Mwansa and Anor v People (SCZ 170 of 2014) [2014] ZMSC 256 (14 October 2014)

IN THE SUPREME COURT OF ZAMBIA SCZ/APP/NO. 170,171/2014 HOLDEN AT LUSAKA (Criminal Jurisdiction) BETWEEN: JOHN MWANSA SAMUEL MWANSA AND THE PEOPLE 1st APPELLANT 2nd APPELLANT RESPONDENT Coram: Phiri, Malila, JJS and Lengalenga A/JS on 14th October, 2014 and...............................2016 For the Appellant: Mrs. C. K. Kabende , Legal Aid Counsel, Legal Aid Board For the Respondent: Mr. B. Mpalo, Senior State Advocate, National Prosecutions Authority JUDGMENT Malila, JS, delivered the Judgment of the Court Cases referred to: 1. Simon Malambo Choka v. The People (1978) Z. R 243. 2. Chipango and Others v. The People (1978) Z. R 304. 3. Machobane v. The People (1972) Z. R 110. 4. Mwambona v. The People (1973) Z. R. 28 (C. A.). 5. George Musupi v. The People (1978) Z. R. 271. 6. Boniface Chanda Chola v. The People (1988-89) Z. R 163. 7. George Wamundila v. The People (1978) Z. R. 151 (S. C.) 8. Chitalu Musonda v. The People Appeal No. 138/2014 9. Chimbo v. The People (1982) Z. R. 20 (S. C.) 10 George Chileshe v. The Peoplefl 977) Z. R. 176 (S. C.) 11. 12. James Kape v. The People (1977) Z. R. 192 (S. C.) Yotam Manda v. The People (1988-89) Z. R 129 J2 The People v. Evaristo Bunda and Others (1990-92) Z. R 194 13. Darlington Chibobo v. The People (1977) Z. R 284 14. Kampafwile v. The People (1972) Z. R. 242 (H. C.) 15. George Nswana v. The People (1988 - 1989) Z. R. 1 74 (S. C.) 16. Douglas Mpofa & Another v. The People (1988-89) Z. R 24 17. Green Musheke Kuyewa v. The People (1996) S. J. 8 (S. C.) 18. Mwape v. The People (1976) Z. R 160 19. 20. Haonga & Others v. The People (1976) Z. R. 200 21. Mutambo & Others v. The People (1965) Z. R. 15 Sakala v. The People (1987) Z. R. 23 (S. C.) 22. Siwale and Another v. The People (1973) Z. R 182 (C. A) 23. Steven Nyoni v. The People (1987) Z. R 99 (S. C) 24. 25. Gedion Musonda and Chisha v. The People (1979) Z. R 53 26. Kalunga v. The People (1975) Z. R. 72 Jutronich v. The People (1965) Z. R. 9 27. Syakalonga v. The People (1977) Z. R. 61 (S. C.) 28. Legislation referred to: 1. The Penal Code, Cap. 87 of the Laws of Zambia. 2. The Juveniles Act, Cap. 53 of the Laws of Zambia. We regret the delay in delivering this Judgment. The appellants, who were the 1st and 2nd accused in the lower court, were tried together with two others, by the Kitwe High Court on one count of aggravated robbery, contrary to section 294(1), and on one count of murder, contrary to section 200, of the Penal Code, Chapter 87 of the Laws of Zambia. In her judgment, the learned judge convicted the two appellants and one other and acquitted the 4th accused person. The two appellants have now appealed against that judgment, while, the 3rd accused in the court below, has not. J3 The particulars of the offence, on the first count, were that on 20th June, 2011, in Kitwe in the Kitwe District of the Copperbelt Province of the Republic of Zambia, the appellants, jointly and whilst acting together with others, did steal a motor vehicle, namely, Toyota Corolla, registration number ABL 6678 valued at K27, 000, 000.00, the property of Jacob Ndhlovu and that at or immediately before or after the time of such stealing they used or threatened to use actual violence to Chalwe Mwewa, who was in possession of the said vehicle at the material time. On the second count the particulars were that the appellants, on the same day, murdered the said Chalwe Mwewa. The prosecution’s case rested on the circumstantial evidence as adduced by ten witnesses. The facts as they emerged from the evidence before the trial court were that Jacob Njhlovu, PW1, the owner of the subject motor vehicle, had in April 2011, employed Chalwe Mwewa, the deceased, as a taxi driver for the same vehicle. According to the evidence, the deceased was last seen on Monday, 20th June, 2011 driving the said vehicle. He was subsequently, reported as missing to Wusakile Police Station where the police immediately launched on investigations as to his whereabouts. For purposes of these J4 investigations, PW10, the investigations officer, using the deceased’s phone number 0969-308785, obtained from the network provider, a print-out containing details of the deceased’s phone logs. That print-out revealed the serial number of the deceased’s handset as 356334092596 and that the most recent user of the handset had inserted a sim card bearing number 0963-492596, on 22nd June, 2011. This number was traced to PW2 who was in Zam Tan, a township in Kitwe, where the said vehicle was discovered, parked at the 1st appellant’s house, some 15 to 20 metres from PW2’s house. The vehicle had no number plate. In it was recovered, amongst other items identified as belonging to the deceased, a phone handset with the deceased’s sim card in it. PW2’s explanation was that on 22nd June, 2011, her neighbour, the 1st appellant, had