Jackson Mbandama and Anor v The People (App No. 137/138 of 2019) [2020] ZMCA 150 (15 October 2020)

I . IN THE COURT OF APPEAL FOR ZAMBIA App No. 137/138 of 2019 HOLDEN AT KABWE ( Criminal Jurisdiction) BETWEEN: JACKSON MBANDAMA IC OF Z R1 OF AP GIBSON SIAKABBUL 1 ST APPELLANT 2ND APPELLANT AND THE PEOPLE INAL REG X 50067 RESPONDENT CORAM: Chisanga JP, Sichinga and Ngulube, JJA On 19th May, 2020 and 15th October, 2020 For the Appellant: Mr. C Siatwinda, Senior L egal Aid Counsel - Legal Aid B oard For the Respondent: Mrs S Kachaka, Senior State Advocate - National Prosecutions Authority JUDGMENT Sichinga, JA, delivered the Judgement of the Court Cases referred to: 1. Wilson Masauso Zulu v Avondale Housing Project Limited (1982) Z. R. 172 2. Nkhata and Four Others v The Attorney General (1966) Z. R. ♦ 3 . William Muzala Chipango & Others v The People (1978) Z. R. 4. David Zulu Vs. The People (1977) ZR 151 5 . Bwanausi v The People (1976) Z . R . 103 6 . Chabala v The People (1976) Z. R. 14 7 . Saluwema v The People (1965) ZR 4 8 . Soondo v The People (1981) Z . R. 302 9 . Peter Yotam Haamenda v The People (1977) ZR 184 10. Ilunga Kabala and John Masefu v The People (1981) 102 11. Machipisha Kombe v The People (2009) ZR 282 12. Felix Muleba and Sharon Muleba v The People App No. 23 and 24 of 2004 (unreported) 13. Joseph Mulenga and Albert Joseph Phiri v The People (2008) Z . R. 1 Vol. 2 14. Born/ace Chanda Chola, Christopher Nyampande and Nelson Sichula v The People (1988-1989) ZR 163 15. Emmanuel Phiri and Others V The People (1978) Z. R. 79 16. Phiri and Others v The People (1973) ZR 47 17. Ezious Munkombwe and Others v The People CAZ No. 7, 8 , 9 of -J2- Legislation referred to: 1. Penal Code Act Cap. 87 Laws of Zambia 2. Firearms Act Cap 110 Laws of Zambia 1.0 Introduction 1.1 This is an appeal against the judgment of the High Court (Mulife J) convicting the appellants of aggravated robbery and murder contrary to Sections 294(2) and 200 of the Penal Code 1, respectively. 1.2 The particulars of the offence of aggravated robbery are that the appellants, on 2 nd March, 2018 (the material day) in Choma District of Southern Province, armed with a firearm, jointly and whilst acting together with other persons unknown, stole Kl49,200.00 cash, the property of Clive Wixley and at or immediately after such stealing, used actual violence to the said Clive Wixley in order to obtain or retain the thing stolen to prevent or overcome resistance to its being stolen or retained. 1.3 Particulars of the offence of murder were that the appellants on the material day in Choma District of Southern Province jointly and whilst acting together with other persons unknown did murder Clive Wixley (the deceased) . -J3- 2 .0 Evidence in the court below 2 . 1 The prosecution 's cas e rested on the eviden ce of nine witnes ses . On 2 nd March, 201 8, PWl-Chris pin Daka wa s enroute driving to his h ou se with others wh o were driving behind h im whe n he rea ch ed the entrance to th e deceased's farm . He found the ga te closed a nd saw an empty Toyota Land Cruiser parked at the said entra n ce with the driver's d oor open a nd th e en gine s till running. He h ooted a few times to no avail. As PW 1 and his compa n ions a ttempted to open th e gate, th ey saw a white blood s tained h a t on the ground near the La nd Cruiser a nd they were gripped with fear. They drove back for three to four kilome ters, th en parked to call on e Milden Choongo and n a rra ted to h im wh a t th ey h a d seen . Milden Choongo later called PW 1 a nd informed him that h e h a d discovered th at th e d eceased h a d been killed. PW 1 th en repor ted th e incident to the police at Ch om a an d returned to the crime scen e with police officers. 2.2 PW2 -Cryford J olezya Hich a ba a supervisor at the d eceased 's farm told th e court that on th e m a terial day between 10- 1 1 hours , he was informed by Milden Choon go of PWl 's discovery a t the gate. PW2 in t h e company of Milde n Ch oon go then wen t to the gate to carry out a n in vestigation . On the way the duo m et th e Al driving a t ractor . Th en A 1 a lso joined them on their way to th e crime scen e in th e compa ny of other s. At the scene PW2 spotted th e deceased 's h a t stain ed with blood. -J4- He narrated that they found the deceased's body about 5 to 7 metres from th e Land Cruiser, and h e saw blood on the deceased's forehead. He then made efforts to call a neighbouring farmer, one Davis, and the deceased's brother , Guy Wixley, to no avail. He reported the matter to the police a nd learnt that officers had already been dispatched to the scene. He further told the court that he saw the deceased that morning and he appeared to be in good health. He said workers at the farm were scheduled to receive their salaries on the material day. He identified Al Jackson Mbandama in th e dock as a tractor driver at the deceased's farm. 2.3 Mike Chibeya-PW3, a cattle herder at the deceased's Duba 5 farm testified that on 15th January, 20 18, Al-Mbandama asked him if h e was interested in making some money. When h e responded eagerly, Al proposed the killing of th e deceased at the time he would go to collect money for workers' salaries. A 1 then tasked him to find a firearm to be used to murder the deceased. PW3 told the court that he did not want to reject Al's proposal in his face, so when he renewed his proposal on 26th January, 2018, PW3 told him that h e had not yet secured a firearm. After the employees received their January salaries, Al complained to PW3 that they h ad missed out on the money. On the material day, PW3 learned that th e deceased had been killed. After work, Al visited PW3 and told him that the proposal he had earlier made of killing the deceased was a joke. Al then requested PW3 not to tell anyone about it. -JS- PW3 said h e assured Al that he would not. He said Al later told him that he would be paid K62,000.00 by his former employers. On 15th April, 2018, PW3 h eard tha t Al h ad been arrested in connection with th e subject offences a nd h e concluded that Al indeed murdered the deceased as he had earlier proposed to do. He said this prompted him to disclose to the police Al 's proposals. 2.4 Lis ter Mudenda-PW4, Al 's sister , testified th at on a date she could n ot recall, Al visited h er shop in the compa ny of a n unknown man, who gave Al Kl0,000.00 in her presence. Al informed his sister th at the money was paym ent for a car that h e h ad sold to the man. She told th e court that out of the Kl0,000 .00 h e had received, A l ga ve h er K2,000.00 for her to settle his debt with Vision Fund, and a lso gave her a n a dditiona l Kl00.00. Under cross-exa mina tion wh en it was suggested to PW4 by defen ce counsel that the incident she narrated transpired in February, she admitted, a nd a lso said that a police officer threatened to lock her up if she did not give a statem ent to the police. 