Hakaunga v People (Appeal 168 of 2015) [2016] ZMSC 28 (2 March 2016)

:"t. J1 IN THE SUPREME COURT OF ZAMBIA HOLDEN AT LUSAKA (Criminal Jurisdiction) BETWEEN: Appeal No. 168/2015 KENNETH HAKAUNGA APPELLANT v. THE PEOPLE RESPONDENT Coram: Phiri, Muyovwe and Malila, JJS on 12th January, 2016 and 2nd March, 2016 For the Appellant: Mr. 1. Chongwe Legal Aid Board - Principal Legal Aid Counsel, For the Respondent: Mr. P. Mutale - Deputy Chief State Advocate, National Prosecutions Authority JUDGMENT Malila, JS delivered the judgment of the court. Case referred to: 1. Chisha v. The People [1980J ZR 36 2. Mavuma Kabanja Situna v. The People [1982J ZR 115 3. Patrick Sakala v. The People [1980J ZR 205 4. Isaac Musumbe v. The People [1978J ZR 354 5. Khupe Kafunda v. The People [2005J ZR 21 6. David Zulu v. The People [1977J ZR 151 7. Dorothy Mutale and Richard Phiri v. The People [1997J ZR 227 8. Saidi Phiri v. The People, Selected judgment No. 30 of2015 J2 9. Kambarage Mpundu Kaunda v. The People[1990 - 1992J ZR 215 10. Guardic Kameya Kavwana v. The People, Appeal No. 84 of 20 15: This is an appeal against the judgment of the High Court sitting at Lusaka in which the appellant was found guilty on three counts of murder contrary to section 200 of the Penal Code, chapter 87 of the law of Zambia, it being alleged that the appellant caused, with malice aforethought, the deaths of Safari Phiri, Evelina Tembo Phiri and Webby Phiri through an act of arson. The background facts present a resounding example of gender based violence escalated to the highest levels. The appellant was married to Fides Sakala (PWl) in 2010. The couple endured a very difficult marriage up until September, 2013 when they divorced. During the subsistence of the marriage, according to PWl, she suffered physical abuse at the hands of the appellant, especially when he was in drunken stupor. She complained about the regular beatings by the appellant to Safari Phiri (deceased), who was her brother. It was when one such complaint was made that the said Safari Phiri advised PW1 to go and stay with her uncle, Benson Sakala, as a way of averting the persistent physical and emotional J3 abuse at the hands of the appellant. PWl decided instead to go and stay with her sister, Roydah Sakala. This, notwithstanding, the appellant would visit PWl at her said sister's house, usually around a 1:00 hours in the morning and would exert all forms of emotional and physical violence towards her while ordering her to return to the matrimonial home. PWl rejected all overtures from the appellant for her to return to the matrimonial home, insisting that the appellant should instead bring his relatives to discuss this matter with her own relatives. On the lath of September, 20 13 the appellant, reportedly in a state of drunkenness, went to visit PWl around midnight and, as usual, ordered her to go home with him. In the presence of PW1's uncle, Benson Sakala, and his wife and PW1's cousin Mateyo, the appellant uttered words to the effect that Safari Phiri was responsible for ending his marriage with PWl and that he did not have problems while the said Safari Phiri was back in the village. He threatened that he would burn Safari Phiri's house. An altercation later ensued between the appellant and the said Safari J4 Phiri which was pacified by PW1's uncle who urged Safari Phiri to exercise restraint as the appellant was drunk. On the 16th September, 2013 the appellant went to PW1's uncle's house and demanded a refund of the dowry. PW1's uncle produced the money and offered it to the appellant who refused to accept it. The appellant instead proceeded to Safari Phiri's house where he is alleged to have been for about an hour. PW1's uncle then gave the dowry to Mateyo who in turn gave it to the appellant. The latter grudgingly took the money and intimated that he would go to the Victim Support Unit of Zambia Police. The appellant was visibly annoyed and protested that their marriage could end in that manner. On 20th September, 2013 a fire, whose source could not be immediately explained, gutted down the grass thatched house of Safari Phiri, burning to ashes, three of the occupants of the said house, namely, Safari Phiri himself, his wife Evelina Tembo Phiri and their child Webby Phiri. No one saw any person set the house on fire. J5 Seven prosecution witnesses testified. The gist of the evidence of these witnesses was that the house was set on fire by some one acting deliberately and consciously. Although there was no direct evidence linking the appellant to the fire, it was clear that the essence of the evidence of these witnesses was that it was the appellant who had set the house of Safari Phiri ablaze. A brief outline of the evidence of these witnesses is necessary to properly accentuate the issue for determination in this appeal. PW2 was Benson Sakala. His testimony was simply that he was the uncle to PW1 and the deceased Safari Phiri. He was aware of the matrimonial problems that PW1 and the appellant had. Sometime in September, 2013 the appellant turned up at his house around 01:00 hours and demanded to take his wife, who was at that time at his home. The deceased, Safari Phiri, also came to PW2's house around the