia as a result of horizontal ligature strangulation over the anterior neck. In simple terms, it means interference with air entry into the lungs by some process which closes the air entrance. In short, the deceased did not commit suicide. Professor Nkanza admitted that the family of the deceased had paid him K2,500,000 (unrebased) to conduct the post-mortem examination. The appellants were put on defence and called two witnesses. The 1st appellant stated that on the 10th September 2010 he left for work as usual. After knocking off he went drinking in J7 Kabwata area and after 21:00 hours he moved to his residential area Chilenje where he met with his friends Morgan Chiwamya and David Kawandami (DW3) and they continued drinking together. The 1st appellant decided to leave around midnight and his friend Mr. Kawandami asked for a lift home. He said he dropped him at his home within Chilenje South. According to the 1st appellant he arrived home between 01:30 hours and 02:00 hours. He was confronted by the deceased who demanded to know where he had come from at that hour. He tried to advise her that they should discuss the matter in the morning but she would not relent and he realised that she had taken some alcohol. According to the 1st appellant, the deceased left the main bedroom and he heard burglar bars in the sitting room opening. He called out to the 2nd appellant to check on his wife. He fell asleep and was awakened in the morning by the 2nd appellant only to find the deceased hanging in the bathroom. He did not go close to see the condition of the body as he concluded that she was dead. As he could not find his phone, he used PWl's phone to call his sister and four friends. The 1st appellant totally disputed PWl's version of the events of that night and as far as he was concerned his wife committed suicide. J8 That in the past she had attempted to commit suicide and this was after taking some alcohol. The issue was brought to the attention of his mother-in-law. In a nutshell, this was the 1st appellant's defence. The 2nd appellant's defence can be summed up as follows: On the material day his uncle, the 1st appellant left for work followed by the deceased. However, the deceased came back home much earlier and after taking the children for a drive she returned home. She sent him to buy her some beer and she stayed home drinking beer until about 21:30 hours when she retired to bed. The 2nd appellant remained in the sitting room waiting for the 1st appellant to return. He retired to bed at midnight and the 1st appellant only returned at 01:50 hours. The 2nd appellant opened for him, locked up and went into his bedroom. He heard his uncle and the deceased arguing and then the deceased came out of the bedroom wearing a black trousers and a top with a brown coat and she wore some slippers. She had a handbag and a pair of trousers in her hands. The deceased went out of the house and tried to drive out but failed as she had not parked properly. According to the 2nd appellant, he J9 persuaded her to remain in the house and he went into his bedroom. He later heard the deceased crying but he did not hear his uncle's voice and he went to sleep until in the morning when he was awakened by PW1 who had discovered the deceased hanging in the bathroom. The 2nd appellant then woke up the 1st appellant who told him to call the neighbours and the tenants. The 2nd appellant was advised by the neighbours to report to the police which he did. Later, he was summoned to the police together with PW1 and they gave their statements. The 2nd appellant was taken into police custody on 16th September, 2010 as he took food for the 1st appellant. The 2nd appellant denied being involved in hanging the deceased as alleged by PW1. He, however, conceded that he had a cordial relationship with PW1 and he could not explain why she would implicate him in the murder of the deceased. Mr. Kawandami was DW3, the friend to the 1st appellant. He confirmed that he had been in the company of the 1st appellant from 19:00 hours till after midnight on the fateful day. He, however, denied going to the 1st appellant's house on the night the deceased passed on as alleged by PW1. J10 Isaac Musadabwe Banda was DW4 an employee of Airtel Zambia, who produced call records showing in-coming and out­ going calls on PWl's mobile number. The call records for PWl's mobile number showed that only two voice calls were made between 06:00 hours and 07:30 hours on 11th September, 2010. After analysing the evidence, the learned judge considered the following questions: (i) Whether there was dereliction of duty by the police officers and if so the doubts raised therein ought to be resolved in favour of the accused persons. (ii) Whether the prosecution witnesses namely the relatives of the deceased PW3, PW4, PW5, PW6 and PW7 can be considered as witnesses with interest of their own to serve. (iii) Whether it is competent for the court to convict on the evidence of a single identifying witness. (iv) Whether the eye witness PW1 is a credible or not a credible witness (v) The issue of two post-mortem reports with different conclusions as to the cause of death. With regard to the allegation that the police were guilty of dereliction of duty the following issues were raised in the court below: that the police failed to secure the phone records of the 1st appellant, the deceased and PW1; that they failed to secure the deceased's handbag as well as the vehicle used by the deceased and JU the 1st appellant; that they failed to uplift fingerprints from the scene of crime and from various pieces of clothing and from the body of the deceased. The learned judge addressed her mind to the aforementioned issues and came to the conclusion that the police were not guilty of dereliction of duty. The learned judge noted that although samples of blood stains from the wall in the couple's bedroom and also from one of the pillows in the bedroom were taken to South Africa for analysis, the results were not produced in court. The learned judge on the basis of the case of Lubinda vs. The People1 held that the presumption should fall in favour of the appellants and held that the alleged blood stains on the wall and on the pillow were not blood. With regard to the issue that PW2 the sister to the deceased, PW3 the daughter to the deceased; PW4 the mother to the deceased; PW5 the brother to the deceased and PW6 the cousin to the deceased were witnesses with an interest to serve following their testimony that they saw blood in the mouth of the deceased; in addressing this issue, the learned judge considered the evidence of the post-mortem report which stated that the deceased's tongue J12 was dark red which in medical terms is referred to as 'synosis' which is due to lack of oxygen. The learned judge held that the said witnesses mistakenly believed that what they saw in the deceased's mouth was blood. This was due to the fact that, according to the learned judge, any lay person would jump to that conclusion even looking at the exhibited photographs. It was for this reason that the learned judge held that the said witnesses had no interest of their own to serve by testifying that they saw blood in the mouth. The