2.5 Lilonga Chonga Ha moonga- PWS, a manager at First Nationa l Bank Choma Bra n ch , testified that the deceased drew Kl49 ,200.00 on the m a terial day between 08:30 to 09:00 hours. He produced a bank statement-Pl to that effect. 2 .6 Detective Chief Inspector Daniel Banda -PW6, a ballistics expert at the Zambia Police Service Headquarters Forensics Department, testified th a t -J6- on 3 rd November, 2018 and 5 th December, 2018, Detective Constable Kaoma and Detective Chief Inspector Siabona, both of Choma Police Station, submitted one bullet a nd an exhibit firearm of serial number 92022319 to the forensic department for examination, respectively. These were identified as exhibits P3 and P4 in the court below. The said exhibits had been examined by Detective Chief Ins pector Wusiku, who at the time of trial, was on a peace keeping mission in Somalia. The latter wrote a report on h er findings, which report was produced into court as exhibit P2. 2.6.1 Having witnessed the examination by Det. Inspector Wusiku, PW6 testified that the firearm was in good working condition because it discharged a test cartridge when the trigger was pressed. He also told the court that exhibit P4 is a caliber 18.5mm or 12 bore, and th at exhibit P3 is a dangerous firearm capable of causing injury or d eath to any animal or human target once disch a rged. He also added that exhibit P4 had a deformed pellet because it stru c k a hard object. 2.7 Lawrence Habeen zu-PW7, an assistant m a nager at Stanbic Bank Choma Branch, testified that on 7 th Ma rch, 2018, Al -Jackson Mbandama deposited K8,000.00 in his bank account at Stanbic Bank, as evidenced by a deposit slip marked as exhibit PS. He was una ble to remember what A 1 looked like, as he attended to numerous customers. -J7- 2.8 David Siabumpindu-PW8 testified that in February 2018, he bought a firearm from one Andrew Chibwe, his father-in-law, at KS,000 .00. He had made an upfront payment of K3,000.00, leaving a balance of K2,000.00. As PW8 had no money when the balance fell due, Chibwe suggested that PW8 finds another buyer so that the duo should each recoup what was due to them upon selling the firearm. As such, PW8 approached one George Susu, who later informed him that his son Sadam Susu knew someone who was interested in buying a firearm. Sadam eventually met with PW8 and told him that the interested buyer was one Davy Siamutwa Ezuba, who was too busy to meet with PW8. Sadam suggested to take the firearm and show it to the said Ezuba. Upon some hesitation, PW8 said he acceded to Sadam's request after being assured by George Susu that Sadam would return the firearm. PW8 said he also spoke to Ezuba through Sadam's phone. PW8 thus handed the firearm to Sadam on 1st March 2018 in the presence of PW8 's wife and young brother. Sadam, promised to revert to PW8 the following day. 2.8.1 PW8 further told the court that Sadam only reappeared after three days, during which period his phone was switched off. PW8 said Sadam informed him that Ezuba had decided not to proceed with the purchase of the firearm in preference to buying a hammer mill. Sadam then returned the firearm. PW8 subsequently informed his father-in-law about the failed sale. Chibwe decided to get back his firearm and refund PW8 -JS- the money he had paid as upfront payment for the intended purchase of the firearm. 2.8.2 PW8 further testified that on the 11 th of a month he could not recall, Officer Kainga-PW9, m the company of A2-Gibson Mufwambi, a pprehended him on allegations that the subjec t firearm was used to murder a white man in Choma District. That when PW8 asked A2 about the allegations, A2 confirmed that exhibit P3 was indeed the firearm which Sadam used to murder the white man a nd that Sadam h ad lied to PW8 that Ezuba was interested in buying it. PW8 then led the police to his father-in-law's place to collect exhibit P3. PW8 stated that h e had known A2 as a n eighbour for 18 years as th ey were from neighboring villages, and added that h e did not know the whereabouts of Sadam and George Susu. PW8 confirmed that h e had been held in police cu stody for four (4) days in connection to the subject a llegations before h e was released. 2.9 Detective Constable Justin Kainga-PW9 investigated th e matter after receiving a report from PW 1. He discovered the body of Clive Wixley a bout 5 metres from the gate in the bush facing down. The body h a d two bullet wounds on the right side of the head and on the n eck. He found the deceased's vehicle parked at the m a in gate and spotted a jungle hat some 2 metres away from the gate. Det . Constable Kainga deposited the -J9- deceas ed's body at Chom a General Hospita l Mortuary. An empty bottle of J . Black rum wa s also picked from th e scen e. 2 .9. 1 PW9 recounted similar testim ony a s th at of PWl a nd PW2 on location a nd state of th e d eceased 's body. He further stated tha t a postm ortem exa mina tion was conducted by one Dr, Ta rras a nd a pellet-P4 was extracted from th e d eceased 's skull. A postmortem report-P7 revealed tha t the d eceased died as a result of h ead injuries. 2 .9.2 In relation to the eve nts that led to t h e a rrest of the Al , PW9 s ta ted that on the 8 th of Marc h , 2 018 , h e received a call from on e Astra Siasanda, who informed him tha t PW3-Mike Chibeya h a d information relating to th e death of th e deceased. Tha t upon interviewing PW3, h e informed him that Al -Jack son Mbandama h a d ta sked h im to fin d a gun to s care th e deceased at the time of receiving sa la rie s . He learnt that Al approach ed PW3 on two occasion s prior to the s h ooting of the d eceased . After th e deceased was shot, Al approach ed PW3 requesting him to keep wh at h e h a d a sked him a s a secret as other people h a d executed the pla n s h e h a d inten ded to car ry out with the firearm. 2.9.3 PW9 fu r ther testified that as PW3 was still n a rra ting his version of events, Astra, who was present, received a call from Al a nd Astra was m a d e to put his phon e on loudspeaker. PW9 then hear d Al tell Astra that h e had been told by a work shop foreman a t the farm th a t there were police officers on th e farm who h a d gone to a ppreh end him. A 1 info rmed -JlO- Astra that he wanted to meet with him in the bush to reveal those involved in the killing of the deceased. Al alleged the farm workshop foreman, Winford Hachibone (A3 in the trial court) was equally involved . PW9 then decided to set a trap to apprehend Al but h e did not show up to meet Astra. When contacted by Astra, he told him th at he was aware that Astra was not alone, at which point PW9 suspected that Al had been tipped off by A3, whom they had met on their way to the farm. 2.9.4 After realizing that Al was not going to show up, PW9 and his colleagues launched a manhunt for Al. A3 was appreh ended first. Al was not found at his home. PW9 discovered a bottle of J. Black ram similar to the one found at the scene, P6. A folder containing a deposit slip-PS for the sum of K8,000.00 was also picked from Al's house. 