gone to her house driving the said motor vehicle claiming he had just bought it. The 1st appellant later sent his brother, who was the 3rd accused in the court below, to borrow PW2’s sim card, which at that time was with her daughter, PW3. At the 1st appellant’s house was Doris Mwansa, PW4, the sister to the appellants. According to PW4 on Monday, 20th June, 2011, her brothers and Davis Kaluba, who was the 4th accused in the lower court, returned home that night in the J5 subject motor vehicle and that on Wednesday, her brothers actually slept in the said motor vehicle. PW4 stated that the vehicle had been driven by the 1st appellant and was parked at their house for a couple of days until Thursday the 23rd of June 2011, when PW10 and other police officers found it and drove it off to the police station. Meanwhile, the search for the deceased continued until Friday 24th June, 2011, when his body was discovered in Kanfinsa River and taken to Kitwe Central Hospital. An autopsy was conducted on 27th June, 2011 and a report was issued indicating the cause of death as strangulation without fracture of the trachea or air pipe. PW4 led the police to the apprehension of the appellants, who in separate interviews stated that the key for the vehicle was with the 3rd accused. The latter confirmed this and led the police to Chimwemwe where he had hidden the key in the ground. The key was recovered and produced into court as Pl5. The four then led the police officers, PW8, PW9 and PW10, to a place near Cedric Farm, off the Ndola- Kitwe high way where six white, motor vehicle seat covers, four dark glass shields and number plates were found and identified by PW1 as the items removed from his vehicle. A black cap and a gold cap, were among the items J6 that were scattered in the bush, these were identified as belonging to the deceased. During the leading PW9 took a video recording on a Nokia camera and transferred the information of the recording onto a digital versatile disk (DVD), which was produced into court as P3. The video recording depicted the 3rd and the 4th accused demonstrating to the police the point at which they struggled with the deceased before he was dumped in the river. The 1st appellant also demonstrated where he stood when he threw the body over the bridge at Kanfinsa River and where the 2nd appellant and 3rd accused person stood as sentries. At the conclusion of investigations PW10 warned and cautioned the accused persons and jointly charged them with the subject offences which they all denied it. In their defence, the appellants gave evidence on oath and did not call any witnesses. They alleged that on the dates in question they were not in Zam Tan area because on 17th June 2011, a dispute ensued between the 1st appellant and other family members, over the sale of the house in Zam Tan where the appellants lived with their sister, PW4. This dispute led to the brothers leaving the house to relocate to Chimwemwe until their apprehension. J7 They all denied leading the police to the scene of crime and instead insisted that the police had planted that evidence against them. They all denied having known anything about the vehicle or the phone. The learned trial judge delivered her judgment on the 28th of September, 2012, wherein she found that the post mortem report established that the deceased was assaulted and killed on 20th June, 2011, and that such killing was unlawful. She concluded that the prosecution case rested on the circumstantial evidence which could permit only an inference of guilt in the absence of any explanation for the possession, by the appellants, of the vehicle driven by the deceased almost immediately before his death. She discounted the appellants’ alibi as a mere fabrication and an afterthought. Upon finding that the appellants and 3rd accused had joint custody and possession of the vehicle which had been stolen from the deceased when he was brutally murdered, she held that both aggravated robbery and murder had been established beyond reasonable doubt against them. However, she was not satisfied that the prosecution evidence had proved the case without reasonable doubt, against the 4th accused. She accordingly acquitted him of both charges. J8 The 1st appellant and 3rd accused were sentenced to 30 years imprisonment with hard labour on the first count, and to death on the second count, while the 2 nd appellant, who was a juvenile, was sentenced to 15 years imprisonment with hard labour on the first count and to 20 years imprisonment with hard labour on the second count. Dissatisfied with the judgment, the 1st and 2nd appellants now appeal, advancing four grounds of appeal against the judgment as follows: “1. The court below misdirected itself when it admitted the evidence of PW2, PW3 and PW4 when they were suspect witnesses and the danger of false implication had not been completely excluded. 2. 3. 