learned judge dealt with the crucial issue of whether PWl's evidence was credible in view of the fact that she gave an earlier statement at Chilenje Police Station to the effect that the deceased committed suicide and yet five days later, she gave a different statement at Lusaka Central Police Station that the deceased was assaulted by the 1st appellant and later hanged in the bathroom. The learned judge after considering the case of Simon Miyoba vs. The People;2 Chola vs. The People3 and Haonga vs. The People4 in which we pronounced ourselves on the treatment of evidence of a witness whose evidence in court varies with that given earlier in a statement to the police, concluded that PWl's evidence J13 was credible. The learned judge pointed out that she had observed PWl's demeanour; that she was not shaken under cross­ examination and that she believed she had no motive to falsely implicate the appellants with whom she had a cordial relationship. The learned judge was alive to the conflict between the two post-mortem reports as to the cause of death. In resolving the conflict the learned judge called in aid the case of Chuba vs. The People5 where we held that: "the principle is that the opinion of an expert must not be substituted for judgment of the court. It can only be a guide, albeit a very strong guide, to the court in arriving at its own conclusion on the evidence before it." The learned judge after considering the evidence of the two pathologists accepted the evidence of the second post-mortem report and concluded that the deceased died of mechanical strangulation. This was in view of PWl's evidence that the 1st appellant squeezed the deceased's neck. She concluded that the prosecution had established malice aforethought in this case. That the 1st appellant caused the death of the deceased with the help of the 2nd appellant. J14 Further, the learned judge found that it was odd that the 1st appellant on seeing his wife's body in the bathroom did not even bother to draw closer to observe her condition; that he did not call the police; and the fact that his sister mopped the bedroom and the house before the arrival of the police. She held that the prosecution had proved its case beyond reasonable doubt and convicted the appellants and sentenced them to the mandatory death sentence. Aggrieved by the judgment of the lower court, the appellants have now appealed before us on the following grounds couched in the following terms: 1. The trial Judge erred in both law and fact in convicting the appellants for the subject offence on evidence which clearly did not link them to the cause of death of the deceased. 2. The trial judge erred in both law and in fact by failing to analyse separately evidence to link any of the appellants to the offence and instead merely assumed they were both collectively guilty 3. The trial Judge erred in both law and in fact in relying heavily on the evidence of PW1, the only eye witness, whose evidence was largely inconsistent, unreliable and not supported by medical evidence. J15 4. The trial Judge erred in law and fact in rejecting the appellants’ version but accepting that of PW1 on grounds of credibility which could not be supported. 5. The trial Judge erred in law and in fact by not accepting there was a dereliction of duty on the part of the police for not doing the following: - Uplifting finger prints at the crime scene; - Securing the handbag of the deceased which may have contained some vital information; - Obtaining toxicology results; - Taking any pictures that should have shown the state of the body of the deceased; - Preserving the scene of the crime and allowing everyone to mingle within the crime scene thereby distorting or destroying some evidential details; - Securing the vehicles that Al and the deceased used on 10th September, 2010 and 11th September, 2010 which may have contained vital clues and information regarding the incident; - Securing the cell phone records belonging to Al, the deceased and PW1 and producing call records from Airtel, MTN and Zamtel; and - Placing before the court the blood analysis from the pillows that were taken to South Africa. 6. The trial Judge erred in law and in fact by making assumptions of its own and ignoring the evidence by witnesses. 7. The trial Judge erred in law and in fact by accepting the second post-mortem report and rejecting the first one. J16 8. The trial Judge erred in law and in fact when she stated the relatives who testified did not have an interest of their own to serve when they clearly lied to the Court. On behalf of the appellants, Mr. Kabesha who appeared with Mr. Then relied entirely on the heads of argument filed herein. In support of ground one, it was submitted that the evidence on record did not demonstrate that the appellants committed murder as defined under Section 200 of the Penal Code. It was contended that the evidence of PW1 which the learned judge heavily relied on, was confusing and contradictory. According to Counsel, a normal 19 year old girl like PW1 could not be expected to simply watch and observe the alleged beating of the deceased without doing anything. It was submitted that in cross-examination PW1 gave contradictory evidence and admitted to being a liar in spite of being on oath. She admitted that she was taken to Chilenje Police Station on 11th September, 2010 where she gave a statement and in that statement she did not implicate the 1st and 2nd appellants. PW1 admitted that five (5) days later she was taken to Lusaka Central Police Station where she gave another statement - this time implicating the appellants as the persons who committed the J17 subject offence. Further, that during examination-in-chief she also implicated a third person, a Mr. Kawandami (DW3) whom she alleged participated in the murder of the deceased. Counsel contended that PWl’s evidence created doubts which the trial court should have resolved in favour of the appellants. For example, Counsel pointed out that in examination-in-chief, PW1 stated that around 04:00 hours the 1st appellant grabbed her phone and she could not confirm whether he used her phone to call Mr. Kawandami. In cross-examination, PW1 stated that the phone was taken by the 1st appellant around 04:00 hours and that her phone had no talk time. On the other hand, Counsel pointed out that the evidence of Musadabwe Banda from Airtel showed that PWl’s cell number had two transactions which showed that she told lies in cross-examination that the 1st appellant grabbed her phone minus talk time. It was submitted that all these contradictions clearly show that PW1 was not a credible and reliable witness. Further, that this evidence of the key witness as a whole, and taken into context, does not support the appellants’ conviction at all. J18 In support of ground two, it was submitted that the learned judge failed to specifically state the role each appellant played in the commission of the crime. According to Counsel, the learned judge merely referred to the 1st appellant’s alleged quarrel with the deceased and that the 2nd appellant heard the deceased crying. The learned judge jumped to the conclusion that since the 1st appellant exhibited odd behaviour, he was guilty