2. 9. 5 PW9 said as the police officers did not know A 1, they looked for a photograph of him in the presence of his wife. In th e process of the search they came across a black folder containing Al's documents of notices of approval for payment of unemployment benefits. The first was in the sum of K2,294.36n and the other in the sum of K62,660.00. Investigations from the Zambia Revenue Authority (ZRA) revealed that the document in the sum of K62,660.00 was not genuine. PW9 said further investigations led him to Stanbic Bank Choma branch where he learnt that the deceased had withdrawn money as per PS. -Jll- 2.9.6 PW9 discovered that Al had moved to Kalomo. Al was subsequently apprehended by Zimba police. PW9 stated that he picked Al from Kalomo where he had been held. While transporting him to Choma Al received a call from A2. The latter did not reveal his whereabouts. A2 was later apprehended in Kalomo following a tip off from an informer. A2 then led police to PW8's home a nd the discovery of the firearm-P3. 2.10 In his defence, DWl Gibson Kafwambi (now A2) narrated that on 10th November, 2018 he was travelling within Kalomo district in a vehicle on his way to an event that he had been hired as a photographer when PW9 and other police officers stopped the vehicle at Kalomo Bridge. He said PW9 a pprehended him in connection with the firing of a gun at a funeral. The fo llowing day h e was informed of the offences relatin g to the killing of the d eceased. He denied any involvement. He further denied knowing PW8 or leading police to his home. He further denied knowing A 1 and stated that PW9's testimony was based on lies. 2.11 DW2, Jackson Mbandama (now Al) testified that on 6 th March, 2018, whilst a ttending the deceased 's funeral, he and other workers were informed by PW2, their supervisor that the management of the farm would have a meeting on the deceased's burial and discuss the future of the farm. He said h e obtained permission from PW2 to collect money in the sum of K3,000.00 owed to him by his previous employer, Silver Land. On 7 th March, 2 018, he travelled to Zimba and was paid the said -J12- K3,000.00. A further sum of K5,000.00 was paid to him by one Melvin, who had owed him the money. He then deposited KB ,000.00 in his Stanbic Bank account held at Choma branch. When he returned to the farm, PW2 informed him that the farm would cease its operations. So he sought further permission to visit his mother in Zimba. On 8 th March, 2018, he travelled to Zimba and stayed there for three days. On 11 th March, 2018, he ferried his mother to Namadula, some 10 kilometres away to seek the services of a traditional healer, one Mutentwa. He stayed there till 10th April, 2018, then returned to Zimba. He said he was apprehended on 15th April, 2018 from his uncle's home and transferred to Kalomo, then Choma. He denied committing the alleged offences or knowing his co-accused. He further denied fleeing from the deceased's farm. He contended that PW3 lied about the plot to kill the deceased because he was jealous of him and wanted to be a driver. He also said his sister lied in her testimony as he did not get along with her. 3 .0 Decision of the court below 3 . 1 Of the issues not in dispute, the learned trial judge found that: Al and A2 were employees of Duba 5 Farm at the material time; the deceased died of gunshot wounds on 2 nd March, 2018 at the entrance of his farm as confirmed by the postmortem report-P7; a deformed pellet-P4 was extracted from the deceased's body; on the material day employees at Duba 5 farm were scheduled to receive their salaries from the deceased; -J13- and on 7 th March, 2018, Al deposited an amount of K8,000 m his account held at Stanbic Bank Choma branch. 3.2 Of the issues in contention the court below first considered whether or not the deceased had the alleged sum of Kl49,200.00 on his person on the material day as alleged in the first count. The learned tria l judge found the testimony of PW5-bank manager at FNB to the effect that the deceased withdrew the said amount on the day he was shot, was credible as he had no basis to lie to the court. The learned trial judge found that PW5's testimony was corroborated by that of PW2-farm supervisor who told the court that the farm employees were scheduled to be paid on that day. 3.3 On the question of whether or not Al a nd A2 took the money from the deceased, the learned trial judge relied, in considering the evidence against Al , on the testimony of PW3 who testified that Al had a pproached him on two occasions proposing the killing of the d eceased. Considering that PW3 was a suspect witness, the learned trial judge found corroboration in the testimony of PW4 to the effect that Al was paid a sum of Kl0 ,000 cash in her shop by a man unknown to her. Out of this amount Al gave PW4 a sum of K2000. 00 a nd h e remained with KB,000.00. The court below found this testimony credible because Al confirmed h e had deposited KB,000.00 in his bank account as evidenced by a deposit slip-PS. The learned trial judge came to the conclusion that -J14- the money Al received in PW4's sh op was part of the Kl49 ,200.00 the deceased had withdrawn from FNB. The lower court was satisfied that A 1 had hired the man that gave him th e money among others after he had failed to secure PW3's cooperation. The learned trial judge also found Al 's conduct elusive a fter t he deceased was killed because he disappeared from Duba 5 farm until h e was a pprehended. That he failed to ch a llenge PW2's testimony that h e did not seek his permission to attend to his ailing m oth er. Therefore his explanation was an afterthought. The lower court found the circumstantial eviden ce against Al compelling that h e was involved in the murder of the d eceased . 3.4 With respect to A2-Gibson Mufwambi, the court below was satisfied that PW9 saw his name flashing on Al's phone and th at PW9 h eard A2 inquiring from A 1 if h e had been apprehended. The learned trial judge was of the view that A2 was worried that it would lead to his own arrest, a nd tha t PW9 h a d no basis to falsely implicate A2. 3.5 In considering whether the appella nts were a rmed with the firearm-P3, the court found th at A2 led police to PW8 a nd the subsequent retrieval of the firearm. That A2 confessed to PW8 the firearm was used in the murder of th e d eceased and th at he (A2 ) was involved alon gside the Susu s . On the basis of this testimony the learned trial judge found that A2 was involved and hired by A 1. -JlS- 3.6 Relying on section 21 of the Penal Code supra m relation to common intention to the commission of a crime, the lower court found that Al and A2 played different roles, however, their efforts were directed at the murder of the deceased and of robbing him of his money. The appellants were convicted of both counts and each sentenced to d eath. 4.0 Grounds of appeal 4.1 Dissatisfied with the verdict of the lower court, the appellants lodged this appeal on th e following grounds: 1. The Court below erred in both law and fact by making a finding that PW4, Lister Mudenda, saw the 1st appellant and a stranger sharing money in March 2018, which finding is not supported by the evidence on record which evidence shows that the incident happened in February 2018. 