same time. PW2 testified that the appellant accused Safari Phiri of being the source of problems in his marriage and that he threatened to burn him and kill him. It was at that stage that a scuffle ensued between the appellant and Safari Phiri which PW2 settled. This witness also testified that he saw the • J6 appellant on a different day when he came and found PW1 at a neighbour's place and demanded that he goes home with her, and on the 16th September, 2013 when he demanded to take his wife since he had found a job. On the latter occasion, PW2 informed the appellant that the family had taken the decision that his marriage to PW1 should end. It was after this that the dowry which the appellant initially refused to take, was eventually returned. PW2 further testified that on the 20th September, 2013 between 01:00 hours and 02:00 hours he was awakened by his wife who alerted him that Safari Phiri's house was on fire. He repaired to the burning house and there found other persons already on the scene. He, together with others attempted to put off the fire until the police arrived on the scene. PW3, David Tembo was the brother to Evelina Tembo Phiri. He lived together with his said sister and her husband Safari Phiri in the ill-fated house. On the material day, according to this witness, Safari Phiri, Evelina Tembo Phiri, their son Webby, someone called Bridget and himself, were in the house when his sister alerted them about the house being on fire. He went outside J7 with Bridget while his brother in-law, Safari, remained inside looking for Webby. His sister was standing in the door way as she talked to her husband about the missing child. As his sister went back into the house, the roof of the burning house collapsed. This witness also testified that while he was outside, he saw a person in a tree. He threw a stone at him and the man fell to the ground and ran away. He identified the man as Douglas' father (the appellant) whom he had known before this incident as he used to visit their home. The witness testified that when he saw the appellant on that occasion, the appellant had a long stick which had a sack at the end with a fire still burning. With facilitation of the light from the burning house, PW3 noticed that the appellant was dressed in black clothes. When PW2 arrived at the scene, PW3 narrated to him what he had seen. PW3joined the team that went to the police to report the matter. On the way back, and in the company of police officers PW3, saw the appellant by the roadside coming from the direction of the burning house. PW3 also testified generally about the marital problems that the appellant and PWI had. J8 Mathew Sakala, who testified as PW4, was a cousin to PW1. This witness narrated how he heard the child, Bridget, crying on the fateful night. He went over to the burning house which was across a stream from his place. He was later part of the group that went to the police station to report. On their way back with the police, PW4 claims to have seen the appellant some six metres away. The appellant, according to this witness, was wearing a blue hood. PW5, Kelly Kapwaya, was one of the three people that went to report the fire to Chilanga Police. He testified that he was earlier on awakened by PW2's wife to go and see the burning house. On their way from Chilanga Police to the scene in the company of the police, PW5 claimed to have seen the appellant coming from the direction of the burning house. According to this witness, the appellant was donning a red hat, blue hood, black trousers and white canvas shoes at the time. Detective Sergeant Patron Kazhimoto was PW6. He testified that in the company of other police officers who included PW7, Detective Sergeant Norman Mukunko, he visited the scene around J9 02:00 hours on 21 st September, 2014 following a report. His investigations showed that the cooking area was an open space some twenty-five meters away from the house and that a torch and not candles had been used in the house. He found no evidence of a stray fire as the surrounding area was clear with fresh growing bushes and tree branches. He also inspected the charred remains of the three victims, took photographs of the remains before taking them to the Police Station and the University Teaching Hospital mortuary. Norman Mukunko, a Detective Sergeant from Chilanga Police, reinforced the evidence of PW6. He testified additionally, that on their way to the scene, they spotted a male person identified by PW3 as the appellant and that PW3 mentioned at the time that the man they saw was the suspected culprit because he had previously threatened to burn Safari Phiri's house. On the basis of circumstantial evidence available to him, the learned trial judge was satisfied that a prima facie case had been established against the appellant. He put the appellant on his defence accordingly. The appellant elected to give sworn testimony no and called no other witnesses. He denied ever setting Safari Phiri's house on fire as alleged. He claimed that he did not know Safari Phiri, but only knew PW2 and his wife. He narrated how trouble in his marriage started following his leaving employment. PWI packed her belongings and left the matrimonial home. The