of murder. That without any evidence on the role of the 2nd appellant in the commission of the crime, she concluded that both appellants were guilty. It was submitted that PWl’s evidence was so confusing and contradictory that it is unsafe to link both appellants to the alleged crime. In support of ground three, Counsel attacked the evidence of PW1 that the 1st appellant used his fists to hit the deceased. She stated that he rained heavy blows to her ribs and shoulders until the deceased became unconscious. In the morning, she saw a woman mopping blood stains from the wall, wardrobe and the floor. That however, when cross-examined, PW1 admitted that she did not see any blood oozing from the deceased’s body. Counsel submitted that in fact the trial court found as a fact that the alleged blood J19 stains on the wall were not blood and observed that this raised the presumption in favour of the appellants that the stains in the pictures were not blood. It was contended that the two post-mortem reports did not support the evidence of PW1 who alleged that the deceased was beaten until unconscious as there were no marks of any beatings on the body of the deceased and that, therefore, the evidence of PW1 who was the key witness should have been discounted and the doubts raised should have been resolved in favour of the appellants. Further that, against the evidence before her, the learned judge found, without any supporting evidence, that the deceased was weak, infirm or made unconscious. To support their argument Counsel referred us to the case of Maseka vs. The People6 where Baron J. P. stated that: “..... even in the absence of any explanation either at an earlier stage during the trial, the inference of guilt cannot be drawn unless it is the only reasonable inference to be drawn from all the circumstances.” In support of ground four, it was submitted that PW1 ’s version of the events of the 10th and 11th September, 2010 was at variance J20 with that of PW3, and yet the Court below totally ignored this. Counsel, took the view that PW3’s evidence that she did not hear any shouting, crying or screaming in the house, was so fundamental that the trial court should have found that this raised doubts in favour of the appellants. In support of ground five, Counsel submitted that the police were guilty of dereliction of duty for failure to: uplift finger prints from the crime scene, producing call records from Airtel, MTN and Zamtel, among other omissions by the police as itemised under this ground. Although Counsel for the appellants listed so many omissions on the part of the police, strangely, in their submissions, Counsel focused only on finger prints and call records. According to Counsel, it was necessary for the police to lift finger prints as there was a possibility that other people’s finger prints other than the appellants’ could have been lifted. Counsel also contended that the police failed to produce call records until the appellants availed them to the court when it is not their duty to prove the case beyond reasonable doubt. Counsel relied on the cases of Kalebu Banda vs. J21 The People,7 Robertson Kalonga vs. The People8 and Musole vs. The People.9 In support of ground six, it was submitted that the learned judge made her own conclusions on the death of the deceased by referring to what she termed as the odd behaviour of the 1st appellant. According to Counsel, what was odd was the fact that PW1 calmly served Chongo (one of the children in the household) with some tea early that morning without raising any alarm as to what had transpired that night. That instead, she woke up the 2nd appellant whom she alleged participated in the crime. In support of ground seven, it was submitted that the learned judge having found that the two post-mortem reports conflicted each other as to the cause of death, should have given the benefit of doubt to the appellants. It was contended that the learned judge was at liberty to order a third post-mortem examination to determine where the weight of the evidence fell. Counsel argued that no justifiable reasons were given for ignoring the first post-mortem report which was very detailed and accurate. It was contended that the second post-mortem report J22 which was paid for by the family of the deceased was presented in a manner and intention to bolster the prosecution’s case. And the court should have given reasons why it preferred to rely on a "paid for" post-mortem report instead of the one carried out by an independent pathologist who was authorised by the coroner. In support of ground eight, it was submitted that the court should have explained why it preferred the evidence of the deceased’s relatives whose obvious interest was to ensure that 'someone' was punished for the death of their relative. Counsel argued that despite the many doubts arising from the evidence, the trial court appeared to have made up its mind to find the appellants guilty and clearly ignored the principle which states that he who alleges must prove. We were urged to uphold the appeal and quash the conviction and set the appellants at liberty. At the hearing of this appeal, Mrs. Ziela informed us that she was standing in for her learned friend Mrs. Phiri. We granted Mrs. J23 Ziela leave to file the respondent’s heads of argument which she relied on. In her written heads of argument in response, Mrs. Phiri combined her response in relation to grounds one and two. It was submitted that the learned judge did not err in law and fact when she convicted the appellants for the subject offence as she relied on the evidence on record to link both appellants to the commission of an assault which led to the death of the deceased and when she treated them as joint offenders in the commission of the offence. Counsel submitted that the learned judge in her judgment clearly demonstrated how she established the connecting link between the cause of the death and the appellants. That the learned judge accepted as a fact that the appellants caused the death of the deceased by strangulation and that they acted in collusion. Counsel pointed out the following findings of fact in the judgment which read as foliows:- “1. The 1st appellant caused the death of the deceased with the help or aid of 2nd appellant with malice aforethought. J 24 2. By doing something unlawful namely the throttling of the deceased’s neck. 3. The act was done with knowledge that 1st appellant would inflict grievous harm taking into account the manner he executed the act upon this woman his wife.” Counsel submitted that the above findings of fact clearly show that the learned judge addressed her mind as to how the appellants acted in concert in unlawfully causing the death of the deceased with malice aforethought. We were referred to Section 21(2)(c) of the Penal Code Chapter 87 of the Laws of Zambia which provides that: "2 1. (2) When an offence is committed, each of the following persons is deemed to have taken part in committing the offence and to be guilty of the offence, and may be charged with actually committing it, that is to say: (c) every person who aids or abets another person in committing the offence." Counsel argued that from the findings of