2. The trial Court misdirected itself by finding that PW4, Lister Mudenda, corroborated the evidence of PW3, Mike Chibeye, when PW4's evidence of the 1st appellant sharing money with a stranger happened in February 2018 before the deceased's death. 3. The trial Court misdirected itself by accepting PW8's evidence that the 2 nd appellant confessed to PW8 that the subject firearm had been used in the commission of the two offences without treating PW8 as a suspect witness whose evidence requires corroboration. -J16- 4. The Court below erred in both law and fact by convicting the appellants in both counts on circumstantial evidence that was cogent and when an inference of guilt was not the only reasonable inference. 5. The Court below erred in both law and fact by convicting the appellants in count one for aggravated robbery when there was no evidence that the deceased had in his possession, at the time of his attack, the money alleged to have been stolen. 5 .0 Appellants' arguments 5. 1 The a ppella n t argued all the grounds of appeal together u nder fou r h eadings, the first on e bein g t h a t th e learned trial judge m a d e perverse findings of fact and improper u se of PW4's eviden ce. The cases of Wilson Masauso Zulu v Avondale Housing Project Limited1 and Nkhata and Four Others v The Attorney General2 were c ited to a dvan ce the position that a n a ppella te court cannot easily interfere wit h findings of fact m a d e by t h e tria l court . 5.2 Applying this principle in cas u, Al is ch a llenging the t ria l judge 's relian ce on th e evide n ce of PW4 to the effect that in March 2 01 8, h e vis ited h er at h er shop in t he company of a s tranger , a nd th e latter gave him Kl0 ,000.00 . His contention is tha t PW4 categorically a dmitted in cross examination that t h e incid en t tran spired in February, th ough she could not rem ember the exact date. That th e prosecution h a d a n opportunity to clarify the da tes by way of re-examina tion but they did not do so. -J17- Therefore, it must be taken that the prosecution accepted the date given by PW4, which entails that since the deceased died on 2 nd March 2018 and the events narrated by PW4 transpired in February 2018, the said event has no bearing on the issues in this case. Mr. Siatwinda concluded his submission in this regard by submitting that it was a serious misdirection for the trial court to have used this aspect of PW4's evidence to corroborate that of PW3 when the events narrated by the two witnesses transpired at different times. 5.3 Under the second heading, the appellants submitted that the trial judge rightly found that PW3 was an accomplice and thus a suspect witness whose evidence required corroboration before it could be relied upon. That the learned trial judge was therefore right in looking for corroborative evidence. The case of William Muzala Chipango & Others v The People3 was cited with regards to the need for cor roboration of the evidence of a witness who may be an accomplice or have an interest, in order to exclude the danger of false implication. It was held in the said case that: "Where the prosecution puts a witness forward as one who at the very least has an interest to exculpate himself, the Court cannot decline to treat him as such without some very positive reasons. Where because of the category into which a witness falls or because of the circumstances of the case he may be a suspect witness that possibility in itself determines how one approaches -J18- his evidence. Once a witness may be an accomplice or have an interest, there must be corroboration or support for his evidence before the danger of false implication can be said to be excluded. " 5 .4 The appellants submitted that the trial court wrongly a pplied the eviden ce of PW4 relating to m atter s that happened in Febru ary 2 01 8 before th e deceased died as cor roboration of the evidence of PW3. Our attention was drawn to the finding of the trial court, which Al submitted was a wron g finding, that the deposit of K8 ,000.00 into Al 's bank account was an odd coincid ence, since it was in the sam e month that PW4 said she saw it with him at her shop. In dismissing Al's explanation of the source of the K8,000.00 d eposited into his bank a ccount on 7 th March , 20 18, the learned trial judge had the following to say at page J40 of the judgment: "I am convinced that A2's explanation is an afterthought because it is contradicted by the evidence of two witnesses who are strangers to each other, yet whose versions of their respective but different encounters with A2 within the same time i nterval are strikingly coinciding despite there being no possibility for them to collude. The two witnesses are PW3 and PW4." 5 .5 The a ppella nts reitera ted their earlier argum ent th at PW3 and PW4 narrated events that h a ppened in March a nd February, respectively. It was argued that their version of events cann ot therefore coin c ide. The -J19- appellants contended that the learned tria l judge improperly evaluated the evidence a nd erred in finding that the evidence of PW4 corroborated that of PW3. 5.6 Under th e third h eadin g, the a ppella nts' a rgument is basically that the circumstantia l evid en ce on record was not en ough to secure a conviction. The cases of David Zulu v The People<4J and Bwanausi v The People<5J were cited in this regard . In applying this in casu, the a ppellants submitted that for circumstantial eviden ce to a pply, there must firs tly be some incrimina ting bas ic facts; secondly, those basic facts must be incompatible with the innocen ce of the accused person ; and thirdly, those basic facts must exclude any other infere n ce a nd point to the guilt of the accu sed. 5. 7 It was argued that as against A 1, the trial court found the incrimina ting basic facts mainly from th e eviden ce of PW3 a nd PW4, and Al 's own conduct of a llegedly fleeing from his residen ce. The a rgument that the evidence of PW3 and PW4 cannot be relied upon as it is that of a suspect witn ess a nd rela tes to matters that h a ppened before the deceased was killed, was repeated to advan ce the argum en t that the eviden ce of these two witnesses is questionable for purposes of corroboration. 