Rapael Chipampe Tafuna Sikazwe and Ors v People (APPEALS No. 17-23/2019) [2019] ZMCA 434 (25 October 2019)

IN THE COURT OF APPEAL OF ZAMBIA APPEALS No. 17-23/2019 HOLDEN AT KABWE/LUSAKA/NDOLA (App ellate Jurisdi c tion ) BETWEEN: RAPHAEL CHIPAMPE TAFUNA SIKAZWE CLEMENT YAMBAYAMBA ISRAEL SIKAZWE ONISHA NAMWINGA ARNOLD KAITE MAUREEN NAMWINGA MATTHEWS CHABALA AND THE PEOPLE l •T APPELLANT 2ND APPELLANT 3 RD APPELLANT 4 ™ APPELLANT 5 TH APPELLANT 6TH APPELLANT 7 TH APPELLANT RESPONDENT CORAM : Mchenga DJP , Kondolo and Lengalenga, JJA On 21st May 2019, 23 rd May 2019, 25 th June 2019 , 28 ch August 2019 and 25th October 2019 . For the Appellants : In person For the Respondent : M. K. Chitundu, Deputy Chief State Advocate , National Prosecutions Authority. JUDGMENT Mchenga DJP , de l i vered the judgment of the court . \ • J 2 Cases referred to: l . Kambarange Mpundu Kaunda v The People [1990-1992 ] Z . R. 215 2. Sipa l o Chibozu and Chibozu v The People [1981] Z. R . 3. Abedinegal Kapeshi and Best Kanyakula v The People SCZ No. 35 of 2017 4 . Boniface Chanda Chola, Christopher Nyamande and Nelson Sichula v The People [1988-1989] Z . R . 163 5 . Director of Public Prosecutions v Ngandu and Others [1975] Z . R . 253 6. Webster Kayi Lumbwe v The People [1986] Z . R . 93 7. Situna v The People [1982] Z . R . 115 8. Love Chipulu v The People [1986] Z . R . 73 9 . Chimbini v The Peopl e [1973] Z . R . 191 10 . Philip Mungala Mwanamubi v The People 11 . Malley Zulu, Abraham Masenga And Smiling Banda v The People [1978] Z. R . 227 12 . Robertson Kalonga v The People [1988 -198 9] Z . R . 90 Legislation referred to: 1 . The Penal Code , Chapter 87 of the Laws of Zambia . 2. The Criminal Procedure Code , Chapter 88 of the Laws of Zambia. t J3 Introduction 1 . This is an appeal , from a judgment of the High Court (Chembe J . ) , delivered on 29 th March 2018. By tha t judgement , the appellants, who were jointly charged with 11 others, and were each facing two counts of murder and a count of attempted murder , were all convicted of the three offences . They were each condemned to suffer capital punishment for the murders , and sentenced to 20 years imprisonment , for the attempted murder . 2. The appe l lants , have all appealed against both their convictions and the sentences , imposed on them. Charges before the trial court 3. In the firs t and second counts , the appellant s were charged with the offences of murder , contrary to sections 200 of the Penal Code . The allegations were that , on 2 nd June 2016 , while acting together with o thers, they murdered Benson Mukupa Kaoma and Raibos Chifunda . J4 4. The charge in the th i rd count , was that o f attempted murder contrary to section 251(a) of the Penal Code. I t was alleged that on the same day , they attempted to murder Peter Sinyangwe . Evidence in support of charges 5. On 24 ~ June 2013 , Senior Chief Tafuna , of the Lungu of Mpulungu died . Following his death , his son , Co s ma s Tafun a , was appointed to act as chief . He did not act for long , because the succession ru l es of the Lungu , did not allow him to succeed his fat h e r . Consequently , sometime in November 2013 , the 1 st appellant was appointed to act as chief . 6 . On 24 th March 2016 , at a meeting organized by the me mber of par l iament for Mpulungu , Christine Muselu , a journalist , recorded the 1 st appellant, telling the attendees that , if Benson Muku pa Kaoma , the chief i n waiting , turned up at Isoko Village , the r e would be bloodshed . Notwithstanding , on 2 9·h March 2016 , Benson Mukupa Kaoma , was recognized as Senior Chief Tafuna by the Government . J 5 7. Following the conclusion of the traditional rites , initiating him as the new chief, on 2 nd June 2 016 , Benson Mukupa Kaoma travelled to Isoko Village for his insta l lation . He was in a convoy of about four motor vehicles carrying persons including Zambia Police Officers , his wife , Raibos Chifunda and Cosmas Tafuna Sikazwe . 8. The others travelling with them were, Kanafred K. Sinyangwe , Winston Henry Sikazwe , Yamwela Mori land Sikazwe, Enock Chisabi, Peter Sinyangwe , Gaston Chisha Yambala , Christopher Mazimba and Margaret Chisha . 9 . As they approached the village , they found the roads blocked with l ogs, fire and stones , at various po i nts . The police officers cleared the obstructions and they proceeded with their journey , until they reached Isoko Village, around 17 : 00 hours . 10 . At the village , they found a group of unruly people J 6 who t hrew stones at them . The police managed to disperse them using tear gas . Soon after arriving at t he palace , the police officers returned. A group of people , who were armed with different weapons , including stones , advanced towards the palace . 