the learned judge, it is evident that she addressed her mind to the role that each of the appellants played in causing the death of the deceased. And that in so doing, the learned judge rightly found that both appellants were principal offenders. Counsel submitted that the learned judge arrived at her conclusions after examining the totality of the evidence adduced by the prosecution. It was pointed out that J25 firstly, the learned judge dismissed as untruthful and a mere concoction, the story that the deceased had suicidal tendencies and that she committed suicide. The learned judge also relied on the evidence presented by Prof. Nkanza which clearly indicated that the deceased died as a result of strangulation and not suicide. It was submitted that since the learned judge found as a fact that the deceased died as a result of strangulation, the question that arises is who had opportunity to carry out the said act. It was submitted that there is eye witness evidence to this effect. Counsel contended that the opportunity that the appellants had to deal with the deceased presents itself as corroboration to the evidence of PW1, whom the appellants attempted to discredit. To support her argument, Mrs. Phiri relied on the case of Ivess Mukonde vs. The People10 where it was held, inter alia, that: 2. Whether evidence of opportunity is sufficient to amount to corroboration must depend upon all the circumstances of a particular case. The circumstances and the locality of the opportunity may be such that in themselves amount to corroboration. 3. The circumstances and the locality of the opportunity in the instant case amounted to corroboration of the commission of the offences. J26 It was submitted that in this case, there is no doubt that the appellants had the perfect opportunity to carry out the murder, that even taking into account their stories, they were the last people who dealt with the deceased. It was argued that the learned judge observed the demeanour of PW1 and her evidence was tested in cross-examination and she found that PW1 was a witness of truth and that there was no further evidence required to support her evidence on the events of the fateful night when the deceased was brutally murdered. It was contended that from the evidence on record, it is beyond doubt that the appellants acted together with a common intention and purpose to cause grievous bodily harm to the deceased. That according to the evidence of PW1, she observed that the appellants and the third person called Mr. Kawandami dressed up the deceased and lifted her to the bathroom where the appellants made her sit on a bucket. After this, the 1st appellant in full view of PW1, assisted by the 2nd appellant and Mr. Kawandami hang the deceased onto the window and hooked her jacket to the window. Counsel submitted that when the 1st appellant saw that the deceased was still breathing, he strangled her with his bare hands. That PW1 witnessed all of this and was told not to report J27 the matter. That this evidence was very clear that the appellants were acting jointly to bring harm to the deceased. Further, that the natural probable consequence of hanging a semi-conscious person to a window and strangling her causes grievous harm or death. Counsel relied on the case of Haonga vs. The People4 where it was held, inter alia, that: (i) Where persons are engaged together in the commission of a felony and a death results from an act of one of those persons which goes beyond the common design to which the other were parties, those others cannot be convicted of the offence of which the one is guilty. (ii) If a death results from the kind of act which was part of the common design then if the offence be murder in one then it is murder in all. It was submitted that there was no doubt in the mind of the learned judge that the appellants acted in common design. Counsel for the State pointed to the behaviour of the appellants at the time when they allegedly discovered the body of the deceased in the bathroom. She argued that they did not draw near to the body to see whether the deceased was alive and that both of them merely peeped at the body and said they concluded that she had died. Counsel submitted that their behaviour is only J28 true of people who had prior knowledge as to the state of the deceased before she was found. Counsel submitted that in ordinary circumstances, the appellants would have approached to see if the deceased was still breathing but because they already had the full knowledge that she had been hanging there for a number of hours, they just shut the door and started making phone calls not for an ambulance or the police but to their relatives. According to the learned State Advocate, this was not an ordinary reaction and can best be described as odd. She argued that this odd behaviour presents itself in the choice of people that were called namely the 1st appellant’s sisters and friends and not the police. Further, the manner in which the 1st appellant’s sisters decided to clean up the house even before the police could thoroughly examine the scene of the crime is odd that indeed, if this was a suicide and there was nothing to cover up, the police would have been given an opportunity to examine the scene. Therefore, on the totality of the evidence, it is clear that the learned judge was on firm ground when she found that the J29 appellants acted jointly in the commission of the offence and treated them as such. Mrs. Phiri also dealt with ground three and four together. It was submitted that in the judgment, the learned judge took considerable effort to explain her reasoning for relying on the evidence of PW1 as a single identifying witness. She also took time to address the perceived inconsistencies in the evidence of PW1 raised by the defence during trial. Relying on the cases of The People vs. Prince Mwiya Maiba Liwali11 and Gilbert Arnold Chizu vs. The People,12 it was argued that the law on a single identifying witness is well settled and there is nothing wrong with the Court relying on the evidence of a single witness in arriving at its decision. It was argued that, there was overwhelming evidence in support of the prosecution case other than the evidence of PW1 that led to the irresistible conclusion that only the appellants could have committed the offence. According to Counsel, this included the evidence of PW1 who confirmed that the deceased was last seen with the 1st and 2nd appellants on the material day; the medical evidence which showed that the deceased died as a result of J30 strangulation and not suicide; and the reaction of the appellants after they “discovered” the dead body of the deceased hanging in the bathroom. All of this evidence leads to the conclusion that the appellants were guilty as charged beyond all reasonable doubt. In response to ground five, it was submitted that contrary to the accusation by the appellants that the learned judge turned a blind eye to the short comings of the police in the execution of their duties, Counsel argued that in fact, the trial court pointed out the shortcomings and gave credit to the appellants in the areas that she found that there had been dereliction of duty on the part of the