next thing that happened is that when he went to inquire about his wife, the dowry was refunded. At the conclusion of the trial, the learned trial judge was satisfied that the prosecution had proved its case against the appellant beyond reasonable doubt. He accordingly convicted the appellant and sentenced him to the mandatory death penalty. It is against the judgment of the High Court that the appellant now appeals to this court on two grounds structured as follows: "Ground one: The learned trial court misdirected himself when he relied on the testimony of PW4 and PW5 on the identification of the accused. Ground two: The learned trial court erred in law and in fact on the cause of fire that the testimony of PW6 was sufficient proof to support the inference drawn." Learned counsel for the respective parties relied on the written heads of argument filed in court. J11 In regard to ground one, Mr. Chongwe argued that the trial judge relied on the testimony of PW4 and PW5 in finding the appellant guilty of murder on all three counts. It will be recalled that PW4 and PW5 had gone to report the burning of Safari Phiri's house to the police and went back to the scene in the company of the police in the early morning hours. According to Mr. Chongwe, had the trial court properly directed its mind to the evidence of the poor identification of the person allegedly seen by these two witnesses together with the police on their way to the scene, the court would not have arrived at the conclusion that it did, that the appellant had been positively identified beyond reasonable doubt. The learned counsel referred us to page 30 of the record of appeal and quoted from the judgment of the trial court at J 19 where from line 6, the court stated as follows: "I therefore accept their (PW4and PW5)evidence to the extent that they saw the accused coming out of the scene of the fire whilst they were on their way to the scene in the company of police officers." It was Mr. Chongwe's contention that this finding by the court was a clear misdirection when the following aspects of evidence are considered: First, PW2 testified that when PW4 and others went to J12 report the incident to the police he remained at the scene and that PW2 did not see the appellant at the scene. He was there until the police arrived in the company of PW2's relatives, namely, PW3, PW4 and PW5. Mr. Chongwe contended that it is highly improbable and suspicious that PW2, who remained at the scene throughout trying to put off the fire, did not see the appellant whom PW3, PW4, PW5 and PW7 claimed they saw coming from the scene of the fire as they were on their way from the police station. As regards the testimony of PW3, it was Mr. Chongwe's argument that the claim by PW3 that he saw Douglas' father, that is to say the appellant, as they were going to the scene with the police together with PW4 and PW5, could not possibly be correct. That witness did not describe how he was able to properly identify the person he saw to have been the appellant and not any other person. Referring us to the record of appeal, Mr. Chongwe indicated that PW7, the arresting officer, said the person whom PW3 identified to be the appellant wore a black top and was short in height. PW7 went further to testify that there was, in fact, a very short time to see this person. This contrasts with the testimony of J13 PW4 who said the man they saw coming from the scene wore a blue jersey like top, while PW5 testified that the man seen coming from the scene wore a blue hood. According to Mr. Chongwe, these witnesses whose identification evidence was relied upon by the trial judge only had a flimsy glimpse of the man. This renders the said evidence of identification of the person very poor. The contradiction in the colour of the apparel of the man that was seen by PW3, PW4, PW5, and PW7, as well as the unfavourable circumstances in which he was spotted, must have, according to Mr. Chongwe, raised reasonable doubt about identification of the appellant which should have been resolved in the appellant's favour. In rehashing the argument on the unreliability of the identification, the learned counsel for the appellant posited that PW4 and PW5 spoke of the appellant wearing a blue hood on the morning of 20th September, 2013. PW3 on the other hand claimed that on the same morning the appellant was wearing black clothes at the time he got down from a tree near the burning house before he run away. This, according to the learned counsel, brings to the fore the question whether it is the same person who was being J14 referred to in both instances by PW4 and PW5 on one hand and PW3 on the other. It was the learned counsel's submission that all this evidence shows a considerable level of discrepancy in the identification of the appellant, and thus making the conviction unsafe. Mr. Chongwe, then moved on to argue on the allegation that the appellant had threatened Safari Phiri that he would burn him in his house. He urged us to dismiss that suggestion because in PW2's evidence, the purported threat was made on the 10th September, 2013, some ten days before Safari Phiri's house got burnt, while PW3 said that Safari Phiri was threatened by the appellant