5.8 As regards Al 's explanation that h e got permission to be away for one month to nurse his s ick m other, which the trial court dismissed on the basis that h e did not call a n y witn ess to support his claim, the a ppella n ts -J20- submit that this was a misdirection, as an accused person does not have a burden to prove his explanation. That the trial cour t should have considered whether the explanation might have reasonably been true. The case of Chabala v The People6 was cited in this regard. It was also argued that the prosecution did not mount any serious ch a llenge to Al's explanation and thus it remains reasonably true. Saluwema v The People7 was referr ed to. 5. 9 As regards Al's desertion of his usual residence after the deceased 's and his avoidance of interrogations, the appellants argued that this in itself could not warrant an inference of guilt without something more to it. Counsel submitted that if indeed Al had run away, it was possible that he could have done so with a motive that was consistent with his innocence, as a person who is not yet informed that he is a suspect in a m atter cannot be faulted if such person decided, for whatever reason , to avoid police interrogations. The case of Soondo v The People 8 was called in aid, where it was h eld that: "Even if an alibi was a deliberate lie on the part of the appellant, the inference cannot be drawn that he did it because he had been involved in the offence. A man charged with an offence may well seek to exculpate himself on a dishonest basis even though he was not involved in the offence." 5.10 Turning to A2, Mr. Siatwinda submitted that the incriminating evidence was mainly supplied by PW8. That a perusal of A2's evidence shows that -J21- he did not incriminate himself in h is a lleged statement to PW8 . We were directed to a portion of PW8's testimony, where h e told the court that one Sadam Susu got the firearm so that h e could go and murd er the white man in Choma. Counsel argued that the trial court's finding that A2 confessed to PW8 is not supported by the evidence on record. That in any event, the trial court ought to have treated PW8 as a witness with a possible interest to serve whose evidence required corroboration before it could be relied upon because he had been detained for four (4) days as a suspect in the killing of the deceased and the firearm that was alleged to have been used was linked to him and he admitted it. The case of William Muzala Chipango v The People supra was once again cited. 5.11 In this regard, it was argued that PW8's evidence that h e handed the firearm to Sadam Susu has no support from any independent witness, including his wife and his young brother, in whose presence he cla imed to have handed over the firearm. That the duo were n ot interviewed by the police, nor were they called as witnesses to verify this crucial aspect of PW8's evidence. Consequently, PW8's evidence remains suspect a nd the d a nger of false implication cannot be said to have been ruled out. That the trial court erred in not treating PW8's evidence with caution . Counsel prayed that the same should be discounted. In toto, counsel submitted under this third h eading that not only was the circumstantial evidence relied upon by t he . trial court insufficient to warrant a -J22- con viction, but it was also s upplied by susp ect wit n esses with their own inte rests to serve. 5.12 Und er the fourth h eading, the a ppellants submitted that in proving the offen ce of aggr avat ed robbery under section 294(2) of th e Pena l Code supra, the prosecution must prove, inter alia, that a thing capable of being stolen was indeed stolen; that it was the accused who stole it; a nd th at th e accused p erson used a firearm within the m eanin g of the Firearms Act2 immediately before, during or after such stealing in order to obtain or retain th e thing stolen. 5.13 In advancing th eir argume n t that there was insufficient evidence on record connecting the appellants to t h e two offences, the a ppellants submitted in relation to t h e first count that there is insufficient eviden ce on record that the deceased h ad in his possession at the time h e met his death, the alleged Kl49 ,200.00. That th e court's judgm ent s hows that guilt was by infer ence, which can only be the case if it is t h e only reasonable infe rence from the eviden ce, as a n examin ation of t h e alternatives cannot be d ismissed as mere speculation. The case of Bwanausi v The People supra was relied upon in this regard . 5.14 The a ppellants advan ced the a rgume n t that th ere is a possibility that the deceased could h ave used that m oney th at was p ossibly m eant for salaries for some oth er tr ansactions before h eading home where h e was attacked, thus leaving a real possibility that h e did n ot have the m on ey -J23- at the time of his attack. Furthermore, it was submitted that in the absence of evidence of serial numbers for the notes that A 1 deposited as compared to the notes that the deceased had withdrawn from the bank, the finding of guilt is far-fetched to warrant an inference that it must have been the same money that belonged to the deceased. 5.15 Secondly, the appellants reiterated their argument abou t the reasonably possible explanation that A 1 gave regarding the source of the money he deposited in his bank account, which explanation was not discredited. The case of Chabala v The People supra was once again cited to cement the position th at Al had no burden to prove his explanation, which need not even be satisfactory. 6.0 Respondent's arguments 6.1 The state filed written heads of a rgument on 7 th April, 2020. In response to th e appellant's submission that PW4 admitted in cross-examination that the incident of Al receiving Kl0,000.00 at her s h op took place in February 2018, the state submitted that PW4 was enticed by defence counsel into accepting that the incident happened in February 2018. Our attention is drawn to the testimony of PW4 in examina tion-in-chief and part of cross-examination where PW4 stated th at s h e could not remember the date when she witnessed the Al 's m onetary transaction with the stranger. However, she later on admitted th at it was in February, after d efence counsel suggested to her th at it was February. In -J24- .. this regard, the respondent submitted that PW4 was just tired of being asked the same question over a nd over and she just wanted to get it over with, unfortunately by givin g the response that defence counsel was soliciting. On this premise, we were invited to analyse the circumstances under which the witness accepted the inducement that the transaction took place in Fe bruary. 