police. That one such area is when the learned judge found that the stains on the pieces of cloth seen in the photographs were not blood stains. That, however, the learned judge went to great lengths to point out why it was not in all the instances that there was a dereliction of duty on the part of the police. On this argument she relied on the case of Charles Lukolongo and Others vs. The People13 where we stated the following: "Decided cases on the question of dereliction of duty show, inter alia, that where evidence available only to the police is not placed before the court, the court must presume that had such evidence been produced it would have been favourable to the accused. The J31 presumption is not necessarily fatal to the prosecution case because the word “favourable” has been construed to mean “in favour of’ and not to mean “conclusive." It was submitted that for the defence to suggest that the dereliction of duty by the police should weigh so much on the evidence of the prosecution as to render the burden of proof undischarged would be an error on the part of this court. Counsel argued that the court was on firm ground in finding that regardless of the shortcomings of the investigations, they had enough evidence to convince the court beyond all reasonable doubt that the appellants were indeed responsible for murdering the deceased. Turning to ground six, seven and eight, it was submitted that the arguments hinge on the weight the learned judge attached to the evidence adduced both by the prosecution and the defence. In responding to these three grounds, Counsel emphasized that the trial court examined all the evidence and took into account the demeanour of the witnesses and rightly arrived at her decision. We were referred to the case of Machobane vs. The People14 in which we discussed the issue of demeanour of witnesses and the factors which trial courts need to consider. J32 Further, relying on the case of Chansa vs. The People15 it was submitted that expert evidence is merely meant to persuade the Court and is not binding on the Court. That therefore, the learned judge was on firm ground in refusing to accept the conclusions of one pathologist over the other and rightly gave her reasons in her judgment. In conclusion, the learned Counsel for the State submitted that this appeal should be dismissed in its totality and the appellants’ conviction upheld. We have considered the evidence on record; the judgment of the court below and the submissions by the parties. Although there are eight grounds of appeal, we take the view that grounds one, two, three, four, six, seven and eight are inter­ related and we intend to deal with these grounds together. We will begin with ground five which we have decided to address separately. In ground five, Counsel for the appellant attacked the learned judge's failure to find that there was dereliction of duty on the part of the police during investigations of this case. It has been alleged J33 amongst other allegations that the police failed to: preserve the crime scene as they allowed people to mingle within the crime scene thereby distorting or destroying some evidential detail; failed to secure the handbag of the deceased which may have contained some vital information and failing to secure the 1st appellant's vehicle and the deceased's vehicle which may have contained some vital clues regarding the crime. We are surprised that Counsel for the appellants can accuse the police of dereliction of duty in relation to the aforementioned situations. First of all, it is common cause that the crime scene was the residence of both appellants and it cannot be ruled out that they could have tampered with the crime scene themselves. In any case, evidence before the lower court was that immediately after allegedly "discovering" the dead body of the deceased hanging in the bathroom, the 1st appellant called his relatives and told the 2nd appellant to contact the neighbours who rushed to the crime scene. In fact, there was uncontroverted evidence that one of the sisters to the 1st appellant swept and mopped the bedroom and changed the beddings. The changed beddings were never found by the police. J34 The relatives of the deceased were called last and they arrived last at the scene. More importantly, the police got to the scene long after a lot of people had arrived. In short, the scene was already tampered with by the time the police arrived. In the case of David Dimuna vs. The People,16 we held that: "(3) Whilst it could be a dereliction of duty from which certain presumptions would arise, when the police have an opportunity to take fingerprints and do not do so, it must be established that the police did in fact have an opportunity to take fingerprints in that the surface of the material to be tested, the climatic conditions and other circumstances would enable prints to be taken. In the absence of such evidence there is no dereliction of duty." Therefore, to accuse the police of not lifting fingerprints at such a scene which was already littered with people is totally uncalled for. If anything, the 1st appellant should have called the police first upon "discovering" the body of the deceased and had they arrived first, all these accusations against the police would not have arisen. In relation to the allegation that the police failed to obtain call records of the mobile numbers belonging to the 1st appellant, the deceased and PW1, we have considered the arguments on this aspect. First of all, Counsel should not have raised issue with the J35 production of PWl's mobile phone call records as the same were produced in the court below. However, concerning the production of the call records for the 1st appellant and the deceased's mobile phones, we take the view that the call records could have contained vital information which would have been helpful to the prosecution and the defence. We should always bear in mind that in every case, it is justice that should prevail. In this regard, the police ought to have searched the call records of the 1st appellant, the deceased and his friend Mr. Kawandami. Simply because the 1st appellant, claimed that his phone was lost was not sufficient, the police should have carried out a thorough investigation. Having stated thus and looking at the circumstances of this case, the call records would have revealed whether the deceased called anyone that night although we are a bit skeptical about this as it was not in dispute that she was home throughout the evening drinking her beer bought for her by the 2nd appellant and she went to bed long before the 1st appellant arrived home. The deceased only woke up after the 1st appellant arrived. On the other hand, the call records of the 1st appellant's mobile phone would have revealed J36 whether he called Mr. Kawandami's mobile number. This is the person PW1 insisted was present in the house that night. We agree therefore, that there was dereliction on the part of the police who should have ensured that the call records for the 1st appellant and indeed the deceased and even for Mr. Kawandami were produced. In the case of Kalebu Banda vs. The People,7 on the issue of dereliction of duty by the police, we held, inter