Mwansa & Another v People (Appeal 170 of 2014) [2016] ZMSC 185 (12 July 2016)

{ Jl IN THE SUPREME COURT OF ZAMBIA HOLDEN AT LUSAKA (Criminal Jurisdiction) SCZ/APP/No.170/171/2014 BETWEEN: JOHN MWANSA SAMUEL MWANSA AND THE PEOPLE 1ST APPELLANT 2ND APPELLANT RESPONDENT Coram: Phiri, Malila JJS and Lengalenga Ag JS On 14th October, 2014 and 12th July, 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. y J2 6. Chitalu Musonda v The People Appeal No. 138/2014 7. Boniface Chanda Chola v. The People (1988-89) Z. R 163. 8. George Wamundila v. The People (1978) Z. R. 151 (S.c.) 9. James Kape v. The People (1977) z'R. 192 (S. C.) 10. Yotam Manda v. The People (1988-89) Z. R 129 11. Darlington Chibobo v. The People (1977) Z. R 284 12. George Nswana v. The People (1988 - 1989) Z. R. 174 (S.c.) 13. Douglas Mpofu & Another v. The People (1988-89) Z. R 24 14. Green Musheke Kuyewa v. The People (1996) S. J. 8 (S. C.) 15. Mwape v. The People (1976) Z. R 160 16. The People v. Evaristo Bunda and Others (1990-92) Z. R 194 17. Haonga & Others v. The People (1976) Z. R. 200 18. Mutambo & Others v. The People (1965) Z. R. 15 19. Sakala v. The People (1987) z'R. 23 (S. C.) 20. Siwale and Another v. The People (1973) Z. R 182 (C. A) 21. Steven Nyoni v. The People (1987) Z. R 99 (S. C) 22. Gedion Musonda and Chisha v. The People (1979) Z. R 53 23. Kalunga v. The People (1975) Z. R. 72 24. Jutronich v. The People (1965) Z. R. 9 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. We sat with Hon. Justice Lengalenga, then Acting Supreme Court judge, when we heard this appeal. She has since reverted to the High Court. This judgement is thus by majority. 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 I I I I I I I J3 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 judgement, while, the 3rd accused in the court below, has not. The particulars of the offence, on the first count were that on 20th June, 20 11, 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, J4 PWl, 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 to Wusakile Police Station as missing and the police immediately launched investigations as to his whereabouts. For purposes of these investigations, PWI0, 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 resided in Zam Tan, a township in Kitwe. The stolen motor vehicle was discovered, parked at the 1st appellant's house, some 15 to 20 metres from PW2's house. The vehicle had no number plates. 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 J5 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 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 PWlO 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 was taken to Kitwe Central Hospital Mortuary. 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. I I I I I I I I I I I I I I I I I I I I I I J6 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 in court as PIS. The four accused persons then led police officers namely; PW8, PW9 and PWIO, 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 PWI as the items removed from his vehicle. A black cap and a gold cap, were among the items that were scattered in the bush and 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 in 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 I I I I I I I I I I \ I J7 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. 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 had 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. 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. J8 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. She concluded that the prosecutions' case rested on the circumstantial evidence which could permit only an inference of guilt on the part of the appellants in the absence of any explanation for their possession 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 the 3rd accused had joint custody and possession of the vehicle which had been stolen from the deceased when he was brutally murdered, the lower court held that both aggravated robbery and murder had been established beyond reasonable doubt against them. However, the learned trial judge was not satisfied that the prosecution evidence had proved the case against the 4th accused beyond reasonable doubt. She accordingly acquitted the 4th accused of both charges. 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 2nd appellant, who was a I I I I I I I I • J9 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 have now appealed, advancing four grounds of appeal against the judgement 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. 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. 3. 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. 4. 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 time of the offence was committed." At the hearing of the appeal, Mrs. Kabende, learned Legal Aid Counsel for the appellants, relied on the written heads of argument. \ \ I \ \ \ JlO 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 People! and Chipango and Others v. The People2 to support her proposition that in determining whether or not a witness is a suspect witness, it is not the 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 absence of such corroboration, the evidence of these witnesses must be discounted entirely as the danger of false implication had not I Jll 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, their evidence 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 principal 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 in that case with the court's finding as being entirely correct and held that the evidence of the appellant's brother should have been treated with caution and • J12 SusplclOn. In the present case our view is that the circumstances are such 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, III approaching the evidence of these witnesses, that is to say, PW2, PW3 and PW4, and as we pointed out in George Musupi v The PeopleS, it is irrelevant to make the distinction between a witness with a bias and one with an interest of his own to serve; the question in every case is whether the danger of relying on suspect evidence has been excluded. We pointed out in that case that- "the critical consideration is not whether the witness does in fact have an interest or a purpose of his own to serve, but whether he is a witness who, 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. Once in the circumstances of the case this is reasonably possible, or in the words of Lord Hailsham "can reasonably be suggested", the danger of false implication is present and must be excluded before a conviction can be held to be