four days before the burning of the house. The learned counsel also sought to highlight gaps in the evidence of the prosecution's witnesses by, for example, showing that PW1 had testified that only her brother, Safari Phiri, her aunt and Mateyo were present on the 10th of September, 2013 when the appellant visited PW1, and did not mention PW3, Derrick Tembo, as also being present. J15 It was also counsel's contention that Since PWI and the appellant were on separation, PWI could have had a motive to give false evidence against the appellant, for example, that her brother was threatened. The learned trial judge did not warn himself of the possibility that PWI may have had an interest of her own to serve, neither did the learned trial judge exclude the possibility of bias on the part of PW1. As regard the evidence of PW3 that PWl's brother was threatened by the appellant, the learned counsel for the appellant referred us to the case of Chisha v. The Peoplel11where it is stated as follows: "evidence of young children is always suspect in view of the children's success ability to the influence of three persons, fantasy and lack of appreciation of the gulf that separates truth from false rendering it necessary for the court to warn itself." PW3 was aged 15, when he testified during the trial and the need for warning when children are testifying is further brought to the fore, according to Mr. Chongwe, by the fact that although PWI said PW4 was present when the appellant issued death threats, PW4 did not allude to any such threat of burning Mr. Safari Phiri's house during trial. It was Mr. Chongwe's submission that the evidence J16 relied upon as to who set the house on fire could not reasonably have been credible and did not meet the standard of beyond reasonable doubt. We were urged to up hold ground one of the appeal. In regard to ground two, it was the contention of counsel for the appellant that the learned trial judge misdirected himself in fact on the cause of the fire and in relying on the testimony of PW6. According to Mr. Chongwe, in addressing the question of who caused the fire on the fateful night, the learned trial judge alluded to the differences regarding the ending of PWI and the appellant's marriage, as well as to the near fight between Safari Phiri and the appellant. In addition, the learned trial judge relied on the evidence of PW4 and PW5 who said the appellant was seen coming from the scene of the fire. The learned counsel reiterated his submissions regarding the unreliability of PW4 and PW5's testimony. He contended that the trial court's finding of fact that the appellant was the culprit in setting on fire the house in which the deceased persons perished, did not have any justifiable evidentiary basis and could, in any case, not be the only inference to make in the circumstances. Counsel referred us to the case of Mavuma Kabanja Situna v. The Peoplel21. The learned counsel then went on to attack the evidence of the Scenes of Crime Expert, PW6, who told the court that there were fresh grown bushes of plants and trees. He argued that the two photographs, which were part of the record in the trial court, suggested otherwise. He contended that the incident occurred in the dry season and, therefore, it was not correct to suggest that the branches and trees were fresh near the house. The learned counsel also impugned the evidence of PW6 regarding the cooking area used by the family that perished in the inferno, in particular, whether PW6 provided any conclusive proof that there was no fire at the cooking area long before he went on the scene around 05:00 hours. Counsel also questioned the distance between the house and the cooking spot and argued that from his assessment of the photographs, the distance was much shorter than 25 metres. Mr. Chongwe also took issue with the conclusion that the occupants of the ill fated house did not use candles. He generally dispelled the evidence of the investigating officer who J18 merely interviewed PW3 and could not conclusively establish whether the occupants used to smoke cigarettes or not. Equally, counsel complained that PW6 did not offer any explanation on the possible position of where the fire was established to have started. This, according to the learned counsel, rendered the inference that the cause of fire was from outside in conclusive and, therefore, created reasonable doubt on how the fire was caused or started. In regard to the earlier threats allegedly made by the appellant m regards to Safari Phiri some days earlier, the learned counsel submitted that only suspect witnesses testified on that count. It was for all these reasons that the learned counsel submitted that the evidence before the trial court was so fraught with inconclusiveness that it was unsafe to make a finding that the appellant was responsible for the deaths of the deceased, and that the burden of proof cast upon the prosecution had been discharged to their requisite standard. Mr. Chongwe urged us to uphold ground two of the appeal as well. J1g In response to the submission made on behalf of the respondent, Mr. Mutale, Deputy Chief State Advocate, supported the conviction of the appellant on the basis that in his