11. The appe l lants , who are said to have been part of that group , were i dentified by thirteen prosecut ion witnesses , who we r e at the palace at the time . All the thirteen witnesses , previously knew the appe l lants because they lived in the same area. 12. Because the case against the appellants is anchored on identification evidence , it is necessary that we reproduce their testimony on the c i rcumstances in which they identified the appellants . 1. Kanafred K . Sinyangwe 1. He was standing outside the entrance , when a group of people approached the palace . He identified the 1 st appellant , who was carrying a machete , a pistol and catapults , around his neck . J7 He also identified the 2 nd and 5 th appellants . The 5~ appellant was carrying an axe . 2. At a b out 18 : 00 hours, he saw members of the group set on fire a motor vehicle that was parked at the palace . Some of them entered the palace . Those who remained outside , began to throw stones into the palace . 3. He went to hide in a toilet which was behind the house . Whilst hiding , he heard Benson Mukupa Kaoma crying out for help . He also heard the l •t appellant say " just kill him". 2. Wiston Henry Sikazwe 1 . He was in the procession that was bringing Benson Mukupa Kaoma to Isoko Village . When they arrived , he saw a group of people who were armed . He iden ti fied the l " , 2 nd and 5 th appellants , in that group . When he saw the commotion , he decided to take Benson Mukupa Kaoma into the palace. 2 . Soon thereafter , the l •t appellant , who was carryi ng a sickle , a pistol and catapults , went JS in. Benson Mukupa Kaoma pleaded with him to spare his life , but the l •t appellant told him that he was going to kill him and assume the position of chief. He hit him with the sickle and instructed his followers to do the same . 3 . When the door was opened , he managed to escape . Thereafter , fire was thrown into the palace . He went and stood near a window of the palace . From there , he was able to see what was going on inside . He saw the l •t , 2 nd and 5 t h appellants drag Raibos Chifunda outside , where they eventually burnt him , together with Benson Mukupa Kaoma . 4 . He then fled and hid in the bush , as he was frightened . Whilst in the bush, he heard the appellants singing and re joi cing tha t they had killed Benson Mukupa Kaoma . 3. Yamwela Moriland Mwambazi 1 . Between 18:00 and 19 : 00 hours , a group of people entered the palace and began throwing stones and caused havoc . The 1 st appellant , who was wearing a J9 short and a white vest , and had catapults around his neck was in the group and had what looked like a pistol . 2. Benson Mukupa Kaoma, told the 1n appellant , that if he wanted to become chief , he could leave the position for him , but the appellant ' s response , was that , what he wanted , was his life . The 1 st , 2 nd and 5 th appellants , then stru ck Benson Mukupa Kaoma with sticks and a machete. The others who were outside, threw stones and burning grass into the house . 4 . Chomba Chapu Sikazwe. 1. When they arrived at Isoko Village , he saw the 1st appellant and his followers , enter the palace . It was between 18:00 and 19:00 hours. The 1 st appellant was wearing a white t - shirt , a short and had catapults around his neck . He was carrying a machete in his right hand , and a black s h otgun , in h i s left han d . J 10 2. He also identified the 2~ appellant , who was carrying a sickle and the s~ appellant , who was car rying a short axe . Benson Mu kupa Kaoma told the 1 st appel lant that , if h e wanted to become chief , he wou ld leave the throne to him , but instead, he was struck with a machete on the neck and he fell down. 3 . Thereaf t e r, the 1 st appellant ' s followers also attac ked Benson Mukupa Kaoma . At that time , he was about 1 meter and a half , away from where Benson Mukupa Kaoma was sitting , with the Indunas . 5 . Tabu Nanyangwe 1 . On the 1 st and 2 nd June 2016 , she heard the 3 rd appel l ant incit ing villagers in Isoko Village, to show up , carrying their hoes , sickles , axes a n d axe handles , to kill their enemy , Benson Mukupa Kaoma . 2. Following an announcement that Benson Mukupa Kaoma had arrived , she went to the pa l ace . She J 11 saw a group of people at the roadside throwing stones. She was able t o identify the 4 th and 6th appellants , as they were carrying stones on their back . When the violen ce escalated and the group of people got closer , she went b ehind the palace. 3. The 4~ and 6~ appellan t s gave grass and stones to the that g r oup of people. After the group burnt down the door and the windows , t he 1 st appellant entered the palace . He grabbed Bens on Mukupa Kaoma , who fell to the ground . 4. Later on , the 4~ and 6~ appellants give grass t o the others , who used it to burn Benson Mukupa Kaoma ' s body . The l n appe llant was her brother in law . 6. Enock Chisabi. 