4. The learned trial Judge misdirected herself in law and fact when she held that the prosecution had established that there was recent possession of the motor vehicle in issue by the appellant when the same was not proved beyond reasonable doubt. The court below erred at law when it made a finding that the appellants had formed a joint agreement to rob and murder the deceased in the absence of evidence to the effect. The learned trial Judge erred in law when she sentenced the 2nd appellant to a term of years in prison considering he was a juvenile at the offence was committed.” J9 At the hearing of the appeal, Mrs. Kabende, learned Legal Aid Counsel for the appellants relied on the written heads of argument. Under the first ground, Mrs. Kabende took issue with the trial court’s treatment of the evidence of the witnesses. She submitted that PW4 was a suspect witness by virtue of her being detained by the police. She argued that PW2, whose sim card was used in the deceased’s phone, was also a suspect witness, and that equally, PW3 as the daughter of PW2, could have said anything to protect her mother, and was therefore also a suspect witness. Counsel submitted that these witnesses ought to have been treated as witnesses with a possible interest of their own to serve. She referred us to Simon Malambo choka v. The People1 and Chipango and Others v. The People2 to support her proposition that in determining whether or not a witness is a suspect witnesses, it is not a question of credibility that matters, but whether a witness falls in the category of persons with a possible interest of their own to serve. Mrs. Kabende contended that there was need to have an independent witness to corroborate the evidence that the vehicle was found parked at the home of the appellants. In the J10 absence of such corroboration, the evidence of these witnesses must be discounted entirely as the danger of false implication had not been excluded. On the authority of Machobane v. The People3, she submitted further that there are no special circumstances to justify the reception of the evidence of the three prosecution witnesses. On the other hand, Mr. Mpalo, learned counsel for the respondent, submitted that the learned trial Judge found that PW2 and PW4 were suspect witnesses and that, this notwithstanding, they could mutually corroborate each other. Counsel submitted that PW3 was not a suspect witness merely because she was PW2’s daughter. We have considered the arguments by counsel for both parties under this ground of appeal. We agree with the learned counsel for the appellant that PW2 and PW4 where witnesses who may well have had a possible interest to serve. In Simon Malambo Choka v. The People1, the trial court found that the principle witness had a possible interest of his own to serve, and that his brother, who supported his evidence, was a witness with a possible bias. We agreed with the court’s finding as being entirely correct and held that the evidence of the appellant’s brother should be treated with caution and suspicion. In our view the circumstances of this case show that PW3 by virtue of being the daughter of PW2 was a witness with a possible bias. In Mwambona v. The People4, we Stated that: “A witness with a bias is not to be regarded as a witness with a purpose of his own to serve, but his evidence should be treated with caution and suspicion.” Therefore, in approaching the evidence of these witnesses, as we pointed out in George Musupi v. The People5, it is irrelevant to make this distinction, the question in every case is whether the danger of relying on suspect evidence has been excluded. We further stated that: “the fundamental consideration in such cases is not whether the witness does in fact have an interest or a purpose because of the category into which he falls or because of the particular circumstances of the case, may have a motive to give false evidence and if it is reasonable that the witness has a motive to give false evidence, the danger of false implication is present and must be excluded before a conviction can be safe” We are satisfied that it is reasonably possible that the PW2, PW3 and PW4 would have a motive to give false evidence, and that danger ought to have been excluded before a conviction could be safe. In Boniface Chanda Chola v. The People6 we held that: J12 “once it is reasonably possible, the evidence falls to be approached on the same footing as for an accomplice.” We have on numerous instances stated that the evidence of an accomplice requires corroboration or support from some independent witness or other circumstances amounting to something more. We reiterate the position we gave in George Wamundila v. The People7, where we said: “where there is no corroboration of the evidence of an accomplice or a witness with an interest of his own to serve, it is not safe to convict unless there is some reason for accepting