view, the evidence presented by the prosecution against the appellant was overwhelming. According to the learned counsel, although the court alluded to the fact that he had accepted the identification of the appellant by PW4 and PW5 as the man who was seen walking from the crime scene in the early hours on the fateful day, a careful reading of the whole judgment and the record of proceedings show that the decision of the court was founded on strong and cogent circumstantial evidence that was presented to the trial court. According to Mr. Mutale, it was clear from the evidence on record, particularly that presented by PWl, PW2, and PW3, that the appellant had made a threat to burn Safari Phiri because he believed that Safari Phiri was responsible for the collapse of his marnage. The learned counsel argued that the investigations undertaken by PW6 regarding whether or nor there were candles in use and the state of the cooking area, were in the circumstances conducted J20 satisfactorily and the conclusion that there was no possibility of a stray fire from outside was, in those circumstances, well anchored. Mr. Mutale further agreed with the trial court that the circumstantial evidence was so cogent and compelling that on no rational hypothesis would the court come to any other conclusion than that of the guilt of the appellant as was alluded to in the case of Patrick Sakala v. The Peoplel31. The learned counsel contended that it could not be a mere coincidence that while the matrimonial problems subsisted, the appellant threatened to burn his wife's brother and indeed Safari Phiri got burnt in the house within the same month and in a matter of days. According to Mr. Mutale, even assuming the identification of the appellant was flawed, there was sufficient independent evidence which, when put together, paint a picture that the appellant was the author and the perpetrator of the arson which resulted in the death of the three deceased. In addition to the circumstantial evidence, argued Mr. Mutale, there was also direct evidence of PW3 who told the court that when the house was burning he saw Douglas' father in a tree with a stick that had an end that was burning. The same witness also alluded J21 to the appellant being seen walking away from the scene of the fire when he saw the police vehicle in which the witness, together with others, were. That witness also testified that the appellant attempted to hide. As this evidence, according to Mr. Mutale, was not contested during cross-examination it remained good to support the conviction of the appellant. The learned counsel for the respondent dispelled the argument raised regarding the possibility of a mistaken identification of the appellant, citing the case of Isaac Musumbe v. The Peoplel4) where he quoted the passage which reads as follows: "Usually in the case of an identification by a single witness, the possibility of an honest mistake cannot be ruled out unless there is some connecting case between the accused and the offence which would render a mistaken identification too much of a coincidence, or evidence such as distinctive features or an accurate fitting description on which a court can properly decide that it is safe to rely on the identification." Mr. Mutale, also contended that the strength of the respondent's case does not rest on the fact that the appellant had been properly identified as the man that was coming from the crime J22 scene. The appellant made threats to burn the deceased's house and more than one witness attested to this fact. We were urged to dismiss ground one of the appeal. In regard to ground two, it was contended by counsel for the respondent that it is clear from the judgment of the trial court that the learned trial judge did not consider PW4 and PW5 as being suspect witnesses and that he discounted any possibility that their evidence could have been fabricated. There was, therefore, according to Mr. Mutale, no basis upon which the evidence of these two witnesses should have been treated with caution since, as the trial court stated, there was no evidence of any gain that would have accrued to these two witnesses by giving false evidence. Mr. Mutale then went on to dismiss the contention by counsel for the appellant in relation to the crime scene, as speculation. In particular, he did not think that the observations made on the photographs by the appellant's counsel could equal or compare a scene visit by PW6. The same argument was extended to the distance between the house and the cooking area. More J23 interestingly, Mr. Mutale, leveled as hollow, the observations made by the appellant questioning PW6 about the colour of the vegetation around the burnt house. He contended that it is not all trees that dry up during the dry season. He ended by suggesting that the evidence of PW6 regarding the assessment made of the scene of the crime to establish whether the fire came from the outside or from inside the house was professionally done and cannot lightly be impeached as the appellant's counsel sought to do. We have carefully considered the evidence on record, the judgment of the trial court as well as the submissions made on behalf of the parties. The question for