6.2 Counsel a lso invited us to note that the coinciden ce of K8,000=00 deposited by Al in to his Stanbic account on 7 th March, 2018 and the sum of money he received in PW4's shop could not be a mere coincidence. It was submitted that this was an odd coin cidence which provided corroboration. The case of Peter Yotam Haamenda v The People9 was cited to the e ffect that it held, inter alia that odd coincidences can prove corroboration; the case of Ilunga Kabala and John Masefu v The People10 was referred to for its h olding that odd coincidences, if unexpla ined may be supporting eviden ce; and the case of Machipisha Kombe v The People11 for its holding that odd coincidences constitute eviden ce of something more. 6 .3 It was submitted that if Al's claim was that he received th e money in PW4's shop in February, 20 18, then he ought to have told the trial cour t in his defence. However, Al blatantly denied receiving money from PW4's shop. His testimony was that he received the K8,000.00 h e d eposited from his previous e mployer a nd from someone he had given money to buy cattle. It was submitted that Al did not allude to receiving any -J25- money m February from PW4's shop. The state contended that the appellants' argument is baseless and ought to be dismissed. 6.4 Under the s econd heading, the state restated its submissions under the first heading and emphasised that PW4's evidence related to the matter under trial that occurred in March, 2018 and not February, 2018. That PW4 only forgot the date as it is human to do. Counsel submitted that PW4's evidence was sound in relation to the deceased's death in March, 2018. 6.5 It was submitted that even without the evidence of PW4 there was other evidence on record that corroborates the testimony of PW3. Reference was made to the evidence of PW7-the banker from Stanbic Bank, who confirmed that the bank received a deposit from A 1 in the sum of K8 ,000.00 on 7 th March, 2018. 6.6 Counsel also referred to the evidence of PW9, the arresting officer, who testified inter alia among the documents he found at Al's house was a deposit slip from Stanbic Bank in the sum of K8,000=00 deposited on 7 th March, 2018 by Al himself. 6.7 Further, that Al's conduct of disappearing from Duba 5 farm soon after the deceased's death points to some involvement on his part. The case of Felix Muleba and Sharon Muleba v The People12 was cited, where the Supreme Court drew an inference of guilt from the fact that the -J26- appellants hurriedly moved from their home shortly after their maid was murdered. 6.8 It was submitted by the state that a ll the evidence set out above corroborates the evidence of PW3, and that Al lied about having gotten permission from his supervisor-PW2 to be away from the farm, as this was not confirmed by PW2 when he gave his testim ony. Reliance was placed on the case of Joseph Mulenga and Albert Joseph Phiri v The People13 for the position that failure/ omission to confirm incriminating assertions during cross-examination diminishes the efficacy of the arguments that are the basis of the said assertions. 6.9 In response to the third head of the appellants' submissions that the evidence of PW8 lacks corroboration, the respondent refer red to the evidence of A2 leading the police to PW8's place, where they hitherto did not know and where the firearm that was used in the commission of the subject crimes was recovered. We were referred to the case of Born/ace Chanda Chola, Christopher Nyampande and Nelson Sichula v The People14 where the Supreme Court held inter alia that: "The leading by an accused of the police to a place they already know and where no real evidence or fresh evidence is recovered cannot be regarded as a reliable and solid foundation on which to draw an inference of guilt" -J27- 6.10 That in casu the police were led by A2 to a place they did not know and the firearm that was used in the commission of the offences herein was recovered. Therefore an inference of guilt could be drawn. 6 .11 Counsel further referred us to the case of Emmanuel Phiri and Others V The People15 where it was h eld that the evidence of an accomplice or a person with a possible interest to exculpate himself needed to be corroborated by at least something more. On this basis, the respondent submitted that the danger of false implication was completely excluded by the evidence of A2 leading the police to PW8 where th e firearm was found, and this corroborates the evidence of PW8. 6.12 In relation to PW8 possibly having a motive to give false evidence, the state argued that he had no such motive, as it was the A2 who led the police to him, upon which he learned from A2 that the gun he had once given Saddam Susu was used in a crime . 6.13 Turning to the appellants' argument under the fourth heading that the circumstantial evidence was not cogent and guilt is not the only inference that can be drawn, we were once again referred to the evidence of PW8 to the effect that it was A2 who led the police to PW8 and revealed that it was the gun that the latter gave to one Sadam that was used to kill the deceased. In this regard, the learned state advocate submitted that A2 only knew this because he participated in th e crimes. -J28- 6.14 Another piece of evidence that we are requested to consider as g1vmg cogency to the circumstantia l evidence is the evide nce of the pellet that was found in the deceased's head being a component of a cartridge of calibre 12.0, which could be loaded from the gun that was recovered through PW8. Counsel argued in this regard that this cannot be a m ere coincidence as it corroborates A2's revelation to PW8 considering that it is a rural setting where not very many p eople own guns of that nature. We are again directed to the evidence of PW3 as cor roborating that of PW 4 in the following respect: a) Al disclosed to PW3 his plan to kill the deceased on payday. Coincidentally, the deceased was murdered on payday as confirmed by PW2; b) A firearm was used in tandem with the evidence of PW3 , who was told by A 1 to look for a gun ; c) PW8 gave the gun to Sadam Susu on 1st March , 2018, the deceased was murdered on 2nd March, 20 18 and the gun was only returned to PW8 after 3 days; d) Al told PW3 that he was expecting money and he suddenly deposited K8,000 into his bank account yet his salary was less than Kl ,000; e) The similarity of alcohol bottles found at the scene where the deceased's body was found to those found at Al's doorstep is n o mere coincidence; -J29- f) Al went to PW3's house shivering saying he was afraid upon seeing the deceased's blood, and cautioned him not to tell anyone about his previous felonious proposals; and g) The overall conduct of Al having disappeared from the farm after the deceased was murdered is incompatible with innocence, excludes other inferences and only allows an inference of guilt. 6.15 The state submitted that the circumstantial evidence zn casu 1s more than sufficient to render only an inference of guilt. 6.16 Responding to the appellants' submission under the fifth ground of appeal that there was no evidence that the deceased had in his possession the money alleged to have been stolen at the time he met his death, the state referred to the evidence on record narrowing down the time between when the deceased withdrew the subject money from the bank and when his corpse was discovered to about 2 hours. It was submitted that the deceased had the money with him when he was murdered, which is why he was murdered. That the accused persons were after the money the deceased had withdrawn for salaries, given that his vehicle was not stolen. On this basis, counsel submitted that the state had proved that the deceased was robbed of Kl49,200 .00 which he went to withdraw that morning, and that it was the appellants herein who robbed him whilst acting together and armed with a firearm. We are -BO- urged to uphold the lower court's findings and to dismiss the appeal in its entirety. 