1. At about 18 : 00 hours , he noticed that the situation was getting hostile , he advised that Benson Mukupa Kaoma be taken inside the pal ace. Before he entered t he pal ace , he identified the J 12 l " , 2nd 3 •d , 4 th and 6th appellants , in the hos ti le group . The 1 st appel l ant was wearing a vest , had catapults around his neck , a machete in his right hand a nd a pistol, in h is left hand . The 4 th and 6~ appellants , were carrying stones on their back . 2. After members of the group entered the palace , Benson Mukupa Kaoma knelt down and told the l ·t appe l lant that if he wanted the position of chief , he was ready to step down . In response , the 1" appe l lant , struck Benson Mukupa Kaoma with a machete on the cheek . Raibos Chifunda was also attacked in the process . This assault instilled fear in him and he jumped out of the palace , t hro u gh a window . 3. He hid between ridges , in a field which was 10 meters away , from the front door of the palace . Thereafter he heard them sing that they had kil l ed Benson Mu kup a Kaoma and h i s brother . Members of the group dragged the bodies of Benson J 13 Mukupa Kaoma and Raibos Chifunda , outside . The 1 st appellant asked for grass to be brought and the 4~ and 6~ appellants, offered him the grass . They were referring to him as chief . 4. They poured petrol on the bodies , and set them ablaze. Peter Sinyangwe , who was badly injured , was also set ablaze . Thereafter , 3~ appel lant made announcements on a mega phone . 7 . Peter Sinyangwe l. When the procession arrived at Isoko Vi l lage , some people threw stones at them and also burn t a motor vehicle , which was near the palace . They broke the windows to the palace and burnt down the doo r. He heard Ben Mukupa Kaoma begging not to be killed . When he tried to escape , he was axed and he collapsed . He was severely burnt, together with Benson Mukupa and Raibos Chifunda. 2 . Prior to the attack, he identified the 1·• and 2 nd appellants, in the group . .. J 14 8. Gaston Chisha Yambala 1. When they arrived in Isoko Village , he pleaded with the police officers not to leave because the environment was hos t ile. Notwithstanding , the police insisted that their mandate had come to an end , and they left . He then saw a large group of people carrying machetes , hoes , stones and handl es . 2. He hid behind a tree when the mob begun throwing stones at them . He was near a motor vehicle , that had been set ablaze , and was able to identify the persons involved. The 5 th appellant was carrying an axe and a 2.5 litres container of petrol , which he poured on the motor vehicle , before it was set ablaze . 3. The 1 st appellant was carrying a pistol in his left hand , and a machete in his right hand . He also had catapults around his neck . They forceful l y entered the palace , after breaking the J 15 windows . They also threw burning grass into the palace . 4. In fear, he went to hide in the bush , where he subse quently heard the 7 t h appellant, make a phone call, saying they had killed Benson Mukupa Kaoma. Therea f ter , he heard the mob singing a song that the l •t appellant had told them to kil l Benson Mukupa Kaoma. 9. Annie Nachangwa. 1. 0n 2~ June 2016 , she heard the 3~ appellant announcing that villagers must gather together with hoes, sickles a n d axes because they had been attac ked by their enemies . When Benson Mukupa Kaoma arrived, h e was taken into the palace and a group of people begun to throw stones. 2. Since the atmosphere was viole n t , she went to hide between the ridges in a sweet potatoes field . Between 1800 and 1900 hrs . she saw the l H appellant , who was wearing a vest , and carrying a machete in his right hand and a pistol in his J 16 left hand , in the group that was advancing towards the palace . She also saw the 4 t h and 6th appellants . In addition , she saw the 7~ appellant who was carrying a sickle . 3. After members of the group entered the palace , she peeped through the window and saw the l •t appellant standing in front of Benson Mukupa Kaoma. He raised his right hand , in which he was carrying the machete , but did not see what followed . Afterwards , she just saw a person being dragged outside . At that point , she decided to go home , from where she heard people singing that the l •t appellant sent them to kill Benson Mukupa Kaoma . 10. Christopher Mazimba 1 . When they reached the palace , he remained outside and saw a large group of people advancing. From the group , he was able to identify the 2~ appellant . He phoned the police to inform them of J 17 what was going on and they advised him to call Chomba Chapu Sikazwe. 2. When he called , the person who answered told him that they had killed the person he wanted to talk to . He asked who he was talking to , and the 1st appellant introduced himself as "Chief Ben ". 