determination, as we see it, is whether there was sufficient evidence adduced before the trial court to safely support the conviction of the appellant. It is rightly common cause that not a single witness testified that they saw the appellant light a fire to set the deceased's house ablaze. It is not disputed that the evidence adduced against the appellant was all circumstantial. It is, of course, neither irregular nor unusual for the court to convict on circumstantial evidence where such evidence is strong and compelling. In Khupe Kafunda v. J24 The PeoplelS)we confirmed the position that a conviction founded on circumstantial evidence is, in appropriate cases, competent. We stated among other things in that case that: "There was no direct evidence and no eye witness to the incident that led to the death of the deceased. However, the circumstantial evidence was so overwhelming and strongly connected the appellant to the offence." Where, as in the present case the evidence sought to be relied upon by the prosecution is circumstantial, it is vitally important that the trial court exercises a high level of caution and circumspection in deciding whether or nor to convict. We warned in the case of David Zulu v. The Peoplel6)that: "It is incumbent upon a trial judge to guard against drawing wrong inferences on circumstantial evidence at his disposal before he can feel safe to convict. The judge must be satisfied that the circumstantial evidence has taken the case out of the realm of the conjecture so that it attains such a degree of cogency which can permit only an inference of guilt." As there was no witness who testified to positively seeing the appellant torch the deceased's house, the learned trial judge in the present case was duty bound to ensure two things. First, that no other inference than the guilt of the appellant could be drawn from J25 the circumstantial evidence before him; and, second, that the circumstantial evidence adduced by the prosecution had taken the case out of the realm of conjecture. In the case of Dorothy Mutale and Richard Phiri v. The People(7) we explained that where evidence against an accused person is entirely circumstantial and his guilt is purely a matter of inference, an inference of guilty may not be drawn unless it is the only inference which could reasonably be drawn from the facts. We also guided that where two or more inferences are possible the court should adopt the inference which is more favourable to the accused person if there is nothing in the case to exclude such inference. For circumstantial evidence to take the case out of the realm of conjecture, it must be overwhelming and should sufficiently connect the appellant to the commission of the crime. In the present case, therefore, the circumstantial evidence against the appellant should have been sufficiently compelling so as to lead to no other inference other than the guilt of the appellant. In the recent case of Saidi Phiri v. The People(S)we held that: J26 "where the prosecution's case depends wholly or in part on circumstantial evidence, the court is, in effect, being called upon to reason in a staged approach. The court must first find that the prosecution evidence has established certain basic facts. Those facts do not have to be proved beyond reasonable doubt. Taken by themselves, those facts cannot therefore prove the guilt of the accused person. The court should then infer or conclude from a combination of these established facts that a further fact or facts exist. The court must then be satisfied that those further facts implicate the accused in a manner that points to nothing else than his guilt. Drawing conclusions from one set of established facts to find that another fact or facts are proved, clearly involves a logical and rational process of reasoning. It is not a matter of casting any onus on the accused, but a conclusion of guilt the court is entitled to drawon the weight of circumstantial evidence adduced before it." Coming home to the case before us, the learned trial judge made various findings of fact. First, that the deaths of Safari Phiri, Evelina Tembo Phiri and Webby Phiri occurred following the burning of the house in which they were. Second, the appellant was seen by PW3 in a tree near the burning house with a smoldering stick. Third, that the appellant was seen by PW4 and PW5 coming from the scene of the fire while they were on their way to the scene in the company of police officers. Fourth, that the fire in question was started by someone from outside the house and • J27 that it was caused by an unlawful act or omission which resulted in the death of the deceased persons. Fifth, that the appellant confronted the deceased Safari Phiri and threatened to burn him and his house, and a few days later the deceased's home was set on fire. It is these basic facts which the learned trial judge found as established. Taken by themselves these facts do not prove the guilt of the appellant. The trial judge then had to infer, or conclude from a combination of these established facts that a further fact or facts exist. Those further facts were that someone did cause the fire and that a motive for such action existed. A perusal of the judgment