alia, that: "The presumption will not necessarily be fatal to the prosecution case; "favourable" means "in favour of, not "conclusive". The extent of the presumption will depend on the nature of the evidence in question and the circumstances of the case, it is an item of evidence presumed to exist, but its probative value will depend on the facts. The presumption is simply notional evidence to be considered along with all the other evidence in the case." In line with the case of Kalebu Banda vs. The People,7 the question is whether the failure by the police to obtain and produce call records for the 1st appellant and the deceased's phones was fatal to the prosecution case? Following our holding in the Kalebu Banda7 case, we take the view that the dereliction of duty was not fatal to the prosecution's case as this was only one portion of evidence which the prosecution failed to adduce. Clearly, in this case the police lost the opportunity to use the available modern J37 communication technology in their investigations. We must state, however, that the answer as to who killed the deceased lay not only in the call records but in what transpired inside the matrimonial home in the early morning of the 11th September, 2010 which was witnessed by PW1. Counsel for the appellants have cited the case of Major Masanga vs. The People17 where we held that: "It is trite law and a constitutional duty for the prosecution to guarantee a fair trial and fair trial starts with investigations. Any short comings in the investigations may seriously jeopardise the right to a fair proceeding and thereby also prejudice the accused person's right to be presumed innocent." Applying the case of Major Masanga vs. The People17 to the case in casu, we do not agree that the dereliction of duty which we have alluded to jeopardised this case and prejudiced the appellants herein. In this case, we agree with the learned judge that while the onus was on the prosecution to prove their case beyond reasonable doubt, there was no harm in the defence opting to obtain information that would have been helpful to their case. We do not, therefore, agree with Counsel for the appellants' argument that the learned judge shifted the burden of proof on to the appellants when J38 she commented that the appellants could also have obtained the call records. The other issue relates to the failure by the police to produce the toxicology results and the blood analysis from the pillows that were taken to South Africa. As much as we agree that these results should have been produced, we note that the learned judge held that this omission should be considered in favour of the appellants. The failure to produce the toxicology results and the blood analysis did not, in our view, affect the heart of the prosecution's case. Lastly, Counsel for the appellant alluded to the alleged failure by the police to take pictures that would have shown the state of the body of the deceased. We have perused the record and we note that the pictures which were produced before the trial court were those taken by Innocent Kanyanta PW6 on a mobile phone. PW6's evidence was to the effect that he had to quickly take three photos of the body of the deceased as it hung in the bathroom before the police took it down. This was in the absence of the elders of the deceased's family. According to PW6, some police officers were present at the time and later he co-operated with the police by going J39 \ t with them to Mandahill to develop the photographs from the phone. The photographs showing the state of the deceased's body were admitted in evidence without objection from the defence. As much as we agree with Counsel for the appellant that the police ought to have taken pictures of the body of the deceased before bringing it down, we find that at least effort was made by the police to ensure that the pictures taken by PW6 were produced in evidence. In view of this, the argument by Counsel for the appellant cannot stand. Having considered all the issues raised in ground five, we find that it lacks merit and is dismissed accordingly. We now turn to ground one, two, three, four, six, seven and eight which, as we have already stated, we shall deal with simultaneously. From the outset, we note that Counsel for the appellant attacked the learned judge for not dealing with each appellant separately and for allegedly not specifying the role that each appellant played in this tragic incident. The learned judge found as a fact that when the 1st appellant arrived home around 02:00 hours he handed over the keys to the 2nd appellant. It was the 2nd J 40 appellant who locked the door and held on to the keys and prevented the deceased from leaving the house. The learned judge accepted that the 2nd appellant assisted the 1st appellant to change the deceased's clothing and that the 2nd appellant participated in the process of hanging the deceased in the bathroom. We take the view that this argument has no merit in that in the judgment, although the learned judge did not deal with each appellant separately, she explained the role played by each of the appellants. Now, when we consider the judgment of the lower court, it is clear that the learned judge convicted the appellants mainly on the evidence of PW1 whom she accepted was the eye witness to the crime. PWl's evidence was to the effect that with Mr. Kawandami the appellants dragged the deceased from the main bedroom to the bathroom and at that time, she was still alive. The 1st appellant tied her around the neck with a scarf which was brought by Mr. Kawandami from the bedroom and he tied it to the window. When the 1st appellant saw that the deceased was still breathing he squeezed her neck - all this was done to make it look like a suicide. Tied to PWl's evidence is the finding of the second post-mortem J41 \ i report authored by Professor Nkanza who found that the deceased did not commit suicide as alleged by the appellants in their defence. In sum, the gist of this appeal is that there was no evidence linking the appellants to the crime especially in view of the fact that PW1 gave two statements to the police, which in Counsels' view lowered the credibility of PW1 such that her evidence could not be relied on, labeling it as inconsistent and unreliable. Another cardinal issue raised by Counsel for the appellants is that PWl's evidence was not supported by medical evidence. Further, that the learned judge erred in accepting the second post-mortem report which was paid for instead of the first one which according to Counsel for the appellants, was an independent report. In dealing with the evidence of PW1, the learned judge addressed her mind to various authorities which have been alluded to herein. We have stated in a number of cases including William Muzala Chipango vs. The People18 that a previous statement made by a witness for example to the police should only be relied on if it has been produced in evidence and forms part of the record. Otherwise a trial court must rely on the evidence given by a witness J42 t 4 in court as it has been tested through cross-examination. One of the cases relied upon by the learned judge was the case of Simon Miyoba vs. The People2 