it other than a belief on the truth of the evidence based simply on the demeanour of the witness and the plausibility of his evidence.” We went on to say that: “the something more must be circumstances which though not constituting corroboration as a matter of strict law , yet satisfy the court that the danger that the accused is being falsely implicated has been excluded and that it is safe to rely on the evidence of the accomplice implicating the accused.” We therefore find that the evidence of PW2, PW3 and PW4 was suspect evidence and, therefore, required corroboration or something more, to exclude the danger of false implication. However, as we explained in Chitalu Musonda v. The People8 it is safe to convict on uncorroborated evidence of a suspect witness provided that the court is satisfied that the danger of false implication has been eliminated. The effect of J13 this holding is that the court will, in appropriate circumstances, accept uncorroborated evidence of a suspect witness provided a reason or reasons exist for believing that evidence. The lower court did demonstrate her reasons for accepting the evidence of these witnesses when she accepted the evidence as credible. We cannot fault the findings of the lower court on this point as we will show later in this judgment, that there was overwhelming evidence to exclude the danger of convicting on the uncorroborated evidence of PW2, PW3 and PW4. In arguing ground two, the learned counsel for the appellants submitted that flowing from the first ground, the evidence of PW4 that she had seen the 2nd appellant in the vehicle ought to have been corroborated by some independent evidence, other than that of PW3, especially that PW3 did in fact mention that she did not see who was in the vehicle. She further argued that although the court accepted the evidence of PW2, PW3 and PW4 in relation to the 1st appellant being seen in the vehicle, this was not enough to prove that he was involved in the commission of the offences because the 1st J14 appellant had actually alleged that the prosecution witnesses bore ill feelings towards him. The learned counsel submitted that there was a duty upon the trial court to consider the various alternative inferences that could be drawn where the only evidence was that the appellants were in possession of the vehicle. On this proposition she referred us to the cases of George chileshe v. The People10 where we said that: “it is the duty of a trial court, in cases where recent possession of stolen property may lead to the conviction of the accused, to consider whether such recent possession may be the result of the receiving of stolen property as opposed to guilt of the major crime during the commission of which the stolen property was obtained.” We were also referred to the case of James Rape v The People11 where we held that: “when a court purports to draw an inference of guilt in a case of recent possession of stolen property it is necessary to consider what other inferences might be drawn.” Further that: “the lie told by the accused, where it is reasonably possible that he is lying for a motive which is consistent with his innocence, does not lead inevitably to an inference of guilt, and does not remove the necessity to consider whether the explanation he gave to the police could reasonably be true.” J15 Relying on the cases of James Rape11 and Yotum Manda v. The People12, she submitted that the appellants’ frequent attempts to exculpate themselves on a dishonest basis does not relieve the court of its duty to consider whether the explanations where reasonably true. She further submitted that it was possible that the appellants could have been mere receivers of the stolen vehicle, thus should have been convicted of an alternative offence of receiving stolen property. She drew our attention to the case of Darlington Chibobo v. The People13 to support her claim that where the court observes that the only basis upon which the appellants’ guilt could be founded is that the appellants had recent possession of stolen property and that there is something in the evidence which positively excludes the less severe inference against the appellants, the court is bound to retain a verdict on the less severe case. In response to the second ground of appeal, the learned counsel for the respondent submitted that recent possession was established by the evidence of PW2, PW3 and PW4. J16 We agree with the principles of recent possession as laid down in the cases cited by the learned counsel for the appellants, which underline the need for a trial court to discuss and consider other possible inferences, and which also affirmed the principle that the telling of lies by an accused person does not necessarily imply guilt. In considering the arguments before us, we shall begin by elaborating on the term ‘possession’. Under section 4 of the Penal Code, Chapter 87 