of the trial court reveals to us that the learned judge did indeed engage in a meticulous analysis of the evidence before him. Having made the findings that he did on the basic facts, the learned trial judge was satisfied that the circumstantial evidence against the appellant in this case was cogent and compelling. We agree. The inculpatory facts surrounding the appellant's circumstances with his estranged wife and her relatives, leave no room for speculation as to the appellant's motivation in performing the sordid act of setting the deceased's • J28 house on fire. The strained relationship between the appellant and his wife, coupled with the appellant's own utterances against Safari Phiri, taken in light of the occurrence of the event threatened, made the appellant's position fait accompli. Our further assessment of the judgment of the trial court is that the trial court convicted the appellant owing to a number of unusual or odd coincidences provided by the circumstantial evidence before it. That evidence not only led to the logical conclusion that the appellant is guilty of torching the deceased's house well knowing that that would cause the death of the deceased, but also excluded any possibility that the three deceased met their death through a set of circumstances that could be explained on any hypothesis consistent with the innocence of the appellant. The sequence of events as narrated to the court confirm that the appellant was anything but innocent of the house burning act. He had matrimonial differences with his wife and he did not take kindly to the intervention of the wife's family, especially the deceased, Safari Phiri. He blamed Safari Phiri for his broken • "- • J29 marriage. He did not disguise his hatred for Safari Phiri for the role he was playing in his marital affair with his wife. He threatened to burn Safari Phiri. He was seen in a tree with a long stick with a burning end. He was identified by at least three people walking away from the scene of the crime on the day in question. He did not discount all this in cross examination, or in his evidence in chief. In these circumstances, we can do no better than adopt our words in the case of Patrick Sakala v. The Peoplel31 that: "We are satisfied that the circumstantial evidence was so cogent and compelling that on no rational hypothesis other than murder can the facts in this case be accounted for. The submission based on this ground therefore fails." Before we conclude, we feel obliged to say something about the court's treatment of the evidence of the witnesses in this case. It seems clear to us that there was a web of relationships which affected all the civilian witnesses except PW5. PWl, who was the former wife of the appellant, was the niece to PW2 who was also the uncle to the deceased. PW3 was the brother to PW1 and the brother-in-law to the appellant. PW4 on the other hand was the son to PW2 and, therefore, a cousin to PWl. • J30 The learned counsel for the appellant did not in any forceful way raise any argument on the relationship between the different prosecution witnesses and whether or not corroboration was required. His only suggestion was that PW1 was a witness with a possible bias. In treating the evidence of the witnesses, however, the learned trial judge quite rightly referred to this court's guidance in KambarageMpundu Kaunda v. The Peoplel9) that: "Prosecution witnesses who are friends or relatives of the prosecutrix may have a possible interest of their own to serve and should be treated as suspect witnesses. The court should therefore warn itself against the danger of false implication of the accused and go further to ensure that that danger has been excluded." The learned trial judge proceeded to discount the possibility of PW4 and PW5 being suspect witnesses despite their family ties to the deceased. As the issue whether the civilian prosecution witnesses were witnesses with an interest of their own to serve and whose evidence therefore, required independent corroboration, was not raised, we are disinclined to venture into it. Suffice it to state that the learned J31 the Court below gave reasons for believing the testimony of m«)Se witnesses without corroboration. In any case, as we observed the recent case of Guardic Kameya Kavwana v. The PeoplellOl; "What the court must consider as an abiding factor is the truthfulness of the witness touching on his integrity and believability as well as his personal knowledge of the matter. Whether corroboration is or is not required is not a matter that, in our view, can be prescribed for all cases in all times." The integrity and truthfulness of the witnesses in this case and their knowledge of the facts were never impeached. All circumstances considered, we are satisfied that the learned trial judge correctly dealt with the evidence of the prosecution witnesses. On a proper conspectus of all the circumstances before us, we are of the firm view that this appeal cannot sUcceed. We affirm the conviction and sentence imposed on the appellant. rJ~1') N61~~ . ............ I.:. " G. S. Phiri SUPREME COURT JUDGE ~.~- .....-....-.. --=-=. E. N. C. Muyovwe SUPREME COURT JUDGE .............. ~~ . M. I a, C SlJPR ME COURT JUDGE