11. Margaret Chisha 1. She was Raibos Chifunda ' s wife . While they were inside the palace , some injured people were brought in . As a result, she went outside to see what was happening , and saw a group of people setting a motor vehicle on fire . In that group, she identified the 1•t and 5 th appellants . 2 . She then went back i n to the palace , she found the 1•t appellant talking to Benson Mukupa Kaoma. Benson Mukupa Kaoma , knelt d own and pleaded with him , but the 1 st appellant and his followers , th r ew him to the ground and begun hitting him . The appellant and others , attacked her J 18 husband , with axes on the head , and dragged him outside . 12. Chisha Sichangwa 1. After Benson Mukupa Kaoma ar rived , h e saw t he 4~ and 6 th appellants giving stones to the group of peopl e that were t hrowing stones. He was able to see what was going on from a field , where he was hiding . I t was 15 metres away. He also saw them pick grass and put it under the motor vehicle . The 5 th appellant , was carrying petrol in a 2 . 5 litre container . He spr in kled it on the motor v ehi cle and then set it o n fire . 2. He also saw the 1 ot , 2nd , 3rd and 7 th appellants . The l n appellant was carrying a machete in his right h and, and a pistol in his l eft hand . He also had catapu lts around his neck . The 2 nd appellant was carryi n g a s i ckle , the 3 ~ appellant threw stones , the s~ appellant had an axe and the 7 th appellant , had an axe han dl e . J 19 3 . In order to get a good view of what was going on , he advanced to the palace and pushed the door open . He saw Benson Mukupa Kaoma kneeling down and holding his hands up . The 1 st appellant then struck him on the left jaw with a machete . He later saw the 2 nd and 5 t h appellants drag Benson Mukupa Kaoma and Raibos Chifunda , outs ide . He also saw the 4~ and 6~ appellants , putting grass on top of their bodies , prior to their being burnt. 13. David Simuchenje 1. On 2 nd of June 2016 , h e was waiting for Benson Mukupa Kaoma at the j un ction , when he saw the 1 st appellant transport ing people to various points , whi c h were to be used by Benson Mukupas Kaoma ' s e ntourage . The 1 st app ellan t then gave a mega phone to the 3 rd a ppe l lant , who announced that people of Isoko Village ought to be united. He urged the people to carry slashers , small hoes and axes . J 20 2. After Benson Mukupa Kaoma arrived , the mob set a motor vehicle on fire , and the l R appellant ordered them to quickly enter the palace . The l •t appellant, was carrying a machete , pistol and catapults. Defence evidence 13. All the appellants gave evidence in their defence . They took a common position , they all denied being at the palace during the attack. It was their common pos i tion, that they were not even aware , of the fact that Benson Mukupa Kaoma , had been taken to I so ko Village , for installation as Senior Chief Tafuna . Further, they all denied being aware of t he commotion , and v i olence , that took place on that day , in Isoko Village . 14. They either claimed to have been home , wi th their families , or at their places of work or businesses . The l n appellant , denied inciting the violence , or holding a grudge, against Benson Mukupa Kaoma . The 2 nd , 3 rd , 4 t h , 5 th , 6th and 7 th appellants , all claimed J 21 that they were implicated because of animosity , arising out of their association , with the l n appellant . He had dismissed a good number of the witnesses , from their j obs , when he acted as chief . 15. The s~ appellant , denied ever making an announcement , using a mega phone , instructing all the residents to turn up on 2~ of June 2016 , with hoes , axes and sickles , to attack Benson Mukupa Kaoma . He said, the only announcement he made , was on 1 st June 2016. It was about the Electora l Commission of Zambia , going to Isoko, to teach the residents how to vote , on 2M June 2016 . Trial Judge's findings of fact 16. The trial judge found that the appellants , were aware , that Benson Mukupa Kaoma , had been gazetted as Senior Chief Tafuna , and was going to be taken to Isoko Village , for installation on 2~ June 2016 . She also found , that the 1 st appellant , through the 5 th appellant , mobilized villagers to prepare and J 22 prevent , the installation of Benson Mukupa Kaoma . The villagers , blocked t he roads to prevent him , from reaching the palace . 17. In the face of evidence , tha t some of the witnesses were related to the deceased persons , or related to persons dismissed by the f irst appellant , the trial judge considered the possibility that they may have had the motive , to falsely implicate the appellants. She found that none of them had any motive to falsely implicate them and that they were credible witnesses . She also found that in any case , those witnesses testimony , was corroborated by some other witnesses. 