of the Laws of Zambia, 'possession', 'be in possession of or 'have in possession' includes- “not only having in one's own personal possession, but also knowingly having anything in the actual possession or custody of any other person, or having anything in any place (whether belonging to, or occupied by oneself or not) for the use or benefit of oneself or of any other person.” Further, “If there are two or more persons and any one or more of them with the knowledge and consent of the rest has or have anything in his or their custody or possession, it shall be deemed and taken to be in the custody and possession of each and all of them.” From this definition, mere custody of recently stolen property suffices. In the case before us, the evidence of PW2, PW3 and PW4, shows that the appellants did at least have the J17 custody of the stolen motor vehicle, particularly when the 1st appellant went to PW2’s house driving the said motor vehicle and when the appellants slept in it while it was parked at their house, where it was found some three days after it was stolen. This constituted possession in law. That having been said, we must hasten to state that mere possession does not warrant a conviction; the court should take care to show, in its judgment, that it has understood and correctly applied what is commonly called the doctrine of recent possession. In Kampafwile v The People14 we Stated as follows: “The court should give some indication in its judgment that he has given consideration to the possibility that the accused might have come into possession of the stolen property otherwise than by stealing it. In some circumstances - as, for instance, where the time elapsing between the theft and the discovery of the property in the accused's possession is extremely short -there is hardly any need to make any reference to this since the inference that the accused is the actual thief may be quite inescapable.” From the record, we are satisfied that the trial court did apply the doctrine of recent possession when she stated, at page J28: J18 “It is common cause that P9 was found at the Mwansa’s house in Zamtan, on 23rd June, 2011 after PW10 traced the call from the deceased’s handset to PW2. Other than Al’s evidence that the house is on rent, there is no doubt that PW4 and her brother lived at that house. I find that evidence of PW2, PW3 and 4 that Al, A2 and A3 had the vehicle in their possession on 22nd June, 2011, two days after the driver had disappeared to be supported by the finding of the vehicle at the Mwansa house.” The question that remains is whether or not the appellants were in innocent possession. In George Nswana v The People15 we Stated that: “the inference of guilt based on recent possession, particularly where no explanation is offered which might reasonably be true, rests on the absence of any reasonable likelihood that the goods might have changed hands in the meantime and the consequent high degree of probability that the person in recent possession himself obtained them and committed the offence. Where suspicious features surround the case that indicate that the applicant cannot reasonably claim to have been in innocent possession, the question remains whether the applicant, not being in innocent possession, was the thief or a guilty receiver or retainer.” We affirm our position in Yotam Manda v. The People11 regarding the principle that: “where a finding of guilt is dependent upon the drawing of an inference from the possession of recently stolen property, the inference will not be drawn unless it is the only one reasonably open on the facts of the particular case. In this regard, any explanation offered by the accused must be considered and where one is offered, or that which is offered turns out to be a lie or one which could not reasonably be true, the court is still obliged to consider what other inferences, if any, can reasonably be drawn, taking care that the court does not in the process indulge in insupportable speculation. If the facts would J19 justify the drawing of two or more equally reasonable inferences, it is customary in a criminal case to adopt that which is more favourable or less disadvantageous to the accused.” In Chileshe v. The People9 we referred to the necessity to consider the possibility of the true explanation being that of receiving stolen property and in particular cases there may be other inferences which must be considered. We are of the view that there must be something in the facts themselves to support the alternative inferences if those alternatives are to be reasonably held to be available. This has been the case in a number of cases where the facts were consistent with either an inference of guilt on a major charge or guilt on a lesser charge or even complete innocence. Therefore, where an accused person is in possession of property recently stolen, the court may infer guilty