in which we pronounced ourselves on the treatment of previous statements by lower courts and we held that: "The general rule is that the contents of a statement made by a witness at another time, whether on oath or otherwise, are not evidence as to the truth thereof; they are ammunition, and only that, in a challenge of the truth of the evidence the witness has given at the trial." P In relation to PWl's evidence, she (PW1) conceded in cross­ examination that her first statement at Chilenje Police Station taken on the day the deceased was killed, did not implicate the appellants. Her explanation was that she was scared as the 1st appellant threatened her with death if she revealed what had happened. According to PW1, on her own volition, she requested to " be taken to Lusaka Central Police where she gave a statement disclosing the truth of what had actually transpired thereby implicating the appellants in the murder of the deceased. The learned judge took the view that this was a matter for her consideration in assessing PWl's credibility and the weight to be J 43 1 ' * attached to her evidence. We cannot fault the learned judge for the position she took as this was definitely the correct way to proceed. One of the issues raised by Counsel for the appellants and it was raised in the court below, is that PWl's evidence contradicted the two post-mortem reports. This is in relation to the fact that according to PW1 she witnessed the 1st appellant beating the deceased starting from the sitting room before he dragged her into the bedroom where he locked the door and continued beating her. She said while in the sitting room, she tried to intervene but the 1st appellant pushed her and hit her with his elbow. That he warned her to stay away as she was merely a maid. It has been pointed out that to the contrary, both post-mortem reports do not reveal any injuries on the body of the deceased and according to Counsel, for the appellants this brings the credibility of PW1 into question. We must state that we do not agree with Counsel for the appellants’ submission on this point. In our view, the fact that Dr. Musonda, to be specific, stated that the body of the deceased "did not have any marks suggesting heavy blows" did not take away the fact that PW1 witnessed the 1st appellant beating the deceased. We J44 1 ‘ * have perused PWl's evidence and we have found that she never stated that she saw any injuries on the body of the deceased during the assault. In her judgment, the learned judge stated as follows: "Therefore, one would conclude that the deceased was weak infirm or made unconscious hence the absence of signs of struggle bruises on the neck" (emphasis ours) A close scrutiny of PWl's evidence would definitely lead us to conclude that before the deceased was dragged out of the main bedroom into the bathroom, she was weak or unconscious. Otherwise there is no reasonable explanation for the fact that the 1st appellant needed help to change the deceased's clothes and even to drag her out of the main bedroom. And at this time, all PW1 could hear from the deceased were groanings. In other words, our firm view is that the post-mortem reports cannot contradict PW1 who was present at the scene and who testified as to what she saw. We have considered the evidence of Dr. Musonda and we note that he stated that the police told him that the body was found hanging and we take the view that this was the focus of the two pathologists - to determine whether it was suicide or not. The learned judge also emphasized that what was material was the actual cause of death J45 and we cannot fault her on this. We find that Counsels' argument on this issue was without merit. Still on the issue of PW1 the star witness, the learned judge followed our decision in Haonga vs. The People,4 and she found that PW1 had no reason to lie about the happenings of the fateful night. The learned judge found that PW1 had no motive to falsely implicate the appellants in the murder of the deceased. That she had good reason for not telling the truth in her first statement to the police at Chilenje police station as she was afraid of the 1st appellant whom she said had threatened her. The learned judge who had the opportunity to hear the witnesses found that PW1 was not shaken under cross-examination and she observed her demeanour and she was satisfied that PW1 was a reliable and credible witness. We held in Machobane vs. The People14 that we cannot lightly interfere with findings of fact by a trial court on the credibility of a witness as trial courts have the opportunity to observe the witnesses and we reiterated our holding later in the case of Toko vs. The People.19 The learned judge was, therefore, entitled to draw her conclusions from the evidence before her, and J46 rightly so, when she found that PW1 was a reliable and credible witness. All in all, the learned judge rightly concluded that what was material was the cause of death: was it murder or suicide? And the same question is now before us for determination. Looking at the evidence from the prosecution and the defence, PW1 said the deceased was in a night dress at the time she was assaulted by the 1st appellant and that the appellants changed the deceased's clothing before dragging her into the bathroom to hang her. The 1st appellant's version is that when he arrived home, the deceased was in a night dress and she was in a mood for a fight and was probably drunk but he advised her that they should discuss their differences in the morning. That she left the bedroom and he called out to the 2nd appellant to see what she was up to. According to the 1st appellant, that was the last time that he saw the deceased alive. On the other hand, the 2nd appellant's evidence was to the effect that the deceased came out of the bedroom dressed up and she had a handbag in her hands and he had to persuade her not to J47 drive away although he said she could not have driven out because of the position she had parked her vehicle. When one considers the three versions of what transpired that night, it is clear that the 1st appellant was in agreement with PW1 that at the time he arrived home, the deceased was in a night dress. In fact even the 2nd appellant confirmed this when he stated that everyone had gone to bed by the time he retired to bed at midnight, long before the arrival of the 1st appellant. In fact, the 2nd appellant's version that the deceased was dressed up when she attempted to drive off revealed that it was a concocted version aimed at saving himself and his uncle from responsibility for this heinous crime. Yet at the same time, the 2nd appellant admitted that he heard the deceased crying in the bedroom and that the two were quarrelling. From the evidence on record, it is clear that the deceased did not change her night dress and it was the appellants who dressed her in the clothes that she was found wearing while hanging in the bathroom. The learned judge weighed PWl's evidence and the appellants' evidence and she believed the evidence of PW1 over that of the appellants. We agree with Mrs. Phiri that J48 there is no doubt that both appellants were principal offenders in line with Section 21(2)(c) of the Penal