18. She also found that the appellants , took advantage of the withdrawal of the police , and attacked Benson Mukupa Kaoma , whilst armed with sickles , machetes , hoes, axes, sticks and stones. Further , she fou nd that although it was dark when the attack took place , the appellants burnt a motor vehicle , which provided light to the surrounding areas . J 23 19. In addition , despi te the attack taking place a t dusk and under traumatic circumstances , the trial judge found that a l l the appel lants , we re suffic i ently identified . The duration of the attack took between 1 and 2 hours , and all the witnesses had a reasonable opportunity , to identify them . 20. Further , the trial Judge found that after the 1 st , 2 n d , 3 rd , 5 th and 7 th a pp e 1 1 ant s entered the pa 1 a c e , t h ey viciously assaulted the occupants . Thereafter, Benson Mukupa Kaoma , Ra i bos Chifunda and Peter Sinyangwe , were dragged outside , where the 4'" and 6 th appellants , placed grass on them before they were set them ablaze . She found that Benson Mu kupa Kaoma and Ra i bos Chifunda , died as a result of t he in j uries they suffered at the hands of the appellant , whilst Peter Sinyangwe survived the injuries . 21. She a l so found that even though not all the appel l ants inflicted the fa ta l blows , they had a common purpose , they set out armed , responding to a J 24 call to preven t Benson Mukupa Kaoma from taking up the p os ition of chief . The y had malice aforethought because being armed , death was a very probable consequence of their excursion . 22. The t rial judge also ruled out the suggestion that there was a dereliction of duty on account of the failur e to investigate the appellants ' alibis and lift fi ngerprints . She found that the overwhelming identification eviden ce , offset any prejudice the appe ll ants may have suffered by the failures to invest igate. Grounds of appeal. 23. Two grounds have been advanced in support of this appeal . They essentially deal with identification evidence , implicating t he appellants . It is contended that: 1 . The appellants were convi cted on the testimony of witnesses , who h ad a possible interest of their own to serve ; and J 25 2 . The identification evidence , on which t he appellants were convicted , was unre l iable because it was conflicting . Most prosecution witnesses having an interest of their own to serve 24. In support of the argument that the key witnesses had possible interests of their own to serve , it was pointed out that Kanafre d K. Sinyangwe , Wins ton Henry Sikazwe , Yamwela Moriland Mwambazi , Christine Muselu , Chomba Chapu Sikazwe , Tabu Nanyangwe , Enock Chisabi , Peter Sinyangwe , Gaston Chi sha Yambala, Annie Nachangwa , Margaret Chisha , Chisha Sichangwa and David Simuchenje , were either relatives, friends or supporters , of Cosmas Tafuna Sikazwe (who was acting as Senior Chi ef Tafuna) , Benson Mukupa Kaoma and Raibos Chi fu nda. 25. Further , when the l •t appellant was appointed as acting Senior Chief Tafuna , he dismissed them from their different positions they held in t he roya l establishment . On the basis of the case of Kambarange Mpundu Kaunda v The People' , it was J 26 submitted that the trial judge , ought to have treated their evidence with caution and should have only relied on it , after ruling out the danger of false implication . 26 . It was pointed out that the witnesses claim, that the appellants , killed Benson Mukupa Kaoma and Ra i bos Chifunda , are not supported by the evidence . They referred to the case of Sipalo Chibozu and Chibozu v The People2 and submitted that having failed to call a medical doctor , to support the assertion , the appellants should have been acquitte d . This is because an essential ingredient of a charge , the cause of death , was not proved . 27. In response , Mrs. Chit undu referred to the case of Abedinegal Kapeshi and Best Kanyakula v The People 3 and submit ted that Cosmas Tafuna Sikazwe , Tabu Nanyangwe , Enock Chisabi , Gaston Chisha , Annie Na changwa and Margaret Chisha , were not witnesses with a poss ible interest of their own , to serve. J 27 They all gave evidence , on events , they perceived , first hand . 28. She pointed out that Tabu Nanyangwe ' s testimony , highl ighted the f act that she was related to both the l ot appellant and Bens on Mu kupa Kaoma , through marriage. There was no evidence of bias , on her part , t o sustain the appel lants ' assertion that she was a suspe ct witness . With regard to Enock Chisabi , she argued that he testified that he had ot her sources of income , t hus ru ling ou t being resentful , as a result of being dismissed by the 1 · appellant . 29. In the case of Gaston Chisha , she argued that he had no motive to be resentful because he was never dismissed by the 1st appellant . 