knowledge if the accused gives no explanation to account for his possession or if the court is satisfied that the explanation offered is untrue. Another consideration to take into account, if the appellant have given a reason which is believed to be untrue, is whether there is any reasonable likelihood that the stolen property might have changed hands. Finally, the court ought to consider J20 if there are any other circumstances of the case which would not justify the drawing of any other inferences. The evidence on the record disclose that the stolen vehicle was driven by the 1st appellant and later by the 2nd appellant, and that it was parked at the appellants house, throughout the days in question. Three days later, the vehicle was still there until PW1, PW 5, PW7 and PW10 found it. It was found with no number plates. There was also evidence that the phone belonging to the deceased, which was used by the 1st appellant on the 22nd June, 2010, was found in the same vehicle. In view of the relatively short time which had elapsed since the robbery, the discovery of the vehicle and the recovery of the body of the deceased, it is reasonable to infer that the appellants had stolen vehicle and parked it at their house. We do not think it is reasonable to infer that the appellants were guilty receivers of the vehicle. Had they received it, it is likely that they would have had an explanation for being in possession of the vehicle. In the absence of an explanation to that effect, there was no reasonable likelihood that the vehicle had changed hands. Consequently there is a high degree that the appellants, who were in recent possession, must have obtained the vehicle and committed the offences. J21 We find that these are suspicious circumstances surrounding the case which positively exclude the less severe inference that the appellants were in innocent possession. The only inference to be drawn was that they were guilty of the offences as charged. In support of ground three, the learned counsel for the appellants submitted that the evidence of leading, was flawed because it fell below the required standard of showing that each of the appellants led the police to the alleged scenes of crime and what role each one of them played. That in fact neither PW9 nor PW10 was certain as to which of the appellants led them to the recovery of these items. Counsel submitted that the possibility that the appellants could know where some items were, should not lead to the inevitable conclusion that they participated in the offences. Mrs. Kabende, attacked the evidence of leading by quoting from the case of Douglas Mpofu and Washington Magura v. The People16, were we said: “it is possible that there be certainty as to who did the actual leading, under what circumstances and whether or not incriminating evidence was found.” J22 She submitted that the record of appeal at pages 117 and 118 shows that PW8, PW9 and PW10 stated that they had been to the scene before being led to it by the appellants but did not state what had transpired on their initial visit to the scene. In our view there are two scenes that are in question here, which do not seem to be in the same place but near each other. The scene to which PW8 and PW10 had been on 25th June, 2010, as reflected on p. 117 and 118, was the scene at which the body had been discovered, on the 24th of June, 2010. It is on the way back from that scene that they apprehended the 2nd appellant. PW 10 testified that on that particular day, the 25th of June, 2010, he went to Kanfinsa River with the 3rd and 4th accused, but the appellants and the scenes of crime officer, PW9, were not present. It is therefore, clear that the police had already been to the Kanfisa River where the body was retrieved as the recovery of the body was based on the report from the public. On the other hand, the scene where the items in question were recovered, was a bush near Cedric Farm. This is the scene which is crucial for consideration. PW8, PW9 and PW10 stated that all the appellants led them to this scene. It is clear at p.36 J23 to 37 of the record that the 1st appellant, as explained by PW9, led to the recovery of the number plates, windbreakers or shields, the cap and seat covers. PW9 further testified that when the 1st appellant was leading, the others were left behind, meters away from the scene in the forest, and that they led them one by one, the 1st appellant being first. PW9 stated that the 2nd appellant demonstrated how the items were thrown in the bush, whilst the 4th accused had gone to buy fuel. In Green Musheke Kuyewa v. The People17, where the police officer said the appellant and the late co-accused each led the police to the body and accused each other of the murder, we stated as follows: “In Mpofu, we reiterated the principle that where a number of accused persons are alleged to have led the police to where incriminating