7.0 The decision of the court on appeal 7. 1 We have considered the appeal before us, the judgment of the lower court, the evidence on record, as well as authorities a nd submissions by learned counsel for both parties. We shall now proceed to address the respective grounds of appeal. 7.2 In summ ary, a reading of the evidence on record reveals that the chain of circumstantial evidence implicating A 1 is as follows; PW3 testified that Al had been enticing him to connive with him to kill the deceased and rob him of money meant to pay salaries. A 1 asked PW3 to find a gun. But PW3 a llegedly did not h eed to this proposal. It is not in dispute that A 1 was an employee of the deceased and as such, h e knew wh en the deceased usually paid his employees. 7.3 On the day that salaries were due, the deceased withdrew Kl49 ,200.00 from the bank and was murdered on his way back to the farm. The Kl49 ,200.00 was n ever recovered. A little while after the deceased was killed, A 1 a llegedly told PW3 that he was expecting to be paid some money by his previous e mployers. He allegedly forged papers purporting to show that he was e ntitled to a payment of about K62,000.00 from Zambia Revenue Authority. He was later seen by PW4 receiving Kl0,000.00 from a n unknown man, out of which h e gave PW4 -J31- K2 ,000.00. On 7 th Ma rch , 2018 Al d eposited K8 ,000.00 into his bank account. 7.4 Based on these circum stan ces, the learned trial judge concluded th at the Kl0,000.00 Al received was his share of the m on ey that the deceased was robbed of when he was murdered , a nd consequ ently that h e took p a r t in the murder of th e d eceased. There is a lso evid ence of Al's subsequent elu sive conduct after h e became aware that the police were looking for him. 7.5 The question that n ow begs our answer as we seek to estab lish whether or not it was safe to convict A 1 on this evide n ce that is pure ly circumstantial is whether or not th e said circum stantia l evidence is so cogent as to leave only an inference of guilt, as guided by a plethora of authorities on this subject, inter alia David Zulu v The People supra, which sets out circumstances in which a court may convict on circumstantial evidence. 7.6 We note the a ppellants' submission that the trial judge assumed that the transaction narra ted by PW4 took place in March . There is indeed no eviden ce on record to t his effect , as PW4 appeared to have forgotten when exactly the incid ent she narrated transpired, and t h e learned trial judge h a d no b a sis to con clude that it had taken place in March , wh en in fact wh at she a dmitted to in cross-examina tion a fter d efense counsel suggested that it, was th at it occurred in February. On this aspect, we -J32- .. are guided by the case of Phiri and Others v The People1 6 where it was stated that: "The courts are required to act on the evidence placed before them. If there are gaps in the evidence the courts are not permitted to fill them by making assumptions adverse to the accused. If there is insufficient evidence to justify a conviction, the courts have no alternative but to acquit the accused." 7.7 We shall now con sider what relevance/ weight the learned trial judge a ttached to the piece of eviden ce in issue. To start with, the learn ed trial j udge found that it was an odd coincidence t hat a lthough Al denied ever m eeting with PW4, th ere is eviden ce on record th at s h ortly after PW4 saw Al receiving money at her shop, h e subsequently d eposited K8 ,000.00 into his Stanbic Ba nk account on 7 th March 2018 as evid en ced by a receipt to this effect. 7.8 Our considered view on this issue is that even if we were to discount this aspect of the evidence so far as it relates to the m onth of March , the remainder of th e evidence still points to him a s the offender. In t his vein, we refer to our earlier decision in Ezious Munkombwe and Others v The People1 7 where we stated that; " ... when considering a case anchored on circumstantial evidence, the strands of evidence making up the case -J33- against the appellants must be looked at in their totality and not i ndividually." 7.9 The appellants submitted in negating the trial court's reliance of PW3 's evidence, that h e was a suspect witness whose evidence required to be corroborated, as he m ay have implicated A l in order to exonerate himself. In this regard, the court below had the following to say a t page J40 of the judgment appealed against: "Given the contemporaneity of the events, I am of the view that the transaction which PW4 witnessed in her shop corroborates A2's indications to PW3 that he would soon be paid some money by his former employers. Having found that A2 attempted to lie about the true source of the money he was paid by the stranger, I find this to be corroboration of PW3's evidence that A2 had proposed that the duo should kill and rob the deceased. I have no doubt therefore that the payment which A2 told PW3 would come from his previous employers, is the money which he was paid by the stranger in PW4's shop. " 7. 10 The learn ed trial judge then found that the evidence of PW3 and PW4 corroborated each other in dispelling Al's contention about the source of the K8,000.00 that h e deposited in his bank account, which was in fact paid to him by a stranger a t PW4's s hop. The trial judge came to the -J34- conclusion that the Kl0 ,000.00 was part of th e money that was taken from the deceased after h e was murdered , and it was pa id to A 1 as his share in coordinating the murder. This was on account that h e knew when the deceased u s u a lly collected money to pay his employees' salaries as he was a lso on e of the employees. 7 .11 Considering the strands of circumstantial evidence implicating A 1 as we have summarized it above as a whole and not individua lly, we are of th e view th at the circumstantial eviden ce indeed points to the guilt of Al and leaves no other inference than that of guilt. We agree with the trial court's finding that the evidence of PW3 and PW4 corroborate each other, given that the two witnesses h a d no motive to collude against A 1. The first ground of appeal effectively fails as against A 1. 7.12 With respect to ground two, as we considered the cogency of circumstantia l evidence implicating Al under the first ground, we pointed out that the pieces of evidence should be considered collectively as opposed to individually, a s such is the nature of circumstantial eviden ce. We h ave earlier in t his judgment agreed with the appellants' submission that there is no evidential basis upon which the trial judge concluded that the incident narrated by PW4 took place in March 2018. 