30. Mrs Chitundu also submitted that the charges of murder wher e proved beyon d reasonabl e doubts . the Were uncorroborated possible interest of their appellants testimony convicted the of witnesses with a own to serve? on 31. In the case of Boniface Chanda Chola, Christopher J 28 Nyamande and Nelson Sichula v The People• , the Supreme Court , held , inter alia , that : " In the case where the witnesses are not necessarily accomplices , the critical consideration is not whether the witnesses did in fact hav e interests or purposes of their own to serve , but whether they were witnesses who , because of the category into which they fell or because of the particular circumstances of the case , may have to give false evidence . Where i t is had a motive reasonable to recognize this possibility , the danger of false implication is present and it must be excluded before a conviction can be held to be safe . Once this i s to be a approached on the same footing as for accomplices ." reasonable possibility, the evidence falls Further , in the case of Abedinegal Kapeshi and Best Kanyakula v The People' , the Supreme Court reaffirmed this position , and pointed out that the mere fact that a witness is a relative , does not make such a person , a witness with a possible interest of their own t o serve . 32. In thi s case , the trial judge considered the possibility that Tabu Nanyangwe , Magaret Chisha , Anna Nachangwa , Chisha Sichangwa , Kana f red Sinyangwe , Cosmas Tafuna and Gershom Yambala , were witnesses who may have had a possible interest of their own to serve and found that it was not the J 29 case . She found that a though Tabu Nanyangwe was related to deceased persons, and Magaret Chisha was the wife to one of the dece ased persons , they gave a candid and unexaggerated account of what happened . She found them to be credible and ruled out the p ossibility that they had an interest o f their own to serve . 33 . In the case of Anna Nachangwa , Chisha Sichangwa , Kanafred Sinyangwe , Cosmas Tafuna and Gershom Yambala , who are said to have been interested i n the thrown or were against the 1 st appellant because he dismi ssed them or their relatives , she equally found that they did not colour or exaggerate , their test i mony . She found that they we r e not witnesses with a possibl e interest of their own to serve and that their testimony was supported or confirmed by independent witnesses , Christine Muselu , Yamwela Mwambaz i, Peter Sinyangwe and Chisha Sichangwa . 34. In the case of Director of Public Prosecutions .. J 30 Ngandu and Otherss, the Supreme Court held that a n appellate court can only set aside a finding of fact , if it was made without any evidence or on a view of the facts , which c ould not reasonably be entertained . Further , in t he case of Webster Kayi Lumbwe v The People 6 , the Supreme Court held that : "An appeal court will not interfere with a trial court finding of fact , on the issue of credibility unless it is clearly shown that the finding was erroneous." 35. We have examined the judgment, and the reasons advanced by the trial judge , for f inding tha t none of the witnesses , had a possible interest of their own to serve . We are satisfied that, on the evidence that was before her , she was en t itled to come to that conclusion. The finding is suppor te d by the evidence and cannot be said t o be perve rs e . 36 . The testimony o f the witnesses , who are alleged to have had an interest of their own to serve , did no t depart from that of the independent wi tnesses in any material way . Other t han point out that t hey were relatives, no evidence was led , on why t hey J 31 should have been found to be suspect witnesses . The trial judge was therefore entitled to find that they were not witnesses wi th a poss i ble interest of their own to serve . Since the trial judge rightly found that the witnesses were not suspect witnesses , the question of their testimony being corroborated does not arise . 37. Despite this finding , the trial judge still e xercised some degree of caution , she accepted their evidence as being credible after conf irming that it was i n line with that of the independent witnesses . We are satisfied that she applied the right test when assessing the testimony of the prosecution witnesses. 38. As regards the submission that the failure to call the doctor was fatal to the prosecution case , which premised on the case of Sipalo Chibozu and Chibozu v The Pe ople2 , we find that it was not the case . In that case , at page 32 , the following was said about section 191A of the Criminal Procedure Code: ' J 32 of its contents . "All that the above provisions say is that the report of a medical officer employed in the public service shall be admitted in evidence 11 to prove 11 the contents thereof. The section does not say that the report shall necessarily be admitted as proof the conclusive legislature has the summoning of the medical officer, when either party or indeed the court may summon him as a witness in any event , in the face of an inconclusive as much as an involved or vague report. Usually indeed the contents of the medical report will in the least require elucidation , a point which is stressed in the following passage from the judgment of this court per Baron , D . C. J. , in Mwanza and Others v The People (1) at p . 