evidence is found, it is essential for the trial court to ascertain the role played by each so as to indicate precisely who had the guilty knowledge. In the instant case, PW9 had stated what each suspect did, thus satisfying the principle in Mpofu.” We accept the holding of the learned trial court in accepting that PW8 PW9 and PW10 were led by each of the appellants to a scene which theses officers did not visit before, and that the items that were recovered were not known to them. On this point we agree that the evidence of leading was J24 reliable and a solid foundation upon which an inference of guilt could be drawn based on Boniface Chanda Chola6. The learned counsel for the appellants further argued, that the learned trial court glossed over the fact that the appellants were seen as handcuffed in the video recording. It was argued that the demonstration by the appellants amounted to a confession which, due to the handcuffs, did not portray that it was free and voluntary. She submitted, regarding the 2nd appellant, who was a juvenile, that there was no indication in the video recording that his relatives were present when he was cautioned and that for this reason the guidelines laid down in the case of Mpofu16 were not met. The learned trial Judge on this point held that the recording of the confession statement and the accompanying demonstration given by the appellants at the time of that recording was voluntary and admissible in evidence. Further, that a video recording of his re-enactment at the scene after he had made an oral confession was equally admissible. We do not fault the learned trial Judge for accepting this evidence, in light of the fact that the caution was done before the leading and that according to the evidence of PW8 at page 34 line 21-24, J25 two other people were present. Further, it is a well established principle that where the leading of the police to the scene or elsewhere by an accused, whether voluntarily or not, has resulted in the discovery of real evidence or the discovery of anything else not already known to the police, the evidence of leading is always admissible. Regarding the doctrine of common purpose, the learned counsel for the appellants, submitted that the prosecution failed to prove that the two appellants shared a common purpose, unlawful enterprise or common design or joint venture in order to invoke the doctrine of common purpose as envisioned in the case of Mwape v. The People18 in which we analysed section 22 of the Penal Code, and said as follows: “according to section 22, the essential ingredients to a joint unlawful enterprise is a shared common purpose or shared common intention and each one of the parties knows that the other members intended the same thing.” She further submitted that where facts established the existence of motive as proof of malice aforethought, and the killing of the deceased as part of a common design, as it was in the case of The People v. Everisto Bunda and Others19, a conviction can properly lie for all accused persons jointly charged. She J26 submitted that this was not the case in the matter before us, as the prosecution did not establish such motive on each of the appellants. Relying on the case of Haonga and Others v. The People20, Mrs. Kabende stated that where there are a number of accused persons and it is not certain which one committed the offence, then all must be acquitted. In relation to this argument, Mr. Mpalo submitted that the lower court relied on the evidence of leading as well as that of recent possession to arrive at the conclusion that the appellants had formed a joint agreement to commit the offences. The question that falls to be determined in this argument, is whether the appellants did form a common purpose in conformity with section 22 of the Penal Code. In order to assess this, we will refer to Mutambo and Others v. The People21, were we pointed out that: “the formation of common purpose does not have to be by express agreement or otherwise premeditated, it is sufficient if two or more persons join together in the prosecution of a purpose which is common to him and other or others and each does so with the intention of participating in that prosecution with the other or others. Secondly it is the offence which was actually committed in the course of prosecution the common purpose which must be a probable consequence of the prosecution of the common purpose.” J27 In Sakala v The People 22 we held that: “section 22 of the Penal Code contemplates that liability will attach to a person for the criminal acts of his confederates which will be considered has act also, if what those confederates which will be considered his act also, if what those confederates have done is a probable consequence of the prosecution of the unlawful common purpose or design.” We have already accepted the finding of the lower court that the appellants