safe." • J13 Given the peculiar circumstances of the present case, we are of the view 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 People6 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 that 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. In the court's view, PW2 and PW3, on one hand, and PW4 on the other, gave independent evidence as to the appellant's possession of the said vehicle. The lower court found that their evidence was, therefore, mutually corroborative as there was no danger of joint fabrication. We cannot fault the findings of the lower court on this point. In the Boniface Chanda Chola v. The People? case we pointed out that it is necessary to examine the circumstances to see if the danger of a jointly fabricated story was excluded and if there was J14 support for their evidence. As we will show later in this judgment, there was overwhelming evidence to support the evidence of PW2, PW3 and PW4 and exclude the danger of convicting on these witnesses' uncorroborated testimonies. In argumg ground two, the learned counsel for the appellants submitted that flowing from the first ground, the evidence by 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 give that PW3 mentioned that she did not see who was in the vehicle. The learned counsel 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 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 other possible inferences that could be drawn where the only evidence was that the appellants were in J15 posseSSIon of the vehicle. On this proposition she referred us to the cases of George Chileshe v. The People" 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 Kape v The People9 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." And 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." Relying on the cases of James Kape9 and Yotum Manda v The People 10, the learned counsel 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 were reasonably true. She further submitted that it J16 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 Peoplell to support her claim that where the court observed 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 inference. 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. We agree with the principles of recent posseSSlOn 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. J17 A relevant question to determine is whether the appellants were in possession of the stolen motor vehicle. Under section 4 of the Penal Code, Chapter 87 of the Laws of Zambia, the terms 'possession', 'be in possession of or 'have in possession' include- "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 anyone 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 as possession. In the case before us, the evidence of PW2, PW3 and PW4, shows that the appellants had the stolen motor vehicle 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. The vehicle was found some three days after it was stolen. There was, in our view, possession of the motor vehicle by the appellants. We must, JI8 however, hasten to state that, mere posseSSlOn does not imply guilt. Thus, where the accused is found in possession of stolen property, shortly after the theft, the court must apply the doctrine of recent possession, by taking care to show that it has given consideration of the possibility that the accused might have come into possession of the stolen property otherwise than by stealing it. From the record, we are satisfied that the trial court did correctly apply the doctrine of recent possession and found that the appellants were in recent possession of the vehicle, when she stated, at page J28 that - "It is common cause that P9 was found at the Mwansa's house in Zamtan, on 23'd June, 2011 after PWI0 traced the call from the deceased's handset to PW2. Other than AI'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 AI, 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. As we stated in the case of George Nswana v The People12, there has to be suspicious features surrounding the case, from which the court can draw an JI9 inference that the appellants were not in innocent possession but were guilty of theft or were guilty receivers or retainers. In Yotam Manda v. The PeopleiO we explained the principle of recent possession in the following terms: "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 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." We are of the VIew that the facts themselves ought to support an alternative inference, if the inference IS to be considered reasonable. This has been the case III 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. J20 Therefore, where an accused who was in posseSSlOn of a recently stolen property offers an explanation which, in the court's view, may not reasonably be true, and the court further finds, from the circumstances of the case that it is unlikely that the goods might have changed hands, it is reasonable to make an inference of guilt. The evidence on the record discloses 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 for a number of day. Three days later, PWl, PW 5, PW7 and PWlO found the vehicle at the appellants' house. It was found with no number plates. There was also evidence that the phone belonging to the deceased, which as we have already pointed out, had been used with PW2's sim card 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 the vehicle and parked it at their house. No evidence was led to suggest that the appellants were mere recipients of the vehicle. We do not, therefore, think it is J21 reasonable to infer that the appellants were guilty receivers of the vehicle. Had they received it, in those circumstances, 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, the only reasonable inference to make, was that the vehicle was stolen. Given the suspicious circumstances surrounding the appellants' possession of the vehicle, positively exclude the less severe inference that the appellants were in innocent possession. 