Code. The learned judge cannot be faulted for relying heavily on PWl's evidence which she found was more credible than that of the appellants. Counsel for the appellants have also attacked the learned judge for taking note of what she termed 'odd behaviours' in this case arguing that these were the learned judge's assumptions. We do not agree. The learned judge found it odd, and rightly so, that the morning after the discovery of the body of the deceased in the bathroom, the 1st appellant as the husband did not draw near to the deceased to see if she was still alive. We cannot fault the learned judge for her conclusion that this was strange behaviour on the part of the 1st appellant because any reasonable husband would have shown concern by going close to observe the condition of his wife. Further, the learned judge found it odd that the 1st appellant's sister was found sweeping and mopping the bedroom which was part of the scene of crime. Under this limb, Counsel for the appellants also argued that what was odd was the fact that PW1 served Chongo with some tea J49 that morning without raising alarm as to what had transpired in the early hours of the morning but that she instead woke up the 2nd appellant whom she alleged participated in the commission of the crime. We have considered the arguments under this limb and the evidence shows that around 06:00 hours, PW1 was awakened by Chongo one of the children of the family. In the words of PW1: "Around 06:00 hours Chongo (son to the 1st appellant) woke me up. He told me to make tea for him. I told him later I would make it. He told me that he would report me to the father. I went to Lawrence to go and open the door for me as it was locked. Lawrence came and opened door. I went outside to open the tap at the metre. I heard water pouring in the bathroom. Chongo told me to go and close the water. I went straight to the 2nd appellant's bedroom to ask him to wake up his Uncle. Lawrence went to the 1st appellant's bedroom to tell him to close the water running in the bathroom. The 1st appellant peeped in the bathroom, he started crying, I shouted you phone her relatives.... " These facts reveal that PW1 did not even make tea for Chongo as alluded to by Counsel for the appellants. It is clear from the excerpt above that PW1 (and the 2nd appellant to a large extent) did not want to go into the bathroom because they were both aware of what had transpired in the night and left it to the 1st appellant to "discover" his wife's body hanging in the bathroom. J50 Taking the argument further, PW1 could obviously not raise alarm as she was in fear of her own life and in any case, could she have raised alarm to a child of the house and in a hostile environment? It would still have been her word against that of the appellants. In fact, the age of Chongo was not revealed in the court below and we can only assume that he was also a child of tender years probably younger than PW3 otherwise there is no explanation as to why he was not called as a witness for either party. PW1, however, did state that she had a very good relationship with the 2nd appellant and she obviously had no motive to implicate him. PW1 only told the truth of what transpired that night as she explained that she could not live with herself knowing what she knew. This was a maid giving her side of the story - what did she have to gain to implicate the appellants? The 1st appellant tried to portray that he hardly communicated with PW1 as she only spoke Lozi yet the 2nd appellant said he always communicated with PW1 in Nyanja. We are of the firm view that the learned judge cannot be faulted for accepting the evidence J51 J * of PW1, a 19 year old girl who in great detail described the role each of the appellants played in this tragic case. Turning to the argument that the relatives of the deceased were witnesses with an interest to serve, we note that this was specifically in relation to the fact that the deceased's relatives said they saw blood oozing from the nose and mouth of the deceased. The learned judge dealt with this issue and found that from the pictures of the body of the deceased, any lay person who saw the deceased's body would have concluded that the deceased was bleeding. The learned judge found that the relatives to the deceased were not witnesses with an interest to serve and we agree with her finding. Under this limb, Counsel for the appellant argued further that PWl's evidence that the deceased was severely beaten by the 1st appellant contradicted medical evidence leading to the conclusion that she had the desire to have 'someone pay for the death of their relative.' This argument flies in the teeth of the evidence before the court below. It was an undisputed fact that PW1, who was a maid in the deceased's household, was not a relative of the deceased. J52 A' * Although the post-mortem reports revealed no external injuries, this does not take away the fact that PW1 saw the 1st appellant assaulting the deceased. It is trite that expert opinion does not bind the court but forms part of the evidence to be considered by the court in arriving at its decision. In this case, the learned judge rightly accepted PWl's evidence on this point and Counsel's A argument cannot stand. We now turn to deal with the issue of the two post-mortem reports. The argument advanced by Counsel for the appellants is that since the pathologists were in disagreement as to the cause of death, the learned judge could have ordered for a third post-mortem examination. That since the two post-mortem reports were conflicted, the benefit of doubt should have fallen in favour of the M appellants. According to Counsel for the appellants, there were no justifiable reasons for accepting the 2nd post-mortem report instead of the first one. Counsel for the appellants submitted that the fact that the second post-mortem examination was paid for posed a problem. We have considered the arguments on this aspect of the J 53 appeal. Earlier in this judgment, we reiterated our decision in the case of Chansa vs. The People15 where we held that: “(i) When an expert gives evidence it is the duty of the court to come to a finding and the expert's evidence is merely there to assist the court in coming to its conclusion." In this case, the learned judge considered the two post­ mortem reports and came to the conclusion that the second post­ mortem report was in tandem with PWl's evidence. Whether the second post-mortem report was paid for or not is neither here nor there as the learned judge accepted that the pathologists were expert witnesses. We note that the second post-mortem examination was done by a renowned pathologist. The learned judge considered all the evidence before her and came to the inescapable conclusion that the deceased did not commit suicide but that she was murdered. We cannot disturb this finding which was based on the overwhelming evidence adduced before the court below. In conclusion, having considered ground one, two, three, four, six, seven and eight, we find no merit in these grounds and we dismiss them. The net result is that this appeal is dismissed in its totality. G. S. PHIRI SUPREME COURT JUDGE E. N. C. MUYOVWE SUPREME COURT JUDGE J55