were in joint possession of the vehicle in question based on the circumstantial evidence before it. Further that the evidence of leading was accepted as reliable. The only conclusion to be drawn from the evidence relied upon by the lower court as to the circumstances in which the deceased met his death and how the vehicle was stolen is that the appellants joined in the prosecution of a common purpose to strangle the deceased to his death in order to steal the vehicle, and accordingly, the common purpose of the appellants was unlawful. The homicide was murder, and that murder was a probable consequence of the unlawful purpose. In law a participation which is the result of a concerted design to commit a specific offence is sufficient to render the participant a principal. J28 Under ground four, the gist of Mrs. Kabende’s argument was that the 2nd appellant who was, at the time of the commission of the offence, a juvenile, should instead have been subject of a probation order or a reformatory order according to section 72 of the Juveniles Act and the cases of ale and Siwale and Another v. The People23, Steven Nyoni v. The People24 and Gedion Musonda and chisha v. The People25, which counsel has referred us to. In reply Mr. Mpalo stated that the lower court considered the social welfare report and dealt with it according to section 72 and section 73 (1). He stated that the court came to the conclusion that the juvenile appellant could not be dealt with in any other manner than a custodial sentence, which it imposed on him. We note that the lower court did regard the 2nd appellant as a juvenile. He was 17 years of age at the time of the commission of the offence. Under the Juveniles Act a young person means a person who has attained the age of sixteen years, but has not attained the age of nineteen years. Section 72(2) states that: J29 “No young person shall be sentenced to imprisonment if he can be suitably dealt with in any other manner.” Further under section 73, the court is required to consider a suitable manner in which to deal with the juvenile and one of the sentences available where the offender is a young person is a sentence of imprisonment. We wish to point out that an appellant court does not normally have the discretion to select a sentence that seems appropriate in the circumstances of each individual case. In Kalunga v. The People26, that: “just as an appellate court will not interfere with a sentence as being too high unless the sentence comes to the court with a sense of shock, equally it will not interfere with a sentence as being too low, unless it is of the opinion that it is totally inadequate to meet the circumstances of the particular offence.” In Jutronich and Others v. The People27 Blagden C. J observed that: “the principles which should guide a court in passing sentences are first and foremost the public interest. The criminal law is publicly enforced, not only with the object of punishing crime, but also in the hope of preventing it.” With the above in mind we wish to state the lower court did consider the provisions of the Juveniles Act and decided that because of the seriousness and the prevalence of the crime J30 the suitable way to deal with the 2nd appellant was not impose a sentence under the Juveniles Act. Notwithstanding that the 2nd appellant was a juvenile, the lower court was entitled to take into account, as a matter of public interest, the seriousness of the offence and the prevalence of the offence. In Syakalonga v. The People28, were the sole question that fell to be determined was whether or not the trial commissioner was guilty of an error in principle in imposing a more severe sentence than he would otherwise have done because he said this was the second case heard that morning in which a person from the Gwembe area had used a knife, we stated that: “We do not think the commissioner can be said to have erred in making reference to the prevalence of this particular type of offence among people from the particular locality. One of the principles of sentencing is for the purpose of deterring other would-be wrongdoers from committing similar offences, and t is perfectly proper to refer to the prevalence of the an offence, and to use the prevalence as a basis for imposing a deterrent sentence.” On this basis we find that the sentence does not come to us with a sense of shock. We take this opportunity to re-affirm the sentiments by the learned trial Judge that the offences such as this one, where a taxi driver is brutally murdered and the vehicle is stolen, has become quite prevalent in our Country and as a measure to curb this vice, a deterrent sentence is appropriate. We therefore dismiss the fourth ground of appeal. We find that the learned trial Judge was on firm grounds in convicting the appellants. We therefore uphold the conviction and confirm the sentence imposed by the learned trial court.