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 PWIO 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 People13 , where we said- • J22 "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." She submitted that the record of appeal at pages 117 and l1S shows that PWS, PW9 and PWlO 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. Regarding ground three, counsel for the respondent submitted that the court arrived at its conclusion having taken into account all the pieces of evidence connecting the appellants to the offence, including the fact that the appellants were found in possession of the vehicle which had been recently stolen. He further stated that in particular, the court found that the evidence of leading was supported by those other pieces of evidence. It is important to bear in mind that there were two scenes involved here. First, the scene to which PWS and PW10 had been on 25th June, 2010, as reflected on pages 117 and l1S, of the record of appeal. This was the scene at which the body of the deceased was discovered on the 24th of June, 2010. It is on the , J23 way back from that scene that they apprehended the 2nd appellant. PW 10 testified that on that particular day, the 25th of June, 2011, 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 scene to which the police had been, was Kanfinsa River, where the body was retrieved after receiving a report from members of the public. The second scene was where the items in question, namely, the number plates, windbreakers or shields, seat covers and caps, were recovered. This was in a bush near Cedric Farm. This, in our view, is the scene which is crucial in considering evidence of leading. PW8, PW9 and PWlO stated that all the appellants led them to this scene. It is clear from pages 36 to 37 of the record that the 1st appellant, as explained by PW9, led to the recovery of these items. 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 the first to lead. 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 J24 People14 , 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: "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." The trial court accepted that PWS, PW9 and PWlO were led by each of the appellants to a scene which these officers did not visit before, and that the items that were recovered were not known to the police officers. On this point, we agree with the trial court that the evidence of leading was reliable and formed a solid foundation upon which a further inference of guilt could be. The learned counsel for the appellants further argued, that the learned trial court glossed over the fact that the appellants were seen handcuffed in the video recording. It was argued that the demonstration by the appellants amounted to a confession which, by the handcuffs, showed that it was not 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. For this •• J25 reason, she submitted that the guidelines laid down in the case of Mpofu13 were not met. The learned trial Judge on this point held that the recording of the confession statement and the accompanymg demonstration gIVen by the appellants at the time of that recording was voluntary and admissible m 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 a caution was recorded before the leading and that, according to the evidence of PW8 at page 34 line 21-24 of the record of appeal, two other people namely one woman from Cedric Farm and another man from Chimwemwe, were always present at the Police Station. 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. I I I I I I I I I I I I I I~ • • J26 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 desire and scheme for an 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 People1s in which we analysed section 22 of the Penal Code, and said the following: "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." Mrs Kabende 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 Others16, a conviction can properly lie for all accused persons jointly charged. She 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 People17 , Mrs. Kabende stated that where there I I \ I \ I I I \ \ • J27 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 ajoint enterprise to commit the offences. The question that falls to be determined under this ground, is whether or not the appellants did form a common purpose in conformity with section 22 of the Penal Code. In Mutambo and Others v. The People 18, 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 prosecuting the common purpose which must be a probable consequence of the prosecution of the common purpose." In SakaIa v The People19 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 his act also, if what those confederates have • J28 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 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 an unlawful common purpose to strangle the deceased to his death in order to steal the vehicle. 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 Siwale and Another v The People2o , Steven Nyoni v The People21 and Gedion Musonda and Chisha v The People22 , which counsel referred us to. • J29 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- "No young person shall be sentenced to imprisonment if he can be suitably dealt with in any other manner." Further, section 73(1)(i)states that- "Wherea juvenile charged with any offence is tried by any court, and the court is satisfied of his guilt, the court shall take into consideration the manner in which, under the provisions of this or any other written law, the case should be dealt with, namely: Ii) where the offender is a young person, by sentencing him to imprisonment ..." • ) J30 Under this section the court is required to consider a suitable manner in which to deal with the juvenile. Sub -sections (2) and (3) of section 73 further give the court the discretion to order a juvenile to be detained in a reformatory as follows: "73. (2) Whenever a juvenile is found guilty of an offence for which, but for the provisions of this Act, a sentence of imprisonment would have been passed, the court by which the juvenile is found guilty may, instead of passing such sentence of imprisonment, order him to be detained in a reformatory. (3) Nothing in this section shall be construed as in any way restricting the power of the court to pass any sentence or combination of sentences which it is empowered to pass under this or any other written law:...." 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 People23, we stated 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." • I J31 In Jutronich and Others v. The People24 we observed that- -the principles which should guide a court in passing sentences are IU"Stand 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 sentiments in mind, we wish to state that the lower coun did consider the provisions of the Juveniles Act and decided that because of the seriousness and the prevalence of the crime, the suitable way to deal with the 2nd appellant was to impose a sentence of imprisonment under section 73(1)(i) which we have quoted above. Ground four is therefore is without merit. The net result is that the whole appeal fails. G.vS. Phiri SUPREME COURT JUnGE ~- .............~ ~alila, . SC SUPREME COURT JUnGE