222 : . " specifically provided doubt for No 39. It follows , that the failur e to call a doctor i s only a problem , if the medical evidence is not clear . We have e xamined the two medical r e ports which set out the causes of death as follows : 1. Benson Chifunda Mukupa Kaoma : " Burns all b o dy a n d multiple ' 1.nJ ur 1.es ; ' . left frontal penetrating wound, f r acture o f number 2 ribs , sharp cut lower lip , fracture of the left frontal bone , intra cranial hema toma "; and 2. Ribos Chifunda : "s evere head 1.nJ ury , (Compound fracture of the skull and a deep laceration on the right temporal region)" . 40 . In our view , the cause of the two victims ' death ' s , ' J 33 can be discerned without difficulty from the postmortem reports. In the circumstances , we find that there was no need to corroborate the p r osecution witnesses ' to call the doctor to prove the cause of death . 41. Consequently , we find no merit in the first ground of appeal a n d we dismiss it . Contradictory and unreliable prosecution witnesses 42. In support of the second ground of appeal , the appellants argued that their convictions were anchored on contradictory and unre l iable identification evidence , the appellants pointed out that Kanafr ed K. Sinyangwe , Winston Henry Sikazwe , Yamwela Moriland Mwambazi , Chomba Chapu Sikazwe , Tabu Nanyangwe , Enock Chisabi , Peter Sinyangwe , Geston Chisha Yambala , Annie Nachangwa , Margaret Chis h a , Chisha Sichangwa and David Simuchenje , gave ' J 34 contradic t o r y testimony on the events of the evening of 2~ June 2017 . 43 . It was submitted that Kanafred Sinyangwe failed to articul at e , with cla rit y , h is location at the material time and so his evidence of identification wa s d oubtful . 44 . In was also submitted that Winston Henry Sikazwe gave eviden ce that he saw the 2 nd and Sch appellants , armed with sticks as they entered the palace house . He also saw the l n appellant armed with a pistol , sickle and catapult . It was argued that in v i ew of his acknowledged poor sight , he could not h ave identified them at night . 45. Si milarly , the evidence of Yamwela Moriland Mwambazi , Enoc k Chisabi and Annie Nachangwa , was said to be doubtful owing to its incon sistences in what the 1" appellant precisely wore , at the materia l time . Yamwela Mori land Mwambazi said he wore a vest , Enock Chisabi said it was a white t- J 35 shirt , while Annie Nachangwa said it was a sleeveless muscle shirt . 46 . On the authority of Situna v The People 1 , it was submitted that in view of the inconsistencies , the trial court ought to have treated their evidence with caution , and not fou nd them to be credible witnesses . 47. Further , it was argued that violence and the distressful atmosphere, throughout the incident , compromised the identification evidence o f all the prosecution witnesses . Reference was made to the case of Love Chipulu v The People0 and it was submitted that , the evidence should only have been received , after eliminating the possibil ity of an honest , but mistaken identification . 48 . In response to these arguments , Mrs . Chitundu submitted that the iden tification evidenc e was reliable because the appellants were re cogni sed by people who knew them well prior to the incident . She added that Tabu Nanyangwe , Enock Chisabi , J 36 Gaston Chisha , Annie Nachangwa , Chisha Sichangwa and David Simuche nje , were all permanently reside nt in Isoko Village , together with all the appellants . Even though there was tension on the material day , identification was not very challe n ging . In support of these arguments , she referred to the cases of Chimbini v The People• and Philip Mungala Mwanamubi V The People 10 • Was the identification evidence of poor quality 49. In t he case of Melley Zulu, Abraham Masenga And Smiling Banda v The People11 , Gardner JS , at page 229 , observed as follows : stranger , even when "Al though recognition may be more reliable than identification So of a the witness is purporting to recognise someone whom he knows, the trial Judge should remind himself that in recognition of close relatives and mistakes friends are sometimes made. Even in recognition cases a trial Judge should warn himself of the need to exclude the possibility of honest mistake, and the the poorer greater that possibility becomes . The momentary glance at the inmates of the Fiat car when the car good was opportunity for observation." the opportunity for observation cannot be described as in motion Further , in the case of Roberson Kalonga v The People12 , it was held that : J 37 "Poor identification evidence requires corroboration such as a finding of recent possession of stolen property ." 50. In her judgment , the tr ial j udge found that the attack took place at night in a very violent environment . However , she foun d that the appellant s were sufficiently identified because there was light from a burning motor veh i cle; the inciden t lasted for between and hours; and t he appellants were previously known to the witnesses. 51. But before we deal with the specific arguments against the identifica tion evidence , i t lS necessary to point out that the and appel l ants were each identified by 3 witnesses . The 4th appellant was ident ifi ed by 4 witnesses , while the 3~ appellant was identified by 5 witnesses . I n the case of t h e 2 nd and 5 th appellants, they were both identified by 8 witnesses each . The 1 st appellant , was identified by 11 witnesses. 52. It was argued that the l •t , 2 n d and 5 th appellants ' identification , by Winston Henry Si kazwe, was unreliable because of his poor s i ght . The trial J 38 judge d i d find that Winston Henry Sikazwe had poor sight , but she also found that his identifica tion eviden ce , was corroborated by other witnesses. 53. We have examined the record and find that other than Winston Henry Sikazwe, the 1 st appellant was identified by 10 other wi tn esses . In the case of t he 2 nd appellant and 5 th appellants they were both ide n tified by 7 other witnesses . This being the case , we are satisfied that Winston Henry Sikazwe's "poor identification" of the 3 appellants , was corroborated by the identification evidence of other witnesses. 54. We have also examined the evidence of Yamwela Mo r iland Mwambazi , Enock Chisabi and Ann ie Nachangwa , on what the 1 st appellant prec is ely wore. Yamwela Moriland Mwambazi said he wore a vest , Enock Chisabi said it was a white t - shirt, while Annie Nachangwa said it was a sleeveless musc l e shirt. In our view , these witnesses simply gave different names for the white top that the first ' J 39 appellant was wearing . We do not think that t heir different descriptions would have warranted a court finding that their evidence was contradictory . All the witnesses were agreed on the fact that he was armed and was directing the group . 55. We turn to the argument that the situation at the palace on the evening of 2~ of June 2016 , was traumatic and the witnesses were terrified and thereby compromised the identification evidence . The trial judge acknowledged that the situation was traumatic and the witnesses were terrified , but she also cons ider ed the lighting and the fact that the appellants were previously known to the witness es . 56. It i s common cause that all the 15 witnesses , whose evidence we have already reproduced , previously knew all the appellants . They all testified, in a lot of detail, of the circumstances in which they each identified the appellants . They were also cross examined at length . We are satisfied t h at even if the atmosphere was traumatic , the trial judge was entitled , on the evidence before her, to find that they had sufficient opportunity to identify the appellants . There was lighting from the burning motor vehicle ; the witnesses previously knew them and the attack lasted over an hour . Since they were perceiving the event from different places , one would not expect that they would agree on each and every detail of what transpired. 57. We accept Mrs . Chitundu ' s submissions and find that the trial judge properly assessed the evidence before her when she came to the conclusion that the evidence of identification was credible . It is our considered view that her finding was supported by the evidence and we uphold it . The second ground of appeal equally fails . Verdict 58. Having found that all the grounds of appeal , which sought to challenge the propriety of the conviction lack meri t, we uphold all the appellants ' ' J 41 convictions on all the 3 charges on which they were convicted . 59 . Even t hough the appeals were also against sentence , no arguments were advanced attacking the sentences . Notwithstanding , we have looked at the sentences. Cap it al punishment was imp osed for both murd ers , we f i nd no extenuating circumstances that would have warranted alternative sentences . In the case of the 20 years imprisonment for the attempted murder , it does not come to us with a sense of shock . 60. Con sequently , we uphold all the convictions and s entences imposed on all the appellants and dismiss the appeals . C. F . R. Men ng DEPUTY JUDGE PRES ~ .... .. =--..... -.-..... -.-..... ~ ..... ;=-...... ~: . . . . . . . . . . . . . . ....._- - - , ,u . . ~ .-=:::: M. M. Kondolo COURT OF APPEAL JUDGE ..... C ....................... . F. M. Lengalenga COURT OF APPEAL JUDGE