7. 13 In the same vein, we would like to address the respondent's submission tha t Al's disappea rance from the farm and his alleged ly ing about having gotten permiss ion to be away points to his involvem en t in the murder. In -J35- the case of Saluwema v The People supra the then Court of Appeal held as follows: "The fact that the appellant himself gave lying evidence as to his actions could not conclude the case against him. Such a fact is material when assessing the weight which is to be given to evidence against an accused which appears to be credible and probable in itself, and it may add such weight to such evidence as renders it conclusive against the accused." 7.14 In the context of this holding, we wish to restate that the evidence relating to A 1 telling lies a bout his whereabouts does not in itself point to his guilt. Even in the case of Felix Muleba and Sharon Muleba v The People supra cited by the respondent, the hurried movement of the appellants from their house was not the only basis upon which the Supreme Court confirmed their guilt. This evidence was tied to oth er strands of circu m stantial evidence in the absence of direct evidence. 7. 15 In casu, when a n a lysed in the con text of a ll the other evidence implicating Al, we have shown above that an inference of guilt is an inescapable conclusion. We find no merit in this ground of a ppeal. 7.16 Turning to th e third ground of a ppeal, we will turn towards the evidence incriminating A2. We h ave demonstrated earlier how we a rrived at the con clusion that the cogency of the circumstantial eviden ce against A 1 1s -J36- so substantial as to lead only to an inference of guilt. We have noted that some of the arguments advanced on behalf of Al under this ground are in fact repetitive. 7.17 The main issue, in our view, is how the lower court treated the evidence of PW8 as against A2 - that it ought to have been corroborated. The respond ent submitted in this regard that PW9's evidence of A2 leading PW9 to PW8 to recover the gun is corroboration of PW8's evidence. The most significant aspect of PW8's evidence in so far as it implicates A2 is the alleged confession to PW8 by A2 that the gun recovered from PW8 was the one Al and others used to murder the deceased. A reading of the proceedings in the lower court shows that PW8 testified that A2 told him that when Sadam Susu got the gun from PW8, he did not have a buyer; that he got the gun for another purpose and that was to kill the deceased. That Sadam a lso told A2 that h e had obtained the gun from PW8. In this regard, the trial judge stated at page J45 as follows: "I am satisfied that A 1 confessed to PW8 that the subject firearm had been used in the commission of t he two offences and that Al was one of the murderers ... Al confessed to PW8 that he is an accomplice alongside the Susus in the commission of the present offences ... I am satisfied that Al was involved in the commission of the subject offences and was hired to do so by A2." -J37- 7.18 The record shows that the conversation between PW8 and A2 relating to the subject gun took place while they were in a police vehicle on their way to collect the subject gun from PW8's father-in-law, in the presence of PW9 and other police officers. It is therefore surprising that PW9 in his testimony did not make mention of the alleged confession. In any event, the evidence of PW8 is to the effect that A2 told him that Sadam intended to use the gun to murder the deceased, not that A2 murdered the deceased with the subject gun, nor that he participated in the commission of the said offence. This further weakens the evidence of PW8, especially that he is already a witness whose evidence requires corroboration. 7.19 We note that at the hearing of this appeal, Mrs. Kachaka in response to Mr. Siatwinda's oral submission that A2 did not incriminate himself referred to evidence in the record of appeal where PW8 said A2 told him, "This is the gun we used to murder a white man." We also note that PW8 said this in cross-examination, contrary to his earlier testimony that PW8 only told him that Sadam Susu intended to use the gun to murder the deceased, as opposed to finding a prospective buyer. 7.20 We will n ow consider the evidence purporting to corroborate PW8's evidence of A2's alleged confession, and that is the evidence that A2 led PW9 and others to PW8, which led to the recovery of the subject firearm. PW9 testified that A2 knew PW8 and led the police to him. -J38- 7. 21 Our considered view is that it is not in dispute that A2 and Sad am Susu, who obtained the gun from PW8, knew each other. What is in dispute is whether A2 admitted to PW8 that he was involved in the murder of the deceased. The eviden ce of PW9 who was in t he sam e vehicle with A2 a nd PW8 at the time A2 allegedly confessed his involvement in the murder does not allude to this. PW9 informed the trial court that an informer informed him that the gun alleged to have been used to kill Clive Wixley was gotten in Kalomo from PW8. PW9 told the court that PW8's brother was pick ed from PW8's shop, and h e led police to PW8's farm. PW8's evidence of A2 's involvement is not corro borated by any other evidence on record. It wa s therefore a misdirection on the part of the t rial judge to h ave concluded that A2 confessed his involvem ent and he was hired by Al , when there is no evidential ba sis for this findin g. We therefore set aside the said finding and allow this ground of a ppeal in favour of A2. 7 .22 With regards to ground four, we reiterate that this cas e is anchored mainly on circums tantial evide n ce. We h ave earlier la boured to elaborate h ow different pieces of incriminating evidence, wh en pieced together, point to th e guilt of Al. The respondent h a s properly m a d e submissions on the time factor between when the m oney was withdrawn from the ba nk and when the d eceased's body was found, coupled with th e fact tha t salaries were due on tha t d ay. Withdrawal of money from the bank is not th e only basis upon which the trial judge con victed the a ppellants. There is other incriminating evidence on record which we h ave alluded to -J39- earlier in supportin g the conviction as against Al in both counts. Needless to repeat our earlier position, we find that the fourth and fifth grounds of appeal only succeed as against A2. 8.0 conclusion 8.1 For the foregoing reasons we hereby d isallow this appeal in relation to Al-Jackson Mbandama and uphold the lower court's conviction and sentence. 8.2 As regards A2-Gibson Siakabbula Mufwambi, we a llow th e appeal, quash his conviction and set him at liberty for thwith . .............. ~ : ........ . F. M. Chisanga JUDGE PRESIDENT D. L. COURT ... &.~